T.R. Balasubramanian vs Shriram Scientific And ...
2006 Latest Caselaw 779 Del

JUDGMENT

Sanjiv Khanna, J.

1. The appellant, Mr. T.R. Balasubramanian, has filed the present second appeal under Section 39 of the Delhi Rent Control Act, 1958(hereinafter referred to as the Act) against the judgment and order dated 6th October, 2001 passed by learned Additional Rent Control Tribunal Delhi in RCA No. 528/2000. By the impugned order and judgment dated 6th October, 2001, learned Additional Rent Control Tribunal, Delhi has upheld the eviction order passed against the appellant under Section 14(1)(i) of the Act and aggrieved the present appeal has been filed. However, the learned Additional Rent Control Tribunal set aside the eviction order passed against the appellant under Section 22 of the Act. The present appeal was admitted for hearing vide order dated 9th January, 2002.

2. On the basis of the arguments raised and the written submissions filed by the appellant, I deem it appropriate to frame the following substantial questions of law that are required to be decided in the present appeal.

(i)Whether the Rent Control Tribunal was right in up-holding the decree of eviction passed under Section 14(1)(i) of the Delhi Rent Control Act, 1958 and whether the decision is perverse.

(ii)Whether the Shriram Scientific and Industrial Research Foundation was competent and had locus standi to file the petition for eviction under Delhi Rent Control Act against the appellant, Mr. T.R. Balasubramanian.

(iii)Whether Mr. G.C. Mittal, Administrative Officer, was competent and authorised to file the petition for eviction against the appellant.

3. Section 14(1)(i) of the Act reads as under:-

14(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for recovery of possession shall be made by any court or 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 recovery of possession on one or more of the following grounds, namely

(i) that the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and that the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment.

4. The following conditions are required to be satisfied for getting decree of eviction under Section 14(1)(i) of the Act.

(a)Premises should have been given on rent to the tenant by reason of his being in service or in employment of the landlord.

(b)The tenant had ceased to be in service or employment of the landlord.

(c)Premises should have been given to the tenant for use as residence.

5. The appellant was inducted as an employee of respondent No. 1 foundation as Technical Secretary with effect from 3rd April, 1965. The appellant submitted his resignation on 28th January, 1972. During this period, the appellant was an employee of the respondent No. 1. The appellant after his resignation and acceptance had raised an industrial dispute that became subject matter of an award. By the award it was held that the appellant was not entitled to reinstatement in service with relief of continuity of service and back wages on the ground that his resignation was conditional and his removal from service was illegal. Thus, the factum that the appellant was an employee of respondent No. 1 and he ceased to be an employee or in service of respondent No. 1 with effect from 28th March, 1972 cannot be disputed and challenged. In any case the award passed by the industrial Tribunal has become final and binding between the appellant and the respondent No. 1 and would operate as res judicata between both the parties.

6. It would be relevant to state here that Section 14(1)(i) uses both the words "service or employment" and the said terms require master and servant relationship between the landlord and the tenant. The word "service" is normally used where employer or employee relationship as understood under the industry law does not in strict sense exist. The intention of the legislature was therefore to broaden and widen the scope of Section 14(1)(i) of the Act to include within the purview of the said section both employer and employee relationship as understood in the industrial law and cases in which a tenant was in employment as a condition of service i.e. by reason of his employment.

7. It is admitted case of the parties that the respondent No. 1 had a housing committee and the appellant himself, while he was in employment, was a member of that committee. The housing committee had prescribed rules for allotment of accommodation to the employees of the respondent No. 1. A seniority list for the purpose of allotment was circulated on 23rd September, 1970 inviting applications for the allotment of residential accommodation from the employees of the respondent No. 1 in terms of revised allotment rules, 1970. Copy of the said seniority list has been marked as Ex-AW5/12 and certified copy of the same has been enclosed at page 259 of the present appeal. Thereafter, the issue of allotment of Type-A flat was considered by the Secretary, Housing Committee and other senior officers and it was approved by the Chairman of the Housing Committee. This is established from Ex-AW5/13 enclosed at page 260 of the present appeal. It is therefore apparent that the premises No. A-11, Type-A flat became available for allotment after the said premises was vacated by Dr. P.H. Rao. As per the seniority list, the flat was offered to Dr. R.S. Parikh and Mr. P.K. Mair, as they were senior to the appellant. However, both of them refused the offer of allotment. The appellant himself had also filed an application on prescribed form, which was exhibited as AW5/7 for allotment of the said premises. Thereafter, the possession of the aforesaid flat was given to the appellant on 20th December, 1970. This is also established and proved from Ex.AW5/8 the certificate regarding handing over of the possession of the flat.

8. After the allotment and occupation of the flat by the appellant, rent of Rs. 109.50 was deducted from the salary of the appellant up to September, 1971, thereafter it was increased to Rs. 114.50 per month. This increase in rent was due to the fact that the salary of the appellant had increased by Rs. 50/-. The rent was deducted from the salary that was being paid to the appellant. The respondent No. 1 has placed on record and proved the original rent register that contains the relevant entries and as well as pay slip/ sheet of the appellant.

9. The appellant, in fact, in his written statement had admitted that rent was being deducted from the salary being paid to him. However, it was claimed that this deduction couldn(tm)t be regarded as rent. It was further claimed by the appellant that the flat was not allotted to him by reason of his employment but was allotted to his family with the understanding that even after the appellant ceased to be in employment, his family could reside, use and occupy the said flat. The flat in question was described by the appellant as " job killer flat ", that no employee was ready and willing to occupy. Therefore, it was submitted that the allotment of the flat was independent of employment of the appellant. Reference in this regard was also made to the alleged resolution dated 7th December, 1970 purportedly passed by the Shriram Institute for Industrial Research. The said allegations of the appellant were rightly rejected by both the Additional Rent Controller and the learned Additional Rent Control Tribunal as a mere surmise and conjecture and a false and wrong story concocted by the appellant. There is no foundation and basis for the said story, which on the face of it, deserves to be rejected. In any case this Court in a second appeal is not required to reappraise and examine disputed questions of fact and factual findings given by the Additional Rent Controller and learned Additional Rent Control Tribunal, unless the same are perverse and based on no material or evidence. By no stretch, can the finding of facts given in this regard by the Additional Rent Controller and the learned Rent Control Tribunal be categorised as perverse or based upon no material or evidence. Thus the finding that the appellant was given the flat on rent by reason of his employment or being in service cannot be questioned and challenged. In fact the said finding is just, correct and proper.

10. The appellant in his written submissions has placed considerable reliance and had argued that the statement and evidence of AW-5 Mr. M.C. Gupta, Administrative Officer of the respondent No. 1 should be disregarded as being hearse and not based upon his personal knowledge. There is no merit in the said contention. Mr. M.C. Gupta was the Administrative Officer and the Secretary of the respondent No. 1. He had deposed on the basis of official records and documents. Admittedly, he was in a position to and had identified handwriting and signatures of various officers/employees who had worked in the respondent No. 1 and were its employees. He has proved on the basis of the official records that the application filed by the appellant for allotment of the flat, the minutes of the Housing Committee for the purpose of allotment of flat No. A-11, certificate of possession and the rent being paid by the appellant to the respondent No. 1 from time to time as mentioned in the records and the salary sheet. In fact there is hardly any reason and ground to challenge and dispute these documents. The contention of the appellant is hyper-technical. Factual disputes in civil cases are decided on the basis of preponderance of possibility. The technical pleas of onus etc. are not relevant and required to be examined in view of the evidence and material available on record. However, it is well settled that man may lie but the documents and records maintained in normal course speak the truth. Therefore, in view of the material available on record, it cannot be held that the learned Tribunal and the Rent Controller have come to a perverse conclusion based upon no evidence or material to hold that the appellant was allotted flat No. A-11 by reason of his being an employee of the respondent No. 1.

11. The appellant had also argued that as there was non-compliance of notice issued under Order XII rule 8 of the Code of Civil Procedure, 1908, and therefore adverse inference should have been drawn against non-production of documents etc. It was argued that the respondent No. 1 had failed to produce in the witness box, "several key witnesses" including office bearer(s) of the respondent No. 1 foundation and therefore adverse inference should have been drawn in view of Section 114(g) of the Evidence Act. There is no merit in the said contentions of the appellant. It is the case of the respondent No. 1 that the alleged resolution dated 7th December, 1970 was a forged and fabricated document and no such resolution was passed. The argument based on notice under Order XII, Rule 8 of the Code and the so-called non-compliance is therefore liable to be rejected. Further, it has also been proved on record that the alleged letter dated 29th January, 1980 relied upon by the appellant was again a forged and fabricated document as Mr. C.P. Singh, had already been transferred on the date the said letter was purported to have been written. Even no dispatch number has been mentioned on the said letter.

12. The learned Tribunal in paragraphs 43 and 44 of the order dated 6th October, 2001 has given valid reasons for disregarding, disbelieving the alleged resolution dated 7th December, 1970. The same are justified. In view of above finding, it is held that the respondent has been able to prove and establish the ingredients of aforesaid Section 14(1)(i) of the Act and the order of eviction passed on the said Section is justified and in accordance with law. It is further held that the findings of fact given by the learned Rent Controller and affirmed by the Tribunal are not perverse and based upon no evidence or material. This Court in a second appeal under Section 39 of the Act cannot reappraise and shuffle through the evidence as a first appellate court, while examining disputed questions of facts. The first question is therefore answered against the appellant and in favor of the respondent.

13. The respondent No. 1 M/s Shriram Scientific and Industrial Research Foundation and Mr. G.C. Mittal, Administrative Officer of the said foundation had filed the petition for eviction under Section 14(1)(i) of the Act. The respondent No. 1 is a society registered under the Society Registration Act, 1860.

14. The appellant submitted that the respondent No. 1 was/is not the owner of the flat in question bearing No. A-11 and the said flat was/is owned by Shriram Institute for Industrial Research. It is further submitted that the respondent No. 1 was not a body corporate and in terms of Section 6 of the Societies Registration Act, 1860, Mr. G.C. Mittal, Administrative Officer was not competent to file the eviction petition.

15. There is no merit in the said contentions also. By resolution No. 1 dated 21st October, 1964, land, building, equipment, apparatus, stores and other apprentices thereof (excluding cash deposit balances and shares and securities) belonging to the Shriram Institute for Industrial Research were separated and the said society was renamed Shriram Scientific and Industrial Research Foundation. This resolution was duly exhibited and the original resolution was produced before the Rent Controller. The change in name was also duly notified and certificate issued in that regard by the Registrar was exhibited as AW2/2.

16. The appellant had joined employment of the respondent No. 1 society on 3rd April, 1965 i.e. after the change of name vide resolution dated 21st October, 1964. The appellant, therefore, was never an employee of Shriram Institute for Industrial Research but was an employee of Shriram Scientific and Industrial Research Foundation from the very beginning.

17. The allotment of flat No. A-11 to the appellant was also made by "Shriram Scientific and Industrial Research Foundation" and not by "Shriram Institute for Industrial Research" in the year 1970. The appellant had no concern whatsoever with "Shriram Institute for Industrial Research" as he was never its employee and the flat in question was not allotted to him by Shriram Institute of industrial research. Thus, the argument raised by the appellant has to be rejected. Even if the plea of the appellant that "Shriram Institute for Industrial Research" continued to exist, in-spite of the resolution dated 21st October, 1964, is accepted, it is of no consequence and relevance for the present case.

18. However, as already stated above, the resolution dated 21st October, 1964 is clear. The name of "Shriram Institute for Industrial Research" was changed as "Shriram Scientific and Industrial Research Foundation". The said change was duly notified to the Registrar, Firms and Societies office and a certificate was issued by the said Registrar certifying the change in name.

19. Section 14(1)(i) has been quoted above. The requirement of the said section is that premises should have been let out to the employee as a tenant by reason of his being in service or employment of the landlord. The said Section does not require that the employer should be owner of the building or premises given on rent to the employee as a tenant. The employer/landlord is not required to show and prove that he was/is the owner of the premises to claim the eviction under Section 14(1)(i) of the Act, unlike Section 14(1)(e) of the Act. As rightly pointed out by the Tribunal, the word "landlord" as defined in Section 2(e) of the Act includes any person who for the time being is receiving or is entitled to receive rent of any premises on his own account or on behalf of any other person. The respondent No. 1, therefore, was a landlord as the rent was being paid by the appellant and was entitled to receive rent and, therefore, could have filed the eviction petition under Section 14(1)(i) of the Act against the appellant.

20. A society registered under the Societies Registration Act, 1860 is not a body corporate within the meaning of Section 2(7) of the Companies Act, 1956. The provisions of the Companies Act, 1956 therefore, are not applicable to a society registered under the Societies Registration Act, 1860. This has been held by the Supreme Court in the case of Board of Directors Ayurvedic and Unani Tibia College, Delhi v. State of Delhi, . The above decision is of no relevance to the controversy in question and does not help the appellant. However, the said decision clearly states that a society under the provision of Societies Registration Act, 1860 is a legal entity capable of holding property and is a person capable of and is entitled to sue in its own name. A society registered under the provisions of Societies Registration Act, 1860 is entitled to sue and file suits in its own name under Order XXIX of the Code of Civil Procedure, 1908. A registered society acquires a quasi-corporate character.

21. Reliance placed upon Section 6 of the Societies Registration Act, 1860 is also misplaced. Section 6 of the aforesaid Act begins with the word "may sue or be sued in the name of one of its officers". It is merely a permissive provision and it does not in any manner take away or curtail the right of the society to institute and file proceedings in its own name. ("Refer Shanti Sarup v. Radhaswami Satsang Sabha, AIR 1969 Allahabad 248, Khiri Ram Gupta and Anr. v. Nana Lal, AIR 1964 Patna 114 and Satyavart Sidhantalankar and Ors. v. Arya Samaj, Bombay AIR (33)1946 Bombay 516). The second question is therefore also decided against the appellant and in favor of the respondent.

Question No.3

22. The third question is with regard to authority of Mr. G.C. Mittal to institute, file and verify the pleadings, no error can be found in the order passed by the Additional Rent Controller and the Tribunal. Mr. G.C. Mittal was Administrative Officer of the respondent No. 1 society and his signatures were duly proved by Mr. M.C. Gupta, who had seen him writing and signing. The resolutions dated 22nd April, 1966 and 19th December, 1968 authorising Mr. G.C. Mittal to file the eviction petitions stand duly proved. Reliance placed by the appellant on the judgment of Punjab and Haryana High Court in the case of Murti Singh v. Yogender Singh, Vol. LLXXI- 1969 Punjab Law Reporter 302 is misplaced. In the said judgment Section 6 of the Societies Registration Act, which is merely an enabling provision, as already stated above, was examined. Reference in this regard can also be made to the judgment of the Supreme Court in the case of United Bank of India v. Naresh Kumar and Ors. , AIR 1997 SC 3. It has been held that under Order XXIX of the Code of Civil Procedure, 1908, a person can be expressly authorised to sign pleadings by a resolution to that effect or by a power of attorney. Even in the absence thereof or where one of its officers had signed the pleadings, the corporation can rectify the said action and said rectification can be express or implied. The question of rectification can be decided by the Court having regard to circumstances of the case, evidence on record and the conduct of trial. At best, it is an procedural regularity that is curable. The third question is, therefore, also decided against the appellant and in favor of the respondent No. 1.

23. In the present case the appellant resigned on 28th Jan.,1972 and has not been in service and in employment of the respondent No. 1 since then. However he continues to occupy and use the accommodation that was given to him by reason of his being in service or employment of the landlord, the respondent No. 1. It has been 32 years since the resignation of the appellant.

24. In view of the findings given above, I find no merit in the present appeal and the same is accordingly dismissed. Respondent No. 1 will be also entitled to costs which is assessed at Rs. 7,000/-.