Saleem Ahmed & Anr. vs Shri Ram College Of Commerce
2013 Latest Caselaw 3457 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Order delivered on: August 06, 2013

+                    CM(M) No.1237/2012 & CM No.19165/2012

      SALEEM AHMED & ANR.                                  ..... Petitioners
                  Through                Ms. Rashmi Verma, Adv. for
                                         Mr.Rajat Aneja, Adv.

                            versus

      SHRI RAM COLLEGE OF COMMERCE             ..... Respondent
                   Through  Mr.Amit Bansal, Adv.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

1. By way of the present petition under Article 227 of the Constitution of India, the petitioner has assailed the order dated 31st October, 2012 passed by the Rent Controller (North), Tis Hazari Courts, Delhi in an execution proceeding, whereby the objections filed by the petitioners were dismissed and warrants of possession in respect of the suit i.e. D-10, Staff Quarters, Shri Ram College of Commerce, Delhi -110007 (hereinafter referred to as 'the said premises') were issued.

2. It is the case of the petitioners that their father Late Atiq Ahmed was an employee of the respondent and was allotted the said premises. However, in the month of August 2012, their brothers, particularly Ayaz Ahmad asked the petitioners to vacate the said premises as an undertaking was given by the brothers and sisters of the petitioners before the Rent Control Tribunal to vacate the said premises.

3. The petitioners thereafter filed objections in the execution proceedings and contended that they had never been served with a Notice either of the Eviction Petition which was originally filed by the respondent against their father Late Atiq Ahmed or the application for impleadment of the legal heirs of Late Atiq Ahmed who died during the pendency of the eviction petition. It was contended by the petitioners that they were never heard before the Trial Court or the Appellate Tribunal.

4. It was also contended that the said eviction petition was not maintainable as there was no tenancy in respect of the tenanted premises between their father and the respondent. The competence of the Principal of the respondent college who filed the said eviction petition was also questioned by the petitioners in their objections.

5. To counter the objections so filed by the petitioners, the respondent argued that the said objections were filed after an appeal was filed by some of the legal representatives against the eviction order was dismissed.

6. It was contended by the respondent that the petitioners were never in the possession of the said premises and they did not have any right, title or interest in the said premises. It was further contended that the petitioners were in fact seeking re-trial in the garb of the said objections.

7. It was observed by the learned executing court in the light of the settled principles that there was no merit in the grievance of the petitioner that they were not impleaded as legal representatives along with the other legal representatives who were brought on record. On the ground that the said eviction petition was not filed by the competent authority, it was observed that at the time of filing the written statement which was filed by the father of the petitioners neither any such objections were taken nor the plea that there was no tenancy between the parties was taken. It was rather

stated that the father was a tenant in the individual capacity of the respondent.

8. It was also held by the trial court that the father of the petitioners was allotted the said premises by the reason of his being in the service/ employment of the respondent. In view of the same, it was observed by the learned executing court that now the petitioners could not be heard to say that there was no service tenancy. This was despite the fact that they were not on record as LRs. It was observed that inquiry into the aspect of due institution of the petition would amount to going behind the decree. Since the eviction petition was pending for seven years, it was observed by the learned executing court that it was difficult to believe that the petitioners were not aware of the pendency of the eviction petition or the appeal. In fact it was apparent that the petitioners were aware of the pendency of the petition and it seemed that they were in league with the other LRs and just wanted to thwart the execution proceedings. In view of the same, the said objections were dismissed vide order dated 10th October, 2012.

9. Impugning the said order the present petition is filed on the grounds mainly that the same suffers from grave illegality and thus is liable to be quashed.

10. It is admitted position that PW-1 Dr. P.C. Jain, principal of respondent college, deposed that the respondent had submitted an application dated 1st May, 1958 in the college seeking employment and same is proved as Ex. PW-1/3. PW-1 further deposed that subsequently the petitioner worked in the respondent college as Chowkidar/Hawaldar and finally retired on 31st March, 1999 on attaining the age of superannuation. PW-1 further deposed that respondent college has let out and allotted the petitioner a staff quarter bearing No.D-23 and later on, staff quarter bearing No.D-10 situated within

the college compound on 30th January, 1989 for use by him as residence for himself and members of his family by the reason of his being in the service employment of the respondent college. PW-1 proved the site plan as Ex.PW-1/4 and deposed that subsequently, petitioner made illegal and unauthorized construction of two rooms admeasuring 180 sq. feet and 150 sq. feet approximately, which are shown red in the site plan and the petitioner was required to pay only a concessional rate of rent of `30/- per month which rate of rent was subsequently enhanced to ` 300/- per month from 4th April, 2000 and again to `600/- from 5th October, 2000. PW-1 proved the copy of rules for allotment of residence as well as Delhi University Rules for allotment of residence as Ex.PW-1/7 and 8. PW-1 further proved the list of employee who are allotted/let out the various staff quarter as well as those on the waiting list as Ex.PW-1/9. In his cross examination, PW-1 confirmed that deceased petitioner was given the tenanted premises by virtue of his employment in the college and denied the suggestion that the premises was given on rent to the deceased petitioner in a personal capacity as a contractual tenant as distinguished from the service tenancy.

11. PW-1 deposed that there are a large number of staff members waiting for allotment of residence in the respondent's college and the list of employees who are allotted/let out and occupying the various staff quarters was well as those on the waiting list are shown in Ex.PW-1/9. In his cross examination, PW-1 confirmed that some of the occupiers mentioned in the Ex.PW-1/9 have already vacated their respective premises and voluntarily deposed that allotment is ongoing and continuous process.

12. Ex.PW-1/3 is the copy of the application which the petitioner filed for appointment of his service as a peon in the college of respondent.

Documents RW-1/P-1 and RW-1/P-2 which are admitted documents by RW-1, as bearing the signature of respondent shows that RW-1/P-1 and P-2 are in respect of list of items and meter number provided in the premise and document RW-1/P-3 is lease license qua allotment of accommodation, where it is mentioned that accommodation is provided to petitioner by reason of his being in the employment of Shri Ram College of Commerce.

13. RW-1 Sh. Ayaz Ahmad, deposed that he is one of he legal heir of deceased Sh. Atiq Ahmad and is conversant with the facts of case and depositing the same from his personal knowledge. RW-1 deposed that he does not have any knowledge of the terms and conditions on which aforesaid quarter were allotted to the petitioner from time to time and he also does not know as to in what capacity he was occupying the aforesaid quarter. RW-1 confirmed that finally petitioner retired on 31 st March, 1999 on age of superannuation and he does not know that his father was given the quarter in question in lieu of employment with respondent college or that his father was residing for the reason of his employment in the college.

14. In the present case, admittedly the petitioners have filed the objections after dismissal of the appeal vide order dated 3 rd May, 2012 filed by the contesting legal representatives against the eviction order under execution wherein the said Legal Representatives gave an undertaking to vacate and hand over the possession of the tenanted premises on or before 25th August, 2012.

15. The present petitioners who are now also claiming to be legal representatives were never and still are not in possession of the tenanted premises as per the case of the respondent who stated that when the court bailiff visited the site to execute the warrant of possession they were not

found in possession thus they cannot claim any independent right, title and interest.

16. I agree with the submission of the learned counsel appearing on behalf of the respondent that the petitioner is seeking retrial in the garb of objections and court at this stage cannot go beyond the final order under execution.

17. In view of the above reasons and discussion, I am of the considered view that respondent has proved its case that the tenanted premises was allotted to petitioner for residential use by reason of his being in the employment of the landlord/respondent and petitioner Sh. Atiq Ahmad has ceased, in such service/employment, firstly, on his superannuation on age of the retirement and secondly, on his death. The respondent has also able to prove that the tenanted premises as shown in the plan Ex.PW-1/4 is required bonafide by it and petitioner has raised unauthorized construction in tenanted premises.

18. In view of the abovementioned facts and circumstances of the case, I am not inclined to interfere with the impugned order passed by the Rent Controller on 31st October, 2012.

19. Accordingly, the petition is dismissed in favour of the respondent.

20. No costs.

(MANMOHAN SINGH) JUDGE AUGUST 06, 2013