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Freddy Fernandes Vs. P.L. Mehra - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 155 of 1971
Judge
Reported inILR1973Delhi682
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantFreddy Fernandes
RespondentP.L. Mehra
Advocates: R.P. Malhotra and; D.N. Suri, Advs
Cases ReferredIn Inder Sain Seengal v. J.E. Compose
Excerpt:
delhi rent control act (1958) - section 14(1) clause (e) of proviso thereto - requirements of expression 'bona fide' - meaning of - need of landlord even if subjective not limitless.;that the requirement that the need of the landlord must be 'bona fide', is intended to be very restrictive. it definitely limits the choice of the landlord. the expression 'bona fide' is not to be understood as indefinitely enlarging the choice of the landlord and leaving it to his own subjective discretion. further, whenever the subjective discretion of a person is to be scrutinized by a court or a tribunal it necessarily follows that such a subjective discretion has to be reasonably exercised. just as in the field of administrative law even subjective discretion cannot be limitless but has to be.....v.s. deshpande, j.(1) under clause (e) of the proviso to sub-section (1)of section 14 of the delhi rent control act, 1958 (hereinafter called the act) the controller may, on an application by the landlord, order the eviction of the tenant on the ground that :- (1)the premises are required bona fide by the landlord for the occupation of himself and/or his family, and (2) the landlord has no other reasonably suitable residential accommodation.(2) the decision of this appeal by the tenant under section 39 of the act depends upon the correct construction of these two provisions and their inter-connection, on the following facts : 'thelandlord respondent is a grade iii central government servant, his pay being rs.600.00 per month. he owns two houses, one in nizamuddin and the other in.....
Judgment:

V.S. Deshpande, J.

(1) Under clause (e) of the proviso to sub-section (1)of section 14 of the Delhi Rent Control Act, 1958 (hereinafter called the Act) the Controller may, on an application by the landlord, order the eviction of the tenant on the ground that :-

(1)The premises are required bona fide by the landlord for the occupation of himself and/or his family, and (2) The landlord has no other reasonably suitable residential accommodation.

(2) The decision of this appeal by the tenant under section 39 of the Act depends upon the correct construction of these two provisions and their inter-connection, on the following facts :

'THElandlord respondent is a Grade Iii Central Government servant, his pay being Rs.600.00 per month. He owns two houses, one in Nizamuddin and the other in Jangpura. He occupies the ground floor of the Nizamuddin house. In column 14 of the petition for eviction he stated that the appellant was his tenant occupying the first floor of the Nizamuddin house from 1-3-1966 as per court decision. In para 6 of the written statement, the tenant stated that he was a tenant of the premises from 1-8-1961 but the landlord tried to evict him in case No. 961 of 1964 decided on 19-3-1966 by the Controller. But the tenant got the standard rent of the house fixed in that case. No rejoinder was filed by the landlord and the argument proceeded on the basis that the tenant was in occupation of the premises from 1961 onwards. The landlord applied for the eviction of the tenaat in June 1969 on the ground that he required the premises bona fide for the occupation of himself and his family which consisted of his wife and five children. The tenant resisted the petition on the ground that the accommodation with the landlord on the ground floor of the house was sufficient as the daughter of the landlord was expected to be married soon while one son of the landlord was living in a hostel. The tenant also pointed out that the landlord had purchased another house at Jangpura which he let out. By subsequent affidavits of the parties it was stated that while the daughter of the landlord has since then been married the son of the landlord had also been married. The income of the landlord from rent of the houses is said to be RS. 1000.00 per month. As the rent of the premises occupied by the tenant is Rs. 225.00, the rent from the Jangpura house is presumed to be about Rs. 775.00. The son of the landlord and Shri Kaira, 'Advocate, were both examined as witnesses before the Controller in January-February 1970. They stated that the Jangpura house was let out about a year ago. This would mean that it was let out in February 1969. The tenancy was terminated by the landlord by notice given in May 1969. The first floor of the Nizamuddin house is a two bedroom flat while the ground floor in the possession of the landlord is also a two bedroom flat. The landlord himself stated before me that the Jangpura house was also double storeyed with four bedrooms in all. The Jangpura house was, thereforee, as big as the Nizamuddin house. The case was argued before me on this basis.'

(3) The Controller held that the ground floor of the Nizamuddin house was sufficient for the need of the landlord and his family. He further held that if the landlord really needed additional accommodation, he would not have let out the Jangpura house just four months before the filing of the petition for eviction and that his conduct proved that the landlord did not require the premises bona fide. The petition for eviction was, thereforee, dismissed. The appeal of the landlord against the decision of the Controller was, however, allowed by the Rent Control Tribunal onthe following grounds:-

(1)Though the landlord's son had joined Army ssrvics and was posted outside Delhi, one bidroana was re^ulrii by thi lani- lord and his wife while the othsr bsiroam.was not sufficient for the sons and grown up daughter. (2) The letting out of the house in Jangpura did not make the requirement of the landlord mala fide. The landlord could not be expected to keep half oF his family in the Nizamuddin house and the other half in the Jangpura house.

(4) The Tribunal, thereforee, orderedthe eviction of the tenant. In this second appeal bythe terunt biFore mi, thi following substantial questions of law arise for decision:-

(1)Whether the requirement of the landlord for the premises was 'bona fide' and (2) Whether he had 'no other reasonably suitable residential accommodation' Let us examine them.

(5) Question NO. 1 What is the meaning of the expression 'bona fide'Section 2(19) of the General Clauses Act defines as follows:-

'Athing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not.'

(6) Taken by itself, thereforee, 'good faith' of the landlord is to be found out primarily from his own state of mind. It was, thereforee, observed in Laht Kumar Vijay v. Saroj Kumari 1969 R.C.R. 555, paragraph 5(1), as follows:-

'THEmeaning of 'bona fide' in this context appears to be two-fold. Firstly, the need must be a genuine one and not a frivolous one ...... The second aspect of the bona fides is that the landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant'.

(7) Relaying on this subjective aspect of the requirement of bona fides alone, the Tribunal observed in paragraph 7 of the order under appeal that 'it is settled law that the landlord ordinarily was the sole judge of his requirements'. He purported to rely on two decisions of this Court, namely, Om Parkash Singal v. Roshan Lal Khanna 1969 R.C.R. 391 (2), and Ram Narain v. Lakshmi Dass Kundra 1971 R.C.R. 227(3). In Om Parkash Singal v. Roshan Lal Khanna 1969 R.C.R. 391(2), 1. D.Dua, C.J., observed as follows :

'ASa broad workable rule, the landlord must be left to assess his requirements in the background of his position, circumstances, status in life and social and other responsibilities and other relevant factors'.

(8) This observation is not to be understood in an absolute sense. At page 394 of the report, his Lordship sympathised with the argument of the landlord that 'merely because some portion of the house was let out by the landlord which presumably was not convenient or comfortable enough for his requirements', the claim of the landlord would not be construed as mala fide. It would not be open to the Rent Control authorities to substitute their opinion for that of the landlord Certainly, which particular accommodation is required by the landlord has to be judged according to the needs of the landlord. For instance, if the landlord wants to live near the place of his business, then the accommodation near the place of business would be sought by him and this requirement of his would be bona fide. He could decide not to avail himself of some other accommodation which was way from the placej of business and was not convenient to him. In thus judging his special needs and convenience certainly the landlord would have a choice. This does not, however, mean that whatever the landlord decided about hi' own needs would be beyond question by the Rent Control authorities. For, whether the need of the landlord is 'bona fide' is to be judged not by the landlord himself but by the Controller. This is why the order for eviction on this ground can be made only by the Controller and that too, if in the opinion of the Controller, the need of the landlord is bona fide. What is meant in that in arriving at this decision, the Controller will have due regard to the personal requirements and convenience of the landlord. If the ultimate decision is to be not by the landlord himself but by an impartial tribunal, then as was observed in O.P. Kapoor v.Padma Kaur 1972 R.C.R. 1960 (0, Paragraph 14-

'THEREis not much difference between what the landlord honestly wants and what he should in all honesty want. The latter imports the concept of reasonableness ..............In the felicitous words of Holmes in his 'The Common Law' the conduct of a reasonable man implies that 'when man lives in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare'.

(9) Secondly, the learned Chief Justice took note of the Division Bench decision in Roop Lal Mehra v. Kamla Soni 1966 P.L.R.146 (Delhi Section) (s) in which it was observed that 'the decision of the landlord would be both subjective and objective'. The Division Bench expressly concluded that 'whatever may be the scope of the expression 'required bonafide by the landlord' it appears to be fairly clear that read as a whole, clause (e) of the proviso to sub-section (1) of section 14 does not make the landlords sole arbiters of subjectively deciding the question of their requirements. It is possible that the latter part of the clause has been added to avoid an argument that once the landlord has been able to show that he in fact desires possession and genuinely intends to occupy it, his claim becomes unanswerable. I think, the clause does confer a power of scrutiny, though of limited nature, on the authorities charged with the function of deciding disputes under the said Act'. The decision in Om Parkash Singal v. Roshan Lal Khama could not, thereforee, be construed to lay down any such absolute proposition that the landlord is the sole judge of his requirements. The observation in Ram Narain v. Lakshmi Dass Kundra 1971 R.C.R. 227, is tothe following effect:-

'FURTHER,as observed in Om Parkash's case, which I have noticed above, the landlord must be regarded as the sole judge of his requirements and cannot be denied the right to choose any portion of his property the possession of which he wants to recover and which will be convenient for his residence'.

(10) Firstly and with great respect, the decision in Om Parkash's case does not say that the landlord must be regarded as the sole judge of his requirements in any absolute sense. Secondly, the right of the landlord to decide upon his own requirements is to be understood in the light of the latter part of the above observation, namely, the right to choose between alternative accommodation according to his convenience. There is ro doubt that the convenience of the landlord has to be considered and in this respect his judgment about his requirements has to to be given due weight.

(11) There are two more considerations relevant in understanding the meaning of the expression 'bona fide' in this context. The requirement that the need of the landlord must be 'bona fide' is intended to be very restrictive. It definitely limits the choice of the landlord. The expression 'bona fide' is not to be understood as indefinitely enlarging the choice of the landlord and leaving it to his own subjective discretion. Further, whenever the subjective discretion of a person is to be scrutinised by a court or a tribunal, it necessarily follows that such a subjective discretion has to be reasonably exercised. Just as in the field of administrative law even subjective discretion cannot be limitless but has to be reasonable, similarly the need of the landlord, even if subjective to the extent of being based on his personal requirerrents, is not limitless. It has to be reasonable vis-a-vis the protection afforded to the tenant by the Act against eviction.

(12) In T.B. Sarvate v. Nemichand 1965 J.L.J. 973 the Supreme Court held that while it was true that the bona fide or genuineness of a claim for eviction made by the landlord relates to the state of the mind of the landlord and ordinarily means 'honestly' the mere assertion by the landlord that he requires the premises would not be sufficient to prove or give a presumption of genuineness or bona fide to his claim. The subjective and the objective tests of 'bona fides' ultimately become only rules of convenience for the Controller to decide whether the requirement of the landlord is bona fide and is also not unreasonable. The Supreme Court in T.B. Sarvate's case has substantially narrowed down and circumscribed the scope of the subjective test by holding that the mere assertion by the landlord as to his requirement would not be enough and that it is for the court to determine objectively on the basis of the materials on record whether in a given case the requirement is genuine or not. In Neta Ram v. Jiwan Lal, : AIR1963SC499 it was observed that a clear distinction had to be borne in mind that what the provisions refer to is the bona fide of the claim of the landlord and not the bona fide of the landlord. The distinction between the two lies in the fact that the landlord may honestly feel the requirement but it is not borne out by the pleadings and surrounding circumstances. In the circumstances, the claim would not be genuine although the landlord's bona fides exist. According to this distinction, even if bond fide, the landlord's requirement has to be reasonable. This is why the Division Bench decision in Roop Lal v. Kamla Soni imposing the objective scrutiny of the Controller on the subjective requirements of the landlord was affirmed by the Supreme Court in Kamla Soni v. Roop Lal 1969 R.C.R. 1017 (8). In paragraph 3 thereof the Supreme Court observed as follows :-

'INdetermining whether the claim is bona fide, the court is entitled and indeed bound to consider whether it is reasonable'.

(13) Finally the bonafides of the need of the landlord has to be accompanied with the absence of any other reasonably suitable accommodation before the landlord can succeed in evicting the tenant under clause (e) of the proviso to sub-section (1) of section 14. Due to this inter-connection of these two requirements, each is influenced by the other. This brings us to consider the second question.

(14) Question NO. 2: Even if a landlord bona fide needs for himself the premises occupied by the tenant, the landlord must show that any alternative accommod ation available to him is not reasonably suitable. The need of the landlord and the reasonable suitability of the alternative accommodation have both to be judged simultaneously. In the present case, the need of the landlord has not arisen suddenly. He let out the premises to the tenant in 1961. For about eight years he did not need the premises and the ground floor of the Nizamuddin house apparently satisfied his needs. He bought the Jangpura house seven years prior to 1970 (as deposed by his son), that is to say, around 1963. Assuming that it was then a newly constructed house, the landlord availed himself of section 6(2)(b) of the Act to recover the contractual rent from the tenant because the said contractual rent was deemed to be the standard rent for the first five years after the letting of the house. It was after the landlord had availed himself of this benefit that he again let out the Jangpura house in or about February 1969. The need of the landlord for the premises has arisen gradually as his children grew up. In 1961 they were comparatively young but by 1969 they had grown up to some extent. It cannot be said, thereforee, that the landlord did not need the premises in February 1969 but suddenly needed them in May 1969 when he terminated the tenancy and in June 1969 when he filed a petition for eviction. The children had grown up in February 1969 also. There was no other need of the landlord for the premises except the one consisting of proper accommodation for his growing children. In February 1969, thereforee, the landlord had to choose between two alternatives:-

(1)To occupy the Jangpura house which had four bedrooms which are wanted for the grown up children. (2) To evict the tenant from the premises so that in the Nizamuddin house itself the landlord can have four bed rooms sufficient for the family.

(15) It is primarily the convenience of the landlord which is to determine the choice between these two alternatives. If, for instance, one of the houses was more convenient to the landlord than the other one, then the landlord could legitimately choose the more convenient house. Such convenience may arise out of several reasons. The particular house may be nearer to his place of business or it may be nearer to the school of his children or it may be near to the houses of friends and relations or it may be in a healthy locality in New Delhi while the other house may be far away from his place of business or the schools of his children or the houses of his friends and relations or it may be in a congested locality in Delhi.

(16) In the present case, however, the two localities Nizamuddin and Jangpura are adjacent to each other. Both the localities are residential. Both are in New Delhi and there is nothing to show that there is any ground on which the landlord could have preferred the Nizamuddin house to the Jangpura house. When the landlord files a petition for eviction, he has to prove not only that his need for the premises is bona fide but also that he has no other reasonably suitable accommodation for himself. Both these facts are within the special knowledge of the landlord and the burden of proving them is, thereforee, on the landlord in view of section 106 of the Evidence Act. Since no evidence can be adduced by the landlord except in accordance with his pleading, it is necessary, thereforee, that the landlord should make a proper pleading of both of them in the petition for eviction. Unfortunately, the landlord respondent has not said a word in the petition for eviction as to the absence of any other reasonably suitable accommodation. Even when the tenant pointed out that he had recently let out the Jangpura house, the landlord did not file a rejoinder to explain that the Jangpura house was not reasonably suitable. It is only if the need of the landlord for additional accommodation had not existed in February 1969 but had arisen subsequently that the failure of the landlord to make a proper pleading about the Jangpura house and to explain why it was not a reasonably suitable accommodation for him could be excused. In Sain Das v. Madan Lal 1971 R.C.R. 887, an appeal against which was dismissed by the Supreme Court in Madan Lal v. Sain Das 1971 R.C.R. 747, the sole ground on which the petition for eviction by the landlord was dismissed was that the premises had been let out by the landlord to the tenant only eleven months before the petition for eviction was filed. Now, it is not a conclusion of law that such a petition must be held to be mala fide. It was open to the landlord to show that his needs might change from time to time or that the landlord might not have been clever enough to anticipate his needs. Merely because a petition for eviction is filed soon after the premises are let out, it could not be conclusively presumed that the petition was mala fide. There is another distinction between the present case and the Supreme Court decision in Madan Lal v. Sain Das. In that case, the very house which was bona fide wanted by the landlord had been let out to the tenant. The question, thereforee, was only whether the need of the landlord was bona fide. The second requirement of clause (e) of the proviso to subsection (1) of section 14, namely, whether the landlord had any other reasonably suitable accommodation did not arise for consideration in that case. On the other hand, in the present case, the landlord had other reasonably suitable accommodation. The Jangpura house was such other accommodation. It was different from the premises occupied by the tenant. The need of the landlord for the premises was the same in February 1969 as it was in June 1969. For, the need consisted of additional accommodation for the growing children of the landlord. It could not be said that in February 1969, the children had not grown up but in June 1969 they had grown up. The decision in Madan Lal v. Sain Das does not, thereforee, govern the facts of the present case.

(17) In Inder Sain Seengal v. J.E. Compose 1970 R.C.J the landlord let out a part of his house three months before his retirement. The Explanationn was that he expected extension of service. The Tribunal was not satisfied with the Explanationn but the High Court was so satisfied. That distinguishes the said decision also from the present case. In the present case, the landlord not only failed to make any pleading about the Jangpura house but also did not give any Explanationn either during evidence or in affidavits filed to support the interim applications as to why the Jangpura house should not be regarded as 'other reasonably suitable accommodation' available to him within the meaning of clause (e) of the proviso to sub-section (1) of section 14 of the Act. In the absence of any such Explanationn, it must be held that in February 1969 when the landlord needed additional accommodation for his growing children 'other reasonably suitable accommodation' was available to him in the shape of Jangpura house. The only thing on record is the affidavit of the landlord that his income from rent is RS.1000.00 per month from which one can infer that the rent of Jangpura house was about Rs. 775.00 per month. Judicial notice can be taken of the fact that the house rents in Delhi have been on the increase during the last ten years or so. It may be, thereforee, presumed that the rent which the Jangpura house could fetch in 1969. namely, Rs. 775.00 per month, would be higher than the rent which that house could have fetehed in 1963 when it was purchased by the landlord. Similarly, the rent of the house let out to the tenant in 1961 would be higher in 1969 but for the fact that the tenant got the standard rent thereof fixed in 1956. The landlord had, thereforee, an economic reason why he did not want to occupy the Jangpura house in February 1969 in preference to the Nizamuddin house. For, while the first floor of the Nizamuddin house could fetch him only Rs. 225.00 per month which was the standard rent fixed in favor of the tenant, he could get Rs. 775.00 per month as rent for the Jangpura house. Of course, he could get Rs. 300.00 or Rs. 400.00 per month for the ground floor of the Nizamuddin house if he wanted to let it out. Even then the Nizamuddin house would have fetched, him about Rs. 525 to 625.00 or so per month while the Jangpura house got him Rs. 775.00 per month. The landlord thus stood to gain Rs. 150.00 or Rs. 250.00 per month by letting out the Jangpura house and by deciding to continue to occupy the ground floor of the Nizamuddin house and to seek to evict the tenant from the first floor of the Nizamuddin house. The desire to seek economic gain would be legitimate. By itself it would not have made the need of the landlord for additional accommodation in the Nizamuddin house itself mala fide. The landlord could still be held to need the premises 'bona. fide' if this was all that he had to prove under clause (e) of the proviso to sub-section (1) of section 14 before succeeding in his petition to evict the tenant. But. as stated above, this is not the only requirement of clause (e) which had to be satisfied by the landlord. He had to satisfy the other requirement also by showing that he had no 'other reasonably suitable accommodation'. The question, thereforee, is whether the Jangpura house was not such 'other reasonably suitable accommodation'. In considering the reasonable suitability of alternative accommodation, various factors can be taken into account such as convenience of the landlord and also the economic gain of the landlord. But the suitability of the alternative accommodation has to be assessed on a reasonable basis. If, for instance, the alternative accommodation was in a locality which was either far away from the premises or which was not comparable to the locality in which the premises were situated, then the alternative accommodation may not have been 'reasonably suitable'. For instance, if the alternative accommodation had been luxury accommodation in, say, Connaught Place, which would fetch a rent which was double the rent which could be fetched by the Nizamuddin house, then it could be arguable that such luxury accommodation would not be reasonably suitable accommodation to the landlord inasmuch as he would be then sacrificing too much economic gain by occupying the same. The landlord was entitled to prefer accommodation which was suitable to his status in life. Accommodation which was either too much below or too much above the reasonable requirements of the landlord would be unsuitable to him. But the difference between the rents which could be fetched by the Jangpura house which could be let as a whole and by the Nizamuddin house the first floor of which is already occupied by the tenant and of which the ground floor alone could be let is not more than Rs.l50 to Rs. 250.00 per month. As the landlord has already enjoyed the benefit of section 6(2)(b) of the Act in obtaining the maximum possible rent for the Jangplira house for the first five years after the purchase, the rent-fetching potentiality of the Jangpura house cannot be now said to be much greater than that of the Nizamuddin house even after making allowance for the continued occupation of the first floor of the Nizamuddin house by the tenant. After all, what is 'reasonably suitable' may depend not only on a difference of kind but even on a difference of degree. lf the alternative accommodation is of a different kind than the premises in dispute, not much argument would be needed to show that it would not be reasonably suitable. On the other hand, if the alternative accommodation is of the same kind as the disputed premises, the presumption would be that it is 'reasonably suitable'. Of course if it, though of the same kind, is different from the disputed premises economically, then the degree of difference would have to be considered. In the present case, the degree of difference between the Jangpura house and the Nizamuddin house cannot be said to be such that the Jangpura house was not reasonably suitable for the occupation of the landlord. If even a comparatively small economic loss to the landlord is to be construed as making the alternative accommodation not reasonably suitable, then the protection afforded by the Act to the tenant would be considerably whittled down. It could not be the intention of the Legislature that the test of what is 'reasonably suitable' alternative accommodation should depend so much on such economic considerations. The reasonable suitability of the accommodation is primirily to be judged on the area. of the accommodation on the condition of the house as also on the locality in which it is situated and its convenience to the landlord. The rent which such accommodation would fetch cannot be regarded as important as the above considerations. It is not, thereforee, possible to hold that this consideration would make the Jangpura house as not reasonably suitable alternative accommodation available to the landlord in February 1969.

(18) Forthe abov reasons, I find that in February 1969 reasonably suitable alternative aciom-nidation other than the premises in dispute was available tothe landlord. His need for the premises in dispute in February 1959 coud not thereforee be regarded as bona fide. If he hid filed thi petition for eviction in February 1969 such a petition would have been dismissed on two grounds, namely :-

(1)Thit he had reasonably suitable alternative accommodation ; and (2) thereforee his need for the disputed permiss was not bona fide .

(19) It could not lis in the unilateral power of the landlord to change the situition by letting out the alternative accommodation. In the eye of law, thereforee, evin in June 1959 whsn the landlord filed the petition for eviction, the legal position was the same. The need of the landlord for the disputed premises was not bonafide because the landlord had reasonably suitable alternative accommodation which he could occupy. He cannot be allowed to say that he did not have reasonably suitable alternative accommodation because by his own conduct he disposed of the same by letting it out. I am thus in agreement with the Controller and differ with the Rent Control Tribunal in this respect.

(20) The appeal is, thereforee, allowed and the order of the Rent Control Tribunal is set aside and that of the Controller dismissing the petition for eviction is restored. There shall be no order as to costs of this appeal.

(21) In view of the above decision, C.M. No. 394-J of 1972 filed by the tenant for permission to adduce additional evidence becomes unnecessary and is dismissed. As for C.M.417-J/1972 in which the tenant has prayed for suspension for the part of the rent on the ground that he was deprived of a part of the premises by the landlord, the cause of action for the same having arisen recently the tenant is left free to take action on it in a separate proceeding.


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