Shah Builders vs Thapar Agro Mill
1994 Latest Caselaw 191 Del

JUDGMENT

Mahinder Narain, J.

(1) This is an application u/0. 39 R. 1 & 2 r.w. S. 151, Civil Procedure Code , wherein plaintiff says that he has filed a suit against Deft. which is pending. In the suit it is asserted that suit premises is in Greater Kailash and the Defts. took 3 rooms in a Lodging House, which is being run by the plaintiff as Saraswati Lodge for residential purpose for 750 days, and in that connection a sum of Rs 12,000.00 was received. This transaction is evidenced by a copy of a receipt.

(2) There is no written agreement between the parties apart from this receipt, which has come on record of this case, as a result of the record of the sales-tax office, having been got produced in this Court. It is in the sales-tax office that this receipt was filed. This receipt, which is a photo copy, states "received with thanks from Satish Thapar a sum of Rs. 12,000.00 by draft No. 890870 on C. Bank on account of room charges for room No. 101 102 and 103 up to 14.4.1986".

(3) Copy of receipt, which is yet to be proved, is the only document in existence so far, which may have a bearing upon the nature of the transaction between the parties. According to the plaintiff, the aforesaid three rooms were given, and lodging charges therefore were charged. According to the defts however, prior to issuance of the document, there were negotiations, and pursuant to oral agreement, the deft. was put in possession for commercial purpose. It is the case of the defendants that they occupied the premises either on 9.1.86 or on 11.1.86, when they intimated the Registrar of Companies that the registered office of the deft. company shall be functioning from W-50., G.K. Part-11, New Delhi.

(4) Before me, the contention of the counsel for defts. has been that there is a arrangement, that, tenancy was for Rs. 3600.00 p.m. and that a total amount of Rs. 31.200.00 has been paid by two drafts. Counsel for the defts. brings to my notice S. 105 and S. 107 of the Transfer of Property Act.

(5) According to S. 107, T.P.A., there can be oral lease. The first part of section 107, however, says that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. The other leases, according to another part of this section may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

(6) There is no written instrument regarding the creation of the lease, as alleged by the defts. The Regn. Act requires that if interest is created in any immovable property the value of which exceeds Rs. 100.00, same can only be done by a regd. instrument. In this case there is no regd. instrument of lease.

(7) The case of the plaintiff is that as commercial use is being made of the premises, to which the Delhi Development Act (the Act) applies, and as the commercial use is contrary to 14 of the Act, the plaintiff is being prosecuted, but he is, however, released on bail.

(8) The prosecution of plaintiff is for the reason that he has "permitted" use of part of W-50, G.K. Ii for a non-residential purpose in a residential areas.

(9) It is not disputed by the defts. that they have also been prosecuted under the Act, and that the deft. company has been convicted but the directors have been acquitted for the use of premises as registered office. It is also stated by the defts. that an appeal has been filed against that order of conviction which is pending

(10) Inasmuch as the law relating to the use of premises is also controlled by S. 14 of the Act, it is the admitted case of defts. that they are using the premises for commercial purpose. It is clear that there is prosecution. Only thing which will be proved by evidence of the defts. is whether the use of as commercial premises, was pursuant to an oral agreement of lease, or not. That stage of recording of evidence is not here as yet.

(11) Quite apparently, the prosecution against the deft. company has been successful, although the directors of the deft. company were discharged. In these circumstances, whether plaintiff is entitled to an injunction prayed for, that is to say an injunction restraining the defendants from using the premises for commercial purpose.

(12) Counsel for the defts. has brought to my notice a number of judgments Regretfully, however, none of these apply to the facts and circumstances of this case, as (Dorab Cawsil Warden vs. Coomi Sorab) related to injunction order to be passed in a partition suit ; (Rajeshwar Nath Gupta vs. Adm. Gen.) related to a commercial premises in Connaught Place ; . (Mrs. Vijay Srivastava vs. M/s. Mirahul Enterprises) did not relate to tenancy between the parties ; , dealt with the existing agreements regarding tenancies. Air 1983 Delhi 392 related to grant or non-grant of injunction, in a matter which related to Motion Pictures, and not tenancy agreements.

(13) In 1985(2) Rcj 697 (F.B.) (M/s Ram Gopal vs. Satish Kumar) the facts were that a site in Chandigarh was taken by the owner. There was no conveyance deed executed, and therefore the purpose had not been prescribed by any document. The F.B. came to the conclusion that inasmuch as there is no deed of conveyance, purpose has not been prescribed and no injunction can issue.

(14) In the facts and circumstances of the case, at least, prima facie, the premises is situated in G K. Part-11, and the premises is built on plot No. W-50. O.K. Part-11 is a residential colony, and since the provisions of Master Plan operate in the said area, the plots in that area can be only used for residential purpose. That plot No. W-50 can be used for residential purpose, and not for commercial purpose is established by the fact admitted before me in Court, that the deft. company has already been convicted, and an appeal is pending against the order of of conviction, and the fact that the plaintiff is also being prosecuted, although he is released on bail.

(15) The plaintiff's case that it is having a Lodging House, means user for residential purpose, and may not go against the Act. It may be that some other provisions of the law are violated, but that will be a matter of proof in any case, since the copy of the receipt is on record, as I have mentioned. I am inclined to believe, at this stage, that the Lodging House is being run in the premises, and the Lodging House can only be for residential purpose. The fact that the plaintiff is being prosecuted for permitting use of premises for commercial purpose, would cause him injury which is not possible to either compensate him for, since the use according to the plaintiff, by the defendants is unauthorised.

(16) It appears that the defts. rely upon an oral agreement, whereas the plaintiff assert on the basis of a receipt that three rooms were given for lodging, and and an additional room was taken forcible possession of by the defts. It is the case of the defts. that they have always been using the premises for comercial purpose, and that was a purpose for which the same was taken.

(17) This suit is for possession. This is going to be tried in due course. At this stage, however, what is to be taken note of, is that a statute exists; called the Delhi Dev. Act, 1957, S. 14 whereof prohibits use of any premises contrary to the Master Plan. It also prohibits "permitting" user of any premises except in accordance with the Master Plan. Exception to Prohibition contained in S 14 is that to user before 1.9.64.

(18) There is another fact to be noted, which is that S. 23 of the Contract Act declares all good acts which are contrary to public policy, to be void. The statute represents the law, and all contracts which are contrary to the provisions of the law, in any case, to the extent of contravention of laws, are of no effect. It cannot be disputed that some rooms which are subject matter of the controversy in the suit, were subject matter of some transaction, oral or in writing (either of which will be proved In due course), which was in IP86, much after the Master Plan had come into force. Therefore, even if initial transaction wai contrary to S. 14 of the Act, for which, as stated above, both the parties are being prosecuted, is it not open to one of them to state that in view of the breach of the law, the arrangement is void ? And that neither of the parties is bound by such an arrangement ? In any case neither party should be continuously criminally prosecuted for breach of S. 14 r.w. S. 29 of the Act.

(19) The plaintiff in the instant case, says that he is being prosecuted u/S. 14 r.w.S. 29 of the Act, and he is out on bail. The defts. admit that the deft. company has been convicted, but the directors of the company have bee acquitted. In other words, existence of criminal proceedings is not disputed. The Courts are duty bound, at least Judges of the High Court are duty bound, by the Constitution to uphold the Constitution and the laws. Needless to say, what is to be upheld, is valid law, valid according to the Constitution.

(20) It is not the case of cither of the parties in the instant suit that S. 14 and 29 of the Act are ultra vires to the Constitution. Ss. 14 and 29 being valid, at least for the purpose of this suit, they have to be taken as valid, as there appears to be no averment on this account I Is it not, therefore, right for this Court to uphold the laws ? Is it not right for this Court to invoke the provisions of S. 23 of the Contract Act, and say that the transaction between the parties, in so far as it was in breach of Ss. 14 and 29 of the Act binds none; is it not right for this Court to say that even if the parties had initially agreed to take the rooms for commercial purpose in violation of Ss. 14 and 29 of the Act, such a transaction should not continue to bind the parties, particularly, as one of them, the plaintiff herein, does not wish to be prosecuted for a statutory offence, and is desiring to redeem himself by abiding by the laws rather than being in continuous breach thereof ?

(21) Keeping in view all the aforesaid circumstances. I am inclined to restrain the defts. from using suit rooms for running a commercial establishment.