Prem Narain Baijal vs Onkar Nath Moolri
1992 Latest Caselaw 308 Del

JUDGMENT

S.C. Jain, J.

(1) This is an appeal filed by the landlord whose application for being put in possession of the premises on the expiry of limited tenancy of five years under Section 21 of the Delhi Rent Control Act (hereinafter reffered to as the Act) has been dismissed by the Addl Rent Controller and the Rent Control Tribunal. The appellant landlord and the tenant appeared before the Addl Rent Controller for creation of tenancy under Section 21 of the Delhi Rent Control Act. The Addl Rent Controller (Shri M.A. Khan) recorded the statement of both the landlord and the tenant and made the following order : "HAVING regard to the facts stated in the application and the statement of the parties made above, permission under section 21 of the Delhi Rent Control Act is hereby granted to Prem Narain Baijal and I.N.Seth applicants to let out the premises 65/42. Rohtak Road, New Delhi comprising of two rooms, one bath, one latrine, one kitchen delineated in the enclosed plan Ex A1 to Shri Onkar Nath Moolri respondent for residential purposes for a limited period of five years with immediate effect from 1.1.1975."

(2) After expiry of five years period when the respondent did not vacate the premises the landlord moved the Addl Rent Controller for issuance of warrant of possession to which the tenant filed objections. The Addl Rent Controller entertained the objections and dismissed the landlord's petition for being put in possession.Thereupon the landlord moved the Rent Control Tribunal and when he failed in the appeal, this second appeal has been filed before this court.

(3) Doth the courts below came to a concurrent finding that requirement of Section 21 of the Delhi Rent Control Act were non existent at the time of grant of permission under Section 21 and that the petitioner had obtained the permission by concealing the material facts and mis - statement which amount to obtaining permission by fraud.

(4) The Hon'ble Supreme Court in Smt. Shrisht Dhawan vs Shaw Bros settled the law regarding 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 facie 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 of 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) A permission granted under Section 21 once permitted to attain finality becomes unassailable on error in exercise of jurisdiction. It could be challenged later on in execution only if it could be brought in the category of a void or ultra vires permission. Such invalidity can arise if jurisdiction is exercised by misrepresentation of facts either about existence of vacancy or nature of premisses. In other words attains finality in accordance with law cannot be permitted to be reagitated or reopened except in the larger social interest of preventing, an error of jurisdictional fact which could entitle a Controller to re-examine the matter in the context of Section 21 is the same, namely fraud or collusion. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case Derry vs Peek (1889), 14 App. Cases 337 what constitutes fraud was described as under: "FRAUD is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or falsue."

(6) In Pankaj Bhargava vs Mohinder Nath, the Hon'ble Supreme Court observed that fraud in relation to statute must be a colourable trans- action to evade the provisions of statute.

(7) According to the learned counsel, while moving the application for creating limited tenancy the respondent intentionally concealed material facts. It is on record that Onker nath Moolri respondent herein was in possession of three room flat on the first floor of the disputed property and a petition for eviction was filed by the appellant Prem Naiain Baijal against Shri Virender Kumar elder brother of Onker Nath under Section 14(l)(a)(d)(h) of the Delhi Rent Control Act. The present respondent along with his brother Virender Kumar was arrayed as respondent No. 2 as he was in possession of those premises.

(8) That petition was withdrawn on 7.1.1975 on account of a compromise arrived at between the parties and as per compromise three rooms flat was vacated by the respondent and that he was put in possession of the premises in dispute on the second floor comprising of two rooms. According to the learned counsel this fact was not stated in the application at the time of seeking permission to create limited tenancy and it is material concealment. It is only the change of the accommodation from the first floor to the second floor. According to him where the permission was obtained under Section 21 concealing the fact that the premises were in possession of the tenant, such a permission is void. It cannot be said that be availing the permission the tenant impliedly surrendered that tenancy. He relied upon the decision of the Supreme Court in Sudash Kumar Lata Vs R.C.Chhibba & Anr 36(1988) Dlt 203. According to the learned counsel concealment of this material fact vitiates the permission granted under Section 21 and this plea can be taken even at the time of execution.

(9) To my mind this contention of the counsel for the respondent is not tenable in the present circumstances of the case. Two things are essential for creating limited tenancy under Section 21 as has been laid down by the Supreme Court in Shrist Dhawan's case (supra) i.e. the availabiltiy of vacant premises which are not required by the landlord for a particular period and its letting for residential purpose. In this case as per own contention of the respondent he was not in possession of the disputed premises i.e. on the second floor of the disputed property. The disputed premises for which limited tenancy was created were available for letting and actually possession of the disputed premises was handed over to respondent for residential purpose after getting permission under Section 21 of the Delhi Rent Control Act for creating a limited tenancy for five years from 1.1.1975. According to the respondent himself he was in possession of the first floor premises earlier for which an eviction petition was pending against him and his brother and his brother was tenant. This respondent Onkar Nath Moolri was claiming himself as sub tenant which was in dispute. By handing over the possession of the premises on the first floor means that he had surrendered the tenancy rights if he had at all with respect to the premises on the first floor. To the second floor portion which is the portion in dispute in respect of which limited tenancy was created for five years under the provisions of Section 21 for residential purpose in favor of Shri Onkar Nath Mooiri was available for letting and in such circumstances the decision in Subhash Kumar Lata vs R.C. Chhiba on which the counsel for the respondent has relied upon does not help him at all. Non mentioning these facts in the application seeking permission to create limited tenancy cannot be said to be concealment of material facts touching the jurisdiction of the Addl Rent Controller to grant permission under Section 21, of the Act. Both the courts below have gone wrong while holding that this is a material concealment of facts which amount to obtaining permission by fraud and therefore this finding cannot be upheld.

(10) The next question which requires determination is whether the objections filed by the respondent after expiry of limited tenancy have rightly been entertained by the Controller or not?

(11) This very question came up for consideration before the Hon'ble Supreme Court in Pankaj Bhargava's vs Mohinder Nath, and it was held that "it is true that in Noronah's case a challenge to the validity of the limited tenancy was permitted even after the period of limited lease. But later cases have substantially denuded this position. In Vohra's case the Court laid down that a tenant who assails the permission was procured by fraud a ground not dissimilar to the one urged in the present case must approach the Rent Controller during the currency of the limited tenancy for an adjudication of his pleas as soon as he discovers facts and circumstances which, according to him, initiate the permission".

(12) It was held that whether it was a mindless order or one procured by fraud or collusion between the landlord and tenant there was no justification for the tenant to wait till the landlord makes his application for recovery of possession. The tenant should have made immediate approach to the Rent Controller to take such pleas when those pleas came to his knowledge. In this case the respondent Onkar Nath who is advocate by profession, was very much aware of all these facts, concealment of which he now alleges, while making statement before the Addl Rent (controller at the time of creation of limited tenancy for five years. He should have taken objection to it and should have insisted that this fact should also be mentioned but he did not do so. Even thereafter he did not raise objection regarding concealment of facts. It is for the first time after the expiry of limited tenancy of five years when the landlord filed an application seeking possession he filed an objection petition taking all these pleas which according to the law cannot be taken up after expiry of the tenancy. Even in Shrisht Dhawan's case it had bee laid down that any objection to the validity of permission under Section 21 should be raised prior to the expiry of leave and that objection should be made immediately on coming to known the fraud or collusion etc. It is not the case of the respondent that he was not aware of these facts earlier. If the tenant has objection to the limited tenancy, it has to be done prior to lapse of the leave and not as defense to the landlords application for possesstion.

(13) In view of the present circumstances of the case, it was hold that belated objections should not have been entertained and the prayer for possession of the landlord should have been granted.

(14) The appeal is allowed. The decision of the Addl Rent Controller and the Rent Control Tribunal are reversed. The landlord is directed to be put in possession of the premises immediately. The appellant would be entitled to costs of the proceedings throughout. Counsel fee is assed at Rs. 2200.00 .