Manmohan Sarin, J.— The petitioner has filed this Civil Misc. (Main) petition under Article 227 of the Constitution of India, assailing the order of eviction dated 6.3.1997, in Case No. E-264/85, passed on the ground specified under Section 14(1) (h) of the Delhi Rent Control Act, and Order dated 4.11.1997 passed in RCA No. 230/97 by which the Rent Control Tribunal, dismissed the appeal of the petitioner.

This petition was earlier registered as Civil Writ Petition under Article 226 of the Constitution of India. It was directed to be listed as Civil Misc (Main) Petition on petitioner giving up the challenge to the vires of Section 14(1)(h) of the Delhi Rent Control Act and confining his prayer to assailing the order of eviction.

The petition was admitted and judgment reserved after hearing counsel for the parties.

The facts of the case may be noted, inbrief.:

(i) The petitioner is a tenant in respect of the second floor portion of House No. E- 29, Kalindi Colony. The respondent No. 1.landlord filed on 28.9.1995, a petition under Section 14(1)(h) of the Delhi Rent Control Act claiming that the petitioner had acquired vacant possession for residence, of Flat No. 1-490, SFS, Sarita Vihar, Mathura Road, New Delhi, in the name of his wife Smt. Rani Jain.

(ii) Respondent's say is that the petitioner is a single unit family and the newly acquired residential flat was very much available to the petitioner and his family members for residence. It was claimed that the petitioner had acquired the flat ‘benami’ in the name of his wife, with the object of defeating the provisions of Delhi Rent Control Act. The petitioner had been living together in the premises in suit, with his wife and two children, from the very inception of tenancy.

(iii) The petitioner's case before the Rent Controller was that the flat in question had been acquired by his wife and not by him. His wife was not the tenant of the premises in suit and as such Section 14(1)(h) of the Delhi Rent Control Act was not attracted. It was claimed that the flat belonged to his wife, who had acquired the same out of her own funds. She had a separate Ration Card at the address of Sarita Vihar Flat and resided there. The flat was not available to the petitioner for his residence. The petitioner did not have any legal right to reside in the said flat.

Evidence was led by the parties. The Rent Controller passed the order of eviction dated 6.3.1997 The Rent Controller found that the relationship of Landlord and tenant was admitted and there was no dispute with regard to the premises in suit, having been let for residence,

Learned Rent Controller on consideration of the evidence led, reached the conclusion that the petitioner had failed to satisfactorily explain the independent source of funds with his wife for purchase of the property. Further there was nothing on record to show that the flat was acquired by her exclusively out of her own funds. Details of her business were not furnished. The claim with regard to the petitioner's wife carrying on Motion Pictures business of distribution was vague. Neither the Income Tax assessment orders nor the Income Tax Returns of the petitioner's wife had be'en produced. The learned Rent Controller also found that the Ration Card was obtained on 20th October, 1995, immediately after the filing of the eviction petition in September 1995. The flat had been allotted to the petitioner's wife in 1991. The other two witnesses on behalf of the petitioner did not depose that the petitioner's wife had been residing in the Sarita Vihar Flat. Further that there was nothing on record to show that the relationship between the petitioner and his wife was strained. In these circumstances, and considering that the petitioner's wife resided with him along with other family members, the Rent Controller held that the logical inference to be drawn was that the said flat was available to the petitioner and his family members for occupation.

The Rent Control Tribunal also affirmed the judgment of the Additional Rent Controller holding that no plea had been taken by the petitioner of strained relations between him and his wife. The petitioner did not dispute that the family was a single unit. Rather the petitioner's position was that question of family being a single unit or not, was an irrelevant consideration.

Learned counsel for the petitioner relying on Section 14 (1) (h) of the D.R.C Act has submitted that the language and the words used in Section 14 (1) (h) of the D.R.C Act are of a limited nature. On a proper interpretation, the acquisition of other residence has to be by the tenant himself, before he can be made liable to eviction under this provision. Learned counsel also urged that the petitioner having no legal right to stay in the house belonging to the wife cannot be made liable for eviction. It is also urged that the relations between the petitioner and his wife were strained, which is evident from the factum of petitioner's wife having a ration card at the address of the flat at Sarita Vihar. Besides, it is urged that the parties could not be expected to make a public display of their strained relations, considering the adverse effect which would have on the children.

It would be appropriate, at this stage, to notice the judicial pronouncements of this Court and the Apex Court with regard to interpretation of Section 14 (1) (h) of the D.R.C Act, when the tenant's wife or a member of the tenant's family acquires residence.

(i) In Smt. Revti Devi v. Kishan Lal (1970 RCR 71), it was held that Section 14 (1) (h) of the D.R.C Act could be invoked and the tenant was liable to be evicted, if only he himself acquired the possession of another residence. Acquisition by other members of the family including the wife, would not render the tenant liable for eviction. The Court held that the force of the language of the provision cannot be whittled down by arguing that the proviso (h) would apply even if the wife or other relations were to acquire such other residence. The mere occupation of the other residence by tenant, without any legal right to do so would not be covered by proviso (h). Such occupation of other residence by the husband along with his wife, was held to be only an accidental circumstance, which was irrelevant in the construction of proviso (h). There must be a legal right of the tenant to stay in the premises.

(ii) The Apex Court in Prem Chand & Anr. v. Sher Singh (1981 DRJ SC 287) struck a discordant note. This was a case under Sec. 14(1)(a) of the DRC Act. An order of eviction was passed pursuant to which the tenant was evicted. The High Court set aside the eviction order in the second appeal and ordered restoration of possession to tenant. The landlord preferred a Special Leave Petition to the Supreme Court. During the pendency of the appeal, the landlord discovered that the tenant's wife had been allotted a flat in Saket. The landlord moved an application for amendment of the petition to incorporate the ground under Section 14 (1) (h) of the D.R.C Act. The Apex Court allowed the amendment and set aside the High Court's order and granted relief to the landlord under Clause (h). The Apex Court in this case noted that the tenant's wife had purchased the flat from DDA at the cost of Rs. 1,20,000/-. It held that the flat was available to the tenant for occupation. It rejected the explanation that the flat had been let out by the tenant's wife to their son. The crucial used words by the Apex Court while passing the order of eviction were, “We are satisfied that the respondent has through his wife acquired vacant possession of a residence in Delhi.”

(iii) The interpretation of Section 14(1) (h) of the Delhi Rent Control Act came up before the Apex Court in B.B.R Mehta v. Atma Ram (AIR 1987 SC 2220). This was a case where the tenant's wife was allotted a residential flat being a teacher employed in Government School. She started living in the flat alone as the relations between her and her husband were not amicable, the husband wanting the wife to give up the job and concentrate on the upbringing of children. The wife had initially not agreed as she wanted to pursue her career but was, subsequently, persuaded to give up the job, and reside with the husband in the premises on rent. The wife in the said case had acquired a separate residence in these peculiar circumstances. The Apex Court, while dealing with the above situation, referred to the case of Smt. Revati Devi v. Sh. Krishan Lal (Supra), and observed that the legal position had been properly highlighted by this Court. The Apex Court also held that Prem Chand's case (Supra) was a case based on its own facts. It held that it cannot be laid down as a general proposition of law that acquisition of a flat by the wife in all circumstances would amount to acquisition of flat by the tenant. The Court observed as under:

“…….Therefore, the correct position must be that if a wife or a husband vice-versa acquires a property then the other spouse if he/she is the tenant and by such acquisition by the other spouse of a tenant has a legal right to go there and have right to stay and then only can such acquisition or allotment of premises would disentitle or attract the provisions of cl.(h) of Section 14(1), otherwise the whole purpose would be defeated. In other words if for all practical and real sense the tenant, acquired, built or was allotted another residence, then his need for the old tenanted residence goes and the tenant loses his right to retain his tenanted premises. That is the rationale behind the scheme.”

“ ……What is necessary is that unless there is a positive evidence, and here there is none, of acquisition of property, prima facie, in the name of the tenant or allotment of flat to the tenant, it cannot be said to have been acquired or allotted to some members of the tenant's family, other than the wife in her name…….If there is such acquisition on behalf of the tenant, then the tenant and members of tenant's family would have dominion over the said residence. Such acquisition would bring to the tenant the mischief of Section 14(1)(h) of the Act.”

The Apex Court held that even though the wife of the tenant was allotted a temporary government accommodation, it could not be said that there was acquisition by virtue of which the tenant could lose his tenancy on the ground that the wife had acquired a house over which the husband has a do main and which could be a substitute to the tenanted premises.

(iv) The question of allotment of flat in the name of the wife came up before this Court in N.K Rastogi v. Kirori Lal (1993 RLR 359). The learned Single Judge took note of the judgments in Revati Devi v. Kishan Lal (Supra), Prem Chand & Anr. v. Sher Singh (Supra) and B.R Mehta v. Atma Ram and then summarised the legal position as under:

“The legal position is now very clear that it is not every acquisition of residential accommodation by the wife that would mean acquisition of residence by the tenant, but it will depend upon the facts of each case in order to decide whether alternate accommodation has become available to the tenant over which the tenant and his family members have a domain.”

Having noted the judicial pronouncements and the legal position with regard to Section 14(1)(h) of the Act, let us consider the present case, to see whether the petitioner/tenant has domain over the alternate premises acquired in the name of his wife. The learned Rent control Tribunal returne3 a finding of fact, based on the evidence recorded that the petitioner/tenant had failed to satisfactorily explain the independent source of funds with the wife for the purchase of the premises in suit and there was nothing on record to show that the premises in suit had been acquired by his wife exclusively with her own funds. There was failure to furnish the details of the business of the wife and to explain the source or income from which the flat had been acquired. The necessary evidence in the form of Income Tax Assessment orders or tax returns of the petitioner's wife had not been produced.

From the foregoing it would follow that it could not be said that this was a case of acquisition of the flat by the wife of the tenant out of her own independent income and funds over which the husband/tenant and his family would have no domain. The aforesaid findings of fact of the Rent Controller had been affirmed by the learned Rent Control Tribunal. The claim of the petitioner/tenant that his wife had been residing independently in the Sarita Vihar flat has not been found to be correct. The ration card was obtained in the name of petitioner's wife on 20.10.1995, i.e immediately after the filing of the eviction petition. The flat had been allotted to the petitioner's wife in 1991. There was no evidence to show that the relationship between the petitioner and his wife was strained. The submission of learned counsel for the petitioner, that the petitioner and his wife were not expected to make a public display of their strained relations and, as such, there was no pleading to that effect, does not inspire confidence or appear credible. The strained relationship, even if it is assumed, was not pleaded, would have manifested by separate residence or separate establishments. In the instant case even though the flat was allotted to wife in 1991, there is no evidence of its occupation by her till 1995, the date of the alleged Ration card. The Ration Card as noted earlier was not found to be credible.

From the foregoing discussion, the findings of the Rent Controller and the learned Rent Control Tribunal that the petitioner and his wife, with other family members, lived as a single family unit and further that it could not be said that the flat was acquired by the wife out of her own sources and independent income over which the husband and other family members could lay no claim cannot be faulted with. Therefore, the concurrent findings of fact of the Rent Controller and the learned Rent Control Tribunal that the said flat was available to the petitioner and his family members cannot be faulted with. The findings of fact reached by the Rent Controller and the learned Rent Control Tribunal are based on evidence recorded and reasonable inferences drawn. These cannot be assailed in a petition under Article 227 of the Constitution of India.

The petition, accordingly, has no merit and is dismissed.