Atma Steel Ltd. vs Harbir Singh
1992 Latest Caselaw 47 Del

JUDGMENT

S.C. Jain, J.

(1) HEARD. Record perused. The facts giving rise to this second appeal are that on 31.7.79 permission to create a fixed term tenancy for a period of three years with respect to premises No. E-25.. defense Colony, New Delhi under Section 21 of the Delhi Rent Control Act was granted by the Addl. Rent Controller Delhi. The tenant Atma Steel Ltd., appellant herein, did not vacate the permises after the expiry fixed of term tenancy and so the decree holder, respondent herein, filed an execution application dated 11.8.82. During the pendency of the execution application, the appellant filed objections on 14.10.1983 challenging the validity of the permission on various grounds. Those objections were, however, amended by the appellant on 15.5.88 in which an additional plea was taken that the decree holder has been residing in U.K. for the last ten years and is holding a British passport. The reasons for temporary non-residing namely that the respondent is going away to U.K. for further studies and he would come back after three years was a pretense and the premises were available for indefinite letting Opportunity was granted by the Addl. Rent Controller For leading evidence on the objections filed by the appellant and after considering the evidence on record and other documents, came to the conclusion that the objections were frivolous and did not have any merit and therefore, the same were dismissed vide order dated 27.3.199l.

(2) The appeal before the Rent Control Tribunal was also dismissed by a detailed order dated 26.8.91 The learned Counsel for the appellant challenged the order of the Courts below mainly on two grounds : (i) that the respondent at the time of applying for grant of permission under Section 21 of the Delhi Rent Control Act was a foreigner and had determined citizenship of India and had acquired the citizenship of U.K. This fact was never disclosed to the Addl. Rent Controller while obtaining permission under Section 21 and as such the permission is vitiated by fraud, (ii) the right to reside and settle anywhere in India is not available to any foreigner or any person other than the citizens of India. All statutes, laws and Act are subject to the Constitution of India. In terms of the provisions of Section 9 of the Citizenship Act read with Rule 30 read with Schedule Iii it is within the domain of the Central Govt. to return the finding of fact regarding the acquisition of British citizenship by the res' pondent. The Addl. Rent Controller or any other Court has no power to decide this question. The agreement of tenancy between a foreigner and an Indian citizen is void.

(3) I am not impressed by the argument advanced by the learned Counsel for the appellant. Both the Courts below have come to a concurrent finding of fact that at the time of creation of limited tenancy under Section 21 of the Delhi Rent Control Act on 31.7.79 the decree-holder Harbir Singh was not a foreigner and that he was an Indian citizen. It was only in 1984 that the respondent acquired British citizenship. Even otherwise, the objection regarding the acquisition of British citizenship by the respondent as a ground of invalidity of permission under Section 21 could not be entertained at the execution stage because the acquisition of British Citizenship at any point of time will not effect the inherent jurisdiction of the Addl .Rent Controller to grant permission under Section 21 so long as the relationship of landlord and tenant exists. There are two facts which can only be looked into at the time of granting permission under Section 21, i.e. the availability of vacant premises which are not required by the landlord for a particular period and its letting out for residential purpose. Both these facts were in existence at the time of creation of the limited tenancy. The objections were not filed during the period of limited tenancy but they were filed after the expiry of limited period of tenancy. The Courts below came to the concurrent conclusion that the objections were not maintainable as the pleas taken in the objections were well within the knowledge of the objector and he did not file objections during the continuance of the tenancy period. This finding of fact cannot be challenged in this second appeal.

(4) On the legal point, the Supreme Court in its latest decision in Smt. Shrist Dhawan v Shaw Bros, settled the law retarding limited tenancy under Section 21. According to their Lordships :- "(1)Permission granted under Section 21 of the Act can be assailed by the tenant only if it can be established that it was vitiated by fraud or collusion or jurisdictional error which In context of Section 21 is nothing else except fraud and collusion. (2) Fraud or collusion must relate to the date when permission was granted. (3) Permission carries a presumption of correctness which can be permitted to be challenged not only by raising objection but proving It prima facte to the satisfaction of Controller before landlord is called upon to file reply or enter into evidence. (4) No fishing or roving inquiry should be permitted at the stage of execution. (5) A permission does not suffer from any these errors merely because no reason was disclosed in the application at the time of creation of short term tenancy. (6) Availability of sufficient accommodation either at the time of grant of permission or at the stage of execution is not a relevant factor for deciding validity of permission.

(5) Turning now to the facts, is the permission granted under Section 21 of the Delhi Rent Control Act vitiated because the landlord respondent herein in obtaining the permission committed fraud ? Section 21 of the Delhi Rent Control Act does not place any comprehensive duty on the landlord to disclose any fact except that he does not need the premises for the specified time. Fraud is a question of fact. Burden of proof lies on the person who alleges it. At the time of granting permission under Section 21 of the Delhi Rent Control Act, the Addl. Rent Controller was satisfied that the premises in dispute were available for occupation by the tenant and the same were not required by the landlord for a particular period of three years and the tenancy was created only for residential purpose. The reasons have also been mentioned, though not necessary, that the landlord was not requiring the premises for this limited period of tenancy. The appellant cannot be allowed now to say that he had no opportunity to know this fact earlier. The plea that under Section 9 of the Citizenship Act read with Rule 30 of the Citizenship Rules read with Schedule Iii thereof It is only Government of India who can give a finding of fact regarding the acquisition of citizenship does not help the appellant in the present circumstances of the case. For the purpose of getting permission under Section 21 of the Act only two things are to be seen i.e. the availability of vacant premises which are not required by the landlord for a particular period and the letting is for residential purpose. The other plea that the agreement of tenancy with a foreigner is void also does not help him in the present circumstances of the case. Both the Courts below have concurrently held that neither the landlord was British citizen at the time of creation of limited tenancy nor he was a foreigner. This case does not come within the purview of fraud. Fraud is proved when it is shown that the false representation has been made knowingly or without belief in its truth or reckless, careless whether it is true or false. In this case, there has not been any representation to this effect. Relying upon various decisions of the Supreme Court in Yamuna Maloo v. Anand Swarup , Pankaj Bhargava v. Mohinder Nath. , Shiv Charan Kapoor v. Amar Base, 1990 (1) Sc 243 and Smt. Shriaht Dhawan v. Shaw Bros. and the concurrent finding of facts of both the Courts below I find on ground in admitting this second appeal and the same is dismissed. The objector-appellant herein has already succeeded in depriving the decree holder, respondent herein from reaping the fruits of the decree for a considerable period of about ten years. Appeal dismissed.