Sant Lal & Anr. vs Ram Laxman Gupta Thru Lrs
2010 Latest Caselaw 1837 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                 Date of Reserve: February 24, 2010
                                                       Date of Order: April 8, 2010
+ CM(M) 425/1992
%                                                                     08.04.2010
     Sant Lal & Anr.                                             ...Petitioners
     Through: Mr. V.M. Issar, Advocate

        Versus


        Ram Laxman Gupta Through Lrs.                            ...Respondents
        Through: Mr.Yeeshu Jain, Advocate for DDA

AND

+ CM(M) 424/1992
%
     Amrit Lal                                                   ...Petitioner
     Through: Mr. V.M. Issar, Advocate

        Versus


        Ram Laxman Gupta Through Lrs.                            ...Respondents
        Through: Mr.Yeeshu Jain, Advocate for DDA

        JUSTICE SHIV NARAYAN DHINGRA

1.      Whether reporters of local papers may be allowed to see the judgment?

2.      To be referred to the reporter or not?

3.      Whether judgment should be reported in Digest?


        JUDGMENT

1. Respondent Ram Laxman Gupta filed execution petitions No.659 of 1972 and

657 of 1972 against the petitioners herein in respect of shops forming part of

property bearing number 52/36, Ramjas Road, Karol Bagh, New Delhi-5 under

Clause 14(1) (k) of Delhi Rent Control Act. In both the eviction petitions, the order of

eviction was passed against the petitioners herein on 19 th July, 1975 by 5th

Additional Rent Controller. The appeals against the said orders were dismissed by

the learned Rent Control Tribunal on 20th July, 1978. However, the learned Rent

Control Tribunal directed the petitioners herein vide his order to deposit within one

month the amount/ user charges as mentioned in the order with the landlord and the

CM(M) 424 & 425 of 1992 Page 1 Of 7 landlord was directed to pay the amount to the Government and the landlord was

also directed to move to DDA two months before 31st December 1978 for knowing

the directions of the government with regard to the conditions of breaches in

respect of the period after December, 31 1978 and in case the government (DDA)

was prepared to condone the breach conditionally, the permission shall be obtained

from the government and conditional communicated to the tenant and the tenant

would have to pay the amount that may be demanded and comply with conditions

imposed by the government for such condonation. However, if the government made

it clear that no further condonation of breaches would be permitted beyond 31st

December 1978, the landlord shall communicate this decision of the government to

the petitioners and the petitioners shall stop misusage of the premises within one

month from that date and in such a case the provisions of Clause 14(1) (k) of DRC

Act would be satisfied but in case the petitioners (tenants) failed to comply with the

condition or failed to deposit or pay the amount, then eviction order shall be deemed

to have been passed against the petitioners (tenants). The petitioners preferred a

second appeal against the eviction order being SAO 310 of 1978. This appeal was

dismissed by the High Court on 28th September 1978.

2. Since the government had refused to condone the misusage after 31st

December 1978, the landlord took execution. In execution, the petitioners filed

objections. These objections were dismissed vide order dated 22nd February 1985 by

the learned Additional Rent Controller. Against the order dated 22 nd February 1985,

the petitioners (tenants) filed RCA No.261 of 1985 and 262 of 1985. Both these

appeals were accepted by the learned Rent Control Tribunal vide order dated 26th

March, 1985 and in this order, the learned Rent Control Tribunal gave following

directions:

"For these reasons given above I accept these appeals and set aside the impugned order. It is directed that the learned trial court shall issue notices to the Delhi Development Authority to enquire in terms of the order of my learned predecessor as to

CM(M) 424 & 425 of 1992 Page 2 Of 7 whether the breaches can be condoned temporarily and if so, on what terms. In accordance with that, if possible the appellant tenant can be called upon to pay the misuse charges. It shall else enquire if the Delhi Development Authority has made it clear that no further condonation is permitted even on temporary basis and thereafter the necessary orders can be passed. The parties are directed to appear in the trial court on 12.4.1985 because already a very long date has been fixed."

3. The review applications filed by the landlord against the said order were

dismissed by learned Rent Control Tribunal. Thereafter, in response to the notice

issued under Section 14(11) of the DRC Act by the learned Rent Control Tribunal,

DDA filed reply and statement dated 20th January 1987 and stated that further

condonation was not permitted. On 13th March, 1987, tenants (petitioners herein)

filed application for directions to DDA to file reply to various queries incorporated in

the application. DDA filed rely to the application and taking into account the

statement and reply filed by DDA, the learned ARC passed an order dated 10 th May,

1988. Against this order dated 10th May, 1988, an appeal was preferred by the

petitioners herein before the learned Rent Control Tribunal being RCA No.329 of

1985 and 330 of 1988. The landlord also preferred cross appeals. The appeals filed

by the landlord were dismissed; however, the petitioners appeals were accepted to

the following extent:

"The part of the order whereby conditional order for eviction was passed against both the sets of tenants is set aside. Tenants are allowed final opportunity to stop the misuser of the disputed premises for running business within one month from today, and in case they do so the ground covered by clause (k) would be satisfied. However, if they fail to stop the misuser within that period, the Additional Rent Controller shall issue warrant for recovery of possession of the disputed premises against both the sets of tenants. In the circumstances of the case, parties are left to bear their own costs."

4. The present petitions have been preferred by the petitioners against the

CM(M) 424 & 425 of 1992 Page 3 Of 7 aforesaid order passed by learned Rent Control Tribunal. It is apparent that the

petitioners had through litigation succeeded to continue the misuser of the premises

right from 1975 when the first decree was passed till 2010 i.e. for the last 35 years.

The present petitions itself are pending for the last 18 years.

5. It is argued by the counsel for the petitioners that a policy decision was taken

by DDA in its Resolution No.112 of 1996 whereby certain residential premises could

be used for commercial purposes in Karol Bagh area. This Court had served DDA

and DDA denied that a change of user of the area in question from residential to

commercial was permitted. The pendency of these petitions saw the landlord pass

away. The landlord died on 19th December 2003 and thereafter his Lrs were brought

on record and after that other Lrs were brought on record. The widow of deceased

landlord also left for heavenly abode on 20 th December 2004 and now the landlord is

being represented by other Lrs.

6. The petitioners had in this petition as well as during arguments placed

reliance on Shri Munshi Ram & Anr. v Union of India & Ors. AIR 2000 SC 2623 and

argued that the Supreme Court in Karol Bagh area has allowed the tenants, under

some conditions, to continue the possession and misuser. However, the judgment

reads as under:

"....The proviso to the said section stipulates that it shall be lawful to continue to use upon such terms and conditions as may be prescribe by regulations, any land or building for the purpose and to the extent for and to which it is being used on the date on which such plan comes into force.

Section 57(1)(f) stipulates making of regulations to provide for terms and conditions subject to which user of lands and buildings in contravention of plans may be continued.

Learned counsel contends that the impugned eviction orders deserve to be set aside as even regulations under Section 57(1)(f) have not been framed by DDA providing for terms and conditions on which continued user in contravention of

CM(M) 424 & 425 of 1992 Page 4 Of 7 plans may be permitted. None of the aforesaid provisions have any applicability to the present case. We are not concerned with the contravention as postulated by Section 14 of the DD Act. The question whether master plan and/or zonal plans provide or not for any use is not relevant for this matter. As already noted, we are concerned with the breach of the terms of the lease. It is not in dispute that the commercial use is contrary to the use permissible under the lease. The paramount lessor has taken action to terminate the lease for contravention of the terms thereof. It cannot be held that despite contravention of the lease, the paramount lessor is debarred for exercising its rights under the terms of the lease for absence of providing a user under Section 7 in the master plan or under Section 8 in the Zonal Development Plan. (para 8)

In Dr. K.Madan v. Krishnawati (Smt.) and Anr. [(1996) 6 SCC 707], this Court has held that where the premises are used in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or Municipal Corporation of Delhi, then the landlord will be entitled to recovery of possession under Section 14(1)(k) of the Act and that sub-section (11) of Section 14 of the Act enables the Controller to give another opportunity to the tenant to avoid an order of eviction. The first opportunity to the tenant is given when the notice is served on him by the landlord and the second opportunity is given when an conditional order under Section 14(11) of the Act is passed directing the tenant to pay the amount by way of compensation for regularisation of user up to the date of stopping the misuser and further directing stoppage of unauthorised user. The continued unauthorized user would give the paramount lessor the right to re- enter after the cancellation of the lease deed. As already noticed, the DDA is insisting on stoppage of misuser. The misuser is contrary to the terms of lease. The DDA cannot be directed to permit continued misuser contrary to the terms of the lease on the ground that zonal development plan of the area has not been framed." (para 9)

CM(M) 424 & 425 of 1992 Page 5 Of 7

7. This Court in Ramesh Kumar v Vikrant Malhotra & Ors. CM(M) 831/2007

decided on 7th January 2009 observed as under:

". There is no dispute that the property in question was being put to misuse. The counsel for the petitioner has only argued that running of shop, since now was permitted under the amended Master Plan, therefore, the learned ARC should not have asked for stopper of misuse. I consider that this contention of the petitioner is baseless. The two Courts below, after going through the Master Plan, notifications and the stand of the petitioner, found that this stand was a baseless stand and had also observed that the Court had no jurisdiction to pass an order that the misuser be condoned. Reliance was placed on Union of India and Ors. v. Dev Raj Gupta and Ors. AIR 1991 SC 93 wherein Supreme Court observed as under:

"The High Court is further not right in holding that there was an automatic or a statutory conversion of the user of the land because in the Master plan the land in question fell in the area reserved for commercial use. The High Court failed to appreciate that the change of user of the land permitted by the plan was only enabling in nature. It lifted the restriction which was otherwise there for using the land for commercial purpose. The land has to be used as per the agreement between the contracting parties, and no change of the user can be made contrary to the agreement even if the plan permits such user. The plan helps the parties to change the user, if the parties mutually agree to do so. It does not permit the occupant to change the user unilaterally. It is not, therefore, correct to say that no permission of the landlord was needed to change the user of the land."

8. The counsel for the petitioner raised a plea that since new master plan has

come into force, the area was likely to be notified as commercial area. I consider

CM(M) 424 & 425 of 1992 Page 6 Of 7 that this argument has no force. There is no dispute that the property in question

was put to misuse. DDA has made categorical statement in the Court before learned

ARC that the misuser cannot be condoned and has also made statement that misuser

was to be stopped. Under these circumstances, I consider that the petitioners had

no case to approach this Court time and again. This is the third round of litigation

being made by the petitioners. Firstly, the petitioners lost in the main case. Then

they lost before the ARCT and the third round of litigation regarding raising of

objections in the execution petition of the eviction order.

9. I consider that the present petitions are a gross misuse of judicial process

and are liable to be dismissed. In Buddikota Subbarao vs. V.K. Parosaran AIR 1996

SC 2687, the Supreme Court held that no litigant has unlimited right to draught the

court time and public money in order to get his affairs settled in the manner, he

wishes. Access to justice cannot be allowed to be misused as a license to file

misconceived and frivolous petitions. The present petitions are hereby dismissed

with costs and the eviction order passed by learned trial court is hereby confirmed.

Since misuser has not been stopped by the petitioners and the petitioners had no

intention to stop the same and the only intention of the petitioners is to prolong the

misuser through litigation, the landlord (respondent herein) is entitled for eviction of

the premises forthwith. The costs are quantified at Rs.1 lac, in each petition.

April 8, 2010                                         SHIV NARAYAN DHINGRA J.
rd




CM(M) 424 & 425 of 1992                                                 Page 7 Of 7