Pritpal G. Singh And Anr. vs O.P. Gupta
2004 Latest Caselaw 609 Del

JUDGMENT

R.S. Sodhi, J.

1. This appeal is directed against the judgment dated 3.11.1988 of the Rent Control Tribunal, Delhi in RCA No. 309/1987, whereby the learned Tribunal has set aside the order of the Additional Rent Controller dated 6.3.1987 whereby the learned Additional Rent Controller has dismissed the objections of the respondent against the application for recovery of possession filed by the petitioner under Section 21 of the Delhi Rent Control Act (for short 'the Act'). When the matter was called out, counsel for the respondent was not present. This is an specially directed matter listed today under the category of 'Old Matters' which needs to be disposed of expeditiously. It will not be out of place to mention that this matter has come up for hearing on nearly thirteen occasions. I, therefore, proceed to decide the matter.

2. That facts of the case as have been noted in the judgment under challenge are as under :

"1. The facts leading to this appeal, in brief are that on 6.2.1979 the respondent Pritpal G. Singh and Amarjit G. Singh through their mother Smt. Vidya Wati filed an application under Sec.21 of the Act seeking the permission to lease out the first floor front verandah of house No. H-3/17, Model Town to the appellant Om Prakash Gupta for residential purpose for a limited period for four years from 16th March 1979 on the allegation that the respondent had gone abroad for about 4 years for higher studies and they are not likely to return to India during this period, therefore, the premises are being let to the respondent for the limited period. Request was made for grant of permission to create limited tenancy from 16.3.1979 was made. The parties have filed affidavits in support of this application. Sh. R.L.Chugh, the then Addl.Rent Controller, after considering the allegation made and the affidavits, granted the permission to create limited tenancy for 4 years for residential purpose from 16th March, 1979.

2. On 19th July 1983 the appellant through Smt. Vidya Wati, filed an application for recovery of possession of the premises under Second part of Sec.21 of the Act. The appellant O.P. Gupta filed objections. He alleged that the permission dated 7.2.1979 is a nullity and has been obtained by fraud; that the reason given for creating limited tenancy was false and the premises were available for letting for indefinite period; that the premises were being let and re-let at every time at higher rent and previously they were on rent at Rs. 475/- p.m. with Dr. Ronan Dass who vacated on 15.1.1979; that the appellant had sufficient accommodation vacant on the ground floor and occupied only by two women including their mother Vidya Wati on 17.2.1979 and the said accommodation consisted of 5 bed rooms or which 4 bed rooms have attached bath rooms, and drawing room and one dining room besides kitchen, garrage, varandhas, lawns and servant quarters built over an area of 4500 square ft; that the adjoining portion of the first floor has fallen vacant in June 1982 and it was also now with the respondents; that the respondents do not require the premises they do not live in India and they were in England and the appellant No.1 Pritpal Singh had an English wife and the appellant No.2 is also settled and employed in England and that both of them got education in foreign countries and the allegation that the had gone to foreign countries was false; that the respondents were permanently settled in England and were in service there and they obtained the citizenship. They prayed that the execution application should be dismissed.

3. The appellant in reply denied that the permission was or has been obtained by fraud or the reasons given were not true. They said that the premises had fallen vacant on 1st March, 1979 and not 5.3.1979; that there are only two bathrooms on the ground floor; that there is no separate drawing or dining room; that 4 members of the appellants family reside on the ground floor and that the father of the appellant who was retired Secretary and Director of Heath Service was also living there and that they have relatives and guests also and their status is quite high; that the first floor-portion which has fallen vacant is in use of the appellant's sister and her family; that it was wrong that they were not living in India; that they were Indian National and citizenship of England was optional and they have intention to return to India; that the marriage of the appellant No.1 with a foreign lady is no obstacle to him to come to India; the appellant No. 2 has also not permanently settled in England and has employment there is not relevant; as he could got employment in India also; that he respondents have not received education in foreign country only and they have also got education in India but they had gone abroad for higher studies. Other allegations were also denied. In the rejoinder the appellant has reaffirmed his allegations and denied the allegations made by the respondents.

4. After considering the evidence and hearing the parties, the learned Controller by the impugned judgment has held that the permission is not vitiated fro any of the reasons stated by the appellant in his objection petition and the permission can be taken for creating limited tenancy from future date and that the reason given by the respondent for limited tenancy was not false. He accordingly dismissed the objections filed by the appellant."

3. It is contended by counsel for the appellant that the judgment of the Tribunal is primarily based on a judgment of the Supreme Court in S.B. Noronah vs. Prem Kumari Khanna, .

4. The learned Tribunal has held that the grant of permission with effect from 16.3.1979 is not vitiated but the reasons stated in the application for grant of permission were a misrepresentation and fraud since the landlord stated that the premises is not required on account of the fact that the petitioners had gone abroad for the said period for higher studies. The Tribunal has held that it appears from the reasoning given above that the petitioners had initially studied in India and had gone abroad for higher studies which is factually incorrect inasmuch as the petitioners have completed their entire education abroad. The Tribunal has also negated the contention of the petitioners that the limited period tenancy cannot be challenged after its expiry; it should be challenged during its subsistence.

5. Having heard counsel for the petitioners and having given my careful thought to the material on record, I find that the Supreme Court has considerably watered down the ambit and scope of the judgment in S.B. Noronah's case (supra). In Yamuna Maloo vs. Anand Swarup 1990 (1) SCR 715 the Supreme Court has analysed S.B. Noronah's case (supra) and held "it must be understood on the authority of the said two decisions and our judgment now that if the tenant has objection to raise to the validity of the limited tenancy, it has to be done prior to the lapse of the lease and not as a defense to the landlord's application for being put into possession. We would like to reiterate that even if such an exercise is available that must be taken to be very limited and made applicable to exceptional situations. Unless the tenant is able to satisfy the Controller that he had no opportunity at all to know the facts earlier and had come to be aware of them only then, should such an objection be entertained." Further, this view has been reiterated in Shiv Chander Kapoor vs. Amar Bose, and in Shrisht Dhawan vs. Shaw Brothers where the court has settled the law on procedural aspect as under :

1.Any objection to the validity of sanction should be raised prior to expiry of the lease.

2.The objection should be made immediately on becoming aware of fraud, collusion etc.

3.A tenant may be permitted to raise objection after expiry of lease in exceptional circumstances only.

4.Burden to prove fraud or collusion is on the person alleging it.

6. The Supreme Court has also held that in the context of Section 21 of the Act, there is no statutory requirement for the Controller to enter into inquiry on an application made by a landlord supported by a statement and agreed to by the tenant. Once the Controller arrives at a satisfaction and grants permission to let out for a short period, the order passed becomes operative and final, it cannot be reopened because of mere mistake or error. The Court has also held that the declaration by the landlord that the premises were available for letting out for short period is not required to be backed by any reason. And, therefore, an application under Section 21 of the Act, with or without reason, is neither bad nor contrary to law.

7. In Mohan Singh vs. Late Amar Singh (through L.Rs.) the Supreme Court has reiterated its earlier decision that limited tenancy for fixed period challenged on account of fraud is not permissible after the expiry of tenancy unless exceptional circumstances exist.

8. In the present case, the reason given for grant of limited tenancy does not amount to any fraud played upon the court since factually the petitioners are abroad for studies and merely because it appears that they have gone abroad after studying in India, does not bring about the conclusion that fraud has been played upon the court. The learned Tribunal having drawn its reasoning on the basis of law laid down in S.B. Noronah's case (supra) which law is no longer good law to the extent and nature, as has been discussed above, the learned Rent Controller has rightly rejected the objections of the tenant. In this view of the matter, I have no hesitation in setting aside the order of the Tribunal dated 3.11.1988 and restore the order of the Additional Rent Additional Controller dated 6.3.1987. Ordered accordingly.

9. RC-SA 16/1989 is allowed. No order as to costs.