Municipal Corporation Of Delhi vs Jai Singh & Ors
2017 Latest Caselaw 3230 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+   CM(M) No.532/2011, CM No.8796/2011 (for stay), CM
    No.11276/2011 (for recalling of order dated 4th May, 2011) and CM
    No.5842/2015 (under Section 151 CPC).
    MUNICIPAL CORPORATION OF DELHI                        ..... Petitioner
                     Through: Mr. Sanjay Poddar, Sr. Adv. with

                                        Versus
      JAI SINGH & ORS                               ..... Respondents
                     Through:  Mr. Arun Mohan, Sr. Adv. with Mr.
                               Arvind Bhatt and Mr. Kuber Giri,
                               Advs. for R-1&2 with R-1 in person.
                               Ms. Bhakti Pasrija Sethi and Mr.
                               Moksh Pasrija, Advs. for R-4.
                               Mr. Arun Birbal and Mr. Sanjay
                               Singh, Adv. for DDA.
                             AND
+     CM(M) No.1105/2012 & CM No.17445/2012 (for stay).
      NORTH DELHI MUNICIPAL CORPORATION                  ..... Petitioner
                     Through: Mr. Sanjay Poddar, Sr. Adv. with

                                        versus
      JAI SINGH AND ORS                                         ..... Respondents
                    Through:               Mr. Arun Mohan, Sr. Adv. with Mr.
                                           Arvind Bhatt and Mr. Kuber Giri,
                                           Advs. for R-1&2 with R-1 in person.
                                           Ms. Bhakti Pasrija Sethi and Mr.
                                           Moksh Pasrija, Advs. for R-4.
                                           Mr. Atul Batra and Mr. Kundan Kr.
                                           Mishra, Advs. for R-7.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


CM(M) No.532/2011& CM(M) No.1105/2012                                   Page 1 of 8
                                          ORDER

% 13.07.2017 CM(M) No.532/2011, CM No.8796/2011 (for stay), CM No.11276/2011 (for recalling of order dated 4th May, 2011) and CM No.5842/2015 (under Section 151 CPC).

1. This petition under Article 227 of the Constitution of India impugns the orders dated 1st April, 2011 and 8th April, 2011 of the Additional Rent Controller in execution of eviction order dated 11th November, 1999.

2. Vide impugned order dated 1st April, 2011, the objection of the petitioner Municipal Corporation of Delhi (MCD) (to the application of the respondents / landlords for removal of the unserviceable and grounded vehicles lying on the open land claimed by the respondents / landlords to be part of the tenancy premises) that the order of eviction was only with respect to built-up portions as shown in the site plan proved as Ex.AW-1/14 and not with respect to open areas was dismissed. Vide subsequent impugned order dated 8th April, 2011 Bailiff was ordered to be appointed for having the open areas / land vacated.

3. It is inter alia the plea of the petitioner MCD that the directions of the Additional Rent Controller in the impugned order are beyond the order of eviction.

4. The petition was entertained and vide interim order dated 4 th May, 2011 execution stayed and which interim order continues.

5. The senior counsel for the petitioner MCD states that on the request of the petitioner MCD, Union of India (UOI) has in the year 2011 acquired the entire built-up structure [according to the petitioner MCD the open land in any case vested with the Delhi Development Authority (DDA)]; that the said

acquisition proceedings have been challenged by the respondents / landlords and in which challenge there is an interim order directing the parties to maintain status quo. The senior counsel for the petitioner MCD thus states that the order of eviction cannot be executed.

6. The senior counsel for the respondents / landlords agrees that the order of execution cannot be executed today. He however states that the exercise of going into the validity of the orders impugned in the petition can be undertaken.

7. This Court will not undertake an academic exercise when an effective order can admittedly not be passed; only when the order is executable and if the need so arises, would the said exercise be undertaken.

8. The senior counsel for the respondents / landlords has next drawn attention to CM No.5842/2015 filed by the respondents / landlords and wherein the relief of direction to the petitioner MCD to deposit in this Court a sum of Rs.40,00,000,00/- as security towards mesne profits has been claimed. The senior counsel for the respondents / landlords states that he leaves it to this Court to pass direction for deposit of appropriate amount. He has in Court also handed over a date sheet of the proceedings in the matter. Reference is made to Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 to state that after the order of eviction, the petitioner MCD is liable to pay mesne profits.

9. From a perusal of the date sheet it is found (i) that the eviction order was passed on 11th November, 1999; (ii) in pursuance to the said eviction order, possession of six rooms was recovered on 14th November, 2000; (iii) the petitioner MCD preferred an appeal against the order of eviction to the Rent Control Tribunal and which appeal was dismissed on 12 th March, 2001;

(iv) the petitioner MCD preferred CM(M) No.516/2007 to this Court against the order of eviction affirmed by the Rent Control Tribunal; (v) this Court vide order dated 23rd March, 2009 in CM(M) No.516/2007 aforesaid set- aside the order of eviction; (vi) the respondents / landlords appealed to the Supreme Court; and, (vii) Supreme Court vide order dated 23rd September, 2010 restored the order dated 11th November, 1999 of the Additional Rent Controller, of eviction.

10. I have enquired from the senior counsel for the respondents / landlords, whether not in the aforesaid scenario, the claim of the respondents / landlords for mesne profits in terms of Atma Ram Properties (P) Ltd. supra can only be w.e.f. 23rd September, 2010.

11. The senior counsel for the respondents / landlords controverts and contends that the respondents / landlords would be entitled to mesne profits w.e.f. 11th November, 1999.

12. I am unable to agree.

13. Though on passing of the order for eviction by the Additional Rent Controller the possession of the petitioner MCD of the premises from which it had been ordered to be evicted became wrongful, giving rise to a cause of action for a claim for mesne profits, but Section 38 of the Delhi Rent Control Act, 1958 provides for an appeal to the Rent Control Tribunal against an order of eviction and which appeal was preferred by the petitioner MCD. During the pendency of the said appeal the execution of the order of eviction was stayed by the order of the Rent Control Tribunal. It was for the Rent Control Tribunal as the Appellate Court to, as a condition for such stay, direct the petitioner MCD to deposit / pay mesne profits. It is only the Court which has granted the order of stay of execution of the order of eviction

which can impose such a condition. Else, no independent claim for mesne profits can be made for the period for which the order of eviction was inexecutable by an order of the Rent Control Tribunal. During the said period the possession of the tenant cannot be said to be wrongful, to furnish a cause of action for relief of mesne profits.

14. After the dismissal of the appeal by the Rent Control Tribunal, it appears that there was a stay of the execution of the order of eviction by this Court by interim order in CM(M) No.516/2007 preferred by the petitioner MCD. Again, it was for this Court to impose condition for grant of stay and the possession protected by an order of the Court cannot be said to be unauthorised or wrongful. It is only for that Court which has so protected the possession which can either as a condition for grant of stay or at the time of vacation of the said interim order balance equities by directing payment to be made. Supreme Court, in Abhimanyoo Ram Vs. State of Uttar Pradesh (2008) 17 SCC 73 held that the courts, at the time of vacating interim order are to give appropriate consequential directions so as to restore status quo ante and / or reversing the benefit extended by interim order.

15. This Court as aforesaid allowed CM(M)No.516/2007 and set-aside the order of eviction. Thus the question of balancing equities or grant of any mesne profits did not arise.

16. It is only when the Supreme Court on 23 rd September, 2010 restored the order of eviction, that the possession of the petitioner MCD for the period thereafter can be said to have become unauthorised, entitling the respondents to mesne profits for the period thereafter.

17. I have recently in Sham Lal Kapoor Vs. Joginder Lal Kuthiala 2017 SCC OnLiine Del 9130 held that there can be no claim by the landlord

against a tenant protected by the Delhi Rent Control Act, 1958 for mesne profits till an order of eviction is passed by the Rent Controller. Mention may also be made of Central Bank of India Vs. Anil Puranmal Bansal 2016 (3) MhLj 774 holding that the possession of a tenant protected by a Rent Act becomes wrongful only when the tenancy actually stands terminated on the passing of the order or decree for eviction. Reliance was placed on V. Dhanapal Chettiar Vs. Yesodai Ammal (1979) 4 SCC 214. In the case before the High Court of Bombay also, in appeal, the order of eviction was stayed and the appeal was ultimately allowed and the order of eviction restored only by the High Court. It was held that the cause of action to claim mesne profits arose only after the High Court had restored the order of eviction.

18. Mention may also be made of my judgment dated 12th May, 2017 in CS(OS) No.1956/2006 titled Chander Mohan Chadha Vs. Singer India Ltd.

19. The acquisition being of the year 2011, the claim for mesne profits can at best be from 23rd September, 2010 till the Notification of acquisition.

20. However before the said aspect of mesne profits is decided, the question, whether the respondents / landlords are entitled to the open land as shown in the site plan at page 121 of the paper book or only to the built-up structure, would also have to be considered.

21. I have enquired, whether the said aspect is under consideration in the challenge to the acquisition proceedings.

22. The senior counsel for the respondents / landlords states "that the writ petition challenges the acquisition of only superstructure and not the land

and building may be acquired and the question of compensation qua land can be decided".

23. The senior counsel for the petitioner MCD responds by stating "that in a writ petition before the Division Bench challenging the acquisition proceedings, while the respondents / landlords are claiming the open land to be theirs‟, the petitioner MCD is contesting the same".

24. The copy of the writ petition is not before this Court.

25. I am therefore of the opinion that before the aspect of the claim for mesne profits as made in CM No.5842/2015 can be considered, it will also have to be decided whether eviction order is with respect to open land or not. It will be expedient that the question which is before the Division Bench is answered first.

26. The senior counsel for the respondents / landlords in answer to a pointed query, whether in view of the above there can be a direction for payment of any mesne profits to the respondents / landlords today, as a condition for stay of execution being enjoyed by the petitioner MCD, fairly states that he is only asking for a deposit and not asking for any payment to be made to the respondents / landlords. The senior counsel for the respondents / landlords states that he is not pressing for the payment to the respondents / landlords "to avoid any controversy at this stage and is limiting the relief to deposit only".

27. Once that is so, again this Court will not go into the academic exercise and as far as the question of directing the petitioner MCD to furnish security is concerned, the money if any found due to the respondents / landlords from the petitioner MCD can always be recovered and it is not as if the petitioner MCD can avoid recovery of any dues from it.

28. On enquiry it is informed that the writ petition before the Division Bench is posted on 4th August, 2017.

29. List on 13th November, 2017.

30. Interim orders to continue.

CM(M) No.1105/2012 & CM No.17445/2012 (for stay).

31. The senior counsel for the respondents / landlords states that though the facts of CM(M) No.1105/2012 are different but the same may also be taken up on the same date.

32. List CM(M) No.1105/2012 also on 13th November, 2017.

Interim orders to continue.

RAJIV SAHAI ENDLAW, J

JULY 13, 2017 „pp‟..