Tanjeet Singh Ghai & Ors vs Leela Ahuja
2016 Latest Caselaw 3056 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                         Judgment reserved on: 25.4.2016
                         Judgment delivered on : 28.4.2016


+      CM(M) 727/2014 & C.M. No.12466/2014



       TANJEET SINGH GHAI & ORS.                        ..... Petitioners

                         Through     Mr.S.M.Chugh and Ms.Kamna Vohra,
                                     Advocates.


                         versus


       LEELA AHUJA                                      ..... Respondent
                         Through     Mr.Vandana Sharma and Mr.Abhay
                                     Kushwaha, Advocates.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J.

1 Order impugned before this Court is the order dated 01.7.2014 passed

by the Additional Rent Control Tribunal (ARCT) which was an appeal

against the order passed by the Additional Rent Controller (ARC) dated

20.02.2013. The ARCT had set aside the order passed by the ARC. The

possession of the suit premises which had been directed to be handed over to

the tenant was set aside.

2 The petitioner/tenant is aggrieved by this finding.

3 The main contention raised by the learned counsel for the petitioner is

that the ARCT could only adjudicate upon a question of law as is clear from

the amendment made to the Rent Control Act. Under Section 38 of the said

Act what has to be now examined by the RCT is only the question of law

and not a finding of fact, however, wrong it may be, it can not call for an

interference. The judgment is liable to be set aside on this count alone. For

this proposition learned counsel for the petitioner has placed reliance upon

judgments reported as 1968 (iv) DLT 200 Prakash Chander Gupta Vs. Tara

Chand Malik, 1981 (1) RCJ 7662 R.K.Luthra Vs. Lala Balkishan Dass Ram

Kishore Gupta; 1980(2) RCJ 139 Smt.Kaila Devi Vs. Banarsi Das.

4 Record shows that an eviction petition had been filed by the landlady

who was a widow namely Leela Ahuja against legal representatives of her

original tenant Sarup Singh Ghai. At that point of time she was about 80

years of age. This eviction petition was decreed on 11.9.2009 in favour of

the widow.

5 The suit property comprises of a garage room measuring 16 x 10 sq.

feet forming part of property No.E-13/27, East Patel Nagar (depicted as red

colour in the site plan Ex.AW-1/5).

6 On 18.02.2011, the landlady had made an application before the ARC

seeking permission of the Court to sell this property. Her contention was

that the condition of the suit property was dilapidated and the adjoining

house was no longer possibly to become habitable; a lot of renovation was

required for which the requisite funds were not available with the landlady;

also required medical attention for which a considerable expenditure was

needed; she accordingly sought permission of the Court to sell the property

in order that she could move in with her children.

7 This application which was filed on 18.02.2011 and was subsequently

withdrawn on 06.4.2011.

8 Prior to these events, it would be relevant to note that on 27.9.2010 the

tenant had filed an application under Section 19 of the DRCA for restoration

of possession of the suit property. Contention being that the landlord had not

moved into the suit property and as such her need for the premises did not

stand established and accordingly the tenant had sought repossession of the

suit property. The prayer made in this application was allowed and vide

order dated 15.01.2013 the ARC had passed an order that the tenant/his legal

representatives are entitled to re-entry in the tenanted premises. The

contention of the tenant that the landlady had not occupied the premises even

after getting the possession during the course of execution; her prayer made

in the application seeking permission to sell the suit property on the ground

that she wanted to shift with her children established that the need as

depicted in the petition filed under Section 14-D of the DRCA was not made

out.

9 It was against this order dated 15.01.2013 that the landlord had gone

in appeal before the ARCT. The ARCT had noted the facts. It had also

noted the proposition of law cited before it including the arguments raised

before it that it was only on a question of law that interference could be made

by the RCT and a question of fact could not be gone into.

10 The RCT having examined this proposition, had set aside the order

passed by the ARC and had directed that the order of re-entry qua the suit

property i.e. the garage qua the tenant/his legal representative be set aside.

The tenant is now before this Court.

11 Before adverting to the facts of the case, it would be relevant to note

that the powers of superintendence under Article 227 of the Constitution of

India are wide; they are supervisory powers and admittedly not appellate

powers. Findings of fact cannot be interfered with unless there is no

evidence to support the said finding or the finding is perverse. However, if

material evidence is ignored or the Court below had drawn wrong inferences

from proved facts by applying the law erroneously this Court may interfere.

12 The powers of the Appellate Court i.e. of the RCT under Section 38 of

the DRCA although limited to a substantial question of law but where that

finding is based on no evidence or while arriving at the said finding relevant

admissible evidence has not been taken into consideration or inadmissible

evidence has been taken into consideration or legal principles have been

misapplied or where the evidence has been misread, a question of law does

arise within the meaning of Section 38 of the DRCA. This has been noted

by the Apex Court in (1980) 4 SCC 255 Madan Lal Vs. Mst Gopi and Ors.,

(2009) 3 SCC 287 Narender Gopal Vidyarthi Vs. Rajat Vidyarthi as also in

(2007) 4 SCC 118 Commissioner of Customs (Preventive) Vs. Vijay

Dasharath Patel.

13 Record discloses that the eviction petition had been decreed in favour

of the landlady on 11.9.2009. Execution proceedings were filed and the suit

property were taken over in the course of the said proceedings by the

landlady on 03.5.2010. She, however, could not occupy the suit property.

Accordingly, after a period of six months on 27.9.2010 an application was

filed by the tenant seeking restoration of the possession of the suit property.

Status quo orders were passed on 16.10.2010. Contention of the landlady all

along was that she could not occupy the premises as it required a lot of

renovation and she did not have the funds to carry out the said renovation.

The garage which was adjacent to her property being very old was in a

totally dilapidated condition and as such the physical occupation of the suit

property could not be effected and could not used for the aforenoted reasons.

It was in the context of these facts that the landlady had moved an

application on 18.02.2011 seeking permission of the Court to transfer/sell the

property. All these facts were brought to the notice of the ARC. It was

brought to the notice of the ARC that she did not have the funds to get the

property repaired. Since her only son was living abroad she had sought

permission of the Court to sell the suit property. This application was

thereafter withdrawn on 06.4.2011. These facts were noted by the Trial

Court in the correct perspective but the Trial Court had failed to appreciate

that although the physical possession of the suit property had been taken

over by the landlady but because of the financial constraint which she was

suffering and as explained by her in her application wherein she had no

alternate but to sell the property. Her contention all along was that the

garage (suit property) was in such a dilapidated condition that it could not be

put to use.

14 The fact that the garage was in a dilapidated condition and till its

renovation was carried out the same cannot be used is an admitted position.

The further fact that the landlady could not take over the possession of the

garage for the aforenoted reason and being a senior citizen aged 80 years of

age did not have sufficient funds to carry out renovation has also not been

disputed by the tenant.

15 Noting all these facts the ARC yet arrived at a conclusion that the

tenant in this background was entitled to an order of repossession was an

order which was passed on an illegal premise; it was a perverse finding.

16 Record clearly evidences the reasons why the landlady was precluded

from occupying and living in the garage; this had been explained and noted

by the ARC. The ARC however then went on to pass the order granting

repossession to the tenant. This order was assailed before the ARCT. The

ARCT had again noted the facts of the case and arrived at a finding that such

an order calls for an interference; being a perverse finding returned by the

ARC which is contrary to the record. The ARCT had rightly set aside the

order passed by the ARC.

17 The landlady was admittedly 80 years of age. She had moved into the

tenanted premises by breaking it up from outside but renovation and

alternations were required to make the garage habitable. It even had no

windows for the purposes of ventilation. She had also explained the reason

why she was constrained to file an application seeking to sell the property. It

was stated that she being a single lady and living alone in the house and

beside the fact that she had no money to renovate the property, property

dealers were hounding and troubling her all the times that had led her to file

an application seeking to sell the property but she later on withdrew this

application. She in fact being a law abiding citizen under the advice of her

children had moved the said application but thereafter having found the

house a little more comfortable with a minimum expenditure has chosen to

withdraw the application.

18 The judgments relied upon by the learned counsel for the petitioner

have no application to the factual matrix of the instant case. They only

reiterate the legal position that it is only on a substantial question of law that

interference is called for by the RCT.

19 The finding of the ARC being perverse; a substantial question of law

had arisen before the ARCT who had rightly held that the ARC had returned

an illegal finding. Impugned order in this background calls for no

interference. Petition is dismissed with costs quantified at Rs.10,000/-.

INDERMEET KAUR, J

APRIL 28, 2016 ndn