Delhi High Court
Bhagirath Ram vs Shakuntala Rani (Substituted By) ... on 3 March, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 19th January, 2010
Date of Order: 3rd March, 2010
CM (M) No. 1413/2007
% 03.03.2010
Bhagirath Ram ... Petitioner
Through: Mr. Chaman Lal Nayar, Advocate
Versus
Shakuntala Rani (substituted by)
Balvinder Singh & Satinder Pal Singh ... Respondents
Through: Mr. R.L.Kohli, Advocate
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
By this petition under Article 227 of the Constitution of India, the
petitioner has assailed an order dated 26.9.2007 passed by the learned Additional
Rent Control Tribunal whereby he dismissed an appeal of the petitioner against order
dated 1.9.2007of the Additional Rent Controller.
2. Brief facts relevant for the purpose of deciding this petition are that the
petitioner suffered an eviction order under Section 14(1)(k) of the DRC Act on
05.10.2001 in an eviction petition filed by the respondent. This order attained finality.
Thereafter the learned ARC held an inquiry under Section 14(11) of DRC Act by
calling upon the L&DO to inform about its stand if the misuser was compoundable or
not and what were the misuser charges. After L&DO submitted an affidavit, the
learned ARC tried the matter and vide order dated 20.7.2005 directed the petitioner
to pay misuser charges as determined by L&DO within one month and to stop the
misuser. The petitioner did not pay misuser charges, nor stopped the misuser thus,
on an application made by the landlord, ARC initiated execution for eviction of the
petitioner and passed order dated 1.9.07 against which an appeal was preferred
before the learned Additional Rent Control Tribunal. Before learned ARCT, it was
pleaded by the petitioner that i) the suit property was let out by the landlord for
commercial purposes, ii) the report submitted by L&DO about measurement of the
shop was not correct, and iii) as per Office Order passed by L&DO, a building in
rehabilitation colony was allowed to have an area of less than 300 sq. feet for
commercial purpose at the ground floor and the same could even be used by a
tenant with consent of the lease. It was submitted that the learned ARC did not
consider these aspects.
3. The learned ARCT after considering the entire material observed that
the learned ARC had gone into the issue of area of the shop and passed an order on
20.7.2005. Since no challenge was made to this order, this order had become final
and this issue cannot be re-opened. However, learned ARCT despite this went into
the measurement aspect and found that it was more than 300 sq. feet. The other
issue raised by the petitioner before the learned ARCT was that since the property
had been made freehold, the terms and conditions of lease as imposed by L&DO
were not binding on the landlord/respondent therefore the eviction order was bad in
law. This issue was also held against the petitioner by both the Courts below.
4. The present petition under Article 227 has been filed by the petitioner
assailing order of the learned ARCT on merits. There is no jurisdictional issue raised
and thus the present petition is not maintainable. This Court in Ramesh Kumar v.
Vikrant Malhotra & Ors. CM(M) No. 831/2007 decided on 7th January, 2009 had
observed:
3. Under Article 227, this Court does not act as a Court of
second appeal. Second appeal can be preferred by a litigant only
if the statute provides and it can be preferred only on the terms
and conditions as may be provided by the statute. The policy of
legislature has been to set the litigation at rest at some stage and
the number of appeals that can lie has been provided by the
statute, after considering the importance of each matter. Where
no second appeal lies against the order of first Appellate Court,
the second appeal cannot be entertained by indirect route. It is
settled law that what is not permitted directly cannot be done
indirectly. The jurisdiction of this Court under Article 227 is
supervisory in nature and the Court has only to see that the
Courts/Tribunals subordinate to it, act within the four corners of
law, do not exceed their jurisdiction or do not commit a material
irregularity. Article 227 cannot be invoked by way of second
appeal and this is what has been done in this case.
5. Regarding argument raised by the petitioner of coming into force of a
new Master Plan, I consider that this argument was not tenable. There is no dispute
that the property in question was being put to misuse. The L&DO had given report
before the ARC about the misuser charges and had also stated that the misuer was
to be stopped. Under these circumstances, in case the petitioner failed to clear the
misuser charges and failed to stop the misuse, the ARC was bound to execute the
eviction order. I find no merits in this petition. The petition is hereby dismissed being
not maintainable.
March 03, 2010 SHIV NARAYAN DHINGRA, J.
vn
