Delhi High Court
Smt. Tara Devi vs Laxmi Narain & Ors. on 9 March, 2017
$~A-10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 09.03.2017
+ CM(M) 235/1992
SMT. TARA DEVI ..... Petitioner
Through Mr.Sanjeev Sindhwani,
Sr.Advocate with Ms.Minal
Sehgal, Advocate.
versus
LAXMI NARAIN & ORS. ..... Respondents
Through Mr.Brajesh Kr.Srivastava &
Mr.Dinesh Gaur, Advocates
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. By the present petition filed under Article 227 of the Constitution
of India, the petitioner seeks to impugn the order dated 05.01.1991 passed
by the Additional Rent Controller (hereinafter referred to as the „ARC‟)
under Section 14(1)(h) of the Delhi Rent Control Act (in short the „DRC
Act‟) regarding premises bearing No.1665, Lekh Raj Bhawan, Kucha
Dakhni Rai, Darya Ganj, New Delhi- 110002.
2. It is averred that the premises were let out to the husband of the
petitioner, namely Sh.R.L.Deo. After his death, the petitioner has become
the tenant of the demised premises. It was stated in the eviction petition
that the petitioner had acquired vacant possession of a residence at B-102,
Gulmohar Park, Opposite Green Park, New Delhi after the tenancy has
been created. Hence, an eviction petition was filed under Section 14(1)(h)
of the DRC Act to seek an eviction order. The petitioner was proceeded
ex-parte. The ARC noted the evidence of AW1 about the petitioner
having acquired the said residence 2-3 years back. Relying on unrebutted
and unchallenged evidence, the ARC passed an eviction order.
3. I have heard the learned counsel for the parties.
4. The learned senior counsel appearing for the petitioner submits that
the eviction petition was filed on 06.11.1989. He submits that Section
14(1)(hh) of the DRC Act was inserted w.e.f. 01.12.1988. Hence, on the
date when the eviction petition was filed the said section was in
operation. He submits that the petitioner has obtained the completion
certificate in 1990. He also relied upon the report of the process server
who has stated that the property in question was being built in 1990. He
further submits that it was on record of the ARC that the construction of
the house in question was not yet completed when service was effected
on the petitioner. Based on this he submits that the eviction petition filed
was premature as in terms of the Section 14(1)(hh) of the DRC Act, the
petition could not be filed within a period of ten years from the date of
acquisition of the property by the petitioner. Completion certificate was
obtained in 1990. It is hence urged that no eviction petition could have
been filed till 2000. The learned senior counsel also relies upon the
judgment of this court in the case of Shiv Shankar Rastogi v. Uma
Shankar Sharma, 2002 (99) DLT 775.
5. The learned counsel appearing for the respondents has tried to
reiterate that these submissions of the petitioner were not urged earlier.
He relies upon the grounds of appeal to contend that what the petitioner
wanted to originally urge was that the property in question belongs to the
son of the petitioner. He has relied upon the judgment of this court in the
cases of Kanwal Nain Vig v. Pran Nath Khosla & Anr., 1999 VAD
(Delhi) 649 and Bandaru Satyanarayana v. Imandi Anasuya & Ors.,
(2011) 12 SCC 650 to contend that in a revision petition this court has a
limited scope of supervisory jurisdiction.
6. Section 14(1)(h) and (hh) of the DRC Act read as follows:
" 14.(1) Protection of tenant against eviction.-
(1) Notwithstanding anything to the contrary contained in any
other law or contract, no order or decree for the recovery of
possession of any premises shall be made by and court or
Controller in favour of the landlord against a tenant: Provided
that the Controller may, on an application made to him in the
prescribed manner, make an order for the recovery of
possession of the premises on one or more of the following
grounds only, namely:-
................
(h) That the tenant has, whether before or after the
commencement of this Act, (Note: The word "built" omitted by
Act 57 of 1988, sec.8 (w.e.f. 1-12-1988)) acquired vacant
possession of, or been allotted, a residence;
(hh) (Note: Ins. by Act 57 of 1988, sec.8 (w.e.f. 1-12-1988))
That the tenant has, after the commencement of the Delhi Rent
Control (Amendment) Act, 1988, built a residence and ten
years have elapsed there-after"
7. Hence, it is the case of the petitioner that the property having been
built in 1990 after the commencement of the provision of Section
14(1)(hh) of the Act, the present eviction petition could only be filed ten
years after the property had been built. The petition was premature and
should have been dismissed.
8. Firstly, on facts, it may be noted that the petitioner was proceeded
ex-parte and has not led any evidence on the issue of the date when the
construction was completed. As per the eviction petition, which is dated
06.11.1989, the petitioner had already built/acquired the possession of the
residence at Gulmohar Park, Opposite Green Park, New Delhi. As per the
evidence of the respondent AW1, it has been stated that the property was
built 2-3 years back. The petitioner seeks to rely upon the observations of
the process server to contend that when the summons were served on the
petitioner the property was not built. These are stray observations of the
process server and cannot be taken for the purpose of conclusion of facts.
The process server was never cross-examined. Hence, it cannot be
concluded based on this fact that the house was constructed after Section
14(1)(hh) was added to the DRC Act.
9. Even otherwise, in my opinion, assuming what the petitioner
submits is correct, then also as per the petitioner, eviction petition could
only be filed after 1990. The petitioner admits having another
accommodation. The only argument is that the eviction petition could be
filed after 2000. We are today in 2017. Seventeen years have elapsed
even after the so called period stated by the petitioner as to when the
respondent could file the eviction petition, namely 1990. In fact, the
present petition has also been lingering since 1992. Of course, one of the
reasons was that the petition was dismissed in default for non-
prosecution.
10. The Supreme Court in Pasupuleti Venkateswarlu vs The Motor &
General Traders, (1975) 1 SCC 770 noted as follows:-
"We affirm the proposition that for making the right or
remedy claimed by the party just and meaningfully as also
legally and factually in accord with the current realities,
the court can, and in many cases must, take cautions
cognisance of events and developments subsequent to the
institution of the proceeding provided the rules of fairness
to both sides are scrupulously obeyed.........."
11. Hence, even if assuming the petition was premature, this court can
take into account the passage of time since the petition was filed and the
admission of the petitioner that she has acquired a property in 2000.
Based on these facts, I see no reason to interfere in the impugned order.
12. I may note that the learned senior counsel has relied upon the
judgment of this court in the case of Shiv Shankar Rastogi v. Uma
Shankar Sharma(supra). In that case the tenant had constructed a flat in
November, 1992. The judgment of this court was passed on March 22,
2002. Hence, there were still few months left for completion of 10 years
period. It was in those circumstances, this court had held that the tenant
would be entitled to protection of Section 14(1)(hh) of the DRC Act.
13. There is no merit in the present petition and the same is dismissed.
14. All pending applications also stand dismissed.
JAYANT NATH, J.
MARCH 09, 2017/v
