Pushpa Rani Jaggi And Ors. vs Dwarka Dass (Deceased) Through ...
2007 Latest Caselaw 21 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Late Shri Jagdish Lal Jaggi was the owner of property bearing No. 12/1, Tilak Nagar, New Delhi having acquired perpetual leasehold rights in pursuant to Perpetual Lease Deed dated 22.9.1965 (Exhibit AW-1/2). The Perpetual Lease Deed inter alia provided as under:

(e) The ground rent will be payable in advance in half yearly Installments on the 15th January and 15th July each year. The ground rent shall be payable for the full half year for the period from the date of purchase of the grant of a lease of the site on the 15th January or 15th July next following as the case may be and shall be paid by the purchaser at once at the time of such purchase.

1. The Lessee doth to the intent that the burden of the covenants may run with the said land and may bind any permitted assignee thereof hereby covenant with the Lesser as follows:

(i)...

(ii)...

(iii)...

(iv)...

(v)...

(vi) not without the written consent of the Chief Commissioner, Delhi to carry on or permit to be carried on, on the said land and buildings erected thereon during the said lease any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of a single storeyed building consisting of one residential flat or a double storeyed building consisting of one or two residential flats in all, with a barsati on top, as may be approved for the locality or as provided in the building already erected on the said land;

2. The Deed of Conveyance of the Building also executed on the same date contained a similar prohibition in Clause 5 as under:

(5) The purchaser shall not use the said property for any purpose other than the purpose of residence without the previous consent in writing of the vendor or an officer appointed by him in this behalf.

3. A reading of the aforesaid Clauses, thus, shows that the Perpetual Lease Deed required that the premises should be used only for the purposes of residence and without the prior consent of the perpetual Lesser, no trade or business could be carried on therein. A similar prohibition exists in the Deed of Conveyance of the Building as extracted aforesaid.

4. Late Shri Jagdish Lal Jaggi had let out one room in the house in question to late Shri Dwarka Dass. Late Shri Jaggi filed an eviction petition against Shri Dwarka Dass under Section 14(1)(a), (b), (c), (d), (e), (h), (j) & (k) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act). Shri Jaggi passed away during the pendency of the eviction petition and was substituted by his legal representatives being the present appellants, i.e. his widow and sons. The eviction proceedings were contested. The Additional Rent Controller in terms of the order dated 1.3.1978 found in favor of the original petitioner on the grounds under Section 14(1)(d), (j) & (k) of the said Act while on the remaining grounds the petition was dismissed. The petition was rejected on the grounds under Section 14(1)(c), (d) & (h) as the purpose of letting was found to be commercial. The premises were, thus, found to have been sublet, caused damage to the premises by construction of a parchhati and the user of the premises was contrary to the terms of the perpetual lease. However, in respect of the last aspect since the Land & Development Office (hereinafter referred to as the L&DO) had temporarily regularised the misuse after receiving the charges, the Officer had been summoned from the L&DO and the testimony on record showed that there was only temporary regularisation, which was permissible on payment of misuse charges. It may be noticed at this stage that there is no written rent agreement between the parties and the plea of the original petitioner was that the premises had been let out for residential purposes but subsequently was misused by the tenant for commercial purposes. The tenancy was of the year 1957. It may also be noticed that the original petitioner had proved the termination of the contractual tenancy vide exhibit AW-5/1 being the notice in that behalf. This fact is being noticed at this stage since something is required to be said on the question of heritability of the tenancy in case the purpose of letting is found to be residential.

5. Shri Dwarka Dass filed an appeal before the Rent Control Tribunal aggrieved by the aforesaid order of the Additional Rent Controller. Cross-objections were also filed by the landlord. The appeal was decided in terms of the impugned order dated 29.8.1981. The cross-objections were dismissed. The appeal of the tenant was allowed in respect of the ground of subletting under Section 14(1)(b) of the said Act. However, the order was upheld on the ground of causing substantial damage under Section 14(1)(j) of the said Act and for user of the premises contrary to the terms of the perpetual lease under Section 14(1)(k) of the said Act. The tenant was, however, directed to remove the parchhati and restore the property to its original condition within two months of the date of the order. On the grounds of Section 14(1)(k) of the said Act, it was directed that the tenant should deposit the damages in the form of compensation up to July, 1981 and stop misuse within a period of one month. If future misuse charges are intimated the same were to be informed by the landlord to the tenant for payment failing which he should stop the misuser. It was also directed that if at any stage, the L&DO refused to condone the misuse the tenant should stop misusing the tenanted premises within one month thereof.

6. The appellants aggrieved by the said order have filed the present second appeal under Section 39 of the said Act where only a question of law can be examined. It may be noticed that Section 39 of the said Act since stands deleted from the statute in view of the amendment carried out in 1988 but in view of eviction proceedings filed prior to that date the earlier provision would apply.

7. In terms of the order dated 29.8.2002 a notice was issued to the L&DO to inform the Court as to whether the L&DO is willing to condone the misuer permanently and if so on what terms and if so, then what is the policy to condone the misuse permanently. The affidavit was filed by the Deputy L&DO affirmed on 14.5.2003. The affidavit makes it clear that a misuse is taking place as a kirana shop is being run in the tenanted premises and payment notice have, thus, been issued for the amounts payable. The relevant portion is as under:

10. It is respectfully submitted that under the terms of lease deed the property could not have been used for other than residential purposes. Under the policy the breaches like use other than residential and unauthorised construction cannot be condoned permanently. The breaches can be regularised termporarily on payment of penalty on the basis of land rates notified by the Government from time to time. Therefore, it is respectfully submitted that the misuse charges cannot be condoned.

8. Learned Counsel for the appellants contended that late Shri Jagdish Lal Jaggi was in service and was not in Delhi from 1957 to 1961. This aspect is corroborated by the testimony of late Shri Dwarka Dass, RW-1 where in his own statement it has been averred that Shri Jaggi had told him that he would be going to Meerut where he was in service and that the rent should be paid to his brother Shri Roshan Lal. The documents relied upon by the original tenant would establish that the purpose of letting was commercial were for the period after that. This is material for the reason that the case built up by the tenant was not that the original purpose of letting was residential, which was changed to commercial but that it had been let out initially for commercial purpose in 1957. The tenant had produced registration certificate under the Delhi Shops and Establishment Act, 1954 which is dated 7.6.1962 (exhibit RW-1/25). The license issued by the MCD is dated 3.2.1962 (exhibit RW-1/24). It was, thus, contended that the evidence was beyond the scope of the pleadings where the allegation was of only commercial user since the inception from 1957 while no material had been produced of such commercial user. This was contended to be a question of law since no evidence could be led beyond the scope of pleadings.

9. Learned Counsel for the appellants further contended that in view of the premises being residential in nature and the perpetual lease and the Deed of Conveyance specifying the user as residential a presumption would arise of a residential user of the premises under Section 114 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act). The said provision reads as under:

114. Court may presume existence of certain facts. - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

10. Learned Counsel for the appellants, thus, canvassed that once the premises are held to be meant for residential use, the original tenant having passed away and the tenancy having been terminated during the lifetime of the tenant vide exhibit AW-5/1, the tenancy was not inheritable as the wife of late Shri Dwarka Dass had also passed away. There were only four sons and two daughters, who were not dependents on late Shri Dwarka Dass for residence. One of the daughters also passed away and the matter has really been contested only by legal heir No. 1(B). One of the legal heirs is residing in Mumbai and one in USA. LR No. 1(B) is the son of late Shri Dwarka Dass. This plea arises out of the definition of the tenant under Section 2(1)(iii) of the said Act, which reads as under:

2. Definitions. - In this Act, unless the context otherwise requires, -

(l) tenant" means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable, and includes-

(i)...

(ii)...

(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and to this clause, such of the aforesaid person's-

(a) spouse,

(b) son or daughter, or, where there are both son and daughter, both of them,

(c ) parents,

(d) daughter-in-law, being the widow of his pre-deceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include,-

(A) any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be re-opened under the proviso of Section 3 of the Delhi Rent Control (Amendment) Act, 1976 (18 of 1976);

(B) any person to whom a license, as defined by Section 52 of the Indian Easements Act, 1882 (5 of 1882), has been granted.

...

Explanation II.- If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished.

11. Insofar as the directions in respect of misuse are concerned, learned Counsel for the appellants contended that the direction for the tenant to continue to pay damages while carrying on the misuse is contrary to the settled legal position as enunciated both by this Court and the Apex Court. Learned Counsel has referred to the judgment of the learned single Judge of this Court in Shah Builders v. Thapar Agro Mill 1994 Rajdhani Law Reporter 334. It was held that after a landlord and tenant agree to letting of a residential premises for commercial purposes prohibited by Master Plan and by Sections 14 and 29 of the Delhi Development Act, 1957 then the agreement being against the statute is void under Section 23 of the Indian Contract Act, 1872. In Dr. K. Madan v. Smt. Krishnawati and Anr. , while discussing the scope and ambit of Section 14(1)(k) read with proviso Clause 11 of the said Act, it was held that if there is user of premises by the tenant contrary to the conditions imposed on the landlord by the State Government, DDA or the Municipal Corporation and the superior Lesser of the landlord in reply to the notice of the Controller under Clause 11 insists that the unauthorised use should come to an end, the Controller cannot merely ask for payment of penalty and permit continued misuser. In this behalf the relevant provision is extracted as under:

14. Protection of tenant against eviction. - (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 and court or Controller in favor of the landlord against a tenet:

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:

...

(k) That the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate;

...

11. No order for the recovery of possession of any premises shall be made on the ground specified in Clause (k) of the proviso to Sub-section (1), if the tenant, within such time as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.

12. Learned Counsel for the respondent, on the other hand, submitted that in the absence of any rent agreement, the purpose of letting can be found out from the nature of premises, the user thereto and the surrounding circumstances. Only one room in the form of a shop had been let out without any amenity of kitchen, latrine and bathroom and thus the premises could not have been let out for residential purposes. Learned Counsel also invited the attention of this Court to the findings arrived at that the original petitioner was drawing ration from the shop in the year 1958. The 1965 records of the MCD also refers to the premises as a shop. The eviction proceedings were initiated only in the year 1968. Thus, the landlord knew of the commercial user but never objected to the same for a number of years. In this behalf another evidence is stated to be the deposition of the original tenant that he was residing in property No. 11/31, Tilak Nagar, New Delhi through the rent receipts for the said premises. The cash memo issued from the tenanted premises as also the letters received at the residential addresses were produced as evidence. It was, thus, contended that there can be no dispute that the premises were let out for commercial purposes.

13. Learned Counsel submitted that insofar as the ground under Section 14(1)(j) is concerned, the premises had already been put back in the original condition and on the issue of 14(1)(k) of the said Act the misuse charges have been paid.

14. Learned Counsel also emphasised that the scope of scrutiny by this Court under Section 39 of the said Act was limited and in that behalf referred to the judgments of the same learned Judge of this Court in Haji Nematullah v. Haji Mohd. Zikriya and Parvin Sarin v. Manbir Singh, Balwant Kaur and Ravinder Sarin . It has been held that the High Court in second appeal cannot reappreciate the evidence and interfere with the findings of fact reached by the lower appellate court unless it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse.

15. On consideration of the submissions advanced by learned Counsels for the parties, it is apparent that there are only two aspects which require consideration in the present appeal. The first aspect relates to the purpose of letting. In this behalf the case of the appellants rests on the permissible user of the premises being residential. However, that itself would not imply that the premises has not been let out for commercial purposes for the reason that the ground is different in a case where a premises is put to use contrary to which it has been let as against the ground where the premises are being used contrary to the terms of the perpetual lease or the permissible user of the premises. On scrutinizing the testimony both the courts below have come to the conclusion that the purpose of letting is commercial. This finding has been arrived at not in the absence of evidence but on appreciation of the material on record. Such material includes the nature of the premises only being one room, the registration under the Shops and Establishment Act as also the MCD license. The fact that there is no document prior to 1962 does not imply that the premises were not being used for commercial purposes prior to that date and thus I am unable to accept the plea of the learned Counsel for the appellants that the evidence is beyond the scope of the pleadings whereby it was alleged that the premises were let out from the inception for commercial purposes. This Court cannot, once again, reappraise and reappreciate the evidence in the second appeal to come to a different conclusion on the same material as was before the courts below. I am, thus, of the considered view that the findings arrived at insofar as the purpose of letting is concerned is commercial cannot be interfered with. The sequitor to that is that the issue of limited heritability of tenancy would not arise since the purpose of letting is commercial.

16. The second aspect to be considered arises from the ground under Section 14(1)(k) of the said Act read with Section 11 of the said Act as the premises were stated to be used contrary to the terms of the perpetual lease. Both the documents, the Conveyance Deed and the perpetual lease in terms of the clauses reproduced hereinbefore show that there can be little doubt that the specified user of the premises is residential. There is, in fact, really no dispute in this behalf. The question, thus, arises as to what is the nature of direction, which can be passed by the Controller. This is so since as per the impugned order the tenant can continue to pay misuse charges.

17. The legal position begs of no doubt in view of the clear pronouncements of this Court as well as of the Apex Court in Shah Builders case (supra) and Dr. K. Madan case (supra). The Apex Court has categorically held that the direction to be made by the Controller is to stop the misuse of the property in question and not that the misuse can continue on payment of penalty/charges where a superior Lesser insists that the unauthorised use should come to an end.

18. In the present case the stand of the superior Lesser is apparent from the testimony led before the trial court as also the affidavit called upon by this Court dated 14.5.2003. A reading of the affidavit shows that even the lease was cancelled and re-entry order was passed on account of misuse but on a prayer made by the perpetual lessee for withdrawal of re-entry the terms for withdrawal of re-entry was stated requiring payments to be made. There is no final compounding which is permissible and the misuse charges recovered were for temporarily regularisation of breaches. The stand of the L&DO is crystal clear in paragraph 10 of the affidavit, which has been extracted above. It has been stated that the premises could not have been used for purposes other than residential and there cannot be any condensation permanently. The breach can be regularised only temporarily on payment of penalty and the misuse cannot be condoned. In the teeth of such a categorical stand, I am of the considered view, that a direction could not have been issued permitting continued mis-user of the tenanted premises by payment of misuse charges. No doubt up to date misuse charges have to be paid by the tenants but such misuse must stop.

19. It is, thus, directed that LRs of respondent No. 1, who are in occupation will pay up to date misuse charges till the misuse is stopped and such misuse for commercial purposes should stop within one month of the date of this judgment.

20. The appeal is accordingly allowed to the aforesaid extent leaving the parties to bear their own costs.