RAJINDER SINGH Vs. A P PRABHAKARAN

JUDGEMENT

(1.) The petitioner happens to be an owner of first floor of the house bearing No. D-32, Hauz Khas, New Delhi. Respondent No. 1 Mr. A.P. Prabhakaran was inducted as tenant by respondent No. 3 Smt. Kirpa Devi, mother of the appellant. Since the petitioner was working in C.R.P.F. which happens to be a transferable job, he, therefore, decided to settle his family at one place i.e. in Delhi. Tenanted premises consist of a drawing-cum-dining room, one bed room with attached bath room and a kitchen on the rear portion of the first floor of this house. Petitioner wanted the respondent to vacate this premises as he needed the same for himself and his family. But when the respondent failed to do so he filed the eviction petition under Section 14(1)(e) of Delhi Rent Control Act (in short the Act) on 30th May, 1990. Family of the appellant consist of himself, his wife, two grown-up daughters and a son. The respondent No. 1 happened to be a close relation of respondent No. 2 Mr. P.K.S. Nair. It had been the case of the petitioner that respondent No. 1 sub-let and assigned the possession of the front portion of the premises to respondent No. 2. That respondent No. 1 has not been in actual physical possession of the premises. The premises in question was let out for residential purposes. When the petition was filed on 30th May, 1990 petitioner was staying with his family in a temporary rentage accommodation in 58 Bn. C.R.P.F., Mehrauli, New Delhi. He pleaded that because of frequent transfers he could not carry his children with him as that would hamper their education. His eldest daughter was studying in B.A. first year, second daughter in l2th Class and son in 6th class in Delhi. Taking them away from Delhi would mean loss of their studies.

(2.) This petition was contested by respondents 1 and 2. They filed their written statements. But after filing written statement respondent No. 1 did not appear. The learned ARC vide order dated 29th July,1995 dismissed the petition of the petitioner holding that there did not exist any relationship of landlord tenant between the petitioner and the respondent No. 1 and that the premises was not required bona fide by him.

(3.) Aggreived by the impugned order, this petition has been filed challenging the said order, inter alia, on the ground that the learned ARC wrongly presumed that Type-IV Government accommodation always consist of three living rooms, besides drawing room. These observations of the learned ARC, Mr. V.K. Shali Counsel for the petitioner contended are not borne out from the record. It appears the learned ARC inferred his personal knowledge without disclosing the same to the petitioner and thus deprived reasonable opportunity to the petitioner to disprove the same. There was nothing on record to conclude that Type-IV Government accommodation allotted to the petitioner consisted of three living bed rooms and drawing-cum-dining room. In the absence of any material available on record the learned ARC committed a patent error in presuming about the accommodation in possession of the petitioner. On the contrary learned ARC ignored the certificate issued by the CPWD describing the accommodation with the petitioner. Thus the judgment of the learned ARC is based on surmises and conjectures. It is against law. The learned ARC could not have based this finding on his personal knowledge without disclosing the- source as to where from he acquired that knowledge. Contrary to the presumption of ARC, the petitioner appearing as his own witness (AW-2) categorically stated that Type-IV Government accommodation allotted to him consisted of two bed rooms. On this there was no cross-examination nor any rebuttal. This part of his statement remained unchallenged on record. The ARC committed error in ignoring this unchallenged statement of the petitioner. To support his statement that the Government accommodation allotted to him consisted of only two bed rooms besides drawing-cum-dining, W.C., bath and kitchen, the petitioner placed on record the certificate in original issued by CPWD Department giving detailed description of the accommodation allotted to the petitioner. Bare reading of this certificate show that Government accommodation with petitioner consist of only two bed rooms. Therefore, the presumption drawn by the learned ARC was not only contrary to the certificate issued by the Government authority but also against the unrebutted testimony of the petitioner. I am in agreement with the contention of Mr. V.K. Shali that the observation of the learned ARC in this regard are not based on facts available on record. It appears his observation regarding Type-IV Government accommodation is not but surmises and conjectures. The same remained un-substantiated on the record.