Bank Of Rajasthan Ltd. vs Smt. Raj Rani & Another
1998 Latest Caselaw 655 Del

JUDGMENT

C.M. Nayar, J.

1. This appeal arises out of the judgments dated 12th September, 1989 and 15th January 1991 passed by the Rent Controller, Delhi and Rent Control Tribunal, Delhi respectively.

2. The brief facts of the case are that the respondent Raj Rani filed an eviction petition against the appellant bank for recovery of possession of the premises comprising of entire ground floor, including two rooms, a hall, a kitchen, bath and W.C. with verandah in front and rear courtyard with exclusive use of open space in front of the property bearing No.21-B/2, New Rohtak Road, New Delhi on the ground of misuser. It was alleged that the appellant was using the premises in violation of the terms of the lease granted to the respondent-lessee. The petition was contested and vide Order dated November 10, 1986 it was held that a case under Section 14(1)(k) of the Delhi Rent Control Act (hereinafter referred to as the 'Act') was made out. Accordingly, a notice under Section 14(11) was issued to the lessor, Delhi Development Authority who submitted its reply on November 16, 1988 in which a sum of Rs.40,139.20 as compounding fee for the period 1.1.1974 to 31.3.1982 was claimed. The Authority further claimed a sum of Rs.77,091.09 for the period 1.4.1982 to 31.5.1988 and made clear that the lessor was interested in the removal of non-conforming use of the premises in suit and the payment of misuse charges/penalty for the condensation of breaches of the terms of the lease for the past in no way confers any rights on the lessee and in no way affects the rights of the lessor to determine the lease. The Rent Controller, accordingly, held that the Delhi Development Authority was in no way willing to allow the continuous misuse of the premises and were interested that the misuser should stop. As a consequence direction was issued to the appellant to pay the aforesaid two amounts of penalty and also to stop the misuser of the premises within two months from the date of passing the Order failing which the eviction order was to be deemed to have been passed against the appellant and the appellant was liable to vacate the premises in suit as shown in the site plan Exhibit AW-2/1. The appellant felt aggrieved by this Order and filed an appeal before the Rent Control Tribunal. The Tribunal upheld the Order and dismissed the appeal but granted further two months time to comply with the impugned Order failing which an eviction order under Section 14(1)(k) of the Act was deemed to have been passed against the appellant.

3. The only contention of learned counsel for the appellant is that once the Rent Controller was not satisfied with the reply filed by the Delhi Development Authority and directed the Authority to file a specific reply as to whether the banking business could be permitted, the impugned Order of eviction was not liable to be passed in the absence of such reply. There is, therefore, no compliance of the provisions of Section 14(11) of the Act. The other contention which has been half-heartedly contended is that the Delhi Development Authority cannot be allowed to take discriminatory stand in case of the property occupied by the appellant as the other premises similarly situated are permitted to continue the commercial activity on the payment of misuser charges. The two grounds as raised in the present appeal were examined and dealt with in paragraphs 4 and 5 of the judgment of the Tribunal which may be reproduced as under:-

"4. The only ground urged in this appeal by the learned counsel for the appellant was that once the learned Rent Controller was not satisfied with the reply dated 17.8.1988 filed by the DDA and directed the DDA to file a specific reply whether the Banking business could be permitted, the learned Rent Controller should not have passed the impugned eviction order in the absence of any specific reply from the DDA in this regard. Learned counsel for the appellant contended that instead of compelling the DDA to file specific reply in the matter the learned Rent Controller chose to pass an eviction order against the tenant-appellant. As against this, learned counsel for the respondent contended that the DDA had already filed its written statement dated 13.5.1987 and the reply dated 17.8.1988 to the notice issued under Section 14(11) of the Act and on both these occasions the DDA had taken a categorical stand that it is keenly interested in the removal of the misuser. The learned counsel for the respondent contended that in the face of the clear stand taken by the DDA there was no need to call upon the DDA to file any further reply and that is why the learned Rent Controller passed the impugned order dated 12.9.1987 after realising the futility of the exercise of calling upon the DDA to file any further reply. I have given my thoughtful consideration to the respective submissions of the learned counsel for the parties in this regard and in my view, the contention of the learned counsel for the appellant is untenable. The DDA in its written statement dated 13.5.1987 as well as in its reply dated 17.8.1988 the DDA has taken a categorical stand that they are keenly interested in the removal of the misuser and the acceptance of the misuse charges for the past misuser does not affect its right to determine the lease and re-enter the premises if the misuser continues. It has also come in the statement of AW.1 S.S.Sura, an official from the DDA that the demised premises are being used for banking purpose which is in contravention of the terms of the lease deed executed between the DDA and the respondent and the DDA has taken objection to the misuser and a number of notices have been issued to the lessee and penalty imposed. This means that the DDA is only postponing the re-entry by allowing the lessee time to stop the misuser and this concession on the part of the DDA cannot be construed as a permission for continuing the misuser. The DDA was throughout aware of the fact that the demised premises are being used for banking purposes and if at all such misuser can be regularised or permitted, the DDA would have said so in its written statement dated 13.5.1987 or in its reply dated 17.8.1988, but on both these occasions the DDA has taken a categorical stand that it is keenly interested in the removal of the misuser. Under these circumstances, there is no need to call upon the DDA to file any further reply in the matter and the learned Rent Controller rightly proceeded to decide the petition on the basis of the material already on record. Under the circumstances, I think, the only option left for the learned Rent Controller was to direct the tenant to stop the misuser and to pay the misuse charges for the past in terms of Section 14(11) of the Act. Learned Rent Controller could not have possibly permitted the tenant to continue the misuser and go on paying misuse charges when the paramount lessor the DDA is not willing to condone the misuser and has repeatedly expressed its eagerness to get the misuser removed.

5) It was next contended by the learned counsel for the appellant that there are several other banks operating in the area and, therefore, the DDA cannot be allowed to take discriminatory stand in the case of the disputed property only. This contention of the learned counsel for the appellant also cannot prevail because the appellant has not furnished the particulars of the properties in which other banks are operating nor has the appellant disclosed as to whether those properties are on lease hold basis under some public authority and, if so, what are the terms of the lease. In the absence of these details it is not possible to conclude that the DDA has taken a discriminatory stand in the matter."

4. The question now arises as to whether the Delhi Development Authority has specifically stated that the alleged misuser of the premises can be condoned on payment of charges as demanded and whether the Court can grant recovery of possession in the facts and circumstances of the present case. Reference has been made to the Order made on 24th January, 1989 by the Rent Controller which reads as follows:-

"E.186/83

Present: Counsel for parties.

Counsel for DDA.

Reply submitted by the DDA in response to the notice issued under Order 14 DRC Act is not proper. Reply is still vague as they have not mentioned whether they can allow to continue the respondent the user of the premises for the bank purposes so it would be better if some senior officer from DDA be summoned to throw light on the same and to give a category reply whether they can the user of the premises for the bank operation or not. Now, to come up on 8.3.89.

Sd/-

RC/24.1.89"

5. On the above basis the learned counsel for the appellant has argued that there is no specific reply from the Delhi Development Authority and the Rent Controller as well as the Rent Control Tribunal should have insisted on the reply of the Authority before arriving at the conclusions that the misuser cannot be continued. However, reference may be made to the reply filed by the Delhi Development Authority on 13th May, 1987 which may be reproduced as under:-

"In the Court of Sh.J.M.Malik: Rent Controller: Delhi.

Smt.Raj Rani ...Petitioner.

Vs.

Bank of Rajasthan Ltd.

& another ...Respondents.

Statement on behalf of the noticee- Delhi Development Authority.

The noticee-Delhi Development Authority submits as under:

1. That as per orders of the Hon'ble Court the Delhi Development Authority states herewith the policy regarding the use of the premises in dispute.

2. That the use of the premises in dispute is residential as per the terms of the lease deed and the Master Plan for Delhi. If the premises in dispute is put to any non conforming use viz. other than the residential use, the lease is liable to be cancelled and the lessee as well as tenant of the lessee are liable for legal action under Section 14/29(2) of Delhi Development Act as well.

3. That the Delhi Development Authority is keenly interested in the removing/vacation of the non-conforming use and will not permit the non-conforming use to continue, the Delhi Development Authority may determine the lease and re-enter the premises.

4. That the Delhi Development Authority will recover the misuse charges/(consideration money for regularisation of the past misuse) from the lessee for the non-conforming use of the premises in dispute for the past period on such rates which are prescribed from time to time.

5. That in cases where lease is determined, the lessees are also liable to pay lease restoration charges in addition to the misuse charges for the past period on rates prescribed from time to time.

Delhi Development Authority

through

Sd/-

(Secretary)

through:

Sd/-

(K.P. Sharma)

Advocate"

6. The reading of the above would clearly show that the Authority made it clear that it would recover the misuse charges from the lessee for the non-conforming use of the premises in dispute for the past period as well as was interested in the removal/ vacation of the non-conforming use and would not permit the same to continue. In case it continued the Authority may determine the lease and re-enter the premises. In view of the above categorical submission of the Delhi Development Authority it cannot be said that the misuser can be condoned. The finding recorded by the Rent Control Tribunal cannot be faulted as the only option left was to direct the tenant appellant to stop the misuser and to pay the misuser charges for the past in terms of Sub-section (11) of Section 14 of the Act. The question of law as raised in this appeal is also concluded by the judgment of the Supreme Court reported as Dr. K.Madan Vs. Krishnawati (Smt) and another (1996) 6 Supreme Court Cases 707. The law on the subject has been referred to in paragraphs 15, 16 and 17 which may be reproduced as follows:-

"15. It is no doubt true that the observations in Punjab National Bank case are to the effect that as long as the penalty was paid "the deviation of the user could be permitted", but the attention of the two-Judge Bench was not drawn to the earlier decision of a three-Judge Bench in the case of Faqir Chand v. Ram Rattan Bhanot. In that case, property had been given on lease by the Delhi Development Authority but the landlords had permitted tenants to use portion of the building for commercial purposes. The Development Authority issued notice to the landlords calling upon them to discontinue the use of land for commercial purposes, failing which cause should be shown as to why the lease should not be determined and the property re-entered. Thereupon the landlords sought eviction of the tenants under Section 14(1)(k) of the Act. One of the contentions which were raised on behalf of the tenants was that the landlords were estopped or otherwise prohibited from getting possession of the property because the landlords themselves had let out the property for commercial purposes. While analysing the provisions of clause (k) and sub-section (11) of Section 14 of the Act, it was observed in Faqir Chand case as under:(S p.577, para 12)

"The legislature has clearly taken note of the fact that enormous extents of land have been leased by the three authorities mentioned in that clause, and has expressed by means of this clause its anxiety to see that these lands are used for the purpose for which they were leased. The policy of the legislature seems to be to put to an end to unauthorised use of the leased lands rather than merely to enable the authorities to get back possession of the leased lands. This conclusion is further fortified by a reference to sub-section (11) of Section 14. The lease is not forfeited merely because the building put upon the leased land is put to an unauthorised use. The tenant is given an opportunity to comply with the conditions imposed on the landlord by any of the authorities referred to in clause (k) of the proviso to sub-section (1). As long as the condition imposed is complied with there is no forfeiture. It even enables the Controller to direct compensation to be paid to the authority except in the presence of the authority. The authority may not be prepared to accept compensation but might insist upon cessation of the unauthorised use. The sub-section does not also say who is to pay the compensation, whether it is the landlord or the tenant. Apparently in awarding compensation the Controller will have to apportion the responsibility for the breach between the lessor and the tenant."

16. Dealing with the contention that the landlords were estopped from filing or getting any relief under clause (k), it was held that: (S p.577, para 13)

"The anxiety of the legislature is to prevent unauthorised user rather than protection of the tenant or strengthening the hands of Development Authority in effecting forfeiture. The Development Authority can always resort to the terms of the lease. There is no estoppel here because both the landlord and the tenant knew that the tenancy was not one permitted under the terms of the lease of the land. In any case there can be no estoppel against the statute. It would not benefit the tenant even if it is held that the landlord cannot, under the circumstances, evict him. The landlord will lose his property and the tenant also will lose. He cannot, after the Development Authority takes over the building use it for a commercial purpose."

17. Section 14(1)(k) of the Act again came up for consideration before this Court in Curewell (India) Ltd. Vs. Sahib Singh. While construing sub-section (11) of Section 14 of the Act, it was observed as follows: (S pp.509-10, paras 6 and 7)

"This sub-section prevents eviction if the tenant has complied with the condition imposed on the landlord by the government. The sub-section also requires the person in possession, namely, the sub-lessee to pay to the authority such amount by way of compensation as the Controller may direct. It is not in dispute that the original lessee, upon receipt of notice from the government, had in turn issued notice to the sub-lessee, namely, the appellant calling upon him to stop misuser or vacate the premises. If the appellant has, as contended by him, stopped misuser, he is of course not liable to be evicted by reason of the protection given to him under sub-section (11). Nevertheless, for the past misuser, the appellant is liable to pay such charges as are payable in terms of the sub-section. The charges under the sub-section are such charges as are determined by the Controller. The Controller must, therefore, after hearing the parties determine the amount payable by the person responsible for the misuser, namely, the appellant who is the tenant of the original lessee and determine the correct amount.

We are of the view that the appellant is liable to be evicted unless he has already stopped or stops immediately the misuser of the premises and pays the misuse charges for the period of misuse. Whether the misuser has stopped, and if so when, are questions of facts which do not appear to be clear from the pleadings or the impugned judgment and the orders of the statutory authorities."

7. The Court then held that where the Authority requires stoppage of misuser then an Order to that effect has to be passed but where the Authority merely demands compensation for misuser and does not require the stoppage of misuser then only in such a case would the Controller be justified in passing an order for payment of compensation alone. The relevant provisions of law are interpreted in paragraph 19 of the judgment which reads as follows:-

"19. Section 14(1) of the Act gives protection to the tenants from being evicted from the premises let out to them. Clauses (a) to (l) of the proviso to Section 14(1) of the Act contain the grounds on which recovery of possession of the premises can be ordered by the Controller. Where the premises are used in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or Municipal Corporation of Delhi, then the landlord would be entitled to recovery of possession under Section 14(1)(k) of the Act. Sub-section (11) of Section 14, however gives an option to the Controller to pass an order whereby recovery of possession may not be directed. The alternative to an order for recovery of possession under Section 14(1)(k) is to pass an order under sub-section (11) of Section 14 of the Act whereby the tenant is directed to comply with the conditions imposed on the landlord by the authorities referred to in clause (k) namely to stop the misuser of the premises in question. Sub-section (11) of Section 14 also uses the words "pays to that authority such amount by way of compensation as the Controller may direct". Keeping in view the fact that clause (k) of the proviso to sub-section (1) has been inserted in order that the unauthorised use of the leased premises should come to an end, and also bearing in mind that the continued unauthorised use would give the principal lessor the right of re-entry after cancellation of the deed, the aforesaid words occurring in sub-section (11) of Section 14 cannot be regarded as giving an option to the Controller to direct payment of compensation and to permit the tenant to continue to use the premises in an unauthorised manner. The principal lessor may, in a given case, be satisfied, in cases of breach of lease to get compensation only and may waive its right of re-entry or cancellation of lease. In such a case the Controller may, instead of ordering eviction under Section 14(1)(k) of the Act, direct payment of compensation as demanded by the authorities mentioned in clause (k). Where, however, as in the present case compensation is demanded in respect of condoning/removal of the earlier breach, but the authority insists that the misuser must cease then the Controller has no authority to pass an order under Section 14(11) or Section 14(1)(k) of the Act giving a licence or liberty of continued misuser. In other words, sub-section (11) of Section 14 enables the Controller to give another opportunity to the tenant to avoid an order of eviction. Where the authority concerned requires stoppage of misuser then an order to that effect has to be passed, but where the authority merely demands compensation for misuser and does not require the stoppage of misuser then only in such a case would the Controller be justified in passing an order for payment of compensation alone."

8. In the present case the Delhi Development Authority has clearly stated that it was keenly interested in the removal of non-conforming use and would not permit the same to continue. The Authority in this situation may also determine the lease and re-enter the premises. This is a categorical averment as made in reply to the petition before the Rent Controller.

9. In view of the above reasons and the settled position of law, there is no error in the Orders of the Rent Controller as well as the Rent Control Tribunal and the same are upheld. The present appeal is, accordingly, dismissed. The appellant is, however, granted two months time to comply with the Order dated 12th September, 1989 passed by the Rent Controller, Delhi.

10. There will be no order as to costs.