Ndmc Through: Education Officer vs Arya Dharam Seva Sangh ...
2018 Latest Caselaw 2075 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 4th April, 2018
+     CM(M) No.37/2013 & CMs No.548/2013 & 549/2013 (both for
      stay).
      NDMC THROUGH: EDUCATION OFFICER ..... Petitioner
                 Through: Mr. Vivek B. Saharya, Mr.
                          Mananjay Kumar Mishra and Ms.
                          Neha Makhija, Advs.
                                Versus
    ARYA DHARAM SEVA SANGH
    (SUBSTITUTED BY ABHISHEK
    BUILDCON (P) LTD.)                  ..... Respondent

Through: Mr. Sanat Kumar, Sr. Adv. with Mr. Sanjay Sharma, Adv.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This petition under Article 227 of the Constitution of India impugns the order dated 2nd March, 2012 of the Additional Rent Control Tribunal, Delhi of dismissal of RCA No.1-A/11 preferred by the petitioner against the order dated 20th November, 2010 in E-66/09 (old numbers E-RC--992/03, RC/ARC 880/2006 and E-22/08) of the Court of Additional Rent Controller, Patiala House Courts, New Delhi allowing the petition filed by the respondent under Section 14(1)(b) of the Delhi Rent Control Act, 1958 for eviction of the petitioner from the portion of premises No.1, Doctor's Lane, Gole Market, New Delhi and axiomatically passing the order of eviction of the petitioner from the said premises.

2. This petition came up first before the Court on 11 th January, 2013 when notice thereof was ordered to be issued to the respondent. On 23 rd

January, 2013, the counsel for the respondent stated that the respondent will not execute the order of eviction till the next date of hearing. The petition was adjourned from time to time and the said interim arrangement continued. The counsel for the petitioner and the senior counsel for the respondent were heard on 30th August, 2017 and 31st August, 2017 and judgment reserved.

3. I have considered the contentions of the counsels for the parties and perused the copies of the Trial Court record filed.

4. The respondent sought eviction of the petitioner, pleading (i) that the petitioner is an old tenant in the premises at a rent of Rs.172/- per month; (ii) that the premises are residential and are being used as ‗Udayan', a house for keeping orphan babies by the SOS Children's Villages of India, a Non-Governmental Organisation; (iii) that the petitioner/tenant had sublet/assigned and/or otherwise parted with possession of the premises to SOS Children's Villages of India, 506/507, Vishal Bhavan, 95, Nehru Place, New Delhi (SOS), a Non- Governmental Organisation, by an Agreement dated 23rd March, 1981, without obtaining the consent in writing of the respondent/landlord; (iii) this fact came to the knowledge of the respondent/landlord on 24th March, 2003 and 5th May, 2003 in the course of an earlier petition filed by the respondent/landlord for eviction of the petitioner/tenant under Sections 14(1)(a), (j) and (k) of the Delhi Rent Control Act; (iv) earlier the respondent/landlord was under the impression that the premises are being used as ‗Udayan orphan house' for keeping orphan babies by the petitioner/tenant itself; and, (v) that the entire tenancy premises are in full control and possession of SOS.

5. The petitioner contested the petition for eviction by filing a written statement denying that the respondent/landlord has sublet or assigned or otherwise parted with possession of the tenancy premises to SOS and pleading, (i) that the petitioner/tenant had desired to undertake in the tenancy premises the establishment of a centre namely ‗Udayan', for the children born in unwanted circumstances and also requiring convalescence; (ii) an Agreement was executed on 23rd March, 1981 between the petitioner/tenant and SOS, wherein it was agreed (a) that the petitioner/tenant will bear all the expenses for running of Udayan at the premises in dispute and that Udayan will be run by SOS on behalf of the petitioner/tenant; (b) that SOS will not charge any overhead expenditure for running of Udayan; (c) that the petitioner/tenant will make half yearly payment to SOS in January and July each year for expenditure as per details in the Agreement; (d) that the petitioner/tenant will place the said tenancy premises at the disposal of SOS, free of any rent, electricity charges and water charges; (e) that the maintenance cost of the tenancy premises will be borne by the petitioner/tenant; and, (f) that in the event of the petitioner/tenant deciding to wind up Udayan, the possession of the tenancy premises would revert back to the petitioner/tenant and SOS will be bound to handover the possession without any demur and the assets created would be the property of the petitioner/tenant; (iii) that Udayan is a joint venture of SOS and the petitioner/tenant; (iv) the children received at Udayan, usually come in a deplorable state and after giving good care, they are safely placed in families; (v) that due to non-settlement of outstanding advances by the SOS and in view of certain unreplied audit paras, the release of the grant to SOS was stopped

by the petitioner/tenant and which was confirmed vide Resolution No.3(XII) dated 30th October, 1998 of the petitioner/tenant and it was decided that the Agreement may be revoked and SOS be asked to get the audit objections settled; (vi) despite issue of notices and even after the stoppage of grant, SOS did not come forward to get the matter settled;

(vii) the petitioner/tenant has issued a notice dated 19 th August, 2003 to SOS, informing SOS of the decision of the petitioner/tenant to wind up Udayan run in the tenancy premises and calling upon SOS to handover peaceful possession of the premises to the petitioner/tenant; (viii) that the petitioner/tenant has decided to use the premises for other welfare activities namely for shifting of Paawan School for hearing impaired managed by the petitioner/tenant and which Paawan School is facing severe shortage of space; (ix) that as long as the petitioner/tenant retains the right to possession, there is no parting with the possession within the meaning of Section 14(1)(b) of the Act; (x) there was no subletting by the petitioner/tenant to SOS as Clause 6 of the Agreement dated 23 rd March, 1981 categorically provides that the premises are free of any rent, electricity charges and water charges and the maintenance cost thereof is also to be borne by the petitioner/tenant; (xi) that the petitioner/tenant in the past had been giving grants to SOS and even the salaries of the employees were being given by the petitioner/tenant as per the Agreement; and, (xii) that the legal possession of the premises has always been retained by the petitioner/tenant.

6. Though the respondent/landlord is found to have filed a replication to the aforesaid written statement but need to deal with the contents thereof is not felt.

7. The learned Additional Rent Controller, vide order dated 20th November, 2010, found:-

(i) that the petition for eviction was originally filed by Shri Arya Dharm Seva Sangh through its General Attorney Shri S.K. Jain; subsequently M/s. Abhishek Buildcon (P) Ltd. purchased the tenancy premises from the original petitioner vide Sale Deed dated 18th August, 2005 and came to be substituted in place of Shri Arya Dharm Seva Sangh;

(ii) the witness of the respondent/landlord, in cross-

examination, stated that the premises were under the tenancy of the petitioner/tenant since about the year 1950;

(iii) that of the two witnesses examined by the respondent/landlord, AW2 was the Senior Executive of M/s. Abhishek Buildcon (P) Ltd. who only proved the purchase of the tenancy premises and mutation thereof and in cross- examination stated that he was not aware of the situation of the property prior to the purchase of the property by M/s. Abhishek Buildcon (P) Ltd.;

(iv) the only other witness of the respondent/landlord in his cross-examination admitted that Udayan had been functioning from the tenancy premises since prior to his joining Shri Arya Dharm Seva Sangh in the year 1990 and that Shri Arya Dharm Seva Sangh had learnt of SOS running Udayan in the tenancy premises, in the year 1993, and he could not explain why the petition for eviction was filed after ten years, in the year 2003; he also expressed

ignorance regarding SOS paying any rent to the petitioner/tenant and whether the entire expenditure of running Udayan was borne by the petitioner/tenant and whether all the expenses towards electricity, water charges and other expenditure were also being borne by the petitioner/tenant; he however admitted that the rent was being paid by the petitioner/tenant to the respondent/landlord; he also showed ignorance whether SOS was working under the petitioner/tenant as a licensee under an Agreement between the parties and whether Udayan was being run jointly by the petitioner/tenant and SOS;

(v) the sole witness of the petitioner/tenant denied subletting, assignment or parting with possession of the premises and proved the Agreement dated 23rd March, 1981 between the petitioner/tenant and SOS and revocation of the said Agreement vide Resolution dated 30th July, 1998 and the decision dated 19th August, 2003 for winding up of Udayan;

(vi) that the witness of the petitioner/tenant also proved that Shri Arya Dharm Seva Sangh was having its office in the same premises and was fully aware of SOS running Udayan in the premises, in joint venture with the petitioner/tenant;

(vii) that the sole witness of the petitioner/tenant in cross-

examination:-

(a) admitted that SOS is an independent body and not under control of the petitioner/tenant;

(b) stated that he could not say whether electricity bills of the tenancy premises were being paid by the petitioner/tenant;

(c) admitted that the premises is in exclusive physical and legal possession and occupation of SOS;

(d) denied that Udayan was being run independently by SOS without the control of petitioner/tenant;

(e) stated that the petitioner/tenant maintained the premises till 1998 when the license given to SOS was terminated; and,

(f) admitted that even after 1998, possession of the tenancy premises was with SOS and petitioner/tenant was not able to take back the possession.

8. The Additional Rent Controller, on the aforesaid pleadings and evidence, concluded (i) that there was no dispute that the premises had been given by the petitioner/tenant to SOS for running Udayan, without obtaining consent in writing of the respondent/landlord; (ii) this way the petitioner/tenant parted with possession of the premises to SOS and lost control over the premises to SOS; (iii) that the petitioner/tenant even after termination of Agreement of SOS in 1998 and even after deciding to wind up Udayan had been unable to get the possession back and SOS was in exclusive physical and legal possession of the tenancy premises;

(iv) that the petitioner NDMC had failed to take any step for removal of SOS from the premises; (v) that though initially SOS functioned from the tenancy premises in collaboration and arrangement with the petitioner/tenant but later on SOS became a self proclaimed authoritative

body and started running the centre in defiance to the terms and conditions as laid down in the Agreement and this defiance continued for a very long time; (vi) that the witness of the petitioner/tenant, in the earlier petition for eviction under Sections 14(1) (a), (j) and (k) of the Act, had deposed that the entire control of the orphanage was then with SOS though initially the control was with the petitioner/tenant; (vii) that the petitioner/tenant had been lethargic in taking action against SOS for about 10-12 years; (viii) it stood amply proved that the petitioner/tenant had for long lost control over the functioning of Udayan and SOS went on acting and functioning in defiance to the terms and conditions of the Agreement executed with the petitioner/tenant; (ix) inspite of knowing that SOS had become hostile towards the petitioner/tenant, the petitioner/tenant had remained lethargic; and, (x) thus a case for eviction under Section 14(1)(b) of the Rent Act was made out.

9. The counsel for the petitioner/tenant argued, that a perusal of the Agreement dated 23rd March, 1981 between SOS and petitioner/tenant does not show a case of subletting, assignment or parting with possession of the premises by the petitioner/tenant to SOS and relied on, A] Achutananda Baidya Vs. Prafullya Gayen (1997) 8 SCC 76 - on the scope of exercise of power under Article 227 of the Constitution of India; B] S.F. Engineer Vs. Metal Box India Ltd. (2014) 6 SCC 780, United Bank of India Vs. Cooks and Kelvey Properties (P) Ltd. (1994) 5 SCC 9, Delhi Stationers & Printers Vs. Rajendra Kumar (1990) 2 SCC 331 - on relevant factors to be considered qua subletting, assignment and parting with possession; C] Gopal Saran Vs. Satyanarayana (1989) 3 SCC 56 - on what is legal possession and that

mere occupation is not possession; D] Municipal Corporation of Delhi Vs. Pradip Oil Corporation (2002) 100 DLT 442 (FB) and Associated Hotels of India Ltd. Vs. R.N. Kapoor AIR 1959 SC 1262 - on difference between lease and licence.

10. On enquiry, as to the obligation of the petitioner/tenant to run orphans home, the counsel for the petitioner/tenant drew attention to Section 12(q) of the New Delhi Municipal Council Act, 1994, including in the discretionary functions of the petitioner/tenant, the function of providing for relief to destitute and disabled persons.

11. Per contra, the senior counsel for the respondent/landlord argued,

(i) that the Agreement dated 23rd March, 1981 between petitioner/tenant and SOS, is an Agreement of parting with possession; (ii) that the petitioner/tenant had not taken any steps since 1998; (iii) that as per Roop Chand Vs. Gopi Chand Thelia AIR 1989 SC 1416, granting a licence is parting with possession; (iv) that Clauses 6 & 12 of the Agreement dated 23rd March, 1981 show a case of parting with possession; (v) that the petitioner/tenant is not paying rent since 1998 and is not entitled to seek a discretionary relief under Article 227 of the Constitution of India; (vi) that the words ‗otherwise parted with possession' in Section 14(1)(b) are wide enough; (vii) that the petitioner/tenant, by providing in the Agreement dated 23rd March, 1981 with SOS that on winding up of Udayan, the possession will come back to petitioner/tenant, admitted having parted with possession to the SOS;

(viii) drew attention to the letter dated 18th September, 2012 of Udayan to the Managing Director of M/s. Abhishek Buildcon (P) Ltd. showing SOS to be agreeing to handover possession of the premises to M/s.

Abhishek Buildcon (P) Ltd. and argued that the respondent/landlord has already received possession of rear open courtyard portion of the tenancy premises from SOS; (ix) that SOS has carried out unauthorized construction in the premises and qua which the earlier petition for eviction under Section 14(1)(k) was filed and SOS could not have carried out unauthorized construction without being in possession of the premises; (x) reliance was placed on Vinaykishore Punamchand Mundhada Vs. Bhumi Kalpataru 2010 (9) SCC 129 to contend that the respondent/landlord, being a stranger to the Agreement dated 23rd March, 1981 between SOS and petitioner/tenant, is not bound with the same; (xi) that it is SOS which is in control and possession of the premises and thus is in legal possession of the premises; and, (xii) that there are concurrent findings of fact and this Court in exercise of jurisdiction under Article 227 of the Constitution of India ought not to interfere.

12. I had during the hearing enquired from the senior counsel for the respondent/landlord, whether M/s. Abhishek Buildcon (P) Ltd., being a purchaser of the tenancy premises during the pendency of the petition for eviction under Section 14(1)(b) of the Act, could take advantage of the ground of eviction if any accrued earlier.

13. The senior counsel for the respondent/landlord drew attention to the clauses in the Sale Deed dated 18th August, 2005 providing for sale of the property on as is where is basis and subject to the pending litigation and entitling the vendee to carry on all such litigations in its own name and be substituted in such pending litigations in place of Shri Arya Dharm Seva Sangh.

14. The senior counsel for the respondent/landlord, besides the aforesaid judgments, also referred to Shalimar Tar Products Ltd. Vs. H.C. Sharma (1988) 1 SCC 70, Harihar Prasad Vs. State of U.P. JT 2001 (Suppl.2) SC 373, Narain Singh Vs. Shanti Devi 2010 (115) DRJ 601, G. Amalorpavam Vs. R.C. Diocese of Madurai 2006 (3) SCC 224 and Girijanandini Devi Vs. Bijendra Narain Choudhary AIR 1967 SC 1124.

15. The senior counsel for the respondent/landlord during the hearing also handed over copy of the internal file noting dated 30th April, 2012 of Law Officer of the petitioner/tenant in response to taking opinion qua filing of this petition, that it was not clear from the note of the Department or of the note of the Advocate of the Department whether the possession of the tenancy premises was with the petitioner/tenant or with sublettee or with landlord.

16. I am however of the opinion that such file notings in the course of decision making cannot be relied on and no benefit can be taken thereof. Reference if any required in this regard can be made to Union of India Vs. Ashok Kumar Aggarwal (2013) 16 SCC 14, Union of India Vs. Vartak Labour Union (2) (2011) 4 SCC 200, Jasbir Singh Chhabra Vs. State of Punjab (2010) 4 SCC 192, Shanti Sports Club Vs. Union of India (2009) 15 SCC 705 and Sethi Auto Service Station Vs. Delhi Development Authority (2009) 1 SCC 180.

17. The counsel for the petitioner/tenant, in rejoinder could not inform whether since the filing of this petition also no action had been taken by the petitioner/tenant against SOS. It was however further contended that the respondent/landlord in its evidence had failed to prove a case of

subletting, assignment or parting with possession and the learned Additional Rent Controller had misread the cross-examination of the witness of the petitioner/tenant.

18. Though neither of the counsels referred to the impugned order, of the Additional Rent Control Tribunal, but on a reading thereof it is found that the Tribunal has dealt with the matter in only paragraph 8 of the impugned order as under:-

"7. I have considered the submissions and have gone through the file.

8. Section 14(1)(b) of the Act legalizes only those subtenancies in which the consent in writing is obtained by the tenant from the land lord. In the present case, admittedly no written consent had been obtained by the appellant from the respondent. In the cross examination of Ravinder Kumar (RW1) it was admitted by him that SOS Children's villages of India is an NGO, an independent body and is not under the control of NDMC. It was also admitted by him that the possession of the premises in dispute was with SOS Children's Villages of India and the NDMC was not able to take the possession back. In view of this categorical admission of Sh. Ravinder Kumar (RW1) (a witness of the appellant) and the fact that no written consent had been obtained by the appellant from the respondent to sub let the premises, the findings arrived at by the Ld. Addl. Rent Controller can't be faulted.

9. The appeal has no merit and is accordingly dismissed."

19. I am afraid, the aforesaid does not constitute a proper discharge of function by the Additional Rent Control Tribunal. The Rent Control Tribunal under the Delhi Rent Control Act, against whose order no further statutory remedy is provided inasmuch as the provision for

second appeal to this Court against the order of the Tribunal as existed in the Delhi Rent Control Act since inception thereof was done away with by amendment thereto of the year 1988. Though appeal before the Tribunal is maintainable only on a question of law, but is required to, on appreciation of evidence, address the question of law if any arising in the appeal.

20. The impugned order does not dismiss the appeal of the petitioner/tenant holding the same to be not entailing any question of law. The appeal has been dismissed cursorily, without even appreciating the issues entailed for consideration.

21. As would be apparent from the aforesaid narrative, the Additional Rent Controller, did not find the act of the petitioner/tenant of entering into the Agreement dated 23rd March, 1981 with SOS to constitute subletting or assignment of tenancy rights. The Additional Rent Controller, however, without construing the terms of the Agreement, generally observed that the petitioner / tenant had parted with possession of premises to SOS, disregarding that the expression ―parted with possession‖ has a definite connotation in law and mere presence of a person other than tenant in the tenancy premises does not constitute parting with possession. The finding of the petitioner / tenant having ―parted with possession‖ of the tenancy premises is also found to be not emanating from the evidence discussed by the Additional Rent Controller in his order. Moreover, the Additional Rent Controller was swayed by the fact and passed the order of eviction, on the ground of the petitioner/tenant having not taken any step for recovery of possession from SOS even after the Agreement with SOS was terminated and the

decision to wind up Udayan taken. That was however not the ground on which the petition for eviction was filed. The petition for eviction was filed expressly on the plea of the petitioner/tenant, by entering into the said Agreement, having sublet, assigned or parted with possession of the premises. Besides the question whether the said Agreement constituted subletting, assignment or parting with possession which remains unadjudicated, the question also arises whether eviction order can be passed on facts not pleaded. If it were to be held that the Agreement dated 23rd March, 1981 does not constitute subletting or assigning or parting with possession a question would also arise whether inaction of the tenant, on which ground the Additional Rent Controller has passed the order of eviction of the petitioner, can amount to parting with possession. Ordinarily the expression subletting or assignment of tenancy rights or parting with possession mean positive acts of subletting, assignment or parting with possession and not negative acts.

22. It cannot be lost sight of that the petitioner/tenant is a Governmental organization, having been constituted for performing municipal functions for New Delhi area of city of Delhi, with none of the officials through which it functions having any personal interest. Considering the said fact, the Courts qua various other aspects, have been safeguarding the interests of such bodies, even though their officials have failed to do so.

23. The Additional Rent Control Tribunal in appeal is however found to have dealt with the case in an extremely superficial and unsatisfactory manner. There is no discussion on pleadings, evidence led in the proceedings. This Court in Saroj Kumar Vs. Lalit Kumar (1969) 5 DLT

268 set aside the order of the Rent Control Tribunal which was found to be suffering from similar legal error, which was termed as ―grave‖ and remanded the matter to the Tribunal for fresh decision. Similarly, in Nihal Chand Agrawal Vs. Gopal Sahai Bhartia AIR 1987 Delhi 206, though in the context of Order XLI Rule 31 of CPC, it was held that it is mandatory upon the appellate Court to independently weigh the evidence of the parties and consider the relevant points which arise for adjudication and a mere general expression of concurrence with the trial Court judgment is not enough. As far back as in Kirani Ahmedula Vs. Suba Bhat 8 Bombay 28, it was held that when an appeal against an order based on facts is given from a subordinate Court to a superior Court, the discretion vested in former is absorbed in the latter and that it is the duty of the superior Court to weigh the facts which formed the basis upon which the subordinate Court proceeded and to arrive at its own independent conclusion and to hold otherwise would be to deny the appellant the benefit of appeal. In Ganapati Ranu Kolapure Vs. Sevakram Mansukhram AIR 1918 Bom. 235 (DB), it was expounded that Order XLI Rule 31 of the CPC requires that there should be some statement by the appellate Judge to show that he has applied his mind independently on the questions involved in the appeal because a litigant is entitled as of right to a first appeal and which includes an entitlement to know the reason which have moved the appellate Judge to the conclusion drawn. Recently in C. Venkata Swamy Vs. H.N. Shivanna (2018) 1 SCC 604 also, finding the appeal to have been dismissed very cursorily and without undertaking any appreciation of evidence, dealing with various issues arising in the case and discussing the arguments

raised by the parties in support of their case, also the need to remand the case was felt. It was held, (i) that a right to file first appeal is a valuable legal right of the litigant; (ii) the jurisdiction of the first appellate Court while hearing the first appeal is very wide like that of the Trial Court;

(iii) it is the duty of the first appellate Court to appreciate the entire evidence and arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference; (iv) a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage and anything less than this is unjust to him; and, (v) where the appellate Court fails to discharge the obligation placed on it and the order of appellate Court is cryptic and none of the relevant aspects are noticed, there is no option but to set it aside.

24. I intend to remand the present lis also to the Tribunal for adjudication afresh and therefore refrain from making any further observations on merits.

25. I am thus of the view that this petition should be allowed and the matter remanded to the Additional Rent Control Tribunal for decision afresh after hearing the counsels and in the light of aforesaid observations. It is also made clear that it shall be open to the Additional Rent Control Tribunal to during the said hearing entertain any other aspect and / or if finds a need to remand the matter to the Additional Rent Controller, to do so.

26. In light of aforesaid I am also not making any observation on the aspect on which query was made from the senior counsel for the respondent/landlord during the hearing.

27. The petition is thus allowed.

28. The impugned order of the Additional Rent Control Tribunal is set aside and the matter remanded for decision afresh after hearing the counsels.

29. However since the proceedings have been pending for a very long time, the Additional Rent Control Tribunal is directed to render judgment after such hearing within four months of the date of first appearance of the parties before it.

30. The parties to appear before the Additional Rent Control Tribunal, New Delhi, Patiala House Courts on 24th April, 2018.

31. Till such decision of the Additional Rent Control Tribunal, the respondent/landlord to keep the portion of the tenancy premises of which it claims to have received possession, under its lock and key, as was stated to be the case till now and not to itself occupy or use the same or allow any other person to occupy or use the same. The eviction from remaining portion of the tenancy premises to remain stayed till the decision of the Additional Rent Control Tribunal.

32. The Additional Rent Control Tribunal, while deciding the appeal afresh, would be entitled to make appropriate orders with respect to the portion of which the respondent / landlord claims to have received possession.

The petition is disposed of.

RAJIV SAHAI ENDLAW, J.

APRIL 04, 2018 ‗pp'..