Sh. Harish Goel & Anr. vs M/S. Mega Overseas Private Ltd.
2012 Latest Caselaw 827 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No.72/2012

%                                                        7th February, 2012



SH. HARISH GOEL & ANR.                                  ...... Appellants
                   Through:                  Mr. P.K. Malik, Advocate.


                            VERSUS


M/S. MEGA OVERSEAS PRIVATE LTD.                         ...... Respondent
                 Through:

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


    To be referred to the Reporter or not?        Yes



VALMIKI J. MEHTA, J (ORAL)

1.             The challenge by means of this Regular First Appeal filed under

Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment of the trial Court dated 16.11.2011 dismissing the suit filed by the

appellants/plaintiffs for possession and mesne profits by allowing the

application filed by the respondent/defendant under Order 12 Rule 6 CPC.

RFA No.72/2012                                                          Page 1 of 7
 2.            A preface is necessary before turning to the facts of the present

case.     A Division Bench of this Court in the judgment reported as

Raghunandan Saran Ashok Saran Vs. Union of India 95 (2002) DLT 508

has held that provisions of fixing the standard rent under the Delhi Rent

Control Act, 1958 (hereinafter referred to as „the Act‟) under Sections 4,6 and

9 were ultra vires the Constitution and were struck down.

3.            Once there are no provisions for fixing of standard rent, the

contractual rate which is fixed between the parties continues to govern the

relationship of landlord and tenant between the parties. A Division Bench of

this Court recently in the judgment titled as Model Press Pvt. Ltd. Vs. Mohd.

Saied 2008 (155) DLT 403 has held that though the provisions relating to

fixing of standard rent were struck down in the judgment of Raghunandan

Saran Ashok Saran (supra), however, since the Legislature has not provided

any other mechanism for increase of the rent, therefore, eviction of the tenant

can only take place on the grounds as found under Section 14 of the Act. It

was held that the Courts cannot legislate and the landlords cannot claim rent

other than the agreed rent. Para 20 of this judgment reads as under:-

        "20. It is unfortunate that after the decision in Raghunandan
        Saran's case, the Legislature has not filled up the vacuum created
        in law with Sections 4,6 and 9 of the Delhi Rent Control Act, 1958
RFA No.72/2012                                                    Page 2 of 7
      being held ultra vires the Constitution. The mechanism required to
     be put in place, as observed by the Division Bench in para 28, has
     yet to find its place. But, since under the grab of interpretation, this
     Court cannot legislate, the inevitable consequence has to be that the
     appellants can claim no more rent from their tenants other than the
     agreed rent which the tenants are happily paying. Since the agreed
     rent in both case is far below `3,500/- per month, we hold that the
     learned Trial Judges were correct in rejecting the plaints as indeed
     the claim for recovery of possession against the respondents was
     not maintainable before a Civil Court."
                                                       (underlining added)

4.          In addition to the reasoning given in the judgment of Model Press

Pvt. Ltd. (supra) I must state that there is a statutory mechanism existing

under the Delhi Rent Control Act, 1958 for increase of the rent. This statutory

mechanism is contained in Sections 6A and 8 of the Act. As per these

provisions, rent can be increased every three years by 10% upon a notice sent

by the landlord and the rent enhanced by 10% will be payable after the expiry

of 30 days from the date on which the notice is given. Sections 6A and 8 of

the Act read as under:-

     "Section 6A. Revision of rent.- Notwithstanding               anything
     contained in this Act, the standard rent, or , where no standard rent is
     fixed under the provisions of this Act in respect of any premises, the
     rent agreed upon between the landlord and the tenant, may be
     increased by ten per cent every three years.

     Section 8. Notice of increase of rent.-(1) Where a landlord
     wishes to increase the rent of any premises, he shall give the tenant
     notice of his intention to make the increase and in so far as such
RFA No.72/2012                                                      Page 3 of 7
      increase is lawful under this Act, it shall be due and recoverable only
     in respect of the period of the tenancy after the expiry of thirty days
     from the date on which the notice is given.

     (2)    Every notice under sub-section (1) shall be in writing signed
     by or on behalf of the landlord and given in the manner provided in
     section 106 of the Transfer of Property Act, 1982 (4 of 1882)"

5.           In view of the above, the landlord cannot unilaterally increase the

rent merely because the provisions of fixing the standard rent have been struck

down in the judgment of Raghunandan Saran Ashok Saran (supra).

             In the present case, admittedly the rate of rent is ` 1500/- per

month for the tenanted premises which have been let out for commercial

purpose. As per the plaint, the appellants/plaintiffs claim that since there is no

mechanism provided by the Legislature after the provisions of Sections 4, 6

and 9 of the Act were struck down in the case of Raghunandan Saran Ashok

Saran (supra), therefore, by sending of a notice, the market rent can be

claimed, and which in the present case was claimed to be `1,50,000/- per

month. The trial Court has dismissed the suit relying upon the Division Bench

judgment in the case of Model Press Pvt. Ltd. (supra) that only the agreed

rent will continue to remain the legally payable rent.

6.           In my opinion, no fault can be found with the impugned

judgment inasmuch as it relies upon the judgment of a Division Bench of this
RFA No.72/2012                                                      Page 4 of 7
 Court in the case of Model Press Pvt. Ltd. (supra) and para 20 of which is

very clear that the landlord cannot claim any rent from the tenant other than

the agreed rent. I have additionally referred to the fact that there is in fact a

statutory mechanism in place being the provisions of Sections 6A and 8 of the

Act and therefore it cannot be said that there is a vacuum which needs to be

filled by the Legislature.

7.           Counsel for the appellants relied upon a recent judgment of the

Supreme Court in the case of Mohammad Ahmad and Anr. Vs. Atma Ram

Chauhan and Ors. (2011) 7 SCC 755 in support of the proposition that the

Supreme Court has specifically laid down an entitlement for the landlord to

increase the rent in terms of para 21 of the said judgment.

8.           In my opinion, the judgment of Supreme Court in the case of

Mohammad Ahmad and Anr. (supra) relied upon on behalf of the appellants

cannot help the appellants inasmuch as the said judgment was passed in the

facts of a case where the parties were governed by the U.P. Urban Buildings

(Regulation of Letting, Rent and Eviction) Act, 1972 and not the Act. Further,

a reference to para 21 of the judgment in the case of Mohammad Ahmad and

Anr. (supra) seems to suggest that what is fixed are only guidelines and norms

which are illustrative in nature. The Supreme Court does not hold in the
RFA No.72/2012                                                     Page 5 of 7
 judgment of Mohammad Ahmad and Anr.(supra) that in all cases where

relationships are governed by the Rent Control Acts of different States, there

will automatically be an increased rate of rent in terms of para 21 of the said

judgment. In the present case, I have already noted that under the Delhi Rent

Control Act, 1958, there is a statutory mechanism for increase of rent in the

form of provisions of Sections 6A and 8 of the Act, and therefore in the face

of these provisions, a landlord cannot seek to increase the rent on the basis of

his unilateral action/demand.

9.           In view of the above, I do not find any merit in the appeal which

is accordingly dismissed, leaving the parties to bear their own costs.

10.          After the aforesaid judgment was dictated, learned counsel for the

appellants has contended that a similar issue in the case of Smt. Santosh Vaid

& Anr. Vs. Sh. Uttam Chand in C.M.(M) No.48/2011 decided on 12.5.2011

has referred the issue with regard to maintainability of the suit to a larger

bench of this Court. Ordinarily, I would have also referred this case to a

larger Bench, however, a reading of the judgment in the case of Smt. Santosh

Vaid and Anr. (supra) shows that the binding precedent, being the Division

Bench judgment of this Court in the case of Model Press Pvt. Ltd. (supra)

were not pointed out to this Court and in which judgment the Division Bench
RFA No.72/2012                                                     Page 6 of 7
 in para 20 has clearly said that the landlord cannot unilaterally increase the

rent from the figure of the agreed rent.

11.          In view of the above, I do not find any merit in the appeal which

is accordingly dismissed, leaving the parties to bear their own costs.



                                                   VALMIKI J. MEHTA, J.

FEBRUARY 07, 2012 Ne