Paman Lal Thakur vs Bhagwan Singh
1996 Latest Caselaw 329 Del

JUDGMENT

C.M. Nayar, J.

(1) The present petition is directed against the judgment dated March 15, 1984 of Rent Control Tribunal, Delhi. The said judgment modified the order dated 7th December, 1983 passed by the Rent Controller in proceedings under Section 14(l)(k) of Delhi Rent Control Act (hereinafter referred to as 'the Act'). The respondent Bhagwan Singh has since expired and is now represented by his legal heirs.

(2) Thebrieffactsarethatappellantpamanlal filed petition foreviction against the respondent with respect to the suit property as referred to in the petition for eviction. The grounds of eviction were based on the provisions under Clauses (a) and (k) of the proviso to Sub-section 1 of Section 14 of the Act. The petition was contested and preliminary objection was taken that no notice terminating the contractual tenancy had been served. It was alleged that the appellant-landlord had deprived the respondent of the user of the tenanted premises and that the room was also let out to the respondent of which forcible possession was taken.

(3) Smt. Kanwal Inder, the learned Controller vide order dated December 8, 1982 held that the petition was not bad for partial eviction and the notice of demand had been duly served, ltwas concluded thatthe ground of eviction on non-payment of rent was available and the order passed under Section 15(1) had been complied with and, therefore, benefit of Sub-section 2 of Section 14 of the Act was awarded to the respondent. As far as Clause (k) of the proviso to Sub-section (1) of Section 14 of the Act was concerned, the Court held that the property was being used contrary to the terms of the lease imposed upon the respondent and, therefore, the ground of eviction was available. Notice under Sub-section 11 to Section 14 of the Act was directed to be issued. The petition was thereafter listed before Smt. Manju Goel, Rent Controller, Delhi who vide order dated 7th December, 1983 passed an order of eviction. It was held that the respondent-tenant had used the premises contrary to the conditions imposed on the appellant-landlord by the Government of India while granting him lease of the land. The Land & Development Office had filed its reply before the Rent Controller wherein it was stated that the lease in respect of the suit property had been granted for residential purpose and the breach of the misuser could be condoned on purely temporary basis on the payment of charges, as fixed by the Government which was actually postponement of action till breach was finally removed. The learned Controller referred to the judgment of this Court as reported in Prithvi Raj v. Nirmal Multani, 1980 Rajdhani Law Reporter 343 to reiterate the proposition that where the tenant had taken the premises for commercial purposes and the L&DO had declined to condone the misuser permanently, there was no option for the tenant but to be evicted from the premises in question. Following that judgment, the Controller passed an order of eviction against the respondent in respect of the suit premises. The respondent-tenant felt aggrieved by that order and filed an appeal before the Rent Control Tribunal.

(4) The appeal was partly allowed and it was directed that the respondent shall pay to the appellant or deposit in the Trial Court the temporary misuser charges till 14th July, 1984 amounting to Rs. 8319.62 within two months or stop the misuser within the same period. In default of complying with this condition, an order of eviction was deemed to have been passed against the respondent. The Tribunal did not consider the import of misuser of the premises but merely determined that the Land and Development Office himself had not come to any such conclusion and either of the party could not suffer on that count. The learned Judge stated the proposition that the purpose of Clause (k) of the proviso to Sub-section I of Section 14 of the Act was that the land user as per terms of the lease was to be adhered to and irrespective of purpose of letting between landlord and tenant, it was the terms of the lease which was to prevail. Paragraphs 13, 14 and 15 of the judgment of the Tribunal read as follows :

13.The purpose of clause (k) of the proviso to Sub-section to Section 14 of the Act is that the land user as per terms of the lease is to be adhered to and irrespective of purpose of letting between the landlord and tenant, it is the term of the lease which is to prevail. But it is not a premium to the landlord to just keep on seeking the eviction on the said ground after letting and reletting to different tenants against the terms of the lease. So long as his lease is protected and the tenant is willing to pay the compensation therefore it will be unfair to evict the tenant. The aforesaid discussion therefore shows that the decision in the case of Prithvi Raj (supra) is clearly distinguishable.

14.Confronted with that position, it was pointed out that even if the Tribunal is to act under Sub-section Ii to Section 14 of the Act and ask the tenant to pay the compensation for temporary regularisation, the appellant tenant must stop the misuser. Reliance was strongly being placed on the decision of Hon'ble Mr. Justice Sultan Singh in the case of Curewell India Limited v. Sahib Singh reported as 1982 volume 1 All India Rent Control Journal 767. In the cited case in hand, the particular amount was asked to be paid for temporary regularisation by the Rent Control Tribunal.

The tenant preferred a second appeal in the High Court. The stay was granted and for certain amount the bank guarantee was directed to be furnished. The tenant thereafter withdrew the appeal which was dismissed and the question that came up for consideration as to whether what would be the effect thereto and the subsequent advantage that the tenant took. It was in this background that it was held that the word 'or' occurring under Sub-section 11 to Section 14 of the Act has to be read as 'and'. In my opinion this particular observations were confined to the fact of that particular case.

15.Hon'ble Mr. Justice Kirpal in the case of Hind Traders v. Radhey Lal Seth,S.A..O. No. 382/81 decided on 1.3.82was concerned witha similar situation. It was held that the word 'or' occurring in Sub-section 11 to Section 14 of the Act means as it is and the tenant can either stop the misuser or pay the compensation. The same view found favour with Hon'ble Mr. Justice Sultan Singh in the case of Manohar Lal v. Narain Dass, 1982 Rajdhani Law Reporter 41. In that case after holding that the Controller cannot direct the tenant to approach the lessor or the landlord the case was remanded to the Rent Controller with a direction to exercise either of the two conditions given in Sub-section Ii to Section 14 of the Act. In other words, it was held that the word 'or' means as it is and either of the two options namely to stop the misuser or to pay the compensation is to be exercised by the Controller, it is not to be read as 'and'. Therefore, this plea so agitated cannot be accepted.

(5) The matter was earlier placed before this Court and Sat Pal, j. vide order dated August 24,1994 deemed it necessary to issue notice to the L&DO to ascertain as to whether an undertaking or any suitable security for the amount of misuse charges could be levied from 15th July, 1984 onwards, given by the tenant to the landlord. The learned judge referred to the judgment as reported in Punjab National Bank v. Arjun Dev Arora and others, wherein it was held that it was open to the Rent Controller to fix the penalty for realisation of misuser and as long as the penalty continued to be paid the deviation of misuser could be permitted. The learned Counsel for the appellant has referred to the judgment as reported in Prithvi Raj v. Nirmal Multani, 1980 Rajdhani Law Reporter 343; Manohar Lal v. Narain Dass etc., 1982 Rajdhani Law Reporter 41 and Daljit Singh Madan v. SurinderKumar and Others, 1984(1) Rent Control Reporter 671. The relevant provisions as contained in Section 14(l)(k) as well as Section 14(11) of the Act may be reproduced as follows : "14(L)(K).Protection of tenant against eviction.-(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely- (K) that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate; 14(11). No order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of the proviso to Sub-section (1), if the tenant, within such time as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct."

(6) The question on the basis of the above provisions will arise as to the effect of temporary condensation of misuse or to a change of user. What is the option in such a situation? In Prithvi Raj (supra) this plea was specifically considered and the learned Judge held as follows :

28.From the letters of the L & D 0 one thing is quite certain. That authority wants the misuser to stop. If that is so there is no point in allowing the tenant to continue. There is no purpose in asking the landlady to stand and wait till the last word comes from theL&DO. He has already indicated his terms. His terms do not confer on the tenant the much wished for status of irremovability. As the Supreme Court says :

"THEauthority may not beprepared to accept conditions but might insist upon the cessation of the unauthorised use".

29.In this case the authority, namely the Government is not willing for a permanent condensation of misuse or to a change of user. In the end they insist upon the cessation of the unauthorised use. There is no option in such a case except to order eviction of the tenant. This was the decision of the controller. I too am of the same view.

"

Similarly in Manohar Lal (supra) the import of the provisions as contained in Section 14(1)(k) were considered by Sultan Singh,J. and paragraph 2 reads as under: 2. Under Clause (k) if the tenant does not stop the user of the premises contrary to the conditions imposed on the landlord under the lease a right of action arises to the landlord to seek eviction of the tenant. In the present case the Controller has already held that the ground of eviction u/Section 14(1)(k) of the Act stood proved. The next stage of the proceedings is u/Section 14(11) of the Act. The Sub-section (II) is mandatory. It requires the Controller not to pass an order of eviction, if one of the alternatives is complied with by the tenant. The two alternatives are (I ) to stop the misuser within the time to be specified by the Controller or (2) to pay to the concerned authorities by way of compensation such amount as may be determined by the Controller. This Sub-section intends that the Controller should determine these questions because in a case where the default can be remedied by payment of compensation, the amount of compensation payable by the tenant is to be determined. The direction of regularisation by the Dda, at the instance of the landlord or the tenant is not authorised by Section 14(11) of the Act. Further compensation has to be determined for user of the premises contrary to the terms of the lease deed. The two questions u /Section 14(11) of the Act are in the alternative. If the tenant permitted, if so on what terms. If the non-conforming user is not permitted by the authority the Controller has no alternative but to pass the order of eviction. But if the authority is inclined to permit the non-conforming user, the Controller has to determine the compensation for non-conforming user. This determination shall be with respect to the past non-conforming user as well as for the future. This question for determining the compensation or permission for non-conforming user is to be decided by the Controller after notice to the authority concerned. Neither the landlord nor the tenant can be directed to approach the authority for regularisation of the non-conforming user or for determination of the compensation. In the present case the Controller, instead of acting himself according to law as contained in Section 14(11) of the Act, has directed the landlord to approach Dda for regularisation. This is beyond the jurisdiction of the Controller. The order of the Controller directing the landlord to approach the Dda for regularisation is therefore, beyond the scope of Section 14(1)(k) read with Section 14(11) of the Act. In other words, the said portion of the impugned order is without jurisdiction.

(7) Avadh Behari Rohtagi, J. in Daljit Singh Madan (supra) has also explained the import of the provisions of law which will govern the present case. It is so held that to allow misuse to continue on terms imposed by the Tribunal would be to render clause (k) a dead letter. The conditional order of eviction was passed and three months time was granted to the tenant to stop the misuse or to vacate the premises. The stand of Land & Development Office in the present case may also be noticed. They filed their statement in this Court indicating the terms for regularisation of breaches upto 14th July, 1995 in respect of the suit property where it has been reiterated that the breaches cannot be condoned or regularised permanently. The relevant paragraph of this communication from Deputy Land and Development Officer reads as follows : "ITmay further be clarified that the breaches of misuse and unauthorised construction in the property known as C-116, Moti Nagar, New Delhi cannot be condoned or regularised permanently. The breaches can, however, be regularised purely on temporary basis on the request of the lessee on payment of the usual charges as fixed by the Government from time to time for postponement of right of re-entry by the lessor till such time the breaches are finally removed. Any undertaking/security from the tenant for payment of misuse charges levied by the lessor is not acceptable as there is no privity of contract between the lessor and tenant."

(8) The only question which arises for consideration in this appeal is, as to whether, in a case where the Land & Development office has taken a categorical stand that the breaches of misuse and unauthorised construction cannot be condoned or regularised permanently such breaches can be regularised "purely on temporary basis" on the request of the lessee on payment of usual misuser charges as fixed by the Government from time to time for postponement of right to re-entry by the lessor till such time the breaches are finally removed.

(9) The learned Counsel for the respondent has vehemently contended that the respondent/tenant is entitled to use the premises for commercial activity till the period such breaches are condoned by the Land & Development Office. The only liability which the tenant has to incur is to pay such amount by way of compensation which in the present case has been determined by the Controller. He has placed strong reliance on the provisions as contained in Section 14(11) of the Act, to reiterate the proposition that the respondent is not liable for eviction as he is willing to pay the misuser charges by way of compensation and is willing to comply with the conditions on the landlord by the Authorities. Reference is made to the judgment of the Supreme Court as reported in Punjab National Bank v. Arjun Dev Arora and Others, . The facts of that case would indicate that the respondent/landlord had let out the premises to the appellant Bank therein. The eviction petition had been filed under Section 14(l)(k) of the Act on the basis that the tenant had taken the premises for residential purpose but had put it to non-residential use. The Delhi Development Authority raised objection on the ground of change of user and had proceeded to raise penalty. The Controller dismissed the application but the Tribunal reversed the decision and passed an order directing eviction of the appellant. The Court noticed the fact that the respondent/tenant was only interested to have higher rent which was the real motive for asking of eviction of the appellant Bank. Paragraph 3 of the judgment reads as under: "ATthe hearing of the appeal we had a feeling that the respondent wanted higher rent and that was the real motive for asking for eviction. When a settlement by way of enhancement of rent was suggested, the Bank agreed to enhance the rent but left the fixation of the sum to the discretion of the Court. Taking into account the location of the property, prevailing rate of rental in the local area for comparable premises and the fact that the property had been taken for residential use but has been put into commercial use, we suggested fixation of monthly rental at Rs. 6000.00 and after obtaining instructions, the appellant's Counsel has agreed to the rate of rent being enhanced to Rs. 6000.00 per month with effect from October 1,1986. We accordingly allow the appeal, setaside the order of eviction passed by the Tribunal and dismiss the application for eviction. The respondent-landlord shall be entitled to be paid rent at the rate of Rs. 6000.00 per month from October 1, 1986."

(10) In paragraph 4 the Court made a reference to the judgment of this Court in Daljit Singh Madan (supra) which reads as follows:

"RELIANCEhad been placed on a decision of the Delhi High Court in Daljit Singh Madan v. SurinderKumar, where a similar question arose for consideration. The lease was for residential use but the same had been put to commercial use. The Court held that it was open to the Controller to fix the penalty for wrongful user and as long as the penalty continued to be paid the deviation of user could be permitted. We see no reason to take a different view. We, therefore, direct the Controller to fix the quantum of penalty afterhearing Counsel for parties and the Delhi Development Authority. When such penalty is quantified, the same would also be a liability which the appellant is to meet. Parties are directed to bear their own costs."

(11) The Supreme Court in view of the above facts did not, therefore, finally determine the question of permanent misuser of the premises by the tenant but merely referred to the judgment Controller to fix the penally for wrongful user and as long as the penalty continues to be paid the deviation of the user could be permitted." At this stage the judgment of this Court in Daljit Singh Madan which was approved by the Supreme Court, as referred to above, may be noticed. The facts would indicate that the Additional Rent Controller passed orders of eviction against three of the tenants under Section 14(l)(k) of the Act and he called upon them to stop the commercial use of the premises within a period of two months. If they failed to stop the misuse they were ordered to be evicted. The Controller therein also found as a fact that the premises had been let for residential purpose and that the tenants were using for commercial purpose. The tenants appealed to the Rent Control Tribunal. The Tribunal partly allowed the appeal and directed the tenants to deposit the misuse charges or stop using the premises for commercial purpose and if this was not done then the tenants would be ordered to be evicted. But if they paid the misuse charges demanded by the L&DO on behalf of President of India then the tenants were not to be evicted. Therefore, the tenants were allowed to continue commercial use of the premises on the condition that they pay the misuse charges till such time as the L&DO was agreeable and if he decided not to condone the breach in future either the tenan twill stop the misuse or vacate the same. The learned Judge, however, concluded and held that to allow misuse to continue on terms imposed by the Tribunal would be to render Clause (k) a deed letter. Paragraphs 38 and 39 may be reproduced as follows:

" 38.At the end of the day I feel convinced that to allow misuse to continue on terms imposed by the Tribunal would render Clause (k) a deed letter. The power to eject the tenant will be kept inabeyance so long as the tenant is willing to pay charges for misuse and will be activated only when the L&DO announces a fixed date by which misuse must be stopped. Misuse has continued from 1962 to 1983. For 21 years it has gone on. Under the formula of the Tribunal it will go on until the lease is cancelled and the lessor re-enters the premises. In that case both the landlord and the tenant will loose, as the Supreme Court has said.

39.For these reasons, the appeals are allowed. The respondents are allowed three months time to stop the misuse or to vacate the premises. If they do not stop misuse or continue with the commercial use of the premises the appel- lants will be entitled to evict them. On these conditions an order of eviction is passed against each of three respondents. The order of the Controller is restored. The order of the Tribunal is set aside. The parties are left to bear their own costs. "

(12) The learned Counsel for the respondents has tried to distinguish the facts of the present case with the facts of the case, as referred to in the case of Daljit Singh Madan by pointing out that in the present case the L&DO has clearly stated that the breaches of misuse could be condoned and so long as they were condoned the premises could be used for any commercial activity. This argument proceeds on misconception of law as the L&DO at no stage has categorically stated that the breaches of misuse could be regularised permanently, though the said breaches have continued since the date of inception of the tenancy. The claim for misuse charges has been made in two categories; (a) additional charges for change of use with effect from November 28, 1967; and (b) Damages charges for unauthorised construction from December 1,1979. It may be noticed that the breaches could not be condemned merely on the basis of the undertaking of the tenant for payment of misuse charges and it has been so stated by the L&DO that any such undertaking on behalf of the tenant was not acceptable as there was no privity of contract between the lessor and tenant. The L&DO has also been sitting on the fence in not deciding the issue and at the same time taking the stand that breaches could only be condoned temporarily and not permanently. This approach is clearly baffling as there is no attempt to settle the matter finally and there is total uncertainty in the minds of the people occupying such premises. However, the import of the provisions of Section 14(11) will not, in any manner, lay down the proposition that the temporary breaches for misuse would be protected and no eviction could be made on that basis. It is an admitted case that the premises were liable to be used for residential purposes under the terms of the lease with the L&DO and no change of user has been allowed on permanent basis by the Government. The tenant, who it is stated, was a carpenter by profession, has since expired and the premises are lying locked in view of the civil proceedings pending between the parties in which an interim order of injunction has been made on the application of the appellant. Therefore, the legal heirs of the deceased tenant cannot be said to be in possession of the premises. In this background, the learned Counsel for the respond en ts offered in the initial stage to use the premises only for residential purposes though this plea was not stressed when the arguments concluded.

(13) The provisions of law as contained in Sections 14(I)(k) and 14(11) of the Act have been duly explained and approved by the learned Judge in the case of Daljit Singh Madan. It is clearly reiterated that the tenant must use the premises in conformity with the conditions of lease and the landlord is not estopped from claiming possession even though he himself was guilty party in letting the premises for purpose contrary to the conditions of lease. The relevant findings were given by the Court in paragraphs 12, 21 and 23. The same read as follows :

" 12.There is an clement of public interest in Clause (k). Clause (k) has been enacted by the Parliament in the interest of public and not merely of the individual. Clause (k) insists upon conformity to the terms of the lease granted by the head lessor to the lessee. If the lease granted by the head lessor stipulates that the property shall be used for residential purpose and the tenant is using the same for commercial purpose. Clause (k) read with Sub-section (II) requires the tenant to stop misuse of the premises and to conform to the use prescribed in the lease. This requirement is necessary in the interest of planning and in order to make Delhi a better place to live in. In my opinion Clause (k) is affected with public interest in Government leases appears clearly from the statute itself. The three authorities - the Government, Dda and the Municipal Corporation-mentioned in Clause (k) are in a moral, though not of course, a legal sense the trustees for posterity. A Basic Authority

21.The first and the by far the most important question that arises is whether such an order as was made by the Tribunal in these cases is within the contemplation of the statute and would subserve the public purpose with which Clause (k) was enacted. The language of Clause (k) coupled with the policy of the Legislature makes it crystal clear that the statutory obligation is to compel the landlord and the tenant both to conform to the use prescribed in the lease. One thing is clear. The term of the lease shall prevail. The controller has no overriding power. Nor the Tribunal. The statutory power is to be exercised not for the personal protection alone but for the public good. The public good resides in conforming to the use prescribed in the lease. The Supreme Court has emphasised this aspect again and again in Faqir Chand. If this is not done the lease becomes void. The anxiety of the Legislature is to prevent an unauthorised misuse rather than the protection of the tenant, as the Supreme Court has said. This is why the landlord is not estopped from claiming possession even though he himself was a guilty party in letting the premises for the purpose contrary to the conditions of the lease.

23.The crucial point in the case is that the tenant must use the premises in conformity with the conditions of the lease. If the landlord allows his property to be used in the manner contrary to the conditions of the lease, his lease is liable to be cancelled. If the tenant does not stop the misuse, he is liable to be evicted. This is the statutory solution of a practical problem."

(14) The facts in the present case are clear. The lease entered into between the appellant and the L&DO only permitted the use of the premises for residential purpose. For the aforesaid reasons, this appeal is disposed of with the direction that the suit premises shall be used for residential purposes in accordance with the terms of die lease as entered into by the appellant with the Land and Development Office. The learned Counsel for the appellant also contends that the original tenant has since expired and his legal heirs have no locus standi to contest the proceedings as they do not fall in the category of heirs who will have the right of inheritance in respect of the suit property. This plea cannot be the subject matter of decision in the present appeal and it will be open for both the parties to take the same in an appropriate forum, as provided in law. The legal heirs of the respondent Bhagwan Singh are admittedly out of possession and the proceedings as initiated by the appellant are going on in the Civil Court which may be disposed of in accordance with law. There will be no order as to costs.