Bhim Sain Gupta & Ors. vs S.P. Rao And Ors.
2000 Latest Caselaw 270 Del

ORDER

Madan B. Lokur, J.

1. The Appellants have filed a second appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter to as the Act) directed against the order dated 7th January , 1986 passed by the learned Rent Control Tribunal in R.C.A. No. 516/85. By the impugned order, the learned Rent Control Tribunal (for short the Tribunal) allowed the appeal filed by the Respondents and dismissed the eviction petition filed by the Appellants as being not maintainable.

2. The question involved in this appeal is quite narrow. But, before addressing the question, it would be essential to refer to the facts of the case which ultimately have a bearing on the issue raised.

3. The predecessors in interest of the Appellants entered into a perpetual lease deed dated 19th December, 1938 with the Government of India in respect of the suit premises. By virtue of the lease deed, they were entitled to use the suit premises for residential purposes. They were also entitled to subject the suit premises. The predecessors in interest of the Appellants leased out the suit premises to the predecessors in interest of the Respondents. For the sake of convenience, the predecessors in interest of the Appellants and the Appellants are hereinafter referred to as the landlords while the predecessors in interest of the Respondents and the Respondents are referred to as the tenants.

4. There is no dispute about the fact that as per the perpetual lease deed, the suit premises could be utilised only for residential purposes. However, the tenants were allegedly using the suit premises as a boarding and lodging house. According to the landlords this amounted to commercial user of the suit premises and, therefore, they sought eviction of the tenants under Clause (k) of the proviso to Section 14(1) of the Act.

5. The learned Additional Rent Controller allowed the eviction petition by an order dated 19th March, 1985 and directed that notice be issued to the Land and Development Officer of the Government of India under Section 14(11) of the Act to know if the breaches could be regularized on a permanent basis and if so, on what terms. Against this decision of the learned Additional Rent Controller, the tenants preferred an appeal before the learned Tribunal which came to the conclusion that since the Land and Development Officer had reentered the suit premises, the eviction petition was not maintainable .

6. In this regard, it is necessary to note that on 9th February, 1968 the Land and Development Officer had sent a notice to the landlords to show cause why reentry into the suit premises be not effected. Subsequently, on 4th May, 1968 the Land and Development Officer determined the lease of the landlords with respect to the suit premises and reentered the suit prem ises with effect from 28th April, 1968.

7. On or about 9th January, 1976, the landlords sent a notice to the tenants determining their tenancy. What happened between 1968 and 1976 is not very clear. But, be that as it may, subsequent to this notice, the landlords filed an eviction petition in February,1976 which came to be withdrawn by the landlords in view of the fact that the suit premises stood reentered. Thereafter, on 5th June, 1976 the landlords filed another eviction petition out of which the present proceedings have arisen.

8. The question that, therefore, arises for consideration in this appeal is whether the second eviction petition was maintainable even though the Land and Development Officer had earlier reentered the suit premises.

9. Apart from the merits of the controversy, the learned counsel for the tenants pressed an application filed by him being C.M. No. 241 of 1995 where three preliminary objections were raised. One of the objections was that the appeal did not raise any substantial question of law . However, I am of opinion that this appeal does raise a substantial question of law regarding the maintainability of an eviction petition filed by landlord after the suit premises have been reentered by the principal lessor, that is, the Government of India. Neither counsel have been able to cite any judgment which could have any direct bearing on this issue. Since the issue is apparently arising for the first time, it needs to be considered and dealt with. Accordingly, I reject this objection.

10. The second objection that was raised was that the appeal was not accompanied by a certified copy of the order passed by the learned Additional Rent Controller and as such, the appeal was not maintainable or was otherwise not competent. This objection was (mercifully) given up by learned counsel for the tenants during the course of his submissions.

11. The third objection raised by learned counsel was that the appeal had abated because the legal representatives of Ratnawati that is, the widow of the regional tenant had not been brought on record.

12. Ratnawati is not only the widow of the original tenant but also the mother of Respondents 1 to 4. The objection raised by learned counsel for the tenants is that there are two other persons, namely, Smt. Vineeta Rao and Smt. Padma Kanti Chugh who are also the legal representatives of the deceased. Their relationship with the deceased has not been stated anywhere but I presume that they are her daughters because it has not been stated in what capacity they are said to be the legal representatives of Ratnawati.

13. There is no dispute about the fact that Ratnawati's husband (late Shri K.S. Rao) the father of Respondents 1 to 4 was the original tenant and he was inducted in the suit premises as a tenant in the year 1950. Late Shri K.S. Rao apparently died in 1955. At no point of time thereafter was any claim set up, either by Respondents 1 to 4 or by Ratnawati, that Smt. Vineeta Rao and Smt. Padma Kanti Chugh had also inherited the tenancy rights in respect of the suit premises. Such a case was also not set up by these two ladies. Even after the eviction petition was filed, no such objection was raised in the written statement . As such, it is quite clear that Smt. Vineeta Rao and Smt. Padma Kanti Chugh had no claim over the suit premises.

14. After the death of Ratnawati on 11th October, 1983, it appears that the learned Additional Rent Controller was apprised about the death of Ratnawati. It is not clear what transpired before him because the certified copy of the order passed by the learned Additional Rent Controller on 19th March, 1985 shows Ratnawati (deceased) as Respondent No. 5. Be that as it may, since the order of the learned Additional Rent Controller was in favour of the landlords, the tenants filed an appeal before the learned Tribunal. The Appellants were Respondents 1 to 4 and Madras Hotel (Respondent No. 5) which is their partnership business. In the grounds of appeal, nothing was said about the death of Ratnawati or that she has two other leagal representatives . It is clear, therefore, that even on the showing of Respondents 1 to 4, Smt. Vineeta Rao and Smt. Padma Kanti Chugh have absolutely no interest in the suit premises. This objection seems to have been taken for the sake of taking some objection.

15. Quite apart from this, it has been held by the Supreme Court in Mahabir Prasad Vs. Jage Ram and Ors. of the Report as follows:

"...... Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate,..."

16. This decision was followed by the Supreme Court in Bhurey Khan Vs. Yaseen Khan (dead) by LRs. and Ors., (1995) Supp. 3 SCC 331. In this case, the Supreme Court was of the view that since the estate of the deceased was represented, the appeal could not have abated. The Supreme Court, accordingly, set aside the order passed by the High Court in that case and re manded the matter back to the High Court for a decision on the merits of the case taking the estate of Yaseen Khan to be represented by his sons.

17. In view of the above, and relying upon decisions of the Supreme Court, I reject the objection raised by the tenants.

18. On the merits of the case, learned counsel for the landlords submitted that even if the suit premises had been subjected to re-entry by the Government of India, it would not make any difference because insofar as the tenants are concerned their landlords remain the Appellants and not the Government of India. Learned counsel for the Appellants relied upon two decisions which, to my mind, are not quite apposite. These decisions are Sisir Kumar Sen and Ors. Vs. Union of India and Anr. , 64(1996) DLT 585 and Sri Ram Pasricha Vs. Jagannath and Ors., .

19. However, it is not necessary for me to discuss these cases referred to by learned counsel since I am in agreement with him that even though the suit premises have been re-entered by the Government of India, it would not make any difference whatsoever.

20. The reason why I am in agreement with learned counsel for the landlords is that the Government of India has not yet taken possession of the suit premises. This was noticed by the learned Additional Rent Controller in his order dated 19th March,1935. This is also clear from a letter dated 1st October ,1993 issued by the Government of India that they will be pleased to regularise the breaches and withdraw re-entry subject to payment of certain amounts. The letter is annexed to C.M. No.280 of 1994. Even subsequently, in C.M No. 1635 of 1999 the landlords have averred that they have received a further communication dated 11th July , 1994 from the Land and Development Officer that the misuser can be regularised on payment of certain charges. It was apparently also mentioned in that communication that in case the amounts are not paid, the Land and Development Officer will take physical possession of the suit premises. This means that at least until 1994, the possession of the suit premises was with the landlords.

21. Learned counsel for the landlords relied upon Pritam Dass Vs. Kumari Jiya Rani, . This decision is of limited assistance. Although this decision primarily dealt with the interpretation of Section 15(1) of the Act, there is some similarity between the facts of that case and the present case.

22. In Pritam Dass the Respondent/landlady was granted some land by the Delhi Improvement Trust. The lease in favour of the landlady was cancelled on 7th March, 1944 and the Delhi Improvement Trust had entered into possession of the premises. The successor to the Delhi Improvement Trust, that is, the Delhi Development Authority later on filed a suit for ejectment and obtained a decree against the landlady and an appeal against the decree was also dismissed. When the landlady filed and eviction petition against the Appellant/tenant, one of his objections was that in view of the above facts, the Delhi Development Authority had a superior title and the landla dy could not maintain the eviction petition.

23. In para 16 of the Report, the Full Bench referred to some other proceedings wherein the District Judge had come to the conclusion that the possession of the landlady over the land in dispute was held to be proved. Moreover, the Full Bench also took note of the fact that the Appellant/tenant did not dispute that he was the tenant of the land in dispute. On this basis the Full Bench negatived the contention of the Appellant/tenant.

24. In the present case also, the fact hat the landlords are in possession of the suit premises does acquire significance. So also the fact that the tenants do not dispute that they are the tenants in the suit premises.

25. It is also worth noticing that it is not the case of the tenants that they were paying rent in respect of the suit premises to the Government of India since the time of reentry in 1968.

26. This being the position, I am of the view that the learned Tribunal seriously erred in non-suiting the landlords merely because the land and Development Officer had re-entered the suit premises in 1968. What was overlooked by the learned Tribunal was that the landlords were still in possession of the suit premises, and vis-a-vis the tenants, they were the landlords and not the Government of India.

27. Learned counsel for the tenants invited my attention to Section 3 of the Act and submitted that in view of this section, the suit premises are not subject to the Act.

28. Section 3, in so far as it is material, reads as follows :

"3. Act not to apply to certain premises. Nothing in this Act shall apply:

(a) to any premises belonging to the Government;

(b) to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned by the Government :

Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or otherwise, then, not-withstanding any judgment, decree or order of any court or other authority, the provisions of this Act shall apply to such tenancy.

(c)x x x

(d) x x x "

29. A perusal of the above provision clearly shows that premises belonging to the Government or premises which are taken on a grant from the Government are not subject to rent control legislation. The proviso, however, clearly stipulates that premises which belong to the Government and which have lawfully been let by any person pursuant to a grant, then such premises will be subject to the rent control legislation. In the present case, there cannot be any disputes about the fact that the suit premises were taken on a grant by the landlords. There is no dispute about the fact that under the perpetual lease deed,the landlords were entitled to sublet the premises to the tenants, which they did. In terms of the proviso to Section 3(b) of the Act, this tenancy between the landlords and the tenants will be subject to the rent control legislation.

30. Learned counsel for the tenants further submitted that after the premises had been reentered by the Government of India, they became "premises belonging to the Government" and were, therefore, not subject to the provisions of the Act. I am not inclined to subscribe to such an interpretation of Section 3(a) of the Act.

31. A reading of Section 3(a) and (b) of the Act makes it clear that there is a distinction between the premises belonging to the Government and premises which have been given out on a grant by the Government. The suit premises fall in the latter category whether they have been re-entered or not. They are, therefore, governed by the provisions of Section 3(b) of the Act. However, the legislature has carved out are exception which is reflected in the proviso to Section 3(b) of the Act. The tenancy really falls within the meaning of the proviso to Section 3(b) of the Act and is, therefore, subject to the provisions of the Delhi Rent Control Act, 1958. The contentions of learned counsel for the tenants in this regard are, accordingly, rejected.

32. The appeal must, therefore, succeed. The impugned order dated 7th January, 1986 is accordingly set aside. The parties are directed to appear before the learned Additional Rent Controller on 13th March, 2000 for further proceedings under Section 14(11) of the Act.

33. There will, however, be no order as to costs.

34. The lower Court records be sent back forthwith.