Ishwari Dass vs Rallia Ram And Ors.
1993 Latest Caselaw 117 Del

JUDGMENT

P.K. Bahri, J.

(1) This civil revision is directed against order of eviction passed by the Additional Rent Controller on 24/09/1988, on the ground of eviction covered by Clause (e) of proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act.

(2) Counsel for the petitioner has urged only one legal contention in seeking setting aside of the eviction order. He has not challenged the findings of the Additional Rent controller that the demised premises were let out to the petitioner for residential purposes only and the respondent-landlord bona-fide requires the same for occupation as residence for himself and for his family members dependent upon him and that neither the landlord nor his family members are in possession of any reasonably alternate suitable residential accommodation.

(3) The contention raised before me is that eviction petition brought on 7/06/1984, was premature as it had been brought within five years of the transfer of the property in question in favor of the respondent-landlord which according to Counsel for the petitioner took place with issuance of a sale certificate on 13/01/1984.

(4) This property in question was auctioned and sold to the respondent under Section 20 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (hereinafter referred to as 'the Act'). The auction took place on 11/08/1961 and the sale certificate came to be issued on 13/01/1984 and the,sale certificate Ex. AW1/1 recites that the respondent has been made owner of the property in question with effect from 6/01/1962.This objection was not raised by the petitioner in the written statement but the petitioner came to raise this objection by filing an application before the Additional Rent Controller. The Additional Rent Controller vide his orderdated 20/02/1987, had dismissed the application taking the view that respondent-landlord became owner with effect from 6/01/1962, the date mentioned in the sale certificate. An appeal was filed before the Rent ControlTribunal. The Rent Control Tribunal, inter alia, held that the appeal was not maintainable and he also agreed with the view of the Additional Rent Controller on merits. The appeal was dismissed on 15/04/1987. C.M.(Main) No. 155/88 was filed in the High Court but the same was allowed to be withdrawn by the Court with liberty to challenge the impugned order of the Additional Rent Controller and Rent Control Tribunal in any proceedings which may have to be taken by the tenant against the final order.

(5) The learned Counsel for the respondent has, however, contended that such a plea ought not to be allowed to be raised in the Civil Revision as such a plea has not been raised in the written statement. I am afraid that this contention cannot be given any importance in view of the fact that this is a legal plea which is available to the tenant on the admitted facts.

(6) The facts with regard to this particular plea. as are evident from the affidavit filed by the landlord himself in these proceedings, are that he was a displaced person from Pakistan and he occupied the ground floor whereas one late Shri Sarab Dayal, another displaced person, had occupied another portion of the property and Shri Dholan Dass, predecessor-in interest of the petitioner, who was again a displaced person, had occupied athird portion of the property. This property was auctioned by the Managing Officer under the provisions of Section 20 of the Act on 11/08/1961 and respondent being the highest bidder had offered price of Rs. 11,050.00. This bid was accepted and the respondent had given the price in shape of his verified claim in the sum of Rs. 6,149/92P and another verified claim of hisassociate, namely, Sh. Harbhaj Rai in the sum of Rs. 4900/08P. It is mentioned that Sarab Dayal had filed objections to the bid of the respondent being accepted. The objections were allowed and vide order dated 30/08/1963, the Assistant Settlement Commissioner had set aside the said auction. Ultimately writ petition was filed by the respondent in the High Court for setting aside of the orders of the authorities and for restoration of the acceptance of his bid. The said writ petition was allowed vide judgment dated 6/08/1976. Letters Patent Appeals were filed by the heirs of Sarab Dayal, who had died during the pendency of the proceedings, and the Union of India, which came to be dismissed vide order dated 7/08/1980.A special leave petition was filed by the heirs of Sarab Dayal in the Supreme Court which came to be dismissed on 3/08/1982.

(7) It appears that Rallia Ram, on his sale being cancelled, had moved the Settlement Officer (Sales) for adjustment of his claim, which was to be adjusted in respect of the property in question, to be now adjusted against another property C-IV/28, Lajpat Nagar. This request was accepted vide order dated 18/11/1965, copy of which is mark 'A'. Earlier to that by order dated 28/08/1963, copy of which is mark 'B', the tenants were required not to attorn in favor of Rallia Ram as the sale in his favor had been cancelled.

(8) It is mentioned in the affidavit that the asssociate, whose verified claim was requested to be adjusted in the sale price, had later on withdrawn his consent to get his claim adjusted and withdrew his amount. Sarab Dayal,who was the tenant in the property, was required to deposit arrears of rent with the Managing Officer and it was ordered by the Court that in case ultimately Rallia Ram was to succeed in the writ petition, Rallia Ram would become entitled to the, said amount. In this way, the amount of the verified claim of Rallia Ram and also the amount which became due to Rallia Ramon becoming successful in the litigation came to about Rs. 9,577/86. There was a deficiency of a sum of Rs. 1,472/14P. Rallia Ram-respondent then deposited the said amount vide demand draft dated 24/03/1983 and the sale certificate came to be issued, as mentioned earlier, on 13/01/1984.

(9) The short question which arises for consideration is whether the sale to Rallia Ram would be deemed to have taken place with effect from 24/03/1983. or from the date mentioned in the sale certificate ? The matter is covered by a judgment of the Supreme Court given in Bishan Paul v. Mothu Ram, . In the said case also the question which arose for decision was as to when did title in a property sold under Section 20 read with Rule 90 and Rule 92 of the Rules would be deemed to have passed-whether it passed on the confirmation of sale or on payment of the full price or on the date the sale certificate is issued ? The Supreme Court after referring to Rule 90 in detail observed that the Rules which had been earlier reproduced show that auction is held on a date fixed and is subject to reserved price and the officer conducting the sale declares at the fall of the hammer as to who is the highest bidder and then the highest bid is subject to the approval of the Settlement Commissioner and the period of seven days must elapse before the bid is approved within which application can be moved by any interested person for cancellation of the bid and if the bid is approved,the highest bidder is recognised as the auction purchaser and he is required to produce a treasury challan in respect of the balance of the purchase money within a period of 15 days which can be extended and when full purchase price is paid, certificate is to be issued in Form No. Xxii which is to be to the.Sub-Registrar (Registration) and if the balance of the amount is notpaid, the amount of advance in deposit is forfeited and the auction purchaser is left with no claim over the property.

(10) The Supreme Court held that passing of the title, thus, presupposes the payment of price in full and the question is at what stage this takes place, and for which there are other distinct stages in the sale of the property which are : (a) the fall of the hammer and the declaration of the highest bid; (b) the approval of the highest bid by the Settlement Commissioner or officer appointed by him; (c) payment of the full price after approval of the highest bid; (d) grant of certificate; and (e) registration of thecertificate.

(11) It was emphasized by the Supreme Court that it is also clear that till payment of full price, title is in abeyance for the rules themselves say that if the price is not paid the auction purchaser has no claim to the property.The Supreme Court also noticed the provisions of the Code of Civil Procedure contained in Order Xxi, Rule 92 and Rule 94 which now by a statutory provision ante-dates title by a fiction to the date of auction. However, the Supreme Court held that this fiction cannot apply to the sale being made under Section 20 read with Rule 90 of the Act and the Rules.

(12) The Supreme Court again noticed the amendment of the proforma of the sale certificate which now required a date to be filled in from which date the auction purchaser was to be deemed to be owner. The Supreme Court observed that the reason appears to be this that the balance of the purchase price may not be paid before the acceptance of the highest bid but much latter and it may be necessary to put in the date of the payment rather than the date of approval of the bid. The Supreme Court emphatically laid down that the intention behind the rules appears to be that the title shall pass when the full price is realised and this is now clear from the new form of the certificate and so, it was held that so far as title was concerned it must be deemed to have passed and the certificate must relate back to the date when the sale became absolute.

(13) SO. it is quite clear that sale becomes absolute not on the date the highest bid is confirmed by the authorities but on the date the full consideration of the sale is paid. A Single Bench of this Court in K.N. Kapoor v. Union of India and Others, , after examining the provisions of Rule 90 held that where the purchaser of the property at a public auction fails to comply with the conditions imposed by Rule 90 and fails to deposit fie full once the. purchase becomes a nullity and the purchaser has no claim to the property and even no order for cancelling the auction sale isnecessary.

(14) Even in M/s. Bombay Salt and Chemical Industries v. L. J. Johnson& Others, , which has been also referred by the Supreme Court in the case of Bishon Paul (supra) same principles of law were laid down and it was observed that it is clear from the rules and conditions of sale imposed under Rule 90 that the declaration that the person was the highest bidder does not amount to a complete sale; the fact that bid has to be approved shows that till such approval the auction purchaser has no right and it would further appear that even after approval the purchaser has yet to pay the balance price and if he fails to do so he has no claim over the property. Thus, the correct position is that on the approval of the bid by the Settlement Commissioner, a binding contract of sale of property to the auction purchaser comes in existence and on issuance of a sale certificate the transfer of the property takes place Where the balance on the purchase price has not been paid, it must be held that there has still been no transfer of the property sold at the auction.

(15) In view of the above, it is quite clear that the title in the property could not be deemed to have passed to the respondent till he had made the full payment which he came to make only on 24/03/1983, as is admitted by him in his affidavit dated 3/07/1989, filed in these proceedings.So, there is no need to now decide the application C.M. 346/89 by which the petitioner wanted to produce on record the copy of the challan showing the said deposit of the amount by the respondent as this fact stands admitted by the respondent in the affidavit. This application is dismissed as infructuous.So, in law the respondent would be deemed to have become owner of the property with effect from 24/03/1983, when he paid the balance amount of the sale price. The authorities had no power or jurisdiction to declare him as owner with effect from any earlier date as the rules do not permit it.The eviction petition having been brought within five years of the respondent having become owner of the property by transfer, was not maintainable.Hence, the eviction petition being premature was liable to be dismissed.

(16) The Controller had no jurisdiction to entertain the eviction petition before the expiry of five years and mere fact that during the pendency of the proceedings in the Court five years period had elapsed cannot cure the jurisdictional defect appearing in this case. Subsequent events cannot make the original petition maintainable because on the date the petition was filed the Controller had no jurisdiction to entertain such a petition.

(17) I allow this civil revision, set aside the impugned order and dismiss the eviction petition as premature under Section 14(6) of the Delhi Rent Control Act. The parties are left to bear their own costs throughout.