S. Aggarwal vs Union Of India And Ors.
1991 Latest Caselaw 238 Del

JUDGMENT

Mahinder Narain, J.

(1) The facts giving rise to this petition are that the petitioner in this case is the lessee of land and building, known as No. 112 Baird Road, New Delhi under a perpetual lease dated 20.3.1937. It is stated by the petitioner that the said premises was under tenancy of Hakim Parmanand Taneja from 1.7.1947. The said tenant apparently constructed mezzanine measuring 13' x 10' in the godown of the above said premises. This mezzanine was an unauthorised construction within the meaning of clause 2(5) of the perpetual lease, which reads as under :- "THE lessee will not without the previous consent in writing of the Chief Commissioner of Delhi or duly authorised officer as aforesaid erect or suffer to be erected on any part of the said demised premises any building other than and except the buildings erected thereon at the date of these presents."

(2) The petitioner received a notice dated 15.12.1971 from the respondents, notifying that upon inspection an unauthorised mezzanine measuring 13' X 10' in godown was found in premises- No. 112, Baird .Road, New Delhi and that it was this mezzanine which was in contravention of clause 2(5) of the perpetual lease-deed, and the petitioner was called upon to remedy the breach with 30 in days of this notice, and upon failure, action in terms of the lease was proposed to be taken against the lessee.

(3) The petitioner says that he made strenuous efforts to persuade the tenant to demolish the mezzanine, but to no effect. A reminder was also received by the petitioner from the Land & Development Office. As even legal notice did not result in removal of the unauthorised mezzanine a petition under Section 14(1)(k) of the Delhi Rent Control Act for eviction of the tenant, was filed in the year 1972, which, on the date of writ petition, was pending. The petitioner filed this writ petition, in which by order dated 23.7.1973 re-entry was stayed by this Court.

(4) It is contended by Mr. Madan Bhatia that according to the terms of the lease, the breaches have to be remedied within a reasonable time As to what is the reasonable time within which the breaches have to be remedied is the subject-matter of a judgment of this Court (Sunanda Bhandare J ) reported as (Amrit Lal Bussi (since deceased), v. Union of India & others). In the judgment it is stated that if immediate steps are taken by the lessee against the tenant, as are available to him under Jaw, then such time taken in appropriate legal proceedings must be held to be reasonable time I agree.

(5) In an unreported judgment of this Court in C.W.P. No. 1580 of 1983, vide judgment dated 18.2.1991, SunandaBhandare, J. has expressed the view that in view of the Delhi Rent Control Act, the petitioner was not in a position to stop the misuse committed by the tenant, and the petitioner must get time to remedy the breach till the eviction petition is decided.

(6) In the instant case, however, the eviction proceedings, which were pending at the time of filing of the writ petition have resulted in the eviction of the tenant by a compromise with respect to a part of the premises, and it is stated by Mr. Madan Bhatia that since the time the possession has been taken, the unauthorised mezzanine has also been demolished, and that demolition was done in 1985.

(7) Mr. Madan Bhatia says that he be permitted to file an affidavit during the course of the day today, stating therein the date on which the premises was demolished by the petitioner. Counsel for the respondents is not present. Let a copy of the affidavit be also delivered to the counsel for the respondents.

(8) The affidavit has been filed. The offending mezzanine floor having been demolished, the petitioner will be entitled to the benefit of time taken to remedy the breach, i.e. the time taken by the eviction petition and a reasonable time thereafter, in connection with which the notice was issued to the petitioner.

(9) In view of the fact that the instant notice gives 30 days' time to remedy the breach, and proceedings were pending for remedying the breach, and time taken for these proceedings has to be allowed, the notice dated 15.12.1971 cannot stand, and is liable to be quashed, and is hereby quashed.

(10) It is clarified, however, that in the event it is found that the lessee has not remedied the breach within a reasonable period of time from the date of entering possession of the premises, then it may give a separate cause of action, which is not the subject matter of this writ petition.

(11) The writ petition is disposed of. No costs.