Delhi High Court

Sc Sharma & Co Pvt Ltd vs Atma Ram Builder Pvt Ltd on 11 May, 2012

Author: Indermeet Kaur

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment reserved on: 08.05.2012.
                        Judgment delivered on: 11.05.2012

+CM(M) 1245/2011 & CM Nos. 19606/2011 & 20876/2011

      SC SHARMA & CO PVT LTD                ..... Petitioner
                     Through: Mr.Sudhir Nandarajog, Sr. Adv.
                              with Mr.Rajesh Anand and
                              Mr.Akhand Pratap Singh, Adv.
              versus

      ATMA RAM BUILDER PVT LTD             ..... Respondent
                   Through: Mr.Sandeep Sethi, Sr. Adv. with
                            Mr.Amit Sethi, Advocate.
      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 Impugned judgment is dated 08.09.2011 passed by the Additional

Rent Control Tribunal (ARCT) endorsing the findings of the Additional

Rent Controller (ARC) dated 23.09.2008 whereby in the pending

eviction proceedings under Section 14 (1)(k) of the Delhi Rent Control

Act (DRCA), the ARC after recording the compliance report under

Section 14 (11) of the DRCA had noted that 30 the day period which

had been granted to the tenant to comply with the requirement of

Section 14 (11) not having been adhered to the order of eviction under

Section 14 (1)(k) of the DRCA had been passed. This finding of the

ARC (as noted supra) was endorsed by the ARCT.

2 Record shows that the present eviction petition has been filed by

the landlord Atma Ram Builder Private Limited (hereinafter referred to

as the 'landlord') against his tenant SC Sharma and Co. Pvt. Ltd.

(hereinafter referred to as the 'tenant') qua his eviction from the ground

floor of property bearing No. 7D, Connaught Place, New Delhi as

depicted in red colour in site plan (Ex. AW-1/3). The ground was under

Section 14 (1)(k) of the DRCA. Contention was that the tenant has made

unauthorized constructions, additions or alternations which had been

noted by the superior lessor i.e. the Land and Development Office and

notice issued by the superior lessor dated 15.09.1986 has noted that the

unauthorized constructions have been made by the tenant in the

mezzanine of the shop occupied by it; there are two objectionable areas

i.e. an area of 356 square feet and another area of 229 square feet

(details of which have been given in para 18 ); contention being that

penalty/damages have been imposed upon the landlord because of this

unauthorized construction by the tenant which makes out a ground for

eviction of the tenant under Section 14 (1)(k) of the DRCA; eviction

petition was accordingly filed.

3 The averments in the reply filed to the aforenoted eviction

petition have been perused. Para 8 specifically state that the area of the

shop is 1900 square feet and the mezzanine floor is within the

permissible limits; there is no excess area or unauthorized construction;

contention was that only a false ceiling has been created for the purpose

of air conditioning which is a well known concept and there is no

structural change; grounds under Section 14 (1)(k) of the DRCA are not

made out. Vehement contention of the landlord is that nowhere in this

entire reply is has the tenant disputed the averments made in the eviction

petition which are specifically to the effect that the mezzanine floor has

an objectionable area of 356 square feet as also another area of 229

square feet both of which have been mentioned in para 18 of the

eviction petition.

4 This submission has been vehemently disputed by the learned

counsel for the tenant who has drawn attention of this Court to the

notice which had been sent by the L & DO (dated 15.09.1986) to the

original landlord namely Prakash Brothers (admittedly the present

landlord is the successor in interest of the erstwhile landlord). This is a

notice which had been given to all unauthorized mezzanine

constructions in shops at Connaught Place and the unauthorized

mezzanine by the present tenant finds mention at serial No. 'X' where

the objectionable area has been described as 356 square feet upon which

penalty charges have been levied for different periods of time;

contention of the tenant being that that the objectionable area in the

mezzanine floor was in fact only 356 square feet and the area of 229

square feet which finds mention specifically is not related to the

mezzanine; further submission being that the RCT had in fact noted that

the area of 356 square feet was not an objectionable area; it was part of

the original sanctioned plan which had been taken on record before the

RCT and had been proved before the RCT (Ex. RW-5/8) which was a

site plan dated 04.04.1950 showing that even at that time, there was a

mezzanine of area of 356 square feet; contention being that this area of

229 square feet is not a part of the objectionable area of the mezzanine

floor and this was also never the contention in the Court of the ARC and

the ARCT returning a finding contrary to the finding of the ARC suffers

from an illegality on this score.

5 Attention has been drawn to the order passed by the ARC wherein

the facts as noted by the ARC relate to an area of 356 square feet only

and there is no mention of area of 229 square feet.

6 However record does not substantiate the submissions of the

tenant. Record shows that on 15.09.1980 a notice had been issued by the

L & DO i.e. Ministry of Urban Development to the erstwhile landlord

Prakash Brothes wherein at serial No. 'X' in the shop occupied by the

present tenant a first objectionable area was mentioned as 356 square

feet; damages were levied from 13.10.1970 to 14.01.1972 at the rates

mentioned therein. For another area of 229 square feet, damages were

levied for a different periods of time i.e. 23.06.1983 up to 14.01.1987. It

was only for this reason that the two areas have been depicted separately

yet it is clear from the reading of the aforenoted notice that this area was

confined to the mezzanine floor only. In fact the entire notice dated

15.09.1980 which has been sent to the various tenants of Connaught

Place including Batra Stores, Kapur Brothers, New Era all relate to

unauthorized construction made in the mezzanine floor alone. That apart

notice dated 10.12.1987 was another notice sent by the landlord to the

present tenant wherein again in paras 7 & 8 it had been reiterated that

there was an unauthorized construction of mezzanine in an area of 356

square feet and 229 square feet; these two mezzanine areas have been

described separately and distinctly. Reply filed to this legal notice is

dated 01.02.1988 (sent through Advocate Mr L.K. Garg) wherein reply

to paras 7 & 8 there is no dispute to this factual position that the

unauthorized areas in the mezzanine floor is not 356 square feet and 229

square feet respectively. This is also evident from the site plan Ex. AW-

1/3 wherein also the loft has been depicted as an area of 28'X23' i.e.

the area which is unauthorized area and which is about 644 square feet.

So also the version of RW-1 wherein he has admitted that the mezzanine

floor is more than 500 square feet meaning thereby that it is definitely

over and above an area of 356 square feet and even assuming that before

the ARCT, the site plan Ex. RW-5/8 had evidenced the area of 356

square feet as authorized being there from the inception yet there is no

answer about the excess area after 356 square feet up to 500 square feet.

As noted supra, the legal notice sent by the landlord to the tenant in

paras 7 & 8 also specifically postulated that the unauthorized mezzanine

floor is 356 square feet and area of 229 square feet separately to which

again there was no dispute; no counter factual submission was made on

this score. Thus it can safely be assumed that the tenant was fully aware

of the fact that the mezzanine floor comprised of an unauthorized area of

356 square feet as also another area of 229 square feet.

7 Before the ARCT, the sanctioned site plan (Ex. RW-5/8) was

taken on record which evidenced that the area of 356 square feet

forming part of the mezzanine floor was authorized. However, there was

no explanation for the excess area over and above the area of 356 square

feet and as such the ARCT had correctly noted that inspite of notice

having been given to the tenant under Section 14 (11) of the DRCA and

the inquiry report having been submitted which was to the effect that the

said unauthorized user had not been removed, necessary corollary was

that the eviction petition was liable to be decreed under Section 14

(1)(k) of the DRCA.

8 Section 14(1)(k) of the DRCA reads as follows:

"(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;"

9 Section 14(11) contains the procedure which has to be followed

before an order under Section 14(1)(k) of the DRCA can be

implemented. It clearly postulates that an order for recovery of

possession shall not be made if the tenant within such time as specified

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.

10 This Court is also conscious of the fact that the right of second

appeal has since been abrogated. The powers of this Court under Article

227 of the Constitution of India is not a substitute for an appellate

forum; interference is called for only if there is a manifest illegality or