Delhi High Court
Vinod Malhotra vs Union Of India And Anr on 7 December, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 7th December, 2015
+ W.P.(C) NO.9018/2011 & CM No.20316/2011 (for stay)
VINOD MALHOTRA ..... Petitioner/Relator
Through: Mr. Sheetesh Khanna, Adv.
Versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Vivek Goyal with Mr. V.
Bhushan, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. On 3rd November, 2015, after hearing the counsels, the following
order was passed:
"1. The petition impugns the conditions stipulated by the respondent
Land & Building Office (L&DO) in its letter dated 23rd
November, 2011 for withdrawal of re-entry of leasehold rights
with respect to property No.1/11, West Patel Nagar, New Delhi of
the petitioner.
2. The said conditions inter alia are, payment of charges for misuse
of and for unauthorized construction in, the property.
3. The petition was entertained and pleadings have been completed.
The senior counsel for the petitioner has been heard. He has
argued that:
(i) the property comprising of ground floor, garage block and
first floor, was let out to three different tenants;
ii) all the three tenants were misusing the portions in their
respective tenancy;
iii) the petitioner initiated the proceedings under Section
W.P.(C) No.9018/2011 Page 1 of 6
14(1)(k) of the Delhi Rent Control Act, 1958 against two of
the tenants and proceedings for eviction under Section
14(1)(e) of the Act against the third tenant;
iv) in the proceedings under Section 14(1)(k) of the Act in one
of the cases, eviction order was passed and at Section
14(11) stage, the L&DO was summoned;
v) finally the Rent Control Tribunal (RCT) in appeal held the
L&DO to be entitled to misuse charges of Rs.1.15 lacs only
for the entire property as against the demand dated 7th April,
1992 of the respondent L&DO as filed in those proceedings
and copy of which is at page 123 of the paper book;
vi) all the three tenants vacated the premises in the year 1992
and the petitioner deposited the said sum of Rs.1.15 lacs;
vii) respondent L&DO thus, for the period till 1992, is not
entitled to charge anything more than what was determined
in the aforesaid proceedings.
4. However on perusal of documents, it transpires, i) that in 2004,
the premises were being used for the purpose of running hotel
Canadian Court, ii) that it is not very clear from the order of the
RCT relied upon whether the payment of about Rs.1.15 lacs
referred to therein is for the entire property; the same appears to
be only with respect to the garage block.
5. There is nothing to show that the tenants vacated the property in
the year 1992. The counsel for the respondent L&DO from the
order dated 4th September, 1998 (at page 78 of the paper book) of
the RCT has pointed out that the proceedings were pending at
least till the year 1998.
6. Though the senior counsel for the petitioner states that the hotel
aforesaid functioned only for two months but there is again
nothing to prove the same.
W.P.(C) No.9018/2011 Page 2 of 6
7. I have as such put it to the senior counsel for the petitioner as to
how the dispute, whether the property was being misused as
contended by the L&DO or not being misused as contended by
the petitioner, can be adjudicated in writ proceedings and whether
not the appropriate remedy for the petitioner would be to institute
a suit. In this regard, it may also be noticed that an attempt was
made to hear this petition earlier on 8th October, 2015 also but
owing to some or the other reason, the matter was adjourned to
today. Today also the senior counsel for the petitioner states that
an opportunity be given to file certified copies of the record from
the eviction proceedings along with an affidavit to remove all the
aforesaid doubts.
8. Last opportunity is given to the petitioner to file the affidavit
along with supporting documents clarifying the aforesaid aspects,
failing which the parties will have to be relegated to the suit
remedy.
9. List on 7th December, 2015."
2. The petitioner since then has filed an affidavit dated 23 rd November,
2015 deposing, i) that the first floor area ad-measuring 560 sq. ft. was in the
tenancy of Mrs. Saroj Sawhney who was evicted on 30th April, 1985; ii) that
an area of 2531 sq. ft. on the ground floor was in occupation of Adarsh
School which was evicted on 31st December, 1991; iii) that the Garage
Block on the ground floor ad-measuring 372 sq. ft. was in occupation of
Primary Nursery School which was evicted on 23rd February, 1999; iv) that
in C.R. No.41/1985 titled Mrs. Saroj Sawhney Vs. Dr. Mrs. S. Malhotra a
W.P.(C) No.9018/2011 Page 3 of 6
settlement was arrived at as recorded in the order dated 18th March, 1985; v)
that in SAO No.155/1976 titled Mrs. Miran Mahajan Vs. Smt. Satyawati
Malhotra a settlement was arrived at as recorded in the order dated 18 th
December, 1987 / 11th January, 1988; vi) that in eviction proceedings with
respect to the garage portion inquiry under Section 14(11) of the Delhi Rent
Control (DRC) Act, 1958 was concluded vide order dated 4 th September,
1998 and as the tenant did not comply with the order, warrants of possession
were issued; vii) that eviction of the tenant on the remaining ground floor
under Section 14(1)(k) of the DRC Act was unsuccessful for the reason that
running of recognized school was held to be not a misuse and the said tenant
was ultimately evicted under Section 14(1)(b) of the DRC Act; viii) that the
tenant on the first floor was evicted under Section 14(1)(e) of the DRC Act;
ix) that on 27th July, 2005, the Delhi Government granted licence to the
petitioner to use six rooms at ground floor in the name of Canadian Court
between 5:00 a.m. to 11:00 p.m.; x) this was held to be a misuse; xi) that the
premises were re-inspected on 6th January, 2006 when no such misuse was
found; xii) that the L&DO has not provided copies of inspection reports to
the petitioner; xiii) that the petitioner removed the structures raised by the
tenant on receipt of inspection report dated 7 th October, 2005 and such
W.P.(C) No.9018/2011 Page 4 of 6
removal was noted in the subsequent inspection; xiv) that the L&DO has not
raised any demand for misuse; xiv) that the petitioner has been paying
ground rent regularly.
3. I am afraid, the aforesaid affidavit also does not explain the position
totally and I am on the basis thereof also unable to hold conclusively that the
demand raised by the respondent L&DO for misuse charges and for
unauthorized construction raised over leased land is unjustified. The same is
a question of fact to be determined by examination and cross examination of
witnesses.
4. Though the counsel for the petitioner has also drawn my attention to
Union of India Vs. Jor Bagh Association Regd. 2012 (188) DLT 25 but the
Division Bench of this Court in para 32 of the said judgment has set aside
the judgment of the Single Judge that no such charges can be recovered by
the L&DO and held the L&DO entitled to recover the same. Once it is so, it
is a matter of factual enquiry whether there was any misuse and
unauthorized construction and if so for what period and to what amounts the
respondent is entitled thereunder. Else, the respondent would be entitled to
determine the lease and proceed to repossess the premises.
5. The petition is thus dismissed with liberty however to the petitioner to
W.P.(C) No.9018/2011 Page 5 of 6
impugn the demand of the L&DO as impugned herein in an appropriate civil
proceeding. Since notice of this petition was issued and the petition
entertained, it is clarified that subject to the petition being filed on or before
15th February, 2016, the period from 23rd December, 2011 when notice of
the petition was issued and till 15th February, 2016 shall not be counted in
computing the period of limitation for such a suit.
No costs.
RAJIV SAHAI ENDLAW, J.
DECEMBER 07, 2015
„gsr‟
(corrected & released on 5th January, 2016)
