Delhi High Court
Olive Marques And Anr vs Union Of India And Ors on 19 March, 2013
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 19.03.2013
+ W.P.(C) 1801/2013 & CM N. 3437/2013
OLIVE MARQUES AND ANR ..... Petitioners
Through Mr. E.R. Kumar & Mr. Faisal
Sherwani, Advs.
versus
UNION OF INDIA AND ORS
..... Respondents
Through Mr Asish Nischal, Adv for R-1/UOI.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 The petitioners have filed the present writ petition under Article
226 of the Constitution of India laying a challenge to Chapter III-A of
the Delhi Rent Control Act, 1958 (hereinafter referred to as the 'said
Act') inasmuch as it provides a summary procedure which procedure
has been made applicable to tenants, both of residential premises as also
non-residential premises; submission being that Section 25-A to Section
25-C which are contained in Chapter III-A of the said Act are
unconstitutional and violative of Articles 14, 19 (1) (g) and 21 of the
Constitution of India. A second prayer has been made to quash the
proceedings pending before the Additional Rent Controller (ARC) as
this summary procedure which has been adopted by the ARC is ultra
vires and is liable to be struck down.
2 Record shows that an eviction petition under Section 14 (1)(e)
read with Section 25-B of the said Act has been filed by the landlord
Mohd. Haroon Japanwala (respondent No. 4) seeking eviction of his
tenants/petitioners from shop No. G-14, Marina Arcade, Connaught
Circus, New Delhi (hereinafter referred to as the 'said premises'). The
original tenant was Mr. Salazar Luis Anthony Marques and petitioners
No. 1 & 2 are his widow and daughter. The tenancy was commercial.
The business being run in the said premises was under the name and
style of 'M/s. Marques & Company'.
3 Summons were served upon the petitioners on 12.05.2008 which
were received through their employee. On 18.08.2008, an application
seeking leave to defend was filed by the petitioners under Section 25-B
(4) and (5) seeking leave to contest the eviction petition. Respondent
No. 4 filed his reply to the said application taking an objection that the
affidavit filed by the tenants was unattested. On merits also, the stand set
up by the petitioners was disputed. Meanwhile since the original tenant
(S.L.A. Marques) had expired on 10.04.2009, an application seeking
substitution of his legal heirs was filed which was followed by another
additional application. On 14.01.2010, the petitioners filed an
application under Order 6 Rule 17 of the Code of Civil Procedure, 1908
(hereinafter referred to as the 'said Code') seeking permission to amend
their affidavit to the extent that it was not attested or in the alternate to
file a fresh affidavit in support of their application seeking leave to
defend. A reply was filed by respondent No. 4 objecting to the same to
which a rejoinder was filed. Written submissions were thereafter filed
by the petitioners.
4 On the last date of hearing before the ARC which was 02.03.2013
since the Presiding Officer was on leave, the matter was adjourned to
27.04.2013. Submission of the petitioners is that in this interregnum
period they were legally advised to file the present writ petition
challenging the constitutional validity of Chapter III-A of the said Act
and since the vires could only be challenged before a writ Court, the
present petition was accordingly filed.
5 At the outset, a question has been posed to the learned counsel for
the petitioners making him aware of the position that the provisions of
Chapter III-A of the said Act already stood challenged in an earlier
proceeding and the Supreme Court in Kewal Singh Vs. Smt. Lajwanti
AIR 1980 SCC 290 had negatived the said challenge. Thereafter in a
subsequent judgment of the Supreme Court 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 as to whether the ARC had the power
to condone the delay of 15 days in seeking leave to defend, the Court
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.
6 This legal position has been brought to the notice of learned
counsel for the petitioners at the very inception of his arguments and in
fact learned counsel for the petitioners fairly concedes that both these
judgments stare him in his face and it is difficult for him to cross the
hurdle of those two judgments which are the law of the land as on date,
yet he still insists upon the Court to hear his arguments which have been
addressed before us for a considerable length of time. Submission of the
learned counsel for the petitioners being that he should not be permitted
to be gone unheard and he would like to draw a distinction from the line
of arguments which had been propounded in the case of Kewal Singh
(supra).
7 Learned counsel for the petitioners has drawn attention of the
Court to the provisions of Section 25-B (4) which provision reads herein
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.
8 The elaborate submission of the learned counsel for the
petitioners on this score being that the last four lines in the said sub-
clause are the offending lines. This envisages a situation where if the
tenant does not file his defence within the stipulated period, the
statement made by the landlord in his eviction petition shall be deemed
to be admitted by the tenant and the landlord would straightway be
entitled to a decree of eviction; this impinges upon the power of judicial
review which the Courts have; there could be cases where the landlord
has filed an eviction petition which is based purely on a fraud and
merely because of an inadvertent mistake or error on the part of the
tenant in not being able to file his application for leave to defend within
the time frame as contained in Section 25-B (4), such a landlord would
also be entitled to a decree straightway which could not have been the
intention of the legislature. This principle is in fact opposed to the
principles of natural justice; it denies a right to be heard to the tenant.
Submission being that this so called summary procedure is in fact a
flagrant abuse of right of equality before the law and equal protection
which is guaranteed under Article 14 of the Constitution; such a
legislation can in no manner be sustained. The vehement submission of
learned counsel for the petitioners being that Section 4 of the Evidence
Act contains a rebuttable presumption giving a right to the opposing
party to rebut such a presumption but the language of Section 25-B (4)
has gone beyond that point; it has embodied within itself a conclusive
proof which is draconian in character and is liable to be struck down.
Learned counsel for the petitioners has taken us through Article 31-C of
the Constitution of India; submission being that last three lines of the
said Article "and no law containing a declaration that it is for giving
effect to such policy shall be called in question in any court on the
ground that it does not give effect to such policy" had been declared as
invalid by the Supreme Court in Keshavananda Bharati Vs. The State of
Kerala (1973) Supp SCR 1. Learned counsel for the petitioners by
relying upon this Article seeks to draw a parallel with his submission
that the last four lines contained in Section 25-B (4) also need to be
invalidated.
9 The second alternate submission of the petitioner being that
nowhere in any other Statute such a summary procedure is contained;
even the provisions of Order XXXVII of the Code enables the Court to
extend the period within which the defendant may file his leave to
defend. To support his submission, learned counsel for the petitioners
has relied upon a judgment of Calcutta High Court reported in Ambalal
Purusottamdas and Co. Jawarlal Purusottam Dave & Others AIR 1953
Cal 758. Submission being that there being no such provision contained
in Chapter III-A of the said Act, it cannot but be concluded that this
provision is extremely harsh in nature which cannot be sustained.
Attention has been drawn to the judgment of the Supreme Court in Gian
Devi Anand Vs. Jeevan Kumar and Others (1985) 2 SCC 683;
submission being that the Court has recognized the concept of two
classes of landlords i.e. both residential and non-residential; this
constitutional judgment of the Supreme Court had noted these two
classes of tenants to be different and distinct.
10 Learned counsel for the petitioners has addressed the Court for
more than one and a half hours. He seeks to delve into detailed facts to
which it has been pointed out that the same are not relevant. It has again
been brought to the notice of the learned counsel for the petitioners that
the twin challenge which has been laid before this Court to the
provisions of the said Act has already been set at rest by the Supreme
Court. Further undisputed position being that the application seeking
leave to defend of the petitioners was ripe for final arguments and the
matter had been posted for 27.04.2013 as on the last adjourned date the
Presiding Officer was on leave. It has also been brought to the notice of
the learned counsel for the petitioners that till the filing of this writ
petition (18.03.2013) the petitioners have all along submitted themselves
to the jurisdiction of the ARC and have taken all procedures in
accordance with the provisions of Chapter III-A.
11 On advance notice, learned counsel for respondent No. 1 has put
in appearance.
12 In Gian Devi Anand (supra) which was decided by the Supreme
Court in 1985 the moot question before the Apex Court was whether a
commercial tenancy is liable to be inherited; the question was answered
in the positive; tenancy rights even in commercial premises do not come
to an end with the death of the tenant but they devolve upon their legal
heirs and legal representatives. The law has evolved since then. In
Kewal Singh (1980-supra) the classification on the class of landlords
under Section 14 (1)(e) and the procedure applicable and as contained in
Section 25-B of the said Act had been questioned; submission was that
the classification is not in consonance with the object sought to be
achieved by the said Act. The Supreme Court had answered this
question in the following words:-
"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."
13 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."
14 The law has traversed and progressed since then. In Satyawati
Sharma (Dead) By LRs. Vs. Union of India (UOI) & Anr. AIR 2008 SC
3148 decided in 2008 the distinction between a premises let out for a
residential purpose and those let out for commercial purpose an eviction
petition filed under Section 14 (1)(e) of the said Act had been abrogated.
The resultant effect being that not only those tenancies which had been
created for residential purposes, but even those created for a commercial
purpose, such a landlord had the right to seek eviction of his tenant
under Section 14 (1)(e) of the said Act.
15 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. This special
provision introduced by the Legislature for summary trial of certain
applications filed under the said Act is applicable to proceedings under
Section 14 (1)(e) of the said Act.
16 Thus the settled legal position being as under:-
(i) The concept of a distinction between premises let out
for a residential purpose and those let out for a commercial
purpose had been brought to an end by Satyawati Sharma
(supra).
(ii) The provision of Chapter III-A of the said Act is
applicable to eviction petitions filed under Section 14 (1)(e)
of the said Act.
(iii) The challenge to the provision of Chapter III-A of the
said Act has withstood the test in the case of Kewal Singh
(supra).
(iv) On both counts, the challenges laid in the present
petition have already been set to rest by the aforenoted
pronouncements of the Supreme Court which are the law of
land.
17 This petition is nothing but an abuse of the process of the Court.
The petitioners have used all dilatory tactics available at their command
to forestall the hearing which is fixed for 27.04.2013 on his application
seeking leave to defend. These tactics can be described as nothing short
of an abuse of the process of the Court and wastage of its precious time.
18 This writ petition is accordingly dismissed with costs of
Rs.50,000/- out of which Rs.25,000/- to be paid to Delhi High Court
Legal Services Committee and Rs.25,000/- to be paid to respondent No.
1. At this stage, learned counsel for respondent No. 1 states that the
entire cost be put to some useful purpose and, thus, Rs. 25,000/- be
deposited with Delhi High Court Mediation and Conciliation Centre in
UCO Bank Account no. 48852. The costs be deposited within 15 days.
Ordered accordingly. Writ petition as also the stay application stands
disposed of.
INDERMEET KAUR, J.
SANJAY KISHAN KAUL, J.
MARCH 19, 2013/A
