Shri Shiv Shankar Rustogi vs Shri Uma Shankar Sharma
2002 Latest Caselaw 464 Del

JUDGMENT

Vikramajit Sen, J.

1. The avowed intention of the Delhi Rent Control Act 1958, (hereinafter referred to as 'the Act') as contained in its preamble, is to provide for control of rents and evictions in Delhi. It is indeed paradoxical that in the present case the protection of the Act is sought by Shri Uma Shankar Sharma (Respondent/tenant herein) in respect of the tenancy granted to him by Shri Shiv Shankar Rastogi (Petitioner/landlord herein). This in respect of a part of the premises bearing No. 5770, Jogi Wara, Nai Sarak, Delhi. Shri Sharma, who is hereinafter referred to as Tenant, is the himself a landlord, being the owner of residential flat No. 114, First Floor, Chilla Dhallupura, New Delhi by virtue of his being a member of the Leiah Group Housing Society. The Tenant has sought exemption from eviction for a period of ten years by virtue of the provisions of Section 14(1)(hh) of the Act. The Petitioner/Landlord had successfully contended before the Additional Rent Controller that this provision cannot be availed of by the Tenant as the said flat had been allotted to him. That finding, however, has been revered by the Additional Rent Control Tribunal, Delhi, in the impugned Judgment dated 8.11.2000, in whose opinion the said flat was constructed and completed near or around November, 1992 and since the ten years period as per Section 14(1)(hh) of the Act had not elapsed, no cause of action to file the eviction petition had accrued in favor of the Landlord. The difference of opinion between the Controller and the Tribunal is that the former considered the tenant as an allottee, whereas the latter considered the tenant as having built the flat. The relevant provisions read as follows:-

14(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 of Controller in favor 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:-

(a) to (g) .....

(h) that the tenant has, whether before or after the commencement of the Act, acquired vacant possession of, or been allotted, a residence;

(hh) that the tenant has, after the commencement of the Delhi Rent Control (Amendment) Act, 1988, built a residence and ten years have elapsed thereafter;

2. Section 14(1)(h) prior to its amendment in 1988 was in the following words - "that the Tenant has, whether before or after the commencement of this Act, built, acquired vacant possession of, or been allotted, a residence." The only amendment to this sub-section was the deletion of the word 'built' which has been underlined above for clarification. Simultaneous with the deletion of the word 'built' in Sub-section (h), the new Sub-section (hh) was incorporated into the Act and this word/concept was expressed therein.

3. The Delhi Rent Control (Amendment) Bill 1988 came up for perusal of the Parliament on its introduction in the Rajya Sabha, by the Minister of Urban Development. On the question at issue it was stated that - "The second objective of this Bill is to give a boost to house building activity and to promote maintenance of the existing housing stock in a reasonable state of repair. This is sought to be achieved mainly by exempting from the purview of the Rent Control law newly constructed premises for a period of ten years from the date of completion of such construction, and providing for periodical revision and updating of standard rent to compensate for inflation etc." While considerable debate was generated on other aspects of the Amendment, a perusal of the Speeches discloses that on this issue there was general concurrence and support. A perusal of the Parliamentary Debates in the Lok Sabha reveal that a few of its Hon'ble Members made a reference to these provisions. One member opined that "the Government has given exemption for ten years because of new construction. Who will be benefited by this exemption? A person already owning a house, will misuse the provision in case of new one. Only the people owning one house should be allowed to meet the benefits of this exemption and not the persons owning houses more than one." Another Hon'ble Member stated that "exemption has been granted for ten years to the new construction. A provision to this effect has been made in the Bill. The tenants already living in the houses have also been benefited. Till now, the tenants have to vacate the house after constructing their own houses. But this Bill provides exemption to them for ten years under new construction because people have to repay the loans which they have taken from the banks for constructing the houses." Interestingly, an Hon'ble Member has stated that "over 50% of Government Officers own two or three houses at some place or the other and, therefore, some attention should be paid to the benefits sought to be extended to them. In these matters in view the Government has made this provision to encourage the housing activities. Earlier, no tenant was enthusiastic to construct his house, because he knew that he would have to vacate the house as soon as he built his own house." The Debates and Speeches predominantly deal with the more significant aspects of the amendments viz. taking those premises where the rent was Rs. 3500/- and above out of the purview of the Act; permitting an increase of 10% every three years and granting special rights to certain categories of house owners, such as retiring government servants, army personnel, widows etc. The Lok Sabha passed the Bill which had earlier been passed by the Rajya Sabha. Even if it is found that there may be some ambiguity in the wording of Section 14(1)(hh) of the Act, which I find there is none, the objectives of the Amendment and the Parliamentary Debate would disclose that an impetus to fresh construction was sought to be given. When the DDA carries out building activity it does so not at the instance or initiative of a particular individual, but because there is a large scale demand for residential units, which cannot be satiated by the enterprises of the DDA alone. The only possible construction to the provision of Section 14(1)(hh) is that an individual must build or caused to be built a residential unit for him to avail the ten year moratorium on eviction. If he acquires an already existing residential unit the number of units is not augmented. Therefore the purpose of the amendment is not served.

4. A conjoint reading of Sub-section 14(1)(h) and (hh) of the Act, as they presently stand will disclose that while a tenant who has acquired vacant possession or has been allotted a residence would stand disentitled to the protection from eviction, those tenants who have 'built' a residence post the amendment to the Act in 1988, would be insulated against eviction for a period of ten years thereafter. It will be recalled that after coming to the conclusion that the tenant had built his flat in 1992, the Additional Rent Control Tribunal had arrived at the finding that no cause of action could have arisen in favor of the petitioner/landlord prior to the passage of ten years, i.e. 2002. The contention of the landlord, however, has all along been that Sub-section (hh) of the Act does not inure to the benefit of the tenant since it could not be successfully argued by him that he had 'built' the premises. The argument is that the premises have been built by the Leiah Group Housing Society and allotted to the Tenant and, therefore, it is Sub-section (h) of the Act which is attracted. It is contended that accordingly, the eviction petition filed in 1992 is maintainable.

5. In somewhat similar circumstances, both Sub-section (h) and (hh) of the Act come up for consideration before a Learned Single Judge of this Court in N.K. Rustogi v. K.S. Gupta and Ors., 1993 Rajdhani Law Reporter 186. The view of Ms. Usha Mehra, J. was that the tenant, having acquired vacant possession of a flat allotted by DDA bearing No. 167 C/I, Vasant Kunj, New Delhi, was liable to eviction under Sub-section 14(1)(h) of the Act. The Learned Judge noticed the many restrictions and limitations existing in the covenant/Lease Deed executed between the DDA and the Respondent/Tenant in that case. The conclusion arrived at was that it could not be predicated that the tenant had built the said flat; on the contrary it was a case of the acquisition of the flat from the DDA by allotment under the Self Financing Scheme. The question is whether this opinion would also be applicable to the facts of the present case.

6. Mr. Rustagi, learned counsel appearing for the Landlord has reiterated eight factors in which according to him are indicative of complete identity between the acquisition of a DDA flat and the acquisition of a flat in Housing Society. These are reproduced hereinbelow. However, having given careful consideration to all of them, I am of the opinion that the case is set on too high a pedestal by the Petitioner/Landlord for acceptance by the Court.

 S.No.       Position of person           Position of Member
            registered under S.F.        admitted by a
            Scheme of DDA for            Cooperative Group
            allotment of Plot            Housing Society for
                                         allotment of flat.

1.          The condition for            Besides other
            registration laid down       condition provided
            by the DDA includes          under Section 24 and
            furnishing of affidavit      30 of the Delhi
            showing not owning any       Cooperative Societies
            dwelling unit in Delhi.      Rules, 1973, Rule 25
                                         lays down the same
                                         conditions.

2.          DDA to decide the area       The society similarly
            and the design of the        decide the area and
            flat, the member             design of the flat,
            registered for allotment     the member
            has no role to play          individually has no
            therein.                     role to play therein.

3.          DDA supervise the course     Society decides about
            of construction, member      the person deputed for
            individually has no role     construction i.e.,
            to play in the choice of     contractor and the
            contractor and the           nature of material to
            material employed.           be employed. Member
                                         individually has no
                                         role to play therein.

4.          The member does not know     Member of the society
            which flat shall be          does not know
            allotted to him until        similarly the flat to
            the draw of lot takes        be allotted until the
            place which takes place      draw of lots takes
            after the conclusion         place by DDA or in
            construction.                presence of DDA
                                         officials. The draw
                                         of lots in this case
                                         also takes place after
                                         the conclusion of
                                         construction.

5.          The member has only the      The member of group
            obligation to pay the        housing society has
            demanded amount from         similar obligation to
            time to time as per          pay as per demand and
            schedule laid down in        schedule and in case
            this regard and in the       of delay has to pay
            event of delay members       interest. In case of
            has to pay the interest      default Rule 36 of the
            and in case of default       Rule provides for the
            membership registration      expulsion of the
            can be terminated by         defaulting member.
            DDA.

6.          Members has no               Similarly the member
            un-restricted and            of the group housing
            unqualified right to         society has no
            allotment as even after      unrestricted and
            the completion of flats,     un-qualified right to
            in case any breach of        allotment. The same
            terms found, the             is subject to various
            registered person can be     restriction placed
            deprive of allotment.        upon under the terms
                                         of agreement reached
                                         in this regard.

7.          DDA remains the absolute     It is the society as
            owner of the flat and        per Section 35 of the
            the member acquired          Delhi Cooperative
            right of leasee therein      Society Act remains
            which are conditional        the owner of the
            and bears restrictions       housing
            such as allottee person      complex/individual
            cannot sell, transfer or     flat therein and the
            part with possession of      members gets
            the allotted flat to any     restricted right of
            third person without the     enjoyment under the
            consent of DDA and also      letter of allotment
            has no rights to carry       which includes
            out any structural           restriction against
            additional or                selling, transferring,
            alternation in the said      addition and
            flat.                        alteration therein.

8.          DDA has right to cancel      The society also has
            allotment if it is found     right to cancel the
            that he same is procured     allotment on the same
            by mis-representation or     ground of concealment
            suppression of facts.        and misrepresentation
                                         beside on other ground
                                         as per the provision
                                         of Act and the Rules
                                         made there under.

 

7. What is to be kept in mind is the intention behind Sub-section 14(1)(hh) of the Act. The perception of the Legislature was that building activity required a boost, so that the shortage of residential accommodation in the metropolis would be eradicated in some measure. In order to give a fillip to construction activity, individual efforts to build a residence should not meet with the disadvantage of the builder having to face the prospects of eviction under Sub-section 14(1)(h). The watershed between N.K. Rastogi's (supra) case and the present one is that in the former the building activity has been undertaken by a governmental body at its initiative, and the allotment of constructed flats would be available to the general public. While it is undoubtedly true that a person already owning residential property in Delhi would not be entitled to avail of the Self Financing Scheme of the DDA, the ground reality is that the number of applicants are manifold and those who succeed in joining the Scheme are miniscule. In this respect a citizen who is fortunate in participating in any of the Self Financing Schemes of the DDA should consider himself as having won a lottery. Even today there is no dearth of applicants to any of the Self Financing Schemes or allotment of flats by the DDA. The intention behind Sub-section 14(1)(hh) was not to extend the protection to such persons who have already benefited by a virtual windfall and have not exerted any individual effort or initiative in relieving the shortage of accommodation in the metropolis. Individual and personal efforts to build residential units would augment the number of residential units available to the public, because of the direct effort and investment of that individual. Unless such a person joins a Cooperative Group Housing Society, the numbers for an allotment by the authorities would not be fulfilled. Despite the arguments of learned counsel for the Petitioner, I am unable to subscribe to the view that there is complete parity between the construction of residential units by a Group Housing Society and the allotment of residential units by the DDA to the public at large. Beyond making an investment once the individual is selected by a draw of lots, a participant in the DDA Schemes, no individual building activity is carried out by such person. The building activity itself does not originate from and is not the result of the volition of the individual, and in my view this is the distinguishing feature in the two sub-sections. If individual efforts and initiative are held to be beyond the pale of protection of Section 14(1)(hh) of the Act, the intention behind this newly introduced provision would be rendered nugatory.

8. The petition accordingly fails. In substance this entire analysis is academic in the present case since the finding that the tenant had constructed the flat near or around November 1992 enables the Petitioner/Landlord to commence eviction proceedings in December of this year. However, it is of general importance to clarify that since every member of a Cooperative Group Housing Society commissions and commences the construction, he would be entitled to the protection of Section 14(1)(hh) of the Act.

9. The parties are left to bear their respective costs.