B.K. Verma vs Raghunath Rai Kapoor
1999 Latest Caselaw 1062 Del

ORDER

Manmohan Sarin, J.

1. Appellant, now deceased, filed a petition under Section 14(1)(h) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the 'Act'), in December, 1978 seeking eviction of the respondent tenant on the ground of his having acquired and built alternative residential accommodation at Plot No. 3, Basant Lok Community Centre, Opposite Priya Cinema, Vasant Vihar, New Delhi.

2. The learned Additional Rent Controller had passed an order of eviction under Section 14(1)(h) holding that respondent/tenant had acquired alternative residential premises at Vasant Vihar and was, therefore, liable to be evicted from the tenanted premises, viz. the ground floor of property bearing No. R-8/89, Rajinder Nagar, New Delhi. In appeal, the learned Rent Control Tribunal set aside the order passed by the Additional Rent Controller holding that appellant/landlord had filed the eviction petition before the alternative premises at Vasant Vihar had been fully constructed and, therefore, Clause (h) of the proviso to Sub-Section (1) of Section 14 of the Act was not attracted.

3. Appellant expired on 12.5.1992, during the pendency of this appeal. CM. 1082/92 was allowed on 20.5.1992 for bringing on record the legal representatives.

4. Respondent had opposed the eviction petition before the learned Additional Rent Controller on a number of grounds, viz. the petition was for partial eviction; there was no termination of the tenancy; premises had been taken on rent by the firm in which respondent was only a partner and, hence, the firm was the tenant; and, finally, the building was not complete when the petition had been filed and that the eviction petition was premature. The learned Additional Rent Controller had rejected the pleas on nonmaintainability of petition on the ground of it being for partial eviction and of non-termination of tenancy. She held the respondent to be a tenant. These findings are not in issue and have also been affirmed by the Rent Control Tribunal.

5. The crux of the controversy is whether on the date of institution of the petition, it could be said that the respondent had acquired and built alternative residential premises ? The Learned Additional Rent Controller had reached the conclusion that at the time of filing of the petition, the construction of the building had reached a stage so as to attract Section 14(1)(h) of the Act. The works that were left to be done in the building were furnishing works and would hardly take a couple of weeks. More importantly, she held that the respondent was not entitled to defeat the petition by deliberately keeping the finishing work undone for an indefinite period. It is with regard to this last finding that the learned Rent Con-

trol Tribunal had taken the view that under Section 14(1)(h) the use of expression 'residence' meant a place which was fit for residence of a reasonable person. The learned Rent Control Tribunal ocncluded from the testimony of the appellant that it was not a completed building. He observed, "it has no door, electricity, water and window panes. Therefore, for the moment. it cannot be taken to be a residence which is fit for somebody to occupy. The tenant appears to have delayed construction but it is not for the court to find the reason as to why the building was not completed. The fact remains that the landlord approached the Controller before the building could be completed and the petition was premature."

6. As regards the state of the building during the pendency of the appeal, a Local Commissioner was appointed on 6.9.1989, for inspection of the building constructed by the respondent and report as to the following questions:

1. Whether the whole building or any part of it is in use and occupation of any one; and, if so, which is the portion in use ?

2. Whether the whole building or any part thereof has electricity supply, water supply and sanitary connections or not? (A specific report in respect of these amenities shall be made with regard to the top floor of the building).

3. Whether there are any doors and window-panes on the top floor? (Mr. Nayyar states that the rest of the building is fitted with doors and window-panes and, therefore, it is unnecessary to enquire into this aspect of the other floors).

The Commission was executed on 6.9.1989. The Local Commissioner reported that the premises constructed on Plot No. 3, Opposite Priya Cinema, Vasant Vihar, New Delhi, comprised a basement, ground floor, first floor, second floor and top floor and gave the details of the structures on the respective floors. As regards the top floor, the Local Commissioner reported that it consisted of four rooms, one pantry, one kitchen, one varandah, one lobby, bathroom and WC. There was no electricity supply although electric switches had been installed. Sanitary fittings were not present. As regards doors and windows, all the entrances had wooden frames with wooden panels. The entrances of the two rooms had wooden frame without wooden panels. Two unhinged wooden door panels were also found lying there. The Local Commissioner had also filed on record the photographs of the structure from which it is clear that the basic structure of the building was complete.

7. The perpetual lease in the instant case was for a commercial plot. It is not in dispute that as per the plan sanctioned in terms of the lease deed Exhibit AW, 4/1 the basement, ground floor, first floor and second floor were for commercial use while the top floor was sanctioned for residential purpose. The building was put for residential-cum-commercial use. The nature of the accommodation, as per the sanction plan, i.e. bedrooms, bath, latrine, pantry, kitchen, court-yard and balcony, showed that the top floor was meant to be residential. The respondent was required to construct the building within one year from 22.7.1971. He applied for extension of time to construct the building and had been granted time upto 31.12.1979. The tenant in his statement on 4.8.1983 deposed, "the house at Vasant Vihar had not so far been completed and is still incomplete. I have not been issued so far a completion certificate. The doors, etc. are yet to be fixed. The water, electricity and glass panes have not so far been fitted in. The sanitation fitting is also due there. The parts of floor have also not been completed." The respondent tenant claims on the basis of the above that the construction was not complete and, as such, there was no cause of action under Section 14(1)(h) of the Act.

8. The question is that if the tenant by a wilful act or deliberate omission chooses to inordinately delay the finishing works, or applying for a completion or occupancy certificate or getting the electricity and water energised, can he claim that he has not acquired another residence within the meaning of Section 14(1)(h). The answer has to be in the negative, in my view. In the instant case the basic construction had been completed. Conduct lines for electricity were there. Even electric switches had been installed and some holders were also there. Sanitary and sewerage connections were there but sanitary fittings has not been installed. Most of the wooden door frames, with door panels were fixed, Window frames were in position and only window panes remained. In these circumstances, the learned Rent Controller had held that the tenant could not by deliberately not executing or keeping the finishing work pending defeat the eviction petition. The respondent had obtained extension upto 3.12.1979. Written statement was filed on 11.9.1979. His statement was recorded on 4.8.83, yet the position remained same. Even on 6.9.89, during the appeal proceedings, when the local commissioner was appointed the position was almost same as regards the top floor. The learned Rent Control Tribunal, while recognising that the tenant appears to have delayed construction held that it was not for the court to find the reason as to why the building was not ompleted and held the petition as premature. The Rent Control Tribunal, as discussed hereinbefore, had misdirected itself in adopting this approach on this legal question and in setting aside the order of the Rent Controller. The present case is one of self-induced or self created non-availability. The respondents own position being that he was not applying for completion certificate because he wanted the user of the top floor converted from residential to commercial lends support to this being a case of self-created non-availability.

9. It would be appropriate to notice certain other submissions sought to be made by learned counsel for the respondents. It was urged that once it was found that the building of the alternative residence was not complete, it would not be a case of "has built" within Section 14(1)(h) of the Act and the reason or motivation for its not being compete were irrelevant. As discussed hereinbefore, this being a case of self-induced non-completion, respondent cannot be permitted to take advantage of his own wrong and have the petition dismissed as premature.Reliance by the respondent on Gian Singh Vs. Trilok Singh (1975) RLR 340 is misplaced and does not advance the respondent's case. In the cited case tenant who had been allotted a quarter in February 1966, had surrendered its possession in 1968. Eviction petition was filed after two years of surrender, delay was held to defeat the petition. Learned counsel for the respondent also unsuccessfully attempted to urge that even if petition was not premature by virtue of the amending Act of 1988, introducing clause `hh', the cause of action would not survive. The cause of action in the instant case had accrued before the filing of the eviction petition in 1978.

10. While it is true that total absence of basic amenities like water and electricity may render a house inhabitable and the same may not constitute acquiring a residence for a reasonable man, yet cases where basic infrastructure exists but house owner chooses not to have electricity and water connection are on a different footing altogether.

11. Learned counsel for the respondent next contended that the respondent tenant could not be said to have acquired a residence as there was a legal bar on occupying the top floor for residence in the absence of occupation and completion certificate. Learned counsel for the respondent also sought to place reliance on the municipal bye-laws 6.7.1; 6.7.4 and Section 337 of the MCD Act to urge that if the Corporation fails to intimate the refusal or sanction of the intimation for construction given under bye-law 6.1, the same shall be deemed to have been accorded sanction. This was in the context of respobndent's claim that it had applied for sanction of the top floor of the premises on a commercial basis. The case being set up by the respondent being that the sanction plan had been wrongly sanctioned as residential. Counsel also sought to place reliance on Exhibits R/1 and R/2 on which the respondent was permitted to rely, while allowing his application under Order XLI Rule, 27, CPC, in the second appeal. The letter Exhib-it R/1 is the show cause notice issued by the Delhi Development Authority dated 21.10.1982 for failure to complete the construction while Exhibit R/2 was the reply given by the respondent seeking permission to use all the floors as commercial.

Learned counsel for the appellant had refuted these submissions on the ground that these could not be permitted to be set up in the second appeal. Moreover, what has to be seen is the position with regard in the premises at the time of institution of eviction petition. In this regard, the respondent had not denied the nature of construction in the written statement. It was claimed that it was commercial with part residential. The respondent himself had described the premises as the house at Vasant Vihar. The respondent cannot take advantage of his own default in not applying for completion certificate or occupation certificate. It was the witness from the Delhi Development Authority, AW. 4/1, who stated that the upper most portion was to be used as residential. He further submitted that two applications dated 28.6.1979 before the eviction petition and one dated 24.10.1979 for permission to use the top floor for commercial purpose had been turned down. The plea of a revised building plan for conversion of the top floor as commercial had not been pleaded in the courts below and was taken up for the first time in the second appeal. The basic construction had been completed in terms of the sanctioned plan by the respondent prior to the filing of the eviction petition on 20.12.1978. The letters Exhibits R/1 and R/2 also do not contain any plea of deemed sanction. Moreover, in my view, the right to claim eviction under Section 14(1)(h) of the Act accrued in favour of the landlord upon construction of the alternate premises. It cannot be taken away by the tenant by either delaying or deferring the completion of the finishing items of his own choice or by not applying for completion certificate or his unilateral act in applying for conversion of the user of the property from residential to commercial. These pleas taken by the respondent, accordingly, have no merit.

12. In view of the foregoing discussion, I am of the view that the learned Rent Control Tribunal has misdirected itself in adopting the approach to him and in setting aside the order of eviction. The appeal is, accordingly allowed. The judgment of the Rent Control Tribunal is set aside and the order of eviction passed by the learned Additional Rent Controller is affirmed.

13. It may also be noticed that in this case the appellant, who had instituted the eviction petition in 1978 and obtained the order of eviction on the ground under Section 14(1)(h), could not enjoy the benefit of the same and has since expired. As a matter of fact, over two decades have elapsed from the time the appellant sought the relief of respondent's eviction from the tenanted premises on the ground under Section 14(1)(h) of the Delhi Rent Control Act. In these circumstances, I am not inclined to grant any further time to the respondent for vacating the suit premises.