The Chief District Medical ... vs Sh. Roshan Lal Makkar
2011 Latest Caselaw 1139 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               RFA No.119/2011

%                                                 24th February, 2011

THE CHIEF DISTRICT MEDICAL OFFICER & ORS.              ...... Appellants
                     Through:   Ms. Zubeda Begum, Advocate with Ms.
                                Sana Ansari, Advocate.

                          VERSUS


SH. ROSHAN LAL MAKKAR                                         ...... Respondent
                    Through:           None



CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

    2.   To be referred to the Reporter or not?

    3.   Whether the judgment should be reported in the Digest?


VALMIKI J. MEHTA, J (ORAL)

C.M.No.3988/2011 (Exemption) in RFA No.119/2011


              Exemption allowed subject to just exceptions.


              Application stands disposed of.


+RFA No.119/2011


1.            I am forced to begin dictation of the judgment in this case by a

remark that an arm of the State which makes the law feels that it is above
RFA No.119/2011                                                   Page 1 of 5
 the laws of the country.    The settled legal position in Delhi is that with

respect to premises which are not governed by Delhi Rent Control Act, 1958,

the tenancy can be terminated by a legal notice and on such termination of

tenancy, the tenant becomes an unauthorized occupant of the tenanted

premises and is liable to vacate the same. In fact, the Legislature amended

Section 106 of the Transfer of Property Act, 1882 recently so as to take away

technical objections of serving the legal notice of termination of tenancy and

which amendment was made applicable to all pending proceedings.           The

facts of the case however show the action of the appellants who are the

Director of the Directorate of Health Services of Government of NCT of Delhi,

the Directorate itself of the Government of NCT of Delhi, the Secretary of the

Government of NCT of Delhi and the Chief District Medical Officer, is to still

claim to be entitled to continue in possession of the premises with respect to

which tenancy has been terminated.


2.          The facts of the case are that the appellants (basically the

Directorate of Health Services of Government of NCT of Delhi) became a

tenant of the first floor of the property X-978, Chand Mohalla, Raghbarpura,

Gandhi Nagar, Delhi through an unregistered lease deed for a period from

1.7.2005 to 31.7.2010.   The monthly rent was Rs. 17,008/-.      The landlord

terminated the tenancy by means of a legal notice dated 30.9.2009

inasmuch as the tenancy was a monthly tenancy under an unregistered

lease deed and which notice was duly replied to by the defendant No.2 vide


RFA No.119/2011                                                Page 2 of 5
 reply dated 27.10.2009. In any case, as per the paper book filed in this case

it is shown that the notice terminating the tenancy was addressed to as

many as four persons, namely, the Secretary of the Directorate of Health

Services, the Director of the Directorate of Health services, the Chief District

Medical Officer, East District and the Medical Officer of the concerned

dispensary situated in the subject premises.     The registered post receipts

showing dispatch of the legal notice terminating the tenancy have also been

filed at page 36 of the paper book and the UPC certificate in respect thereof

have been filed at page 37. As already stated, the legal notice terminating

tenancy was duly replied to vide reply dated 27.10.2009 by the office

Superintendent, Court Cases Cell of the Directorate of Health Services,

Government of NCT of Delhi.


3.          In view of the above, the trial Court by the impugned judgment

and decree has decreed the suit of the landlord/plaintiff under Order 12(6)

CPC for possession of the premises on the ground that the admitted rate of

rent being Rs.17,008/- per month i.e. more than Rs.3500/- per month and

therefore there was no protection of Delhi Rent Control Act, 1958 and since

the lease deed was only an unregistered lease deed the tenancy was a only

a monthly tenancy which could be and was terminated by means of a legal

notice under Section 106 of the Transfer of Property Act, 1882. The notice of

termination of tenancy dated 30.9.2009 was sent to as many as four

authorities and in fact it was duly replied to vide reply dated 27.10.2009 by


RFA No.119/2011                                                  Page 3 of 5
 the Court Cases Cell of the Directorate of Health Services of the Government

of the NCT of Delhi.


4.          Learned counsel for the appellant wanted me to look at the

terms of the lease deed that the notice has not been served upon the

authority as specified in the lease deed. I find the argument very surprising

coming from the Government of NCT of Delhi because not only the legal

notice has been served not on one but as many as four authorities but the

same was in fact was duly replied to vide reply dated 27.10.2009 as already

stated above. In any case, terms of an unregistered lease deed, cannot be

looked into by claiming such terms to be a collateral purpose in terms of

Section 49 of the Registration Act, 1908.       Looking at the issue from any

manner whatsoever the notice terminating tenancy was validly served.


5.          Learned counsel for the appellants also sought to argue that the

landlord/plaintiff in his suit itself stated that he did not know whether the

notice of tenancy was served or not, however, this argument overlooks the

fact that the trial Court has duly noted that the legal notice terminating the

tenancy dated 30.9.2009 was duly replied to by the reply dated 27.10.2009

as stated above. Also, taking into account the recent amendment to Section

106 of the Transfer of Property Act, 1882 which provides that there should

be no defence of technicality of service of notice once more than 15 days

time is given before filing of the suit, I hold that the suit ought not to fail for

alleged non-service of notice. Also, I must add that after all copy of notice

RFA No.119/2011                                                    Page 4 of 5
 terminating tenancy has also been served alongwith the suit and there can

be no issue that 15 days have not expired thereafter. This contention of the

counsel for the appellant is therefore rejected that no notice terminating the

tenancy was served.


6.          In view of the above, I do not find any reason whatsoever to

interfere with the impugned judgment and decree. There are no disputed

questions of facts which require summoning of the trial Court record.


            The appeal is therefore dismissed, leaving the parties to bear

their own costs.


C.M. No.3987/2011 in RFA No.119/2011


            Since the main appeal has been dismissed, no orders are

required to be passed in this application which is disposed of as such.




FEBRUARY 24, 2011                               VALMIKI J. MEHTA, J.

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