ORDER
1. This revision petition under Section 25B(8) of the Delhi Rent Control Act, (for short the Act), is directed against an cider passed by the Addi. Rent Controller, Delhi on 6-5-1988, dismissing the eviction petition filed by the petitioner under the provisions of clause (e) of proviso to Section 14(1) of the Act. The petition was dismissed on the sole ground that the petitioner had not been able to establish his plea of bona fide requirement for the tenancy premises in occupation of the respondent, and as such not entitled to an evict ion order, on the ground of personal requirement.
2. I have referred to the first order very succinctly for the reason that the main thrust of the arguments on both sides, during the present hearing, has been with reference to an order recorded on 2-5-1992 by the Addl. Rent Controller giving finding in respect to certain additional facts urged and proved by the petitioner, as well as subsequent events pleaded by the respondent.
3. Before proceeding further, I would like to put on record that there is no dispute that the other essential ingredients of Section 14(1)(e) of the Act are not established, inasmuch as there is no dispute now being raised about petitioner’s being owner/landlord of the tenancy premises, about the tenancy premises being of residential nature, and the same having been let out for residential purposes. The whole controversy is concentrated on the issue of bona fide personal requirement of the petitioner. It is also noteworthy that the petitioner has taken recourse to the provisions of Section 14(1)(e) not on the plea of insufficiency of accommodation presently available to him, but on the ground of unsuitability, pleading number of factors to support this plea.
4. In view of the above, the only scrutiny that is now required to be made by this Court is in respect to the correctness and legality of the order recorded by the Addl. Rent Controller, originally as well as subsequently, by way of additional finding, vis-a-vis the plea of personal requirement.
5. In so far as the first order is concerned, the factors which prevailed with the Addl. Rent Controller in rejecting the plea of bona fide requirement of the petitioner was that he had earlier also come up with eviction petition
against the present respondent, which was in the year 1972, and that petition was withdrawn in 1973 which, according to the tenant’s allegation, was on account of the fact that the rent was increased. Petitioner’s explanation is that the increase in rent from original of Rs. 500/- p.m. to Rs.650/- p.m. in 1972-73 was not with a view to any motive of seeking enhancement of rent, but because some additional facilities or accommodation were provided. It is further explained by the petitioner that at that time he was living in his ancestral house, where he continues to reside uptil now together with his father, and the family had been living there for long long years, and that the father did not want to shift, and in deference to the wishes of his father, he did not continue with the said eviction petition, and after death of the father in 1975, the second eviction petition was filed in 1977; the present revision petition being the outcome of the second eviction petition.
6. Tenant’s further contention was that, not only that eviction petition filed against him was withdrawn, on increase of rent, but even in respect to the second tenant on the first floor of the premises named Mr. M. K. Awasthi, an eviction petition was filed in or around the same time, but that too was withdrawn after enhancement of rent. This increase, according to the petitioner was from the original rent of Rs. 525/- p.m. to Rs. 775/-p.m.
7. It has been stated today, which fact has not been controverter, that the house in question was built around the year 1968, and that the respondent and Shri M. K. Avasthi were the first tenants, with the result that the tenancy in favor of Shri Awasthi commenced also some time in 1968, and their rent was also increased in the year 1972 or 1973 because of some additional facilities of accommodation being made available.
8. The fact that the increase of rent of the tenancy premises was due to additional accommodation or facilities being provided, is being denied and similarly, it is pointed out by learned counsel for the respondent that there is no evidence on record that rent of Shri Avashti’s premises was increased due to
provision of some additional facilities.
9. The petitioner elaborated this by stating in his examination-in-chief that additional facilities of a bath and toilet for the servant on the back of the tenancy premises was provided on tenant’s request, and for that reason rent was increased. This had been clarified in the cross-examination by the petitioner by voluntary statement. The record does not show that he was further controverter on this point. It can, therefore, be taken as established that the previous increase in rent was due to provision of additional facilities of bath and latrine, as stated by the petitioner, in so far as respondent is concerned.
10. Mr. Khanna, appearing for the petitioner today, has submitted that after the year 1972, there is no evidence that any rent was increased. There is no doubt oral statement of the respondent that around the time the present eviction petition was filed in the year 1977, there was again a pressure for increase of rent to Rs. 1000/- p.m., and on his declining to do so, the eviction petition was filed. No such suggestion was put to the petitioner when he came into the witness box. It is thus a case where from 1972 onwards, there has been no actual increase in rent. It is very usual for tenants, when faced with eviction petitions, to make such type of allegation about demand for increase of rent. In a case like this where first increase in rent twenty years back is duly explained, and there is nothing on record, to substantiate plea about further demand, tenant’s allegation deserves to be dismissed.
11. In so far as Shri Avasthi, the second tenant, is concerned, the allegation has been resolutely denied by the petitioner, and Mr. Khanna stated at the Bar, on instructions, that after increase, which has been explained, rent remained as before, namely, Rs.775/-p.m., and that an eviction petition is pending against Shri Awasthi, and rent is being deposited at the same old rate, pursuant to an order passed under Section 15(1) of the Act. He also explained that the second eviction petition was withdrawn due to some formal defect, and around the same time the fresh
eviction petition was filed, which is still pending before the Addl. Rent Controller, The petitioner was not expected to prove anything beyond that in the present case, because no one can establish a negative, beyond a certain point. Mr. Awasthi has not been examined in the case by the respondent to say that no facility was provided to him when the rent was increased for the first time or that the rent is being paid @ Rs. 1200/-p.m., as alleged by the respondent, and not at the old rate of Rs. 775/- p.m., as explained by the petitioner. There could be no love lost between the petitioner and Mr. Awasthi, and he would have gladly come in the wit ness box to support the respondent, had there been any truth in the allegations.
12. In view of the above, I am of my considered view that the learned Addl. Rent Controller betrayed a superficial and erroneous approach, by accepting ipse dixit of the tenant that the present eviction petition has been filed with the sole motive of enhancement of rent, and dismissing the eviction petition on this sole ground, which was filed in the year 1977, on detailed grounds of unsuitability of the accommodation presently with the petitioner, enumerating a number of factors.
13. The question has, therefore, to be examined with reference to the grounds originally pleaded, as supplemented by pleas which were the subject matter of the finding recorded in the second order, where again the learned Addl. Rent Controller came to the conclusion that the petitioner cannot be said to be in any bona fide personal need of the tenancy premises. Before I proceed to discuss the various pleas, and the evidence in support, vis-a-vis the finding, it has to be noticed that the accommodation with the petitioner, as at present, is on a very small plot of land, which is stated to be about 80 sq. yds., and appears to be an old type of structure, as indicated by the site plan.
14. The petitioner has staled in the eviction petition itself against para 18 (a) that this house is situate in a very dingy narrow blind lane, and that the ground floor has no sun light during the day, so much so that
electricity has to be used all the 24 hours of the day. He has further pleaded that the house was situate in a very congested locality of the walled city, where no conveyance except a cycle rickshaw can go, and that the residents of the area have to park their cars away from the locality, nearest place being Asaf Ali Road. He also stated that he has his business in Hauz Khas area in South Delhi, and he was finding it very difficult to commute all the way to his present house, in the walled city where no vehicular traffic has access. The learned Addl, Rent Controller did not take note of any of these pleas while disposing of the eviction petition first time. Me was only influenced by the plea of the tenant about enhancement of rent which finding I have already held, does not stem from a proper appreciation of evidence.
15. In the second round of evidence, the petitioner has led extensive evidence that the locality where the house in which he is presently living is situate inside the walled city where amongst other factors, there is rising pollution, making day to day life very difficult, besides being hazardous to health. He stated categorically in his examination-in-chief that the house opposite to his, has been converted into a factory for nickel polish, where Chemicals are being used, and an exhaust fan of 2 diameter has been installed lacing his house, with the result that Chemically filled air is thrown towards his house, polluting the entire atmosphere continuously. He has further stated that the other residential houses in the area have been converted into business establishments or factories or bakeries where fuel ovens are used, which add to the pollution in the area.
16. The petitioner had also pleaded that he suffered from ill health, and had even been hospitalised in Tirath Ram Shah Hospital in the year 1988, due to a disease known as acute penerealitis. He supported this plea by producing medical record. He was not controverter on this fact during cross-examination nor on the fact that he has business premises in South Delhi. No doubt, the learned counsel for the respondent has pointed out that the petitioner has stated that the
business of export import, which was being carried from the premises in Hauz Khas had been discontinued but Mr. Khanna explained at the Bar, on instructions, that the business continues, but because of some litigation, the petitioner was not presently using the office premises in Hauz Khas. Be that as it may, the fact remains that petitioner’s business is nowhere near the vicinity of his present house.
17. There is also no controvert ion to the plea that no vehicle or conveyance, except a cycle rickshaw can be taken to the locality, where petitioner’s present house is situate. Apart from the general incovenience, it can be imagined what hardship can be caused to a person living there at the time of emergency like illness or some other similar situations. It is understandable persons who do not enjoy any other option, have per force to face this type of hardships, but there can be no defensible reason why a person who owns a house in an area like greater Kailash should be compelled to continue facing this type of hardship.
18. The additional factor, which has been pleaded, and which was one of the grounds for remitting the matter to Addl. Rent Controller for recording, and for giving fresh finding, is that of certain situations which the petitioner and his family had to face, I would not like to dwell at length on the details given because it would not be conducive for maintenance of amity between citizens of the country, but a very glaring fact, which has come on record, and which cannot be ignored is the fact that this is a locality which is subject to frequent imposition of curfews. This is a matter, which does not require any proof as to what type of hardship the residents of a locality face when curfews are imposed. The petitioner has even produced evidence that in the years 1986 and 1987 curfew was imposed in the area, which continued for about 25 days. Mr. Kanna has further stated that this fact is to every body’s knowledge that there is curfew in the entire walled city now-a-days, including the locality where the petitioner is living, since 6th December, 1992.
19. It goes without saying that in times, such as this, the residents of the locality face
utmost hardship even in procuring their day to day requirements, such as ration, milk or medicine or attending to their normal avocations, visiting relations or friends which may be part of social obligation, not to speak of situation where a member of the family is taken suddenly ill, and had to be rushed to a doctor or medical assistance is required.
20. The Rent Control Act was, no doubt, enacted primarily with the basic objective of giving protection to the tenants, and to save them from harassment by avaracious or overbearing landlords, but over the years, this protection has, at times, been noticed to be turning into a tyranny, for the landlord, ironically under the veneer of legal support. There is consequently a need for maintenance of a judicial balance, and change in perceptions, relevant to the facts of a case. And when parties arc found to be on equal fooling, and landlords found to be suffering innumerable hardships, then I think the whole question acquires a different perspective.
21. Reverting to the facts of this case, the respondent was inducted in the premises in the year 1968, and a judicial notice can be taken of the fact that that as far as pollution in the walled city is concerned, as also the state of traffic congestion, that has increased manifold, during the last twenty five years, inasmuch as vehicular-traffic has increased out of all proportion, the members of the family grew, as in this case. When the premises where let out in 1968, the petitioner is family consisted of himself, his wife, two sons and one daughter. So far as sons are concerned, their present age is given as 40, and 32 years, which means that in 1968 they would have been about 1920 and 12 years old. The eldest son has got married and has wife and two children. According to the petitioner, he is jointly living with him, along with his family. There is no suggestion that the said son has alternative accommodation of his own or is not dependent upon the father, namely, the petilioner, for his requirement of residence for himself and his family members.
22. The eviction petition itself has been pending since the year 1977 i.e. for more than 15 years. The proposition cannot be countenanced even on a very holistic view of the Delhi Rent Control Act that a landlord once having let out the premises forfeits his right to live in his own house, for all time to come, even when his circumstances change, and the accommodation with him becomes entirely unsuitable due to number of factors, such as have been discussed, existing in the present case.
23. The only contention which requires consideration is the allegation of the respondent that the second son of the petitioner, who is stated to be unmarried, had acquired a flat some time in the year 1988 in Patpar Ganj area, and that that flat itself constitutes an alternative accommodation. This was a subsequent event, which was pleaded by the respondent, and which the court allowed to prove.
24. The petitioner has explained that the flat had been purchased by the said son without his knowledge, and that in any case that flat was not, at all, suitable for the reason that it was a duplex flat, situated on third floor of the building, and that both he and his wife, due to their old age and attendant ailments would have not found it possible to climb the stairs, if they were compelled to live in that flat. In addition, it was pleaded that near that flat, there is an open nullah at a short distance of about 1/1-1/2 kilometer, which was a breeding ground for mosquitoes, and otherwise source of foul smell, and there was a railway track close by causing disturbance at regular intervals, which entails disturbance of sleep at night and that for that reason, that flat even if it was available to him, was not suitable for his residence.
25. The said son named Shri Atul Kumar has been examined as AW 14, He deposed that he became a member of Adarsh Cooperative Group Housing Society in the year 1980-81 by paying Rs.4000/-, and that subsequently he contributed towards this flat by raising loans, and it was finally allotted to him in 1988, but since he could not manage the finance, he sold it out. Learned counsel for the respondent argued that there was no evidence on record that the flat had really been sold and was no longer available to the son or
the petitioner’s family.
26. I have considered this aspect of the matter in all its aspects. In the first instance, I find that although it is being alleged that the flat, in fact, belonged to the petitioner, and was benami in the name of the son, there is not even whisper of a suggestion to the son that the finances for that flat were provided by the petitioner. The son is a grown up adult, with independent income and in the absence of even a suggestion that petitioner funded purchase of this flat, petitioner’s plea that he was not the owner of this flat deserves credence. It is the consistent view of this Court that a landlord petitioner should own a property, which is being set up by the tenant as alternatively available to him, in his own right, and he should he able to live there in his own right, and not on any body’s sufferance, and if that was not so, then tenant cannot resist eviction on the plea of availability of another residential accommodation to the landlord. I see no reason to depart from this view.
27. In the present case, in the absence of any suggestion even that the petitioner supplied money for the purchase of that flat, it has to be taken on record that the son, who has deposed that he had independent business, and had become a member of the Group Housing Society as far back as in the year 1980, was the owner. It is not relevant to go into the question whether that flat has been really sold or not, and whether the sale transaction, which is being alleged, is recognised one or not, because of the legal position that, that house is not available to the petitioner in his own right. It has otherwise been shown to be highly unsuitable for the reasons, detailed above. The Addl. Rent Controller has dealt with this part of the plea of the petitioner by a strange logic, stating that a person who is to choose between the foul smell or hazardous effect of Chemicals or other pollution, and mosquitoes or foul smell generated by an open nullah or disturbances caused by rail traffic on nearby railway track, should not mind the latter, which means that the facts are not disputed. This, I am constrained to say, is not a correct way of appreciating the plea of a
litigant; particularly when the petitioner in this case has his own house in a locality like Greater Kailash which, as per the site plan Ex. PW2/2, is a commodious house, built on a plot of 300 sq. yards, with open front lawn and back courtyard, and is very well ventilated, with all the facilities of a lobby, verandahs, and guest room which can serve the need of the married daughter visiting her parental home, with her husband and children. There is no reason for the tenant to insist that the landlord should be doomed to continue living in the old house of his ancestors which, according to him, was built more than 100 years back on a plot of 80 sq. yards, and is situate in a dingy narrow blind lane, with no sun, and is practically un-ventilated, and in otherwise surrounded by pollutants; in addition to the disruption and dislocation in normal life caused by recurring imposition of curfews, and there being no facility of any vehicular traffic, and the place is far away from his business, operated from South Delhi. All these factors cumulatively do make the present house to be wholly unsuitable place to live in, and as a corollary making it to be a case of bona fide personal requirement of the landlord.
28. The ingredients of bona fide personal requirement, have built into it the factor of unsuitability of the premises available with the landlord, in the same way as insufficiency thereof, and in this case the petitioner has established beyond doubt that the premises, presently with him, are not at all suitable, due to a number of factors. I am, therefore, of my clear view that the Addl. Rent Controller has betrayed an entirely erroneous approach in the matter, and this is a case where interference of this Court under Section 25B(8) of the Act is called for.
29. Another interesting factor which betrays the falsehood and unreasonableness of the stand of the respondent has been mentioned by Mr. Khanna at the Bar during hearing to the effect that the petitioner, during pendency of the matter before the Addl. Rent Controller for recording additional evidence, had made unqualified offer to the tenant of handing over the premises in his
occupation, as at present, to the respondent, even free of rent, and that this offer was declined by the tenant. Mr. Khanna further added that this is in spite of the fact that the respondent has business premises in Hauz Qazi, which is close to the locality where the petitioner’s house is. Mr. Khanna further stated that he has instructions to repeat this offer today again, but although respondent is present in Court, there has been no response to this offer. This fortifies the plea of the petitioner that these premises are not suitable for normal and healthy living. The only explanation which Shri Harbans Lal offered, apparently on instructions, was that since the respondent has from the time he came to Delhi been living in the tenanted house in Greater Kailash whereas the petitioner has from his birth lived in his present house, the question of his (respondent) now start living in this old house in walled city could not be considered. There could be nothing more to expose the unreasonableness of tenant’s conduct, who expects the landlord to subject himself to continued hardship of living in his old house, even after building a house in Greater Kailash, simply because he committed the mistake of letting it out twenty five years ago.
30. In this setting of facts, there could be no better case of bona fide requirement of the landlord for himself or for members of the family dependent on him for residence, than the present one.
I, accordingly, allow the revision petition with costs, and set aside both the orders — original order dated 6-5-1988, as well as second order dated 2-5-1992, recording additional finding, opinion that the eviction petition was liable to dismissed. Counsel fee Rs.2000/-.
31. As a result, the eviction petition is allowed, and eviction order is passed in favor of the petitioner against the respondent from the tenancy premises. The respondent shall put the petitioner in vacant possession of the premises, as per plan Ex. PW2/ 2, on the expiry of the statutory period of six months, as contemplated by Section 14(7) of the Act.
32. Civil Revision allowed.