Shri Krishan Kumar Wadhva vs Delhi Development Authority & Anr
2016 Latest Caselaw 5219 Del

         *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 9th August, 2016

+                          CS(COMM) No.1058/2016

      SHRI KRISHAN KUMAR WADHVA                   ..... Plaintiff
                   Through: Mr. Khushbir Singh and Ms. Shaiza,
                            Advs.

                                         Versus

    DELHI DEVELOPMENT AUTHORITY & ANR ... Defendants
                  Through: Mr. Pawan Mathur, Adv. for DDA.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

IA No.9579/2016 (for exemption)
1.

Allowed, subject to just exceptions.

2. The application stands disposed of.

CS(COMM) No.1058/2016, IAs No.9578/2016 (u/O 39 R-1&2 CPC) & 9580/2016 (u/S 80 (2) CPC).

3. This suit claiming the reliefs of declaration, permanent injunction and

mandatory injunction has come up today for admission. However, having

gone through the plaint and having not found the plaintiff to be having any

cause of action for the reliefs claimed, the counsel for the plaintiff has been

given an opportunity to address thereon.

4. It is the case of the plaintiff:

(i) that the defendant No.1 Delhi Development Authority (DDA)

granted a Perpetual Lease dated 11th July,1974 of industrial plot

bearing No.71/5 admeasuring 7246.67 sq. yards, Najafgarh Road

Industrial Area, Najafgarh, New Delhi to M/s Delhi Flooring Pvt. Ltd.

(DFPL) (not a party to the suit) for a period of 25 years from 11th July,

1974;

(ii) that the said DFPL inducted the plaintiff as a tenant in a portion

admeasuring 2400 sq. feet of the aforesaid property;

(iii) that the period of 25 years, for which the defendant No.1 DDA

had granted the perpetual lease in favour of DFPL, lapsed in the year

1999;

(iv) that as per clause (III) of the Perpetual Lease Deed, upon non-

renewal of the Perpetual Lease Deed, it was to come under the

purview of "void";

(v) that DFPL also did not pay damage charges as demanded by the

defendant No.1 DDA from it;

(vi) that though DFPL had originally let out an area of 2400 sq. feet

only to the plaintiff but subsequently in the year 1981, let out

additional area of 2858 sq. feet to the plaintiff and the rent payable by

the plaintiff to DFPL increased from Rs.800 per month to Rs.2,500/-

per month;

(vii) that again in the year 1982 DFPL let out another 500 sq. feet of

area of the property aforesaid to the plaintiff at a monthly rent of

Rs.2,000/-;

(viii) that the plaintiff is presently in occupation of 5258 sq. feet area

of the property;

(ix) that the land underneath the property is nazul land;

(x) that in the month of January, 1999, the plaintiff received notice

from Municipal Corporation of Delhi (MCD) of attachment of rent

which the plaintiff was paying to DFPL, as DFPL had failed to pay

property tax to MCD;

(xi) that the plaintiff accordingly started depositing the rent of the

portion aforesaid of the property in its occupation with MCD;

(xii) that though DFPL was left with no rights in the property owing

to perpetual lease in its favour having not been renewed and owing to

non-payment of damages demanded by the defendant No.1 DDA but

attempted to forcibly dispossess the plaintiff from the property

compelling the plaintiff to institute CS(OS) No.86/2002 and vide

decree dated 17th January, 2012 wherein, DFPL was restrained from

forcibly dispossessing the plaintiff from the property;

(xiv) that though DFPL was left with no rights in the property

aforesaid but vide Sale Agreement dated 29th December, 2009 sold the

property to the defendant No.2 Saurabh Buildcon Pvt. Ltd. (SBPL);

(xv) that thus the defendant No.2 SBPL has not acquired any rights

in the property;

(xvi) that the liabilities of the property having been discharged by the

plaintiff since the year 1999 and the plaintiff being a legal occupant of

the property, the plaintiff has a right to get the perpetual lease with

respect to the property transferred from the name of DFPL to his own

name;

(xvii) that the defendant No.2 SBPL has served a legal notice dated

6th September, 2014 on the plaintiff claiming to be the owner of the

property and has filed CS(COMM) No.333/2016 against the plaintiff

for recovery of possession of the portion of the property in occupation

of the plaintiff;

(xviii) that it is necessary for the plaintiff to bring the transaction

between DFPL (described in the plaint as "ex-lessee") and the

defendant No.2 SBPL under the concept of „void ab initio‟

5. The plaintiff, in the suit has claimed the reliefs of:

(A) declaration that the ownership claimed by the defendant No.2

SBPL in property No.71/5, Najafgarh Road Industrial Area,

Najafgarh, New Delhi is void;

(B) declaration that the plaintiff is the custodian of the portion of

property No.71/5, Najafgarh Road Industrial Area, Najafgarh, New

Delhi in his occupation and the defendant No.2 SBPL cannot claim

possession thereof from the plaintiff;

(C) permanent injunction restraining the defendant No.1 DDA from

dispossessing the plaintiff from the portion of the aforesaid property

in his occupation;

(D) mandatory injunction directing the defendant No.1 DDA to

issue a fresh perpetual lease deed in favour of the plaintiff of the

portion of the aforesaid property in occupation of the plaintiff in

favour of the plaintiff.

6. The plaintiff, along with the plaint has filed a copy of the indenture

dated 11th July, 1974 between the defendant No.1 DDA and DFPL with

respect to the property aforesaid. The same records (i) that Delhi

Improvement Trust being the predecessor-in-interest of the defendant No.1

DDA had vide Agreement of Lease dated 26th September, 1957 agreed to

demise the nazul land under the said property to DFPL and the subject

indenture was being executed in pursuance thereto; (ii) that the demise under

the said indenture is "in perpetuity" from 22nd day of February, 1955; (iii)

that DFPL as lessee shall register all changes in case of any devolution of

the rights granted by that indenture, whether by transfer, succession or

otherwise with the defendant No.1 DDA within one month thereof; (iv) that

if the rent payable under the said indenture by DFPL was to be in arrears, the

lease granted by the said indenture shall become void entitling the defendant

No.1 to cancel the lease and to re-enter into possession of the property; (v)

that on expiry of the first rental period of 25 years ending on 21 st February,

1999, the defendant No.1 DDA shall at the request of DFPL execute a new

lease of the property by way of renewal.

7. It would thus be seen that while the lease deed granted by the

defendant No.1 DDA in favour of DFPL in the initial clause states that the

grant of the lease was in perpetuity but in a latter clause provides for renewal

of the rental periods. It is also worth noting that under the said grant, DFPL

is not required to obtain any prior approval from the defendant No.1 DDA

for transfer of the leasehold rights and is only required to give intimation

thereof.

8. The plaintiff has also filed copy of a letter of the defendant No.1 to

DFPL claiming violation of the terms of the lease and calling upon DFPL to

deposit a sum of Rs.6,71,23,980/- on account of sub-letting as well as

misuse charges;

9. The plaintiff has also filed a copy of the registered sale agreement

between DFPL and the defendant No.2 SBPL, whereunder DFPL has sold,

conveyed, transferred and assigned all its rights in the aforesaid property to

the defendant No.2 SBPL and has delivered possession of the property to the

defendant No.2 SBPL.

10. It is not the plea of the plaintiff that the defendant No.1 DDA has

cancelled the lease in favour of DFPL or re-entered into possession of the

said property. The plaintiff claims to be a mere tenant in the property under

DFPL. The plaintiff as a tenant is not entitled to challenge the title of the

landlord, who had inducted the plaintiff into the premises.

11. The sole ground on which the plaintiff challenges the title of DFPL is

that the lease granted by the defendant No.1 DDA in favour of DFPL was

for 25 years and the same has not been renewed and that DFPL is otherwise

also in violation of the terms of the lease.

12. I have already noted hereinabove that the lease granted by the

defendant No.1 DDA in favour of DFPL in the earlier clause describes the

same as in perpetuity and in the latter clause describes the rental period as of

25 years and of renewal thereof. The settled principle of construction of

deeds is that in the event of any inconsistency between two clauses thereof,

the earlier one prevails over a latter one. However in this proceeding no

final opinion is required to be rendered on the said aspect and this

observation is made only to demonstrate the misconception under which the

suit has been filed. Even if it were to be held that the lease was for a period

of 25 years only and has not been renewed and that DFPL is also in

violation of other terms of the lease, as is pleaded by the plaintiff, that would

still not entitle the plaintiff herein to challenge the title of DFPL as its

landlord.

13. Supreme Court in Shanti Sharma Vs. Ved Prabha (1987) 4 SCC 193

held that a person taking land on long term lease from Delhi Development

Authority and constructing building thereon is owner and will not cease to

be owner merely on issuance of a notice by the Authority terminating the

lease and till further action for dispossession is taken. Reference in this

regard made also be made to Ramesh Chand Vs. Uganti Devi (2009) 157

DLT 450 and Tahira Begum Vs. Sumitar Kaur ILR (2010) III Delhi 72.

14. Though the aforesaid judgments are in the context of proceedings for

eviction under the Delhi Rent Control Act, 1958 but would apply even to a

civil suit by a landlord for ejectment of tenant. I may notice that the principle

contained in the aforesaid judgments was extended to proceedings under the

Public Premises (Eviction of Unauthorised Occupants) Act, 1971 in the

judgment of Division Bench of this Court in Gondals Press Vs. Punjab

National Bank 2012 SCC On Line Del 5634.

15. I have enquired from the counsel for the plaintiff as to what is the

locus of the plaintiff to challenge the sale agreement executed by DFPL in

favour of the defendant No.2 SBPL. The plaintiff as a tenant of the property

has no locus to interfere with the transfer of ownership rights by his landlord

in favour of anyone else.

16. No answer has been forthcoming from the advocate for the plaintiff.

17. I have further enquired from the counsel for the plaintiff as to on what

basis the plaintiff claims that he has become entitled to grant of lease by the

defendant No.1 DDA of the subject property in his favour.

18. The question of the defendant No.1 DDA granting any lease in favour

of any person, till the lease in favour of DFPL subsists and till the defendant

No.1 DDA has re-entered the property and taken over possession thereof,

does not arise. Even after the defendant No.1 DDA has done so, the plaintiff

cannot claim any preferential right to lease of the property and defendant

No.1 DDA would be entitled to, in accordance with its policy, deal with the

property and / or to auction the same.

19. The counsel for the plaintiff states that since the plaintiff has been

paying the house tax of the property since the year 1999, the plaintiff has

become the owner of the property.

20. The aforesaid argument has to be noted to be rejected. The plaintiff

admittedly is not paying the house tax of the property claiming himself to be

the owner of the property. The plaintiff is merely depositing the amount of

rent payable by him with the Municipal Corporation of Delhi towards house

tax dues of the property, owing to attachment of said rent by MCD because

of default by owner/landlord in paying the said house tax dues. A mere

payment of house tax, even otherwise, cannot make the plaintiff the owner

of the property. Moreover the attachment of rent constitutes the plaintiff as

tenant only and cannot make the plaintiff owner.

21. The counsel for the plaintiff relies on Delhi Development Authority

Vs. M/s. Anant Raj Agencies Pvt. Ltd. AIR 2016 SC 1806 and has read

head note A to C thereof.

22. Supreme Court in the aforesaid judgment was concerned with the

validity of the termination effected by DDA of lease granted of a plot of land

at Jhandewalan, Delhi. It was held that though the lease contained a clause

for renewal thereof but renewal was subject to the conditions mentioned

therein and which conditions were held to have not been met.

23. I am unable to understand as to why the counsel for the plaintiff relies

on this judgment. The same has no applicability to the facts of the present

case.

24. Thus, whichever way one looks at, the plaintiff is not found to have

any cause of action or right to challenge the title of DFPL whom the plaintiff

has not even chosen to implead as a party or of defendant No.2 SBPL as

successor of DFPL and / or to claim any title to the property in himself.

25. The suit is misconceived and is dismissed.

26. I refrain from imposing any costs on the plaintiff for filing a frivolous

suit.

RAJIV SAHAI ENDLAW, J

AUGUST 9, 2016 „pp‟/bs

(Corrected and released on 27th August, 2016).