Delhi High Court
Ram Kishan & Sons vs Union Of India on 4 March, 2013
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:04.03.2013
+ W.P.(C) 1403/2013
RAM KISHAN & SONS ..... Petitioner
Through Mr. Anip Sachthey, Mr. Mohit
Paul, Ms. Shagun Matta and
Mr.Saakaar Sardana, Advs.
Versus
UNION OF INDIA ..... Respondent
Through Mr. Saqib and Ms. Shipra Shukla,
Advs.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
CM Nos.2650-51/2013 (Exemption)
1 Exemption allowed subject to all just exceptions.
W.P.(C) No. 1403/2013
2 This writ petition seeks to lay a challenge to Chapter III A of the
Delhi Rent Control Act, 1958 (hereinafter referred to as the 'said Act');
submission being that the substantive provisions of the said Act do not
provide any period for filing an application for leave to defend but the
period of 15 days which has been prescribed in the IIIrd Schedule of the
said Act is ultra vires; the provisions of the Schedule are inconsistent
with the provisions of Section 25-B (4); they accordingly be declared
ultra vires. This is the thrust of the argument addressed before us.
3 Record shows that an eviction petition had been filed by the
respondent/landlord against the petitioner/tenant under Section 14 (1)(e)
of the said Act on the ground of bonafide requirement for the premises
bearing No. G-18, 19 & 24, Marina Arcade, Connaught Circus, New
Delhi. This was in May, 2008. The petitioner is a tenant in the
aforenoted premises since the year 1937. Pursuant to the amendments
incorporated in the said Act from time to time, the petitioner exercised
his right to get the respondent evicted on the ground of bonafide
requirement. Summons were duly served upon the petitioner. He,
however, chose not to file his leave to defend inspite of service; the
whole controversy being agitated upon whether the service had been
duly served upon the petitioner or not. The Additional Rent Controller
(ARC) had returned a finding that Rajender Prasad an employee of the
petitioner had been duly served with the summons and the leave to
defend not having been filed within the prescribed period of 15 days, a
decree of eviction automatically followed in favour of the
respondent/landlord.
4 Revision petition was filed before the High Court which,
upholding the view of the ARC, dismissed the revision petition vide
order dated 06.03.2012. Against the order of the single Bench of this
Court, a Special Leave Petition was preferred before the Supreme Court
which was dismissed on 04.04.2012. The said order reads as under:-
"After having heard learned senior counsel for the petitioner and after
perusal of the record, we are of the opinion that no case for interference is made
out against the impugned order passed by the High Court. The
special leave petition is accordingly dismissed. However, looking to the facts
and features of the case and keeping in mind that the petitioner has been carrying
on business in the suit premises for a considerable time, it is granted one year's time
from today to vacate and handover peaceful and vacant possession of
the suit premises to the Respondent decree holder, subject to its filing usual
undertaking in this Court within four weeks from today."
One year extended period of time had been given to the petitioner
to vacate the suit premises which period we have been informed would
expire sometime in April, 2013.
5 Undisputedly, the petitioner has been ordered to be evicted from
the suit premises by all forums and he has exercised his option to agitate
his right, right up to the Supreme Court. Learned counsel for the
petitioner however submits that his SLP was in fact dismissed in limine
on 04.04.2012 and a review petition has been filed against the order
dated 06.03.2012 which is permissible in view of the fact that the SLP
had been dismissed in limine.
6 This submission may not be quite correct but without adverting to
the scope of the review petition, the case of the petitioner must also
otherwise fail.
7 Chapter III of the said Act deals with control of eviction of
tenants. Section 14 protects a tenant from eviction. Section 14 (1)(e)
states that where the premises had been let out for residential purpose
are bonafide required by the landlord for occupation as a residence for
himself or for any member in his family dependent on him or for any
person for whose benefit the premises are held and the landlord or such
person having no other reasonably suitable residential accommodation,
may apply to the Rent Controller in the prescribed manner for recovery
of possession. The distinction between a 'residential premises' and a
'commercial premises' has also been abrogated by a subsequent
judgment of the Supreme Court in Satyawati Sharma (Dead) By LRs.
Vs. Union of India (UOI) & Anr. AIR 2008 SC 3148.
8 Chapter III A of the said Act consisting of Sections 25-A to 25-C
was inserted by the Act of 1976 i.e. w.e.f. 01.02.1975. By introduction
of Chapter III A, a special provision was introduced by the Legislature
for summary trial of certain applications filed under the said Act.
Section 25-A clearly states that the provisions of Chapter III A will have
an overriding effect notwithstanding any inconsistency contained
elsewhere in the said Act or any other law for the time being in force.
Section 25-B is a special provision for disposal of applications for
eviction on the ground of bonafide requirement filed at the instance of
the landlord under Sections 14 or 14-A to 14-D.
9 Admittedly the provisions of Section 25-B of the said Act do not
prescribe any time period during which an application for leave to
defend has to be filed by the tenant after service upon him. Section
25-B(4) and the form specified in the IIIrd Schedule (highlighted by the
learned counsel for the petitioner) read as under:-
25. B Special procedure for the disposal of applications for eviction on the ground
of bona fide requirement. -
.......................................................
(4) The tenant on whom the summons is duly served (whether in the ordinary way or
by registered post) in the form specified in the Third Schedule shall not contest the
prayer for eviction from the premises unless he files and affidavit stating the
grounds on which he seeks to contest the application for eviction and obtains leave
from the Controller as hereinafter provided; and in default of his appearance in
pursuance of the summons or his obtaining such leave, the statement made by the
landlord in the application for eviction shall be deemed to be admitted by the tenant
and the applicant shall be entitled to an order for eviction on the ground aforesaid.
THE THIRD SCHEDULE
[See Section 25-B(2)]
Form of summons in a case where recovery of possession of premises is prayed for
on the ground of bona fide requirement or under Section 14A
To
[Name, description and place of residence of the tenant]
Whereas Shri.................has filed an application a copy of which is annexed) for
your eviction from (here insert the particulars of the premises) on the ground
specified in clause (e) of the proviso to sub-section (1) of section 14, or under
section 14A;
You are hereby summoned to appear before the Controller within fifteen days of the
service hereof and to obtain the leave of the Controller to contest the application
eviction on the ground aforesaid; in default whereof, the applicant will be entitled at
any time after the expiry of the said period of fifteen days to obtain an order for your
eviction from the said premises.
Leave to appear and contest the application may be obtained on an application to
the Controller supported by an affidavit as is referred to in sub-section (5) of section
25B.
Given under my hand and seal
This ..............day of..............19..Controller]
10 Section 25-B (4) enunciates that the tenant upon whom the
summon is duly served (whether in the ordinary way or by registered
post) in the form specified in the IIIrd Schedule shall not contest the
prayer for eviction from the premises unless he files an affidavit stating
on which ground he seeks to contest the application for eviction and
obtains a leave from the Controller as provided; in default of his
appearance in pursuance of the summons or his obtaining such leave,
the statement made by the landlord in the application for eviction shall
be deemed to be admitted by the tenant and the applicant shall be
entitled to an order of eviction on the ground aforesaid.
The form specified in the IIIrd Schedule specifies a period of 15
days (from the date of service upon him) to appear and ask for leave to
contest the eviction proceedings; in the absence of which an order for
eviction in favour of the landlord will automatically follow.
11 From a perusal of Section 25-B (4) read with the IIIrd Schedule,
the Legislature appears to have recited its intention in clear and
unequivocal terms which is to the following effect. When the summons
of the proceedings are received by the tenant, he has to appear and ask
for leave to defend the eviction proceedings within a period of 15 days
from the date of service upon him and on his failure to do so, an eviction
order will automatically fall into the lap of the landlord.
12 The submission of the learned counsel for the petitioner on this
score that Schedule of the Act is inconsistent with the statutory
provision [Section 25-B (4)] is a misunderstood and a mis-reading of the
aforenoted provisions. There is no doubt that Section 25-B contained in
Chapter III A of the said Act does not prescribe the time period within
which a tenant has to enter appearance and file his application seeking
leave to defend, yet this period has been elaborated in the Schedule and
Section 25-B (4) itself in fact clearly states that the tenant on whom the
summons is duly served (whether in the ordinary way or by registered
post) in the form specified in the IIIrd Schedule shall not contest the
prayer for eviction from the premises unless he files an affidavit stating
on which ground he seeks to contest the application for eviction. The
provisions of the IIIrd Schedule which prescribe the 15 day period for
filing leave to contest are incorporated in Section 25-B (4) itself. The
IIIrd Schedule is also part of the Act itself. Thus this submission of the
learned counsel for the petitioner that the provisions of the IIIrd
Schedule are inconsistent with the provisions of the Act is a wholly
misdirected submission and without any merit.
13 The submission of the learned counsel for the petitioner that the
provisions of Maharashtra Rent Control Act, 1999, in the Act itself
provide for a time limit within which the tenant will contest the prayer
for eviction and the Schedule III attached to the said Act is in
conformity with the main enactment which is not so in the said Act is a
frivolous plea in view of the clear language of Section 25-B (4) which in
itself has incorporated the form specified in the IIIrd Schedule
(prescribing a period of 15 days) which has to be filed by the tenant who
seeks leave to contest the eviction petition filed by that class of
landlords.
14 The judgment relied upon by the learned counsel for the petitioner
reported as M/s. Aphali Pharmaceuticals Ltd. Vs. State of Maharashtra
and Others (1989) 4 SCC 378 does not in any manner help the case of
the petitioner. There is no doubt to the settled legal position that the
Schedule cannot control or prevail against the express enactment and in
case of any inconsistency between the Schedule and the enactment, the
enactment is to prevail; however this is not the situation in the present
case. The other two judgments relied upon by the learned counsel for the
petitioner reported as Mukhtar Ahmed Vs. Mashal allah Begum (1977)
ILR Delhi 641 and Gurditta Mal Vs. Bal Sarup AIR 1980 Delhi 216a
also do not in any manner advance the case of the petitioner; they only
lay down the procedure which has been prescribed in the newly inserted
Chapter III A of the said Act.
15 The challenge had in fact been thrown to Section 25-B of the said
Act in Kewal Singh Vs. Smt. Lajwanti AIR 1980 SCC 290 wherein a
classification on the class of landlords as laid down in Section 25-B of
the said Act had been questioned; the classification not been in
consonance with the object sought to be achieved by the said Act. This
very same question had arisen before the Supreme Court and it was
answered in the following manner:-
"We would, therefore confine ourselves to the validity of
Section 14(1)(e) and the procedure prescribed to give relief mentioned in the
aforesaid Section in Section 25B. Before discussing the relevant provisions of the
Act it may be necessary to observe that the Rent Control Act is a piece of social
legislation and is meant mainly to protect the tenants from frivolous evictions. At the
same time, in order to do justice to the landlords and to avoid placing such
restrictions on their right to evict the tenant as to destroy their legal right to
property certain salutary provisions have been made by the legislature which give
relief to the landlord. In the absence of such a legislation a landlord has a common
law right to evict the tenant either on the determination of the tenancy by efflux of
time or for default in payment of rent or other grounds after giving notice under the
Transfer of Property Act. This broad right has been curtailed by the Rent Control
Legislation with a view to give protection to the tenants having regard to their
genuine and dire needs. While the rent control legislation has given a number of
facilities to the tenants it should not be construed so as to destroy the limited relief
which it seeks to give to the landlord also. For instance one of the grounds for
eviction which is contained in almost all the Rent Control Acts in the country is the
question of landlord's bonafide personal necessity. The concept of bonafide
necessity should be meaningfully construed so as to make the relief granted to the
landlord real and practical."
After quoting the provisions of Section 25-B, the Court returned
the following finding:-
"We have already pointed out that the classification made by Section 25B is
a reasonable classification and cannot be said to be in any way discriminatory or
arbitrary. Even though a summary procedure has been evolved the tenant has been
afforded full opportunity to defend the application provided he can disclose good
grounds for negativing the case of the landlord. No litigant has a right to protract
the legal proceedings by taking frivolous, irrelevant, irrational or uncalled for
pleas. This is what the Section seeks to prevent."
16 The Supreme Court in a subsequent judgment in Prithipal Singh
Vs. Satpal Singh (D) through Legal heirs 2010 (2) SCC 15 while dealing
with the specific plea set up by the tenant therein as to whether the
Additional Rent Controller had the power to condone the delay of 15
days in applying for leave to defend, had concluded as under:-
"As noted herein earlier, Section 25B(1) clearly says that any application
filed by a landlord for recovery of possession of any premises, inter alia, on the
ground of Section 14(1)(e) of the Rent Act, shall be dealt with in accordance with
the procedure specified in Section 25B of the Rent Act. Therefore, Sub-section (1)
of Section 25B makes it clear that if any application for eviction of a tenant is filed
by the landlord, the special procedure indicated in Section 25Bhas to be followed
and Section 25B(1) clearly stipulates that the application for eviction shall be
strictly dealt with in accordance with the procedure specified in this Section.
22. Apart from that, as we have noted herein earlier, Section 25B itself is a special
code and therefore, Rent Controller, while dealing with an application for eviction
of a tenant on the ground of bona fide requirement, has to follow strictly in
compliance with Section 25B of the Act. Therefore, after insertion of
Section 25B of the Act, any application for granting eviction for a special kind of
landlord, shall be dealt with strictly in compliance with Section 25B and question
of relying on Rule 23 of the Code, which also does not give full right to apply the
provisions of the Code, could be applied.
23. That apart, Rule 23 does not specifically confer any power on the Controller to
follow the provisions of the Code in special classes of landlords. It is a general
rule, by which the Controller in deciding any question relating to procedure not
specifically provided by the Act and these rules shall, as far as possible, be guided
by the provisions contained in the Code.
24. In view of our discussions made hereinabove that Section 25B has been
inserted by the Legislature for eviction of a tenant of a certain classes of
landlords, in which the entire procedure has been given, it is difficult for us to
hold that Rule 23 of the Rules can be applied in the present case in view of the
specific provisions provided in Section 25B of the Rent Act. Accordingly, we are of
the view that Rule 23 has no manner of application."
17 The scope of Rule 23 of the said Act (on the applicability of the
Code of Civil Procedure to the said Act) had also been specifically
excluded.
18 This petition is in fact a classic example of an abuse of the
process of the Court; the petitioner has exercised his right, right up to
the Apex Court and has lost at all stages; the vires of the statutory
provisions of Section 25-B (4) also having withstood the test of
reasonableness, the present petition, in these circumstances, can be
nothing short of a gross abuse and a wastage of the precious time of the
Court.
19 This writ petition stands dismissed with costs of Rs.25,000/-
INDERMEET KAUR, J.
SANJAY KISHAN KAUL, J.
MARCH , 2013
A
