Rashida
Begum Vs. General Sales Ltd. [2002] Insc 282 (9 July 2002)
D.P.Mohapatra,
Shivaraj V. Patil. D.P.Mohapatra,J.
Leave
granted.
These
appeals filed by the landlord are directed against the judgment of the High
Court of Delhi in SAO No.3/2000 and CMP No.135/2000 setting aside the judgment
of the Rent Control Tribunal dated 22.11.1999 in RCA No.127/97 and confirming
the judgment dated 27.1.1997 of the Additional Rent Controller dismissing the
eviction petition filed by the appellant as not maintainable.
The premises
in question is described as plot no.8, Block No.48, Shopping Centre, Malcha Marg,
Diplomatic Enclave, New
Delhi. The appellant
was allotted the plot of land by the Union of India on which the premises in
question stand. A registered agreement for lease was executed between the
President of India through the Land and Development Officer (for short 'the
L&DO") and the appellant on 24th December, 1965 setting out the terms and
conditions which were binding on both the parties. In clause 18 of the
agreement it was provided that till the formal lease deed was executed the
lessee would be bound by all the covenants and conditions in the said format
contained in like manner and with like consequences in all respects as if the
lease had actually been executed. In clause 21 of the Agreement it was stated
that in case of any breach or default in performance of any of the terms of the
agreement, it shall be lawful for President or any officer in his employ on his
behalf to enter into and upon the said Land and Building and take and retain
possession of the said land and of all such buildings, erections and materials
as may be found upon the said land for the absolute use of the President and
thereupon the agreement shall be void. Thereafter the appellant applied for
sanction of plan for erection of the building on the plot and on the plan being
sanctioned by the New Delhi Municipal Committee, the appellant raised the
construction upon the land with two commercial shops on the ground floor and a
residential quarter on the first floor. One such shop covering an area of 780
sq. ft. on the ground floor of the building was let out to the respondent vide
rent deed dated 24th December, 1976 for commercial purpose at a rental of
Rs.2340/- per month.
The
Settlement Commissioner, Land and Development Office of the Ministry of Works
and Housing issued the notice dated 24th September, 1983 to the appellant
alleging that there were breaches of the agreement to the effect that the
ground floor was being used as post office and office of Usha Intercontinental
General Sales Pvt. Ltd.; that the breaches had not been removed so far in spite
of the notice given by the lessor vide letter No.LIV/9/48(S-8)/83 dated
22.3.1983. It was further stated in the notice that in the circumstances the lessor
had reentered the said premises in exercise of the powers conferred on him by
clause XXI of the indenture of lease w.e.f. 25.7.1983. The lessee appellant
herein was directed to handover peacefully possession of the premises including
the land, building, fittings and fixtures etc. to the Assistant Engineer Mr. Gandotra
in the Development Office. After receipt of the said notice from the Assistant
Settlement Commissioner the appellant by the notice dated 24.10.1983 terminated
the agreement in favour of the respondent with immediate effect and required
him to vacate the premises and handover vacant possession of the same within 15
days of receipt of the notice. Since the tenant-respondent herein failed to
vacate the premises the appellant filed the petition No.207/87 under section
14(1)(k) of the Delhi Rent Control Act, 1958 (for short 'the Act') seeking
eviction of the respondent on the ground of misuser of the premises in
question. The Additional Rent Controller (for short 'the ARC'), Delhi by order dated 27th January, 1997 dismissed the eviction petition
filed by the appellant. On appeal the Rent Control Tribunal by judgment dated
22.11.99, set aside the order of the ARC and remanded the matter to ARC to
proceed to determine the damages under section 14(1) of the Act after issuing
notice to the L&DO. During pendency of the proceeding before the ARC after
remand, the respondent filed an application praying for dismissal of the
petition as no formal lease deed had been executed between the L&DO and the
appellant.
On
receipt of the application the ARC recorded the statement of Shri T.C. Hingorani,
Dy. Land & Development Officer who stated, inter alia that the agreement
for lease with the appellant was signed by L&DO on 24.12.1965 and the
document was registered vide S.I. 1986 Book No.1, Volume No.1490 pages 107-120
and was registered on 17.3.1966; in pursuance of the agreement a perpetual
lease deed was to be signed; a copy of the perpetual lease deed was given to
the appellant with the agreement for lease and this was signed in advance by
appellant Ms. Rashida Begum. The perpetual lease deed was to be signed on
completion of the building and after clearance of Government dues. The Deputy
Land Development Officer further stated that non- signing of perpetual lease
does not in any way affect the provisions as contained in the agreement between
the parties. On consideration of the matter the ARC held that in the
circumstances of the case where there is no formal lease between the parties no
question of violation of terms of lease arises, nor there is any question of
damages under Section 14(11) of the Act.
Therefore
the proceeding under section 14(11) of the Act was closed and the file was
consigned to the record room vide order dated 27.1.1997. In the appeal filed by
the appellant herein against the order of the ARC the Rent Control Tribunal
referring to the order of remand passed by the Tribunal, set aside the order
passed by the ARC dismissing the eviction petition and remanded the case to him
with a specific order that since the case was remanded for the purpose of
fixing the compensation/penalty for misuser of the premises under Section
14(11) of the Act, after hearing the parties and the L&DO, the ARC had no
option other than fixing the compensation or misuser charges as per the
provisions in section 14(11) of the Act; that it was not open to the ARC to go
into the question whether the petition itself was maintainable or not. The
Tribunal further held that it was apparent from the covenants in the agreement
executed between the parties that the lessee, who is appellant herein, was not
only entitled to the possession of the premises but she was allowed to erect
the building thereon by virtue of the agreement and further that the entire
consideration amount towards the value of the land was paid by the lessee. The
Tribunal was of the view that merely because the word 'lease' exists in clause
(k) of the proviso to Section 14 of the Act it does not mean that unless and
until a perpetual lease is executed between the parties the provisions under
section 14(1)(k) of the Act would not be invocable. The Tribunal also took note
of the prevailing practice of the Government issuing only an allotment letter
and imposing conditions therein, without executing a lease deed and in case of
breach of any of the conditions imposed upon the landlord under the agreement
recourse was taken by him to clause (k) of the proviso to section 14(1) for
eviction of his tenant. On the above discussion the Tribunal by its Judgment
dated 22.11.1999 accepted the appeal filed by the landlord and set aside the
order of the ARC and sent back the case to him with directions that the ARC
shall after hearing the parties fix the compensation towards charges for misuser
payable to the L&DO within one month and pass an order only under Section
14(11) of the Act, without traversing into the arena covered by the provisions
of Section 14(1) (k) of the Act. The parties were directed to appear before the
ARC on 2.12.1999. The tenant, who is respondent herein, filed appeal No.SAO
3/2000 before the High Court challenging the judgment/order of the Tribunal
which was allowed by the judgment dated 10th May, 2000.
The
said Judgment of the High Court is under challenge in these appeals.
The
moot question that arises for consideration is whether on the facts and
circumstances of the case the High Court was right in dismissing that the
eviction petition filed by the appellant under clause (k) of the proviso to
section 14 (1) of the Act solely on the ground that no formal lease deed had
been executed between the landlord and the superior lessor? The answer to the
question in our view depends on the interpretation of clause (k) of the proviso
to section 14 and its interaction with section 14(11) of the Act. Clause (k) of
the proviso to section 14 (1) and Section 14(11) are quoted hereunder:
"14.
Protection of tenant against eviction - (1)Notwithstanding anything to the
contrary contained in any other law or contract, no order or decree for the
recovery of possession of any premises shall be made by any court or Controller
in favour of the landlord against a tenant:
Provided
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 one or
more of the following grounds only, namely- Xxxxxx xxxxxx xxxx (k) that the
tenant has, notwithstanding previous notice, used or dealt with the premises in
a manner contrary to any condition imposed on the landlord by the Government or
the Delhi Development Authority or the Municipal Corporation of Delhi while
giving him a lease of the land on which the premises are situate;" xxx xxx
xxx Sub-section (11) of Section 14 reads as follows:
"(11)
No order for the recovery of possession of any premises shall be made on the
ground specified in clause (k) of the proviso to sub-section (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 way of
compensation as the Controller may direct." On a plain reading of clause
(k) of the proviso to section 14 (1) it is clear that the stress is laid on the
conduct of the tenant, who has misused or dealt with the premises in a manner
contrary to any condition imposed on the landlord by the Government while
giving him the lease of the land on which the premises are situate. In the
proviso to Section 14(1) are enumerated the grounds on which a landlord can
seek recovery of possession of the premises from a tenant. The provision in
clause (k) is intended to protect the interest of the landlord who may face
termination of the lease and lose the property for breach of conditions imposed
by the superior lessor on him while granting the lease of the land. Faced with
such situation the landlord is given the right to move the Controller for
eviction of the tenant and for recovery of possession of the premises so that
he may be saved of the consequences of misuser of the premises and breach of
conditions of lease. An opportunity is provided to the tenant to protect
himself against threatened eviction from the premises if he complies with the
condition imposed on the landlord by any of the authorities referred to in
clause (k) of the proviso to section 14 (1) and pays to that authority such
amount by way of compensation as the Controller may direct. Provision for the
purpose is made in sub-section (11) of section 14 of the Act. Neither of the
aforementioned two statutory provisions mentions execution of a document of
lease in any particular form.
The
stress is on compliance with the conditions subject to which lease of the
property was given to the lessee who is the landlord of the tenant in
occupation of the premises.
In the
case on hand the application filed by the appellant for lease of a plot of land
was granted by the officer acting on behalf of the President of India. A
registered agreement was entered into between the superior lessor and his
lessee in which were incorporated the conditions of lease. It was stated in the
document that till such time as a formal document of lease is executed and in
absence of such a document the terms and conditions set out therein shall be
binding on the lessee and can be enforced in the same manner as if a formal
document of lease has been executed between the parties.
In
pursuance of the said agreement possession of the land was delivered to the
lessee and permission was granted by the New Delhi Municipal Committee for
construction of a building. A building was constructed and a portion of it was
rented out in favour of the respondent herein. In the circumstances there is
little scope for doubt that between the superior lessor and the appellant there
was an agreement for lease of the land with certain conditions which were
binding on the lessee with the consequence of termination of the agreement in
case of default in compliance of the terms, and for resumption/reentry upon the
property on termination. Indeed the superior lessor had issued a notice to the
appellant terminating the lease on the ground of misuser of the property and
conveying the decision of the President of India to reenter upon the premises.
In the circumstances, the appellant was entitled to file an application for
eviction of the tenant in terms of clause (k) of the proviso to section 14 (1)
of the Act. The technical plea that since no formal deed of lease had been
executed between the President of India and the appellant was not available to
the tenant respondent to raise in the proceeding for eviction in view of the
undisputed factual positions as noted earlier; the ARC was clearly in error in
declining to proceed under section 14(11) of the Act for determination of
compensation to be paid by the tenant to the superior lessor for misuser
despite specific direction to that effect in the remand order passed by the
Tribunal.
Therefore,
the Tribunal was right in setting aside the said order of the ARC with the
direction to proceed for determination of the compensation for misuser of the
premises under section 14(11) of the Act. Consequentially it follows that the
Judgment of the High Court setting aside the judgment/order of the Tribunal and
dismissing the petition for eviction is unsustainable.
Accordingly
the appeals are allowed with costs. The Judgment of the High Court dated 24th
May, 2000 in SAO No.3/2000 is set aside and the Judgment dated 22.11.1999 of
the Rent Control Tribunal in R.C.A.No.127/1997 is restored. Hearing fee
assessed at Rs.10,000/-.
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