Dr. K Madan
Vs. Smt. Krishnawati & Anr  INSC 1402 (6 November 1996)
V. Manohar, B.N. Kirpal Kirpal, J.
is an appeal by the appellant-tenant in which the challenge is to an order
which had been passed under Section 14 (1)(k) of the Delhi Rent Control Act,
1958 (hereinafter referred to as 'the Act').
appellant is a lady Doctor and in the year 1963, she took the ground floor of
House No. l-II/9l, Lajpat Nagar, New Delhi from one Gyan Chand Shingari at a monthly rent of Rs. 175/- p.m.
According to the appellant, this rent was first raised to Rs. 265/- p.m. in the
year 1968 and then to Rs. 300/- p.m. in the year l970.
August, 1974 the aforesaid Gyan Chand Shingari died and his widow, the
respondent herein, became the owner of the property and the appellant attorned
to her. According to the appellant, the premises were taken on rent by her for
residential-cum-commercial purposes. She was residing in the said premises and
was also running a clinic. According to the respondent, however, the premises
were given on rent only for residence.
year 1974, the appellant constructed her own residential house in East of Kailash,
New Delhi and, soon thereafter she shifted
her residence to the new house but continued to retain the premises in dispute
where she maintained her clinic. It appears that possession of some of the
portion of the ground floor, which had been in the occupation of the appellant,
was taken back by the respondent but the appellant continued to be the tenant
of two rooms with a common use of latrine and front varandah on the ground
floor of the aforesaid house.
17.5.1978 the respondent filed an eviction petition against the appellant
before the Rent Controller being Suit No. 134 of 1978 under section 14(1)(k)
and (h) of the Act.
judgment dated 13.9.1985, the Additional Rent Controller, Delhi came to the conclusion that the
eviction of ground floor under Section 14(1)(c) of the Act had not been made
out. Eviction orders were, however, passed on the ground under Section 14(1)(h)
namely that the appellant had acquired vacant possession of a residence
inasmuch as she had constructed her own house in East of Kailash. The
Additional Rent Controller further held that the ground under Section 14(1)(k)
of the Act had been made out inasmuch as the appellant was using the premises
as a clinic which was contrary to the terms and conditions imposed by the Land
and Development Office on the respondent land-lady. The case of the respondent
was that the premises in question were residential and according to the terms
of the lease given by the government the said premises could not he used for
any other purposes. A Doctor was allowed to use the premises upto 500 square
feet as his clinic provided the Doctor resided in the said premises. Inasmuch
as the appellant had shifted from the Lajpat Nagar House to her own house in
East of Kailash, therefore, the submission was that her continued user of the
premise, in question only as a clinic was against the terms of the lease. The
Additional Rent Controller vide his judgment dated 13.9.1985, while disposing
of the petition on the above two grounds under Sections 14(1)(h) and 14(1)(k)
of the Act, issued notice under Section 14(11) of the Act to the Land and
this stage, it is appropriate to refer to the relevant portion of the Act
namely, Sections 14(1)(k) and 14(11) of the Act which read as under:
(k) of the proviso to sub- section (1) provides that the Controller may, on an
application made to him in the prescribed manner, make an order for the
recovery of possession of the premises on the ground that the tenant has,
notwithstanding previous notice, used or dealt with the premises in to manner
contrary to any condition imposed on the landlord by the Government or the
Delhi Development Authority or the Municipal Corporation of Delhi giving him a
lease of the land on which the premises are constructed.
requirements cf clause (k) may be analysed as follows:
The user of the premises by the tenant should be contrary to a condition
imposed on the landlord by the Government, etc.
Such user must continue even after a notice to discontinue the same is given by
The condition which is contravened by the user of the tenant should be one
which is imposed on the landlord by the Government "while giving him a
lease of the land on which premises are situate".
This sub-section provides that no order for the recovery of possession of any
premises shall be made on the ground specified in clause (k) of Section 14(1),
if the tenant, within such time as may be specified in this behalf by the
Controller, complies with the condition imposed on the landlord by any of the
authorities referred to in that clause or pays to that authority such amount by
say of compensation as the Controller may direct." Pursuant to the
issuance of the aforesaid notice by the Additional Rent controller under
Section 14(11) of the Act, the Deputy Land and Development Officer filed a written statement
before the Additional Rent Controller, Delhi.
stating that the property was originally leased to Gayan Chand and, after his
death, the name of the respondent had been substituted, with regard to alleged mis-use
and regularisation, it was stated as follows:
the question of regularisation/condoning the breaches permanently does no.
However, the lessor may consider, if proper application is made by the lessee
with an undertaking to remove the breaches, within the specified period, and
with readiness to pay the misuse/additional charges leviable for such misuser,
that may be fixed for the period of the breach to postpone the right of
re-entry till such time the breaches are finally removed.
the misuse in the nature of running a doctor clinic cannot be allowed, but the
area extending to 500 sq. feet is permitted in case the doctor is residing in
the premises. Terms for the temperarly regularisation of misuse charges upto
14.1.1981 were communicated to the lessee vide this office letter No. L &
DO/PS. II/1830 dt. 3.12.1980 but the terms have not so far been complied with.
In the present case benefit of 500 sq. feet was not given because lady doctor Madan
who is a tenant of the lessee, was not residing in the premises as noticed during
inspections from time to time." After filing the aforesaid written
statement, the statement of mis-use charges was also filed before the
Additional Rent Controller, Delhi.
parties then led evidence and, by judgment dated 19.4.1594, the Additional Rent
Controller, Delhi came at the conclusion that the appellant had been misusing
the premises by running her clinic and the misuser/breach of the conditions of
the lease could not be condoned permanently by the office of Land and
Development Office and as such, by the impugned order, she was directed to stop
the mis-user within two months from the date of the order in order to avoid
eviction against her. The Additional Rent Controller, Delhi also estimated the
damages for mis-user which were levied by the Land and Development Office and
the appellant was directed to pay the same within two months from the date of
the order including damages for mis-user for the period subsequent to 1.4.1989
till its stoppage.
appellant, thereupon filed an appeal before the Rent Control Tribunal, inter alia
contending that there had been no mis-user of the premises on her part inasmuch
as since the inception of the tenancy, she had been using the same as her
residence as well as clinic. This contention, was not accepted and it was held
by the Tribunal that there was misuse of suit premises. It had also been
contended on behalf of the appellant before the Tribunal that the property in
question had become free-hold and, therefore, the appellant was not liable to
pay misuse charges. Relying upon the evidence of an officer of the Land and
Development Office, the Tribunal came to the conclusion that the property in
question had not become free-hold. While dismissing the appeal, the appellant
was granted two months time by the Tribunal to comply with the directions
contained in the order dated 19.4.1994 passed by the Additional Rent
appellant then filed an appeal to the High Court of Delhi raising the
contentions that order under Section 14(1)(k) of the Act should not have been
passed and secondly, the Government had permitted the conversion of the
property from lease-hold to free-hold. By order dated 28.10.1995, the High
Court held that with regard to the plea pertaining to applicability of Section
14(1)(k) of the Act, the finding of the Additional Rent Controller, Delhi and
of the Tribunal was a question of fact and no question of law arose. With
regard to the policy of the Government permitting conversion of the property,
it was held that the property in dispute was admittedly a lease-hold property
and the owner/landlord was not bound to seek conversion under the alleged
policy. Hence, this appeal.
this appeal the only contention raised was that an order under Section 14(1)(k)
read with Section 14(11) of the Act ought not to have been passed. It was
further submitted while relying upon the decision in the case of PUNJAB
NATIONAL BANK VS. ARJUN DEV ARORA AND OTHERS, (1986) 4 SCC 660 that no order
could be passed requiring the closure of the clinic as long as penalty for
wrongful user is continued to be paid by the tenant.
taking into consideration the evidence on record and, in particular, the
written statement of the Land and Development Officer as well as the statement
of the witnesses before the Additional Rent Controller, the Tribunal has found
as fact that the appellant was using the premises in question in a mananer
which was contrary to the terms of lease between the land-lady and the Land and
Development Office. It cannot be said that this conclusion was not warranted.
It is contended by Mr. Jain, learned counsel for the appellant, that as long as
the order for payment of compensation to the Land and Development Office
remained, the order for eviction or for closure of the clinic need not be
no doubt true that the observations in Punjab National case (supra) are to the
effect that as long as the penalty was paid the deviation of user could be
permitted, but the attention of the two Judge Bench was not drawn to the
earlier decision of three Judges Bench in the case of FAQIR CHAND VS. SHRI RAM
RATTAN BHANOT, (1973) 1 SCC 572. In that case, property had been given on lease
by the Delhi Development Authority but the landlords had permitted tenants to
use portion of the building for commercial purposes. The Development Authority
issued notice to the landlords calling upon them to discontinue the use of land
for commercial purposes, failing which cause should be shown as to why the
lease should not be determined and the property re-entered. Thereupon the
land-lords sought eviction of the tenants under Section 14(1)(k) of the Act.
the contentions which were raised to behalf of the tenants was that the
land-lords were estopped or otherwise prohibited from getting possession of the
property because the land-lords themselves had let-out the property for
commercial purposes. While analysing the provisions of clause (k) and
subsection (ll) of Section 14 of the Act, it was observed in FAKIR CHAND CASE
(supra) at page 557 as under:
Legislature has clearly taken note of the fact that enormous extents of land
have been leased by the three authorities mentioned in that clause, and has
expressed by means of this clause its anxiety to see that these lands are used
for the purpose for which they were leased. The policy of the Legislature seems
to be to put an end to unauthorised use of the leased lands rather than merely
to enable the authorities to get back possession of the leased lands.
conclusion is further fortified by a reference to subsection (ll) of Section
14. The lease is not forfeited merely because the building put upon the leased
land is put to an unauthorised use. The tenant is given an opportunity to
comply with the conditions imposed on the landlord by any of the authorities
referred to in clause (k) of the proviso to sub-section (1). As long as the
condition imposed is complied with there is no forfeiture. It even enables the
Controller to direct compensation to be paid to the authority except in the
presence of the authority.
authority may not be prepared to accept compensation but might insist upon
cessation of the unauthorized use. The subsection does not also say who is to
pay the compensation, whether it is the landlord or the tenant. Apparently in
awarding compensation the Controller will have to apportion the responsibility
for the breach between the lessor and the tenant." Dealing with the
contention that the land-lords were estopped from filing or getting any relief
under clause (k), lt was held that:
anxiety of the Legislature is to prevent unauthorized user rather than
protection of the tenant or strengthening the hands of Development Authority in
effecting forfeiture. The Development Authority can always resort to the terms
of the lease. There is no estoppel here because both the landlord and the
tenant knew that the tenancy was not one permitted under the terms of the lease
of the land. In any case there can be no estoppel against the statute. It would
not benefit the tenant even if it is held that the landlord cannot, under the
circumstances, evict him. The landlord will lose his property and the tenant
also will lose. He cannot, after the Development Authority takes over the
building use it for a commercial purpose." Section 14(1)(k) of the Act again
came up for Consideration before this Court in CUREWELL (INDIA) LTED. VS. SAHIB
SINGH, 1993 Supp.(1) SCC 507. While construing sub-section 11 of Section 14 of
the Act. it was observed as follows:
sub-section prevents eviction if the tenant has complied with the condition
imposed on the landlord by the government. The subsection also requires the
person in possession, namely, the sub-lessee to pay to the authority such
amount by way of compensation as the Controller may direct. It is not in dispute
that the original lessee, upon receipt of notice, from the government, had in
turn issued notice to the sub-lessee, namely, the appellant calling upon him to
stop misuser or vacate the Premises. If the appellant has, as contended by him
stopped misuser, he is of course not liable to be evicted by reason of the
protection given to him uer sub-section (11).
for the past misuser, the appellant is liable to pay such charges as are
payable in terms of the sub-section. The charges under the subsection are such
charges as are determined by the Controller.
Controller must, therefore, after hearing the parties determine the amount
payable by the person responsible for the misuser, namely, the appellant who is
the tenant of the original lessee and determine the correct amount.
of the view that the appellant is liable to be evicted unless he has already
stopped or stops immediately the misuser of the premises and pays the misuse
charges for the period of misuse.
the misuser has stopped and if so when, are questions of facts which do not
appear to be clear from the pleadings or the impugned judgment and the orders
of the statutory authorities.
light of the observations of this Court in the cases of Fakir Chand (supra) and
Curewell (supra) the relevant provisions may be examined.
14(1) of the Act gives protection to the tenants from being evicted from the permises
let out to them. Clauses (a) to (l) of the proviso to Section 14(1) of the
14(1) of the Act contain the grounds on which recovery of possession of the
premises can be ordered by the Controller. Where the premises are used in a
manner contrary to any condition imposed on the land-lord by the Government or
the Delhi Development Authority or Municipal corporation of Delhi, then the landlord would be
entitled to recovery of possession under Section 14(1)(k) of the Act. Sub-section
(11) of Section 14, however gives an option to the controller to pass an order
whereby recovery of possession may not be directed. The alternative to an order
for recovery of possession under Section 14 (1)(k) is to pass an order under
sub-section (11) of Section 14 of the Act whereby the tenant is directed to
comply with the conditions imposed on the landlord by the authorities referred
to in clause (k) namely to stop the misuser of the premises in question.
Sub-section (11) of Section 14 also uses the words "pays to that authority
such amount by way of compensation as the Controller may direct". Keeping
in view the fact that clause (k) of the proviso to sub-section (1) has been
inserted in order that the un authorized use of the leased premises should come
to an end, and also bearing in mind that the continued un authorized use would
give the principal lessor the right of re-entry after cancellation of the deed,
the aforesaid words occurring in sub-section (11) of Section 14 cannot be
regarded as giving an option to the Controller to direct payment of
compensation and to permit the tenant to continue to use the premises in an unauthorised
principal lessor may, in a given case be satisfied, in cases of breach of lease
to get compensation only and may waive its right of re-entry or cancellation of
lease. In such a case the Controller may, instead of ordering eviction under
Section 14(1)(k) of the Act, direct payment of compensation as demanded by the
authorities mentioned in clause (k). Where, however, as in the present case
compensation is demanded in respect of condoning/removal the earlier breach,
but the authority insists that the misuser must cease then the Controller has
no authority to pass an order under Section 14 (11) or Section 14 (1)(k) of the
Act giving a license or liberty of continued misuser. In other words,
sub-section 11 of Section 14 enables the Controller to give an another
opportunity to the tenant to avoid an order of eviction. Where the authority
concerned requires stoppage or misuser then an order to that effect has to be
passed, but where the authority merely demands compensation for misuser and
does not require the stoppage of misuser then only in such a case would the
Controller be justified in passing an order for payment of compensation alone.
observations of this Court in Punjab National Bank's case (supra) to the effect
that as long as the penalty continued to be paid, deviation to user could be
permitted, do not appear to be in consonance with the decision of the larger
Bench in Fakir Chand's case (supra).
wrongful user cannot be permitted by levying penalty but if the authorities do
not require the stoppage of misuser, but merely ask for payment of penalty or
compensation, then in such a case, an order of eviction or for stoppage of
premises need not he passed and it will be sufficient if compensation is
required to be paid.
so the facts of the present case, the Additional Rent Controller in order dated
13.9.1985, while issuing notice under Section 14(11) has observed that the
landlord has placed on record a notice sent only the Land and Development
Office regarding misuser. In the written statement filed on behalf of the Land
and Development Office in response to the notice issued under Section 14(11),
it was stated that the question of regularisation/condoning the breach
permanently did not arise. The said reply contemplates an undertaking being
given by the Landlord for removal of breach otherwise there is a threat of
payment of misuse charges would only amount to temporary regularisation of the
earlier misuser and the Land and Development Office clearly insisted on the
stoppage of the misuser. This being so, the question of the Controller
requiring payment of penalty or compensation and permitting continued misuser
would not be in accordance with law.
the aforesaid reasons, while upholding the orders of the court below, we grant
the appellant two months time to comply with the order dated 19.4.1994 of the
Additional Rent Controller, Delhi. There
will be no order as to costs.