Delhi High Court
Ritz Theatres Pvt Ltd vs Aakar Tachno Build Pvt Ltd & Ors. on 25 November, 2022
Citation No.2022/DHC/005126
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:16.11.2022
Date of decision: 25.11.2022
+ RFA 314/2022, CM APPL. 31715/2022 (stay) & CM APPL.
31717/2022 (exemption decree sheet)
RITZ THEATRES PVT LTD ..... Appellant
Through: Mr.Arvind Nayar, Sr. Adv. with
Mr.Raghav Awasthi, Mr.Mukesh Sharma,
Mr.Abhay Chitravanshi & Mr.Kunal Tiwari,
Mr.Akshay Joshi & Mr.Shubham Pandey, Advs.
Mr. Satish Sahai & Mr. Jai Sahai Endlaw, Advs.
versus
AAKAR TACHNO BUILD PVT LTD & ORS. ..... Respondents
Through: Mr. Arvind Nigam & Mr.Sanjeev
Sindhwani, Sr. Advs. with Mr. Naresh Gupta, Mr.
Ankit Jain, Mr. Abhay P Singh & Mr. Aditya
Chauhan, Advs.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J
JUDGMENT
1. The present Regular First Appeal under Section 96 of the Code of
Civil Procedure (hereinafter, CPC) seeks to assail the judgment and decree
dated 08.06.2022, (as rectified on 14.07.2022), passed by the Ld. Additional
District Judge, Delhi in CS No. 9939/2016. Vide the impugned judgment,
the learned Trial Court has decreed the respondents'/plaintiffs' suit for
possession and arrears of rent @3750/- per month for the period between
Signature Not Verified
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February 1998 to September 1999 alongwith monthly mesne profits @
5000/- with an annual increase of 10% w.e.f., October 1999, till the date of
recovery of possession.
2. Before dealing with the rival submissions of the parties, it would be
apposite to note the brief factual matrix.
3. The suit property being property No. 1500, 1502-1508, Kashmere
Gate, New Delhi-1100066 (hereinafter, 'suit property') was let out by one
Mst. Sultana Bi to her son Mr. Sheikh Mohd. Ejaz by way of a registered
lease deed 10.07.1968, who then, with her consent, let out the same to the
appellant by way of a registered lease deed dated 26.08.1968. As per this
lease deed, the property was let out for an initial period of 20 years with an
option to the appellant to seek renewal of the same for another period of 10
years. The monthly rent of the suit property for the initial period of 20 years
was fixed at Rs. 4000/- exclusive of property taxes, theatre expenses etc,
which rent was to be automatically increased by 25% for the extended
period of 10 years. However, this rent was fixed subject to the appellant
carrying out renovations in the suit property after obtaining necessary
sanctions. It was also agreed that in case the appellant does not carry out any
remodelling or renovations, the monthly rent would be Rs. 3000/-. It is the
common case of the parties that these renovations were never carried out
and, therefore, the monthly rent of the suit property remained Rs. 3000/- for
the initial lease period of 20 years.
4. In accordance with the Clause 4 of this lease deed, in case the
appellant wanted to exercise its right of extension of the lease for a further
period of 10 years, it was incumbent upon the appellant to give a notice to
the lessor, atleast six months before the expiry of the initial lease period of
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Citation No.2022/DHC/005126
20 years. In accordance with this clause, the appellant on 17.08.1987, i.e.,
before the expiry of the stipulated lease period of 20 years on 31.07.1988,
approached Md. Ejaz exercising its option for continuing its lease for a
further period of 10 years on the same terms and conditions except the
increase in rent as provided in the lease deed.
5. However, since the lease in favour of Md. Ejaz was subsequently
terminated, the appellant became the lessee of Mst. Sultana Bi, who vide her
notice dated 05.07.1988, called upon the appellant to handover the vacant
possession of the property on the ground that the lease stood terminated on
31.07.1988. Since the appellant did not reply to the aforesaid notice, Mst.
Sultana Bi served yet another notice on the appellant on 31.07.1988,
wherein it was alleged that since the appellant was defaulting in the payment
of rent and had also sublet some parts of the property, it was liable to
handover vacant possession of the suit property upon expiry of the lease on
31.07.1988. The appellant responded to these two notices vide its reply
dated 19.08.1988 wherein, while denying that it was in default in payment of
rent or that it had sub-let the suit property, claimed that it had already
exercised its option to the continue the lease for a further period of 10 years.
It was therefore, averred by the appellant that it was not an unauthorized
occupant as it was occupying the premises as a valid lessee till 31.07.1998.
6. Since the appellant, despite the receipt of the aforesaid notices,
refused to vacate the suit property on the premise that its lease stood
extended for another period of 10 years and taking into account that the
property was situated in a notified slum area, Mst. Sultana Bi, on
14.07.1989,filed a petition under Section 19 of the Slums Areas
(Improvements & Clearance) Act, 1956 (the Slums Act)seeking permission
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from the competent authority to initiate eviction proceedings against the
appellant. While these proceedings were still pending, the suit property was
on 31.12.1997, sold by Mst. Sultana Bi to the respondents herein; this sale
deed specifically mentioned that the property had been let out to the
appellant for a period of 20 years vide lease deed 26.08.1968 at a monthly
rent of Rs. 3000/- with an option to renew the same for 10 years on the same
terms and conditions subject to the increase of rent by 25% i.e., Rs. 3750/-
per month. This sale deed also referred to the pending proceedings against
the appellant before the competent authority, Slums Area.
7. After purchase of the suit property, the respondents, vide their legal
notice dated 24.05.1999, called upon the appellant to vacate the suit property
on or before 30.06.1999 and also claimed arrears of rent amounting to
Rs.1,01,250/- besides damages of Rs. 33,750/- towards unauthorized
occupation of the suit property. It is the common case of the parties that on
the very same day, the pending application under Section 19 of the Slums
Act preferred by Mst. Sultana Bi was dismissed in default. However, since
the appellant failed to vacate the suit property despite receipt of notice dated
24.05.1999, the appellant was served with yet another notice on 06.09.1999
whereby it was called upon to vacate the suit property on or before
30.09.1999, which it failed to do. It is, in these circumstances, that the
respondents, on 22.02.2001, filed a suit seeking recovery of possession,
arrears of rent and mesne profits before the learned Trial Court.
8. The suit was defended by the appellant by filing its written statement
wherein the appellant opposed the suit on the ground of it being barred by
section 19(1) of the Slums Act. It was averred that as per Section 19(1), no
proceedings could be initiated for obtaining a decree or order for eviction of
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a tenant from any building in slum area without obtaining prior permission
from the Competent Authority. It was claimed that since the suit property in
the present case was situated in a notified slum area, i.e., Kashmere Gate,
the suit for possession instituted by the respondents was barred by Section
19(1).It was the appellant's further plea that since the monthly rent of the
suit property was Rs. 3000/-, the same was governed by the Delhi Rent
Control Act and in view of the bar under section 50(1) of the Act, the Civil
Court did not have jurisdiction to entertain a suit for possession in respect of
the suit property. It was, thus, averred that the remedy, if any, available with
the respondents was to initiate proceedings under the Delhi Rent Control
Act. The appellant finally averred that no relationship of landlord tenant
ever existed between the parties as the respondents, who claimed to have
purchased the property from Mst. Sultana Bi vide sale deed dated
31.12.1997, were not the owners of the suit property. The suit property,
being Waqf Property, with the Waqf having been created under a Waqfnama
dated 23.12.1931, could not have been sold by Mst. Sultana Bi, without
prior sanction from the Delhi Waqf Board. It was, therefore, contended that
the sale of the property being invalid, the respondents were not the
owners/landlords and therefore, had no locus standi to file the suit.
9. In their replication, the respondents, while reiterating the contents of
the plaint, stated that the suit property, which was initially a subject matter
of Waqfnama, became evacuee property after 1947 and therefore Mst.
Sultana Bi, being the sole surviving legal heir of late Sheikh Ata-ur-
Rahman, was entitled to retain her 7/80th share as also 73/80th share being
the evacuee share in the suit property. In this regard, reference was made to
the order dated 31.05.1950 passed by the Assistant Custodian and the
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subsequent orders dated 13.06.1951 and 07.12.1960 passed by the Deputy
Custodian and Regional Settlement Commissioner respectively.
10. Upon completion of pleadings, the learned Trial Court framed the
following issues-
(i) Whether this suit has been signed, verified and filed by a duly
authorized person? OPP
(ii) Whether the suit is barred u/s 19(1) of Slum Area
(Improvement and Clearance) Act, 1956, as alleged in the
preliminary objections? OPP.
(iii) Whether the suit is barred u/s 50 of Delhi Rent Control Act, as
alleged in the preliminary objections? OPP.
(iv) Whether the plaintiff is entitled to arrears of rent, if so, at what
rate and for what period? OPP
(v) Whether the plaintiff is entitled to mesne profits if so, at what
rate and for what period? OPP
(vi) Whether the plaintiff is entitled to a decree of possession? OPP
(vii) Relief.
11. In support of their pleadings, the parties led their respective evidence.
While the appellant examined 3 witnesses namely (i) Sh. Vijay Narayan
Seth, (ii) Sh. SevajeetYadav and (iii) Sh. Manohar Lal, the respondents
examined 7 witnesses namely (i) Smt. Reema Kalra (ii) Sh. Subhash
Kathuria (iii)Sh. Gulab Chand (iv) Sh. DK Sharma (v) Sh. Jai Narain (vi)
Sh. Raghuvir and (vii) Sh. R.R. Singh
12. After considering the evidence on record, the learned Trial Court
decreed the suit for possession, arrears of rent and mesne profits preferred by
the respondents by deciding all the issues in their favor. Vide the impugned
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judgment, the appellant has been directed to handover vacant possession of
the suit property to the respondents and also pay them arrears of rent from
February 1998 to September 1998 @ Rs. 3750/- besides mesne profits @
Rs. 5000/- per month with annual increase of 10% w.e.f., October 1999 till
the date of handing over of vacant possession of suit property to them. Since
the operation of the impugned judgment was not stayed, the respondents,
during the pendency of the present appeal, have taken possession of the suit
property through the bailiff appointed by the learned Executing Court on
06.10.2022, though the goods of the appellant are still lying in the suit
property.
13. At this stage, it may be noted that even though the appellant, in its
written statement had raised a plea of the suit property being a Waqf
property and had thereby contended that the same could not have been sold
to the respondents without prior sanction of the Waqf board, no issue on this
aspect was framed by the learned Trial Court. In fact, a subsequent
application moved by the appellant under Order XIV Rule 5 CPC, seeking
framing of an additional issue on this aspect and shifting the onus of proof in
respect of some issues, was rejected by the learned Trial Court on
30.05.2003, which order was not challenged by any of the parties, and has
thus, attained finality.
14. In support of the appeal, Mr. Satish Sahai, learned counsel for the
appellant commenced arguments by contending that the impugned judgment
is liable to be set aside as the suit preferred by the respondents was barred by
Section 19(1) of the Slums Act. He submits that as per Section 19(1) of the
Slums Act, eviction proceedings against a tenant cannot be instituted by any
person in respect of property situated in a slum area without obtaining prior
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Citation No.2022/DHC/005126
permission from the competent authority. Once it is an admitted case of the
parties that the suit property is situated in Kashmere Gate, which area has
been notified as a slum area, the respondents were not entitled to institute a
suit for possession without taking prior permission from the competent
authority under the Act. He submits that in fact Mst. Sultana Bi, the
predecessor of the respondents, had herself preferred an application under
Section 19(1), which, for reasons best known to the respondents was not
pursued and consequently was dismissed in default on 24.05.1999.
15. He contends that the learned Trial Court, has, however, without
appreciating the mandatory nature of Section 19 erred in relying on the
decisionsof this Court in Dimple Private Ltd. vs. Harsh Kumar Aggarwal
&Ors.(1997) SCC Online Del 950 and Virender Singh vs. State Bank of
India,(2011) SCC Online Del 5325,to hold that section 19(1) of the Slums
Act would not be applicable to a company and that the same applies only to
natural persons. He submits that none of the aforesaid decisions relied upon
by the learned Trial Court pertained to a situation where eviction
proceedings had been initiated without prior permission from the competent
authority under the Slums Act but were cases where the Court was dealing
with a situation where, on facts, permission had been granted to the
landlords qua properties in Slum Areas occupied by companies as tenants.
He submits that the definition of the word 'tenant' as per the Slums Act does
not make any distinction between natural and artificial persons and thus, the
requirement for obtaining a prior permission from the competent authority
for filing a suit for eviction is a sine qua non under the Act, which
requirement has to be mandatorily complied with, irrespective of the fact
whether the person obtaining a permission is a natural or an artificial person.
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Infact under Section 19(1)(b), prior permission is required even for
execution of a decree in respect of a property in a slum area and therefore, it
is evident that the statue does not envisage exemption from prior permission
in any case. On the other hand, in Santosh Mangla vs Shri Chander Mohan
[RFA 196/2001], a Division Bench of this Court categorically held that no
suit for eviction was maintainable without prior permission under the Slums
Act. Furthermore, in Harish Chandra Malik vs. Vivek Kumar Gupta,(2011)
SCC Online Del 2389, this Court had categorically held that in so far as the
applicability of Slums Act is concerned, there is no distinction between
premises fetching rent above Rs. 3500/- and those fetching rent below Rs.
3500/- and therefore, it is evident that the applicability of the Slums Act is
not dependent upon the status of the tenant.
16. Mr. Sahai next submits that the learned Trial Court has also failed to
appreciate that the rent of the suit property was Rs. 3,000/- and was never
increased to Rs. 3,750/- as is sought to be contended by the respondents. The
suit for possession was, therefore, not maintainable as the same was hit by
Section 50(1) of the Delhi Rent Control Act. By drawing my attention to
legal notice dated 05.07.1988 as also to the contents of the application
submitted by Mst. Sultana Bi under Section 19 of the Slums Act, he submits
that Mst. Sultana Bi had herself taken a stand that the appellant was a tenant
in the suit property at a monthly rent of Rs. 3,000/-. Furthermore, she had
herself claimed a sum of Rs. 1,29,000/- towards arrears of rent for the period
between 01.07.1988 and 31.01.1992, according to which the monthly rent as
claimed by her worked out be Rs. 3,000/- only.
17. Mr. Sahai submits that the learned Trial Court has decreed the
respondents' suit on the erroneous presumption that the appellant had agreed
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to pay monthly rent of the suit property @ Rs. 3,750/-w.e.f 01.08.1988
without appreciating the fact that even though the appellant had sought to
exercise the option for extension of lease for a period of ten years by
enhancing the monthly rent from Rs.3,000/- to Rs. 3,750/-, the said option
was never accepted either by the respondents or by Mst. Sultana Bi, who in
fact, vide her notices dated 05.07.1988 and 31.07.1988, specifically
terminated the tenancy w.e.f. 01.08.1988.
18. He submits that even though the appellant had exercised the option of
renewal of lease, the said renewal could, in any event, have been given
effect to only by way of a registered lease deed as per the mandate of
Section 107 of the Transfer of Property Act. No such registered lease deed
having been executed, there was no question of the lease being extended for
a period of ten years or the monthly rent being increased to Rs.3,750/-. In
support of his plea, he seeks to place on reliance on a decision of the Apex
Court in Burmah Shell Oil Distributing Petroleum Corporation vs. Khaja
Midhat Noor &Ors. (1998) 3 SCC 44 and the decisions of this Court in S.
Rajdev Singh &Ors. vs. Punchip Associates Pvt. Ltd. (2007) SCC Online
Del 1291 and Sohan Singh Anand vs. State Bank of Patial (2002) SCC
Online Del 1338. He contends that the rent, therefore, always continued to
be Rs.3,000/- and therefore, the learned Trial Court did not have the
jurisdiction to entertain the civil suit for possession of the suit property.
Thus, the only remedy, if any, available to respondents, was to initiate
proceedings under the Delhi Rent Control Act.
19. Mr. Arvind Nayyar, learned senior counsel for the appellant, who has
made the remaining submissions on behalf of the appellant, submits that the
suit property being a Waqf property, could not have been sold by Mst.
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Citation No.2022/DHC/005126
Sultana Bi without prior sanction from the Waqf Board as required under
Section 51 of the Waqf Act, 1995. He, therefore, contends that the sale of
the suit property in favour of the respondents vide sale deed dated
31.12.1997 was in itself, void ab-initio and therefore, there is no valid
relationship of landlord tenant between the parties. Not only the affidavit of
Mst. Sultana Bi but even the sale deed dated 31.12.1997 clearly showed her
own stand that the suit property was Waqf property.
20. He submits that infact, Mst. Sultana Bi herself was never the owner of
the suit property, and was always the Mutawali of the Waqf created in 1931
with a right to manage the suit property, which continued to be Waqf
property. Once Mst. Sultana Bi had herself taken a stand in the application
filed by her under Section 19 of the Slums Act that she was the Mutawali of
the suit property, she could not claim ownership of the same. By placing
reliance on the decision of the Apex Court in Ahmed G.H Arif and ors. Vs.
Commissioner of Wealth Tax, Calcutta, (1969) 2 SCC 471, he contends
that once a Waqf is created, all rights in the property vest in the almighty
and a Mutawali has no right in the property belonging to the Waqf. He
submits that the learned Trial Court also failed to appreciate that once a
dispute regarding the property being a Waqf property was raised, the same
could be decided only by a Waqf Tribunal as under Section 6 of the Act,
only the Waqf Tribunal has the jurisdiction to decide this disputed question
for which purpose, he relies on the decision of the Apex Court in Telangana
State Wakf Board vs. Mohamed Muzafar, (2021) 9 SCC 179. He, therefore,
contends that on account of the bar under Section 85 of the Act, the learned
Trial Court did not have jurisdiction to try the suit in respect of the suit
property which was a Waqf property. The only remedy, if any, available
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with the respondents for adjudication of its claim qua the suit property was
to approach the Tribunal constituted under the Waqf Act.
21. Mr. Nayyar further submits that the learned Trial Court erred in
holding that the appellant was barred by res judicata from raising any
challenge to the respondents' claim to the title of the suit property on the
premise that the same already stood rejected vide order dated 30.05.2003.
He submits that the learned Trial Court has failed to appreciate that vide
order dated 30.05.2003, only the appellant's application under Order XIV
Rule 5 CPC for framing of additional issues and shifting burden of proof of
some of the issues had been rejected. This, however, did not imply that the
issue regarding the appellant's claim that the purported sale in favour of the
respondent being hit by Section 51 of the Waqf Act, stood rejected. The
appellant had infact, filed 20 documents before the learned Trial Court to
show that the suit property was a Waqf property and therefore, it was
incumbent upon the learned Trial Court to decide the appellant's plea that
the sale of the suit property in favour of the respondents without prior
sanction of the Waqf Board was barred under Section 51 of the Waqf Act.
By placing reliance on the decision of the Apex Court in ErachBoman
Kumar vs.Tukaram Shridhar Bhat and Ors.(2013) 15 SCC 655,he submits
that it is a settled legal position that the principle of res judicata would only
be applicable if there is an expression of opinion on merits and when there
has been a conscious adjudication of an issue. In the present case, the
appellant's defence of the sale of the suit property being void ab-initio on
account of the same being a Waqf property, having not been decided vide
order dated 30.05.2003, the learned Trial Court erred in concluding that the
appellant could not raise challenge to the respondents' title to the suit
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property.
22. By placing reliance on the decision of the Apex Court in Jamia
Masjid vs. K.V. Rudrappa and Ors., (2014) SCC Online SC 1841, Mr.
Nayyar further submits that the principles of res judicata could only be
made applicable after evidence was adduced pursuant to a full fledged trial.
He contends that, in the present case, the learned Trial Court, while rejecting
the appellant's application under Order XIV Rule 5 CPC for framing
additional issues, had not granted any opportunity to the appellant to adduce
evidence to show that the suit property in question was a Waqf property and
therefore, it was evident that the dismissal of the application was without
any trial and therefore, the principle of res judicata would not apply in the
present case.
23. Without prejudice to his aforesaid plea, he finally submits that the
learned Trial Court also failed to appreciate that it was always permissible
for the appellant to raise a challenge to the derivative title of the respondents
to the suit property during the trial. This question as to whether the
derivative title of the respondents to the suit property was valid, could have
been decided only after leading of evidence by the parties for which purpose
he seeks to place reliance on the decision of the Apex Court in Vinay
Eknath Lad vs Chiu Mao Chen, (2019) 20 SCC 182. He finally contends
that the learned Trial Court has erroneously applied the principle of res
judicata and has thereby refused to consider the question as to whether the
sale of the suit property in favour of the respondents was valid without
appreciating the fact that no finality can be imparted to an erroneous
decision on the jurisdiction of the Court or to an erroneous judgment on a
question of law. In support of his plea, he places reliance on the decision of
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the Apex Court in Canara Bank vs. N.G. SubbarayaSetty and
Ors.,(2018)16 SCC 228,and therefore prays that the impugned judgment be
set aside and the appellant be granted liberty to take appropriate steps in
accordance with law.
24. Per contra, Mr. Arvind Nigam and Mr. Sanjeev Sindhwani, learned
senior counsel for the respondents support the impugned judgment. They
contend that the learned Trial Court has rightly held, by placing reliance on
the decisions of this Court in Dimple Private Ltd. (supra)and Virender
Singh (supra)that the bar under Section 19(1) of the Slums Act is applicable
when eviction of natural persons, who can create a slum is sought and is not
applicable when the tenant is a company. By drawing my attention to the
'Statement of Objects and Reasons of the Slums Act', they submit that the
purpose of the Slums Act is to protect slum dwellers from being harassed by
landlords as the eviction of such slum dwellers, who are unable to arrange
for an alternative accommodation, would lead to creation of further slums as
they would be stranded in the open. A company is formed by natural persons
having sufficient funds to carry out their business and therefore, it cannot be
claimed that a company which is a tenant is either poor or is run by poor
persons. They, therefore, contend that the provisions of Section 19 (1) of the
Slums Act are not applicable to the present case as has been rightly held by
the learned Trial Court.
25. They submit that once the issue regarding the non-applicability of
Section 19 of the Slums Act to cases where the tenant was a company under
the Companies Act already stood conclusively decided by this Court in
Dimple Private Ltd. (supra) on 19.12.1997, the respondents rightly did not
pursue the application under Section 19 of the Slums Act, preferred by Mst.
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Sultana Bi on 14.02.1989 especially when the same had remained pending
for over ten years before being dismissed in default on 24.05.1999. After
this Court had in Dimple Private Ltd. (supra), which decision was reiterated
in Virender Singh (supra), categorically held that the provisions of Section
19(1) of the Slums Act would not be applicable when the tenant was a
company, the respondents who acquired title to the suit property only on
31.12.1997, i.e., after the decision in Dimple Private Ltd. (supra), were
justified in not seeking any permission under the Slums Act. By placing
reliance on the decision of the Apex Court in State of U.P. vs. Sudhir
Kumar Singh &Ors., (2020) SCC Online SC 847 they contend that in the
present case, when the appellant/tenant was admittedly a company registered
under the Companies Act, the bar under Section 19 was not applicable and
thus, initiation/prosecution of any proceedings under Section 19 of the
Slums Act,, would have been a futile exercise. The respondents were,
therefore, justified in not seeking any permission from the Competent
Authority under the Slums Act.
26. Learned senior counsel for the respondents next submit that the
learned Trial Court has rightly concluded that the monthly rent of the suit
property was Rs. 3750/- and not Rs. 3000/-, as is sought to be contended by
the appellant. As per the terms of the lease deed dated 26.08.1968, the
appellant was entitled to occupy the suit property for a period of 20 years
with an option to seek renewal of the lease for a further period of 10 years.
However, this renewal was accompanied with a caveat that the rent of the
suit property would be increased by 25%. They submit that this renewal,
subject to the increase in the rent, was a self operating clause, whereby the
rent was deemed to be increased by 25% upon the appellant exercising the
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option for renewal. Once the appellant sought renewal of the lease deed for a
further period of 10 years vide its notice 17.08.1987, the rent automatically
stood increased by 25% upon exercise of the option for extension by the
appellant. Not only was the extension of the lease by ten years at the sole
option of the appellant/lessee, a self operating clause which did not require
any action on the part of the lessor but the fact that the lease stood extended
by ten years is also evident from the stand taken by the appellant itself in its
reply to the application under Section 19 of the Slums Act filed by Mst.
Sultana Bi. They submit that the appellant had itself stated in para no.3 of
this reply dated 19.08.1991 that, having exercised its option to renew the
lease for a further period of ten years, it continued to be a contractual tenant
under Mst. Sultana Bi for a fixed term till 31.07.1998 and therefore, no
eviction proceedings were maintainable at that stage. They, thus, contend
that this admission by the appellant was binding on them under Section 18
of the Evidence Act and therefore, the appellant cannot now be permitted to
urge that there was no valid extension of the lease for a period of ten years
along with consequential increase of monthly rent to Rs.3,750/-.The learned
Trial Court was absolutely justified in deciding this issue in favour of the
respondents, thereby holding that the monthly rate of rent of the suit
property w.e.f. 01.08.1988 was Rs.3,750/-.
27. Mr.Nigam and Mr. Sindhwani finally submit that the learned Trial
Court was also justified in rejecting the appellant's plea that the sale deed in
favour of the respondents was void ab-initio being hit by Section 51 of Waqf
Act. They submit that even though this plea of the appellant was barred by
res judicata as this question already stood decided against the appellant vide
order dated 30.05.2003 passed by the learned Trial Court, but even
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otherwise, there was enough material on record to show that the suit
property was not a waqf property and therefore, Section 51 of the Waqf Act
was not applicable to the same. The lease deed dated 10.07.1968 in itself
clearly states that the property was taken by Mohd. Ejaz from Mst. Sultana
Bi who was the owner thereof, but even otherwise, the order dated
07.12.1960 passed by the Regional Settlement Commissioner clearly shows
that the suit property was evacuee property and restored to Mst. Sultana Bias
absolute owner. This order, having attained finality and the property, which
was initially waqf property, having been declared as evacuee property under
the Act, it no longer remained Waqf property but was the exclusive property
of Mst. Sultana Bi, who has been enjoying the same since 1961.
28. Learned senior counsel for the respondents further draw my attention
to the cross-examination of DW-1 to urge that the said witness has himself
stated that after 1947, the Custodian General of India started realising rent of
the suit property as an evacuee property till 1961 when the same was
restored to Mst. Sultana Bi whereafter rent was being paid by the appellant
to her on the basis of the order dated 07.12.1960 passed by the Regional
Settlement Commissioner. They, therefore, contend that once the suit
property stood transferred by the Custodian to Mst. Sultana Bi and not to the
Waqf, Mst. Sultana Bi became the owner of the suit property, which fact
was never disputed by the appellant who always paid rent only to her or to
her son Mohd. Izaz and thereafter to his son Mr.Rashid Moosa. Once the
appellant, in the proceedings initiated under the Slums Act as also during his
cross-examination, admitted to the fact that he was a contractual tenant
under Mst. Sultana Bi, the appellant could not be permitted to take a
contradictory stand before the learned Trial Court that no landlord tenant
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relationship existed between them or that the sale of the suit property by her
to the respondents was void. They, therefore, submit that this admission of
tenancy on the part of the appellant was sufficient enough to establish a
landlord-tenant relationship between the parties. In support of their plea,
they seek to place reliance on the decisions of the Apex Court in
Sangramsinh P. Gaekwad and Ors. Vs. Shantidevi P. Gaekwad (Dead) thr.
Lrs. (2005) 11 SCC 314. and Ors. and Mumbai International Airport Pvt.
Ltd. vs. Golden Chariot Airport and Ors. (2010)10 SCC 422.
29. Learned senior counsel for the respondents further place reliance on
the decision in Jai Kishan Bansal vs. Mohd. Ishtyaquddin (2020) SCC
Online SC 1329, wherein the Apex Court while dealing with a dispute
relating to the adjoining land owned by Mst. Sultana Bi, rejected the plea
that the same was waqf land. The Apex Court, while rejecting a similar
challenge by the tenant in the said case, observed that the property which
was an evacuee property had been released in favour of Mst. Sultana Bi in
1961 to whom the tenant had regularly been paying rent till the property was
sold by her vide sale deed dated 10.03.2003. Merely because she was earlier
appointed as the Mutawali of the Waqf would not imply that even if the
property no longer remained a Waqf property and was declared as evacuee
property under the Administration of Evacuee Property Act, 1950, her rights
as an absolute owner, would continue to be curtailed because she was earlier
the Mutawali thereof.
30. Without prejudice to their submissions that the appellant is now
estopped from urging that the suit property was a waqf property, Mr. Nigam
and Mr. Sindhwani submit that the suit property, even otherwise, does not
fall within the definition of waqf as per Section 3(r) of the Waqf Act. They
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submit that as per Section 3(r), 'waqf' implies permanent dedication of a
movable or an immovable property for any purpose recognized by Muslim
law as pious, religious or charitable. In the present case, the suit property
was being used solely for commercial purposes and therefore, evidently, did
not fulfil the criteria of being dedicated for pious, religious and charitable
purposes. Furthermore, the suit property does not find mention in the list of
waqf properties published under Section 5 of the Waqf Act. They, therefore,
contend that once the suit property neither falls within the definition of waqf
as per section 3(r) of the Waqf Act nor finds any mention in the list of waqf
properties published under Section 5 of the Act, the same cannot be treated
as Waqf property.
31. They finally submit that the appellant's plea that it has the right to
challenge the derivative title of the respondents of the suit property is wholly
without any merit. They submit that the entire case set up by the appellant is
that Mst. Sultana Bi was not the absolute owner of the suit property, which it
is claimed was waqf property and therefore, she had no right to sell the same
to the respondents. This in itself shows that the appellant is challenging the
very title of the original landlord i.e., Mst. Sultana Bi. This, they contend
was wholly impermissible under Section 116 of the Evidence Act. The
appellant, which claims its tenancy pursuant to the lease deed dated
26.08.1968 is now estopped from urging that Mst. Sultana Bi, who was in
the said lease deed described as the landlord and owner of the suit, estopped
from raising any such plea They, therefore, pray that the appeal be dismissed
with costs.
32. From the submissions made by the learned senior counsel for the
parties and perusal of the record, I find that three issues arise for my
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consideration in the present case. The first and foremost issue is as to
whether the suit filed by the respondents, without seeking leave of the
Competent Authority under Section 19(1) of the Slums Act, was
maintainable. The second issue which needs to be determined is whether the
suit was barred under section 50(1) of the Delhi Rent Control Act , the
answer to which issue will depend as to whether the monthly rent of the suit
property was Rs.3000/- as claimed by the appellant or Rs.3750/-, as claimed
by the respondents. The third and final issue arising for my consideration is
as to whether the suit property was Waqf property and consequently, the
registered sale deed dated 31.12.1997 executed by Mst. Sultana Bi in favour
of the respondents was void for want of prior sanction from the Waqf Board.
33. Having identified the issues that arise for my consideration, I may
now proceed with my analysis on the aforesaid issues.
34. The first and foremost issue which needs to be determined is as to
whether the respondents were entitled to file a suit seeking possession and
mesne profits against the appellant without seeking prior permission from
the competent authority under Section 19(1) of the Slums Act. While the
parties are ad idem that the suit property being situated in Kashmere Gate,
lies in an area notified as a slum area to which the Slums Act would apply,
the controversy is as to whether by virtue of the appellant being a company
registered under the Companies Act, the respondents could file the suit for
eviction without seeking permission under Section 19 (1) of the Act. The
appellant urges that in view of the admitted position that the suit property
lies in a notified slum area, prior permission from the competent authority
was a sine qua non for filing of any suit for possession against the appellant,
which requirement, it is contended, is applicable irrespective of whether the
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tenant is a natural person or a company like in the present case. On the other
hand, the respondents contend that the purpose of Section 19 of the Slums
Act is to protect poor tenants who have no alternate means of
accommodation and who if evicted, would create further slums. It is their
plea that a company, having been established by persons having sufficient
funds, cannot create slums and therefore, cannot seek protection of the
Slums Act. The learned Trial Court, has while decreeing the suit, accepted
the respondents' plea. The relevant findings of the learned Trial Court in
respect of issue no.2 read as under -
Whether the suit is barred u/s 19 (1) of Slum Area (Improvement &
Clearance) Act, 1956 as alleged In the preliminary objections?
OPD
28. The onus to prove this issue was upon the defendant. It is
submitted by the defendant that the suit property is in Slum Area. It
is stated that this fact was very well within the knowledge of
plaintiff as Mst. Sultana Bi had filed the petition u/s 19(1) of the
above said. Act against the defendant with respect to the suit
property. No such permission has been sought in this case and due
to that reason, the suit is barred in view of Section 19(1) of the
above-said Act. On the other hand, it is submitted by Ld. Counsel
for plaintiff that the tenant, is a "company", and due to that reason
Section 19(1) does not apply in the present case.
29. To press their arguments, plaintiff had relied on judgment i.e.
Harish Chander Malik Vs. Vivek Kumar Gupta &Ors. 186 (2012)
DLT 697.
30. The crux of this judgment filed by the plaintiff are that Section
19(1) of the abovesaid Act stipulates that prior permission of
competent authority is sine que non for filing any case if the suit
property is in slum area. It does not matter whether the rate of rent
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is less than or more of Rs. 3500/. It is further stated that tenant
could be a person or a company. On the other hand, Ld. Counsel
for defendant relied on judgments i.e. Dimple Private Ltd. Vs.
Harsh Kaur Aggarwal &Ors. 71(1978) DLT 318 and Virender
Singh Vs. State Bank of India RFA (OS) 79/2011 DOD 12.12.2011
(DB)(DHC).
31. As far as the submissions of plaintiffs are concerned, it is
not disputed that when the property is situated in slum area,
permission is required from competent authority. However, in the
judgments relied by defendant, the situation is dealt when the
tenanted premises is in slum area but the tenant is a "company".
32. In the judgment Virender Singh (supra), it is mentioned
in paragraph 15 and 16 as follows:
15 The essential object of the Slum Act is entirely
different. It was noted by a Full Bench of this Court
in the decision reported as AIR 1972 Del 34 (FB)
Bardu Ram V. Ram Chander. It was observed:"An
essential object of the Slum Areas act is to enable
the poor, who have no other place to go to and
who, if they were evicted to remain in the dwellings
until provision is made from a better live for them
elsewhere."
16 For holding as aforesaid, reliance was placed
by the Full Bench on the decision of the Supreme
Court reported as AIR 1961 SC 1602 Jyoti pershad
V. U.T. of Delhi wherein it was observed:"
Obviously, if the protection that is afforded is read
in the context of the rest of the Act, it is clear that it
is to enable the poor who have no other place to
go to, and who if they were compelled to go out
would necessarily create other slums in the
process and live perhaps in less commodious and
more unhealthy surroundings than those from
which they were evicted to remain in their
dwellings until provision is made for a better life
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for them elsewhere....The Act, no doubt, looks at
the problem not from the point of view of the
landlord, his needs, the money he has sunk in the
house and the possible profit that he might make if
the house were either let to other tenants or was
reconstructed and let out, but rather from the point
of view of the tenants who have no alternative
accommodation and who would be stranded in the
open if an order for eviction were passed."
Similarly, in paragraph 18 it is mentioned as follows:
The decisions referred to above clearly bring out
that the purpose of the Slum Act is to protect the
occupiers of properties in slum areas irrespective
whether they were tenants or not and relevant
would it be to highlight that the Slum Act only
defines an occupier and does not define a tenant.
The object of the Slum Act is to protect the
occupiers from eviction unless permission is
obtained from the competent authority and relevant
would it be to highlight that as per Section 19,
while granting or declining permission the relevant
criteria is the means of the occupier. If the occupier
has no means to relocate himself, permission for
ejectment has not to be granted in as much as it
would be presumed that upon ejectment the
occupier would create a further slum. It is well
settled that protection under Section 19 would be
available to a person, whether he is a tenant or an
occupier who is poor and is unable to arrange for
alternative accommodation.
So, as per the paragraphs 15,16 and 18, the criteria is the
"means" of the occupier i.e. whether he has sufficient means so
that it will not create any slum, if evicted from the premises.
33. Now, regarding the "company", it is dealt in the later
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part of the judgment i.e. paragraph 19 which is as follows:
19 In the decision reported as 71 (1978) DLT 318
Dimple Pvt. Ltd. Vs. Harsh Kaur Aggarwal &Ors. It
was observed that the protection under Section 19 of
the Slum Act is not available to a company. In paras
33 to 35 it was observed as under:
"33. Learned Counsel for the respondent No.1, Mr.
Ishwar Sahai, on the other hand has argued that the
petitioner company is a juristic person. They are not
a natural person. Thus the protection meant for the
eviction of poor tenants from their respective
accommodations cannot be made available to the
petitioner. I find myself in perfect agreement with
the Learned Counsel for respondent No. 1.
34. Admittedly the petitioners are a company. Thus
they are a juristic person. A company is formed
when certain persons join hands with a view to
carrying on some commercial or industrial
undertaking. Thus it can naturally be formed by
those persons who have got sufficient funds to carry
on their business. A Company cannot be run by poor
persons with no financial means to run the same.
The object and the purpose for the enactment of the
Slum Areas (Improvement & Clearance) Act, 1956
was to clear the slums and to provide protection to
poor tenants against harassment at the hands of
landlords who bring forward and initiate
proceedings for their eviction....
35. I am also tempted to cite the observations of a
Single Judge of this Court as reported in Bismilla
Jan V. Jain Tractor & Auto Spare, 1985 Rajdhani
Law Reporter 477, (para 13) .... "The Slum Act was
enacted for giving protection to poor individual
tenant who have small means and cannot afford to
get alternate accommodation outside the Slum Area
or within the slum if evicted. If a couple of persons
with substantial means float a company which goes
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into losses, even if they are evicted from the
premises, they cannot create slums, particularly
when the same persons own other concerns which
also have offices at difference places".
34. Now as per this judgment, a "company" being juristic
person (having no physical body) could not create slum in any
manner if evicted.
35. Now in the present case also the defendant is a company.
As per the law laid down by Hon'ble DB of Hon'ble High Court
of Delhi, it could not create slum, if evicted. So, there is no bar
u/s 19(1) of Slum Area (Improvement & Clearance) Act, 1956.
So, this issue is decided in these terms against the defendant.
35. At this stage, it may also be useful to refer to the relevant extracts of
'statement and objects of reasons' of the Slums Act. The same read as
under:-
STATEMENT OF OBJECTS AND REASONS
The rapid growth of population and overcrowding have created
bad slums in Delhi. The average density of population in the
Delhi city (area administered by the Delhi Municipal
Committee) is about 600 per acre as against the normal
standard of 200 per acre. In slums areas the average destiny is
even higher varying from 800 to 1,200 per acre and in some
katras the density is as high as 2,500 per acre. Other common
features of these slums areas are (i) dilapidated conditions of
the tenements, (ii) lack of civil amenities and community
facilities, and (iii) cattle sharing the available space with
human beings. The slums are a menace to the safety, health and
morals of the inhabitants and it is of imperative necessity that
improvements in and clearance of the slum areas have to be
taken in hand immediately.
2. At present, there are neither any powers for entering
privately owned slums areas for the purpose of providing basic
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amenities such as water supply, lavatories, etc., nor any powers
for acquiring slum properties and demolishing dilapidated
houses.
3. Slum dwellers are also harassed by eviction by landlords.
Provision is necessary to prevent such eviction.
4. It is, therefore, considered necessary that a comprehension
Slum Improvement Clearance Act be enacted under which
Government should have the necessary powers for carrying out
the required improvements, acquisition or demolition of slum
properties and for the prevention of eviction of tenants from
slum areas. Even though the necessary legislation is required
mainly for Delhi, it is considered that it is better if it is enacted
for all the Union Territories except those of Andaman and
Nicobar Islands and Laccadive, Minicoy and Amindivi Islands.
The Bill, therefore, provides that the Act will come into force in
a Union Territory only on such date as the Central Government
may notify.
36. In the light of the aforesaid, once the learned Trial Court, while
coming to the conclusion, relied on the decision of a Division Bench of this
Court in Virender Singh (supra), to hold that the requirement of prior
permission under Section 19 of the Slums Act would not be applicable to
cases where the tenant or the unauthorized occupant is a company, I see no
reason to interfere with the said conclusion of the learned Trial Court. It is
not the appellant's case that the decisions in Virender Singh (supra) or
Dimple Private Ltd. (supra), wherein this Court has analyzed this aspect in
detail, do not hold the field as on date. Once, this Court has already held that
Section 19 of the Slums Act would not be applicable in cases where tenant
is a company, the learned trial Court was justified in holding that no
permission under Section 19 was required in the present case. In the light of
aforesaid, the decision in Santosh Mangla (supra), heavily relied upon by
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the appellant, would not be applicable to the facts of the present case as the
question regarding the applicability of Slums Act in cases where the tenant
was a company was not dealt by this Court in the said case.
37. Even otherwise, having examined the statement of object and reasons
of the Slums Act which clearly provides that the said Act had been enacted
to ensure protection of tenants who do not have any alternative
accommodation, and who if evicted by the landlords, would be stranded in
the open and would create further slums, I am not inclined to accept the
appellant's plea that permission under Section 19 of the Slums Act was
mandatory in the present case. A company, as is well known, is generally
incorporated when persons, having financial resources come together to
pursue a common business or goal. It would, therefore, not be incorrect to
presume that a company is neither poor nor is run by persons who are poor.
The intent of the Slums Act is not to protect tenants like the appellant who
are juristic personalities having sufficient means to shift to an alternative
accommodation and who, upon their eviction, would neither be stranded in
the open nor are likely to create a slum. In my view, the provisions of Slums
Act, which is a special enactment to protect the interests of the slum
dwellers cannot be read in a hyper technical manner and as has been
observed in Dimple Private Ltd. (supra) and Virender Singh (supra), are
required to be read, keeping in mind the object of the said Act. An
additional rider as imposed by Section 19 on the landlord's right to seek
possession of his tenanted property, has to be read in a manner so as to
balance the rights of the poor slum dwellers vis-à-vis the right of the
owner/landlord to seek possession of his tenanted property. The intent of
Section 19 is only to ensure that no further slums are created by eviction of
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slum dwellers and the same cannot be applied in such a mechanical manner
so as to give the tenants like the appellant/company, another forum to
somehow delay handing over possession of the tenanted property to its
rightful owner/landlord. The facts of the present case, in itself show, that the
application preferred by Mst. Sultana Bi on 14.07.1989 remained undecided
for 10 years till 24.05.1999 whereafter, the respondent/landlord, in view of
the decision of this Court in Virender Singh (supra), chose not to pursue it
any further. The learned Trial Court was, therefore, justified in coming to
the conclusion that the bar under Section 19(1) would not apply to a
company like in the present case.
38. I may now proceed to deal with the second issue as to whether the
suit was barred by Section 50(1) of the Delhi Rent Control Act as urged by
the appellant. As noted hereinabove, the only ground on which the appellant
claims, the suit was not maintainable, is that the monthly rent of the suit
premises being Rs. 3000/-, was less than the threshold limit of Rs. 3500/-, in
which case alone, a suit for possession is maintainable. The respondent, on
the other hand, urges that once the appellant had exercised the option of
extension of the lease deed for a period of 10 years, w.e.f. 01.09.1988, the
monthly rent of the premises, in consonance with the extension clause
contained in the lease deed, automatically stood enhanced to Rs. 3750/-.
Thus, what emerges from the rival submissions of the parties is that the
answer to the question as to whether the suit was barred under Section 50(1)
of the Delhi Rent Control Act would depend only on the answer regarding
the quantum of the monthly rent of the suit property. In order to appreciate
the submissions of the learned counsel for the parties on this aspect, it
would be necessary to note the relevant extracts of the lease deed dated
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26.08.1968, vide which the suit property was let out to the appellant, which
also includes the extension clause as contained in para 2 and 3 of the lease
deed. The relevant terms and conditions of the lease deed read as under-
THIS LEASE DEED is made on this Twenty sixth day of August,
One Thousand Nine Hundred and Sixty-Eight BETWEEN Sheikh
Mohd. Ejaz son of Sheikh Mohd Moosa, resident of 6-Ataur
Rehman Lane, Under Hill Road, Civil Lines, Delhi (hereinafter
called the Lesser) of the First part AND M/s Ritz Theatre Private
Ltd, Kashmere Gate, Delhi through its Managing Director Shri
Vijay Narain Seth (hereinafter called the leasee) of the Second
Part.
WHEREAS the Lessor is a Lessee of Ritz Theatre Building along
with other properties bearing municipal Nos. 1500, 1502 to
1508 under Mst. Sultana Bi wife of Sheikh Haji Mohd. Moosa
under lease- dated 10th day July, 1968 registered as document
No. 4658 in additional Book No.1 volume no. 2053 on pages 51
to 56 on 29th day of July, 1968.
AND WHEREAS THE Lessee is a tenant under the Lessor of the
said Ritz Theatre Building.
AND WHEREAS the Lessee M/s Ritz Theatres P. Ltd desires to
make improvement, renovation and remodelling cinema building
in conformity with the requirement of the Cinematograph Act
and rules made there under at their own expenses and costs.
XXXXX
1.That the Lessee shall execute improvements, renovations in
and remodelling of the cinema building as per plans annexed
hereto at their costs after obtaining sanction from the Municipal
Corporation and other authorities governed and these
improvements, renovations, reconditioning and remodelling
shall be deemed to have been effected by the Lessor and the
buildings so improved, renovated, reconditioned a remodelled
shall be deemed to have been leased out by the Lessor to the
Lessee. The Lessee shall not be liable to pay any costs of
improvements, renovations, reconditioning etc.
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2. That the property is leased by the Lessor to the Lessee for a
fixed terms of 20 years with a right of option to the Lessee to
obtain a further lease for 10 years on the same terms and
conditions excepting the increase of rent as provided below.
3. That the lease shall start from the first day of August 1968
and the monthly rent shall be a sum of Rs. 4,000/- (Rupees Four
Thousand Only) excluding property taxes, theatre taxes etc, for
the fixed period of twenty years and for the following ten years
of option the rent will be increased by 25% . Provided that till
the lessees obtain sanction of plan of remodelling and
renovations of the Theatre Building or plans for the addition of
the seats in the cinema house in finally sanctioned or the lessee
makes any additions or alterations under the said plans they
shall pay rent to the Lessor at the rate of Rs. 3,000/- per month
(Rupees Three Thousand Only). If the lessees do not get sanction
or for any reason the lessees do not carry out remodelling or
renovations as aforesaid, monthly rent shall remain Rs. 3,000/-
(Rupees Three Thousand Only) per month.
4.That the Lessee shall give a notice at least six months before
the expiry of this lease that they want to exercise their right to
option mentioned above.
5. That the Lessor shall himself sign or get them signed by
Mutawalli of Waqf Mst. Sultana Bi all applications, plans and
documents that may be required for obtaining sanction for the
renovations, remodelling of the cinema building by the Lessee
from the Municipal Corporation and other authorities concerned
and all these buildings so reconditioned, remodelled with all
additions shall be deemed and treated as the premises hereby
demised.
6. That the purpose of this lease is to allow the Lessee to use the
land building for running a Fist Class Cinema House and other
allied purposes like theatrical shows etc. etc
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7. That the Lessee shall effect improvements, renovations or
reconditioning the cinema building in accordance with the
plans- as sanctioned by improvements etc, are made, the Lessee
shall not make any further structural alternations or additions in
the building except with the consent in writing of the Lessor.
Provided the Lessor shall not withhold permisson or consent to
the execution of such improvements which the Lessee are
required to make by the Government under the provisions of
cinematograph Act and Rules made thereunder.
39. What emerges from a perusal of the aforesaid lease deed is that the
suit property was let out to the appellant for an initial period of 20 years,
monthly rent whereof was agreed between the parties to be Rs.3000/-. This
amount was to be enhanced to Rs. 4000/-, in case of the appellant carrying
out renovations and remodelling after obtaining appropriate sanctions from
the appropriate authorities. This renovation was never carried out and
therefore it is the common case of the parties that the monthly rate of rent
remained Rs. 3000/- for 20 years, i.e., till01.09.1988. While the appellant
contends that the monthly rent remained Rs. 3000/- as the exercise of option
by it to extend the lease for a period of 10 years did not elicit a positive
response from the respondents who insisted that the lease stood terminated,
it is the respondents' plea that that once the lease deed gave the right to the
appellant to obtain renewal of lease for 10 years, the said clause was a self-
operating clause and consequently, upon the appellant exercising its option
for renewal of lease for another 10 years, the lease stood extended with the
monthly rent of property being automatically increased by 25% and
therefore, the rent payable w.e.f. 01.09.1988 stood enhanced to Rs. 3,750/-.
40. Before proceeding to determine this issue, it would be useful to refer
to the findings of the learned Trial Court on this aspect, which arrived at a
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conclusion that when the appellant exercised its option of extension of the
lease deed, the monthly rent of the suit property stood enhanced to Rs.
3750/-. The relevant extracts of the impugned judgment on this issue read as
under-
42. Now, it is an admitted fact that the parties have agreed
for a period of 20 years. The option of extension was only
available to the tenant/lessee. He could further extend the lease
for a period of 10 years. If this additional benefit was available
with the tenant, then what was the additional benefit for the
landlord. The parties could have gone for lease for the period of
30 years instead of 20 years. So, I think, when the option was
given to the tenant for extension of tenancy of further 10 years,
the only interpretation could be given that landlord has to get
benefit of enhanced rent i.e. 25% more of Rs. 3000/i. e. Rs.
3750/per month.
43. Now, vide Ex. PW5/6, defendant had exercised that
option. This was further corroborated by defendant in the
written statement Ex.PW 5/01. So, it can be safely said that after
the expiry of 20 years of tenancy, it chosen for extension of
tenancy and agreed to pay rent of Rs.3750/per month.
44. Now it is argued by Ld. Counsel for plaintiff that the
alleged increase of 25% is, in the Lease Deed, itself, is against
the statute which calls for increase of only 10% after three
years. It is further stated that even if letter dated 17.08.1987 (Ex.
PW 5/6), it could only give effect to 10% increase. In that case,
the rent would be Rs. 3,300/but within the preview of DRC Act.
On the other hand, it is submitted by Ld. Counsel for plaintiff
that the alleged statue of increase of 10% does not apply in this
case.
45. There was an amendment of Delhi Rent Control Act w.e.f
01.12.1988. By virtue of this amendment, Section 3(c) was
introduced giving effect that the Act will apply only to the cases
where rent is upto Rs.3,500/. Similarly, in the same amendment,
Section 6(A) was introduced giving the extent of increase of rent
to 10% after 3 years.
46. Now, in the present case the Lease Deed is of the year
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1968. Ex.PW5/6 was issued by the defendant on 17.08.1987. So,
both these are before the amendment of DRC Act. Hence, the
cap of 10% increase does not apply in this case.
47. Thus, the rate of rent becomes Rs. 3750/per month, the
suit is not hit be Section 50 of DRC Act. So, the issue is decided
in these terms.
41. Having noted the findings of the learned Trial Court, I may now refer
to the notice dated 17.08.1987, vide which the appellant had exercised its
option for extension of the lease deed. The same reads as under-
Registered A.D.
SHEIKH MOHD EJAS
17th August, 1987
S/o Sheikh Mohd. Moosa
E-265, Greater Kailash,
New Delhi.
Dear Sir,
Ref: LEASE FOR RITZ THEATRE P. LIMITED
Please, refer to our lease with you regarding Ritz Theatre,
Kashmere Gate, Delhi dated 26th Day of August, One
Thousand Nine Hundred and Sixty Eight, for a period of 20
years certain from 1st August, 1968 with a right for option to
the lessees for a further period of 10 years, on the same
terms and conditions except in the increase of rent as
provided in the lease.
Please, take notice, we the tenants do hereby exercise our
right of option for 10 years as mentioned in Clause No.2, in
the lease deed executed between us after the expiry of the
agreed term of 20 years.
Kindly note and let us have your acknowledgment.
Thanking you.
Yours faithfully
For Ritz Theatre Private Limited
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42. A perusal of this notice shows that the appellant had clearly stated
that it was, after expiry of the agreed term of 20 years, exercising its right of
option for extension for 10 years in terms of Clause 2 of the lease deed.
There was no consent sought from the respondents/landlord for this
extension and on the other hand, the appellant had merely requested the
respondents to note the exercise of option for extension by it. The
acknowledgment as sought by the appellant was not in the form of seeking
any consent from the respondents for this extension, which the appellant
itself perceived to be its right. Learned senior counsel for the appellant has,
by referring to the respondents' eviction notices dated 05.07.1988 and
31.07.1988, vehemently urged that the respondents, having refused to accept
the option for extension exercised by the appellant, cannot now claim that
the lease deed stood extended or the monthly rent as per the extension clause
stood enhanced to Rs.3,750/.Though, on the first blush, this plea appears to
be attractive but a closer scrutiny of clause 2 of the lease deed shows that the
clause was, as rightly contended by the learned senior counsel for the
respondents, a self operating clause and no consent whatsoever, was
required for this extension of ten years from the respondents/landlord. Once
the terms of the lease itself conferred the right on the appellant/lessee to
exercise the option for extension of the lease for another ten years without
any further condition except the automatic increase of rent to Rs.3750/-, the
mere refusal of the respondents to accept this extension opted for by the
appellant, would be immaterial. Once the appellant issued the notice dated
17.08.1987 and that too, six months prior to the expiry of the lease period in
accordance with clause 2 and 3 of the lease, nothing further was required to
be done by any of the parties and consequently, the monthly rent in
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accordance with the lease automatically stood increased to Rs.3,750/- from
Rs.3,000/-. I, therefore, find no infirmity with the conclusion arrived at by
the learned Trial Court that the monthly rent of the premises was Rs.3,750/-
and consequently the suit was not hit by the section 50(1) of the Delhi Rent
Control Act.
43. Now coming to the final plea of the appellant that the sale of the suit
property by Mst. Sultana Bi in favour of the respondents, being in
contravention of Section 51of the Waqf Act, no valid title had passed in
favour of the respondents, and therefore, there was no relationship of
landlord tenant between the appellant and the respondents. As already noted
hereinabove, no issue on this aspect was framed before the learned Trial
Court and on the other hand the appellant's application under Order XIV
Rule 5 CPC seeking framing of additional issues on this aspect was
dismissed by a detailed order passed by the learned Trial Court on
30.05.2003. The said order remained unassailed and has, therefore, attained
finality.
44. Learned senior counsel for the appellant vehemently urges that this
order, having been passed without properly appreciating the provisions of
the Waqf Act as also the effect of the documents filed by the appellant to
show that the suit property was a waqf property which could not have been
sold by Mst. Sultana Bi without prior sanction from the Waqf Board, the
same would not act as res judicata. Moreover, it was always open for the
appellant/tenant to challenge the derivative title of the respondents. He has
also urged that it was the own stand of Mst. Sultana Bi in her application
under Section 19 of the Slums Act that the suit property was waqf property
and she was the Mutawali thereof, which position could not be disputed by
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PW-2 in his cross-examination and therefore, urges that once the property
was waqf property, with Mst. Sultana Bi being the Mutawali, neither the
nature of the suit property could be changed nor could the status of Mst.
Sultana Bi change from Mutawali to absolute owner.
45. On the other hand, learned senior counsel for the respondents have not
really pressed the plea of res judicata and has instead proceeded to urge by
relying on the provisions of Section 3(r) and Section 5 of the Waqf Act as
also the order dated 07.12.1960 passed by the Regional Settlement
Commissioner under the Administration of Evacuee Property Act, 1950 that
the suit property was no longer Waqf property after 1947. They have urged
that neither was any of the pre conditions necessary for creation of waqf as
specified in section 3(r) of the Waqf act fulfilled in the present case nor was
the suit property notified as waqf property under section 5 of the Act.
Moreover, a perusal of the order dated 07.12.1960left no manner of doubt
that the after 1947, the suit property was treated as evacuee property and
Mst. Sultana Bi was declared as its exclusive owner.
46. Before proceeding to analyse this issue, it may be apposite to refer to
the findings of the learned Trial Court on this issue which has rejected the
appellant's contention on this aspect on the ground of res judicata alone.
The relevant findings of the learned Trial Court read as under:-
55. It is the case of the plaintiffs that they have purchased the
suit property vide Sale Deed dated 31.12.1997 (Ex.PW2/4). It is
argued by Ld. Counsel for defendant that the sale deed is void
ab initio in view of the restrictions of Section 51 of The Waqf
Act,1955. Ld. Counsel had also relied case laws to this effect.
On the other hand, it is submitted by Ld. Counsel for plaintiff
that this part of argument have already dealt with, by the Court,
vide order dated 30.05.2003 so, the same cannot be reagitated
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again before this Court.
56. I have gone through order dated 30.05.2003 passed by
this Court. An application u/o 14 rule 5 CPC was filed by the
defendant. One of the ground in the said application was that
the property was a waqf property and cannot be sold and
plaintiff could not become owner of the suit property and thus
there is no relationship of landlord and tenant. The relevant
portion of this order is as follows:
57. Ld. Counsel for the defendant has also stated that the
suit property was a waqf property as such the same cannot be
sold and the plaintiff cannot be the owner of the suit property,
and there is no relationship of landlord and tenant between the
parties. It is not in dispute that the defendant came into
possession of suit property by virtue of a lease deed. The
perusal of the lease deed itself shows that the property was
owned by Mst. Sultana Bi and she has let out the property to
one Sheikh Mohd. Ejaz, who further let out the property to the
defendant. Plaintiff has placed on record the sale deed dated
31.12.1997 which shows that it has been purchased from Mst.
Sultana Bi. The defendant can not challenge the ownership
right. He is a tenant and the tenanted property has been
purchased by the present plaintiff. The sale deed is placed on
record. In these proceedings, the defendant can not challenge
the title of the plaintiff.
Admittedly by both the parties, this order/findings are not
challenged by any of the parties in any Superior Court. Now, as
per law laid down by Hon'ble Supreme Court in Satyadyan
Goshal Vs. Deoranjan AIR 1960 (SC) 941, the resjudicata also
applies on the stages of the proceedings in the same case.
Now, since the findings on this fact has already come in this
order, so this fact cannot be reagitated or reheard before this
Court as the same is resjudicata.
58. As far as this court is concerned, the plaintiff has
purchased the suit property vide Ex.PW2/4. So, being owner he
is entitled to receive occupational charges/rent. Thus, he is
landlord and had taken the position of Mst. Sultana Bi
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(erstwhile owner). The relationship between parties are that of
landlord and tenant in view of lease deed Ex.DW1/1. The lease
period ended on 31.07.1998. Plaintiff had also proved the
service of notice Ex.PW1/1 on the defendant. Even as per
judgment of Hon'ble Supreme Court in M/s. Nopany Investment
Pvt. Ltd. Vs. Santokh Singh (HUF) 2008 (2) SCC 728, it is held
that the filing of suit is itself a notice of eviction on the
defendant. So, it means that the tenancy of the defendant is
already determined by efflux of time on 31.07.1998. Now, as
held above, the rate of rent was Rs. 3,750/.
59. Hence, the plaintiff is able to prove all the necessary
ingredients and thus, the plaintiff is entitled for recovery of
possession of suit property. This issue is decided in these terms.
47. In order to appreciate the appellant's plea that the order dated
30.05.2003 would not operate as res judicata, it would be necessary to note
the relevant extracts of the order dated 30.05.2003. The same read as under:-
9. Ld. Counsel for the defendant has also stated that the suit
property was a Wakf property as such the same cannot be sold
and the plaintiff cannot be the owner of the suit property, and
there is no relationship of landlord and tenant between the
parties. It is not in dispute that the defendant came into
possession of the suit property by virtue of a lease deed. The
perusal of the lease deed itself shows that the property was
owned by Mst. Sultana Bi and she has let out the property to
one Sheikh Mohd. Ejaz, who further let out the property to the
defendant. Plaintiff has placed on record the sale deed dt.
31.12.1997 which shows that it has been purchased from Mst.
Sultana Bi. The defendant cannot challenge the ownership
right. He is a tenant and the tenanted property has been
purchased by the present plaintiff. The sale deed is placed on
record. In these proceedings, the defendant cannot challenge
the title of the Plaintiff.
48. Learned senior counsel for the appellant, by placing reliance on the
decision in Canara Bank (supra), Vinay Eknath Lad (supra)and Jama
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Masjid has urged that the findings given in the order dated 30.05.2003,
having been given at a preliminary stage while deciding an application under
Order XIV Rule 5 CPC, could not be treated as res judicata as the same are
applicable only to findings which are given after a full-fledged trial. Having
perused the order dated 30.05.2003, relevant extracts whereof have been
noted hereinabove, I am unable to agree with the appellant that these
detailed findings would not amount to res judicata. Not only does the order
dated 30.05.2003 clearly analyse as to why the appellant could not be
permitted to raise any dispute qua the title of the respondents to the suit
property but also clearly holds that the suit property was no longer a waqf
property. The decisions in Canara Bank (supra), Vinay Eknath Lad
(supra)and Jama Masjid relied upon by the appellant, are therefore, not
applicable to the facts of the present case.
49. Even though, I am of the view that the appellant's challenge to the
respondents' title to the suit property is barred by res judicata itself, since
both sides have made submissions on the question as to whether Mst.
Sultana Bi was entitled to sell the suit property to the respondents, I have
proceeded to examine this question on merits as well.
50. By drawing my attention to the cross examination of PW-2 as also to
the stand taken by Mst. Sultana Bi in her application under Section 19 of the
Slums Act, where she has been described as the Mutawali of the suit
property, learned senior counsel for the appellant has vehemently urged that
the respondents cannot now claim that she was the absolute owner thereof
and not the Mutawali. Even though, the appellant is justified in urging that
Mst. Sultana Bi had, in her application under Section 19 of the Slums Act,
described herself as Mutawali as also that PW-2 had, during his cross-
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Citation No.2022/DHC/005126
examination, admitted that she was the Mutawali of the suit property,this
averment of Mst. Sultana Bi and PW-2 has to be considered in the light of
the orders passed under the Administration of Evacuee Property Act, 1950.
It is the respondents' case that the title of Mst. Sultana Bi as owner of the
suit property came from an order passed by the Regional Settlement
Commissioner on 07.12.1960. This order clearly states that evacuee
beneficiary rights were being released in favour of Mst. Sultana Bi and no
one else would have any right over the suit property. It was also specifically
directed that attornment be issued to all the tenants to pay rent to Mst.
Sultana Bi from the date of passing of the said order and deal with her
directly. At this stage, it may be useful to refer to the order dated 07.12.1960
which reads as under:-
OFFICE OF THE REGIONAL SETTLEMENT
COMMISSIONER. (MANAGEMENT WING), JAMNAGAR
HOUSE, NEW DELHI
Dated 07.12.1960
ORDER
The office report dated 8/11/60 shows that that the following
properties are wakf-al-aulad properties in which 7/80 share
belongs to the non-evacuee beneficiary Mst. Sultana Bi w/o
Shri S.M. Moosa and the remaining 75/80 share belongs to the
evacuee beneficiaries vide order dated 31/6/50 of Shri
R.C.Gulati, Asstt. Custodian (Judicial), Delhi in file No.
DC/XATE/1465 and the order dated 13/5/51 of Shri Jailty,
Authorised Deputy Custodian, Delhi in appeal No. ADC/A/371
of 1950. Property No. 1/752, 752A, 7528, 752C, 751D, 751C,
751B, 755, 753A, 753B, and 752H(old)/1479 to 1518, 1457,
1539 to 1542 1/e of 1579 to 1586 and 1546 situated at
Kashmeri Gate, Delhi.
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Citation No.2022/DHC/005126
This case has been taken up in accordance with the MOR
circular instructions No. 2(19)/57-Prop, dated 9/9/50
regarding the disposal of evacuees beneficiaries interest in
Wakf-alal-aulad properties.
The non-evacuee beneficiary Mst. Sultana Bi w/o S.M. Moosa
has been identified by her husband Shri S.M. Moosa and Shri
Atiq-ur- Rehman resident of 1177, Haveli Bisammddin,
Ballimeran, Delhi.
Accordingly, 73/80 beneficiary share of the evacuees is
relinquished and released in favour of the non-evacuee
beneficiary I Mst. Sultana Bi w/o Shri S.M. Moosa. She is now
entitled to realise rents/lease money from the tenants of the
above mentioned properties and manage these properties None
else has any right or interest to manage or to realise
rents/lease money from the tenants. Attornment-letters be
issued to occupants/tenants directing them to pay lease/rents to
her from the date of this orderand onwards and deal directly
with her. Asstt. Accounts Officer shall furnish complete
accounts to Mst. Sultana Bi and shall pay to her the share of
her non-evacuee beneficiary interest, if it is due, after
deducting the Administrative charges.
Upon the relinquishment and release of these properties to the
non-evacuee beneficiary Mst. Sultana Bi, the Custodian shall
stand absolved of all responsibilities in respect of these
properties Every lease or allotment granted in respect of these
properties by or on behalf of the Custodian shall have effect
against the non-evacuee beneficiary to whom this release and
relinquishment is made until such lease or allotment is
determined by lapse of time or by operation of law.
Order/pronounced in the presence of the party.
Dated 7/12/60
(M.D. Singh)
A.C. (Executive)
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Copies forwarded to: Asstt. Accounts Officer, Jamnagar
House, New Delhi for information and necessary action.
(M.D. Singh)
Asstt Custodian (Executive)
51. A bare perusal of the order dated 07.12.1960 makes it clear that after
the property was treated as an evacuee property, Mst.Sultana Bi was
declared as its owner and was given all rights therein including the right to
manage the same and collect rent thereof. Vide this order, her earlier status
as Mutawali stood extinguished and she was now the absolute owner
thereof. Merely because either she or the PW-2 described her as Mutawali of
the suit property, which she once was, cannot change the fact that by an
order passed under the Administration of Evacuee Property Act, 1950, she
was required to be treated as an exclusive owner thereof. Once the suit
property, which was treated as evacuee property with the rent thereof being
collected by the Custodian General between 1947 to 1961,was pursuant to
the order dated 07.12.1960 passed by the Regional Settlement
Commissioner, held to be the property of Mst. Sultana Bi, the factum of it
earlier being a waqf property becomes inconsequential.
52. Thus, when Mst. Sultana Bi acquired full rights in the property w.e.f.
07.12.1960, by virtue of an order passed under this special statue which was
enacted to lay down a mechanism to deal with all evacuee properties, the
suit property could no longer be treated as Waqf property, it's nature having
being altered as a result of the mechanism laid down under the statue. The
decision in Ahmed G.H Ariff (supra), is therefore not applicable to the facts
of the present case. For similar reasons, once the title of Mst. Sultana Bi
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stood crystallised by virtue of an order passed on 07.12.1960 under the
Administration of Evacuee Properties Act, 1950, the decision in Telangana
State Wakf Board (supra), wherein the Apex Court held that the question as
to whether a property is waqf property or not has to be decided by the waqf
tribunal, would not be applicable to the present case
53. It also needs to be noted that the suit property has not been notified as
Waqf Property under Section 5 of the Waqf Act, which makes it mandatory
for all Waqf properties to be notified. The said provision reads as under-
5. Publication of list of 4 [auqaf].--(1) On receipt of a report
under sub-section (3) of section 4, the State Government shall
forward a copy of the same to the Board.
(2) The Board shall examine the report forwarded to it under
sub-section (1) and 5 [forward it back to the Government
within a period of six months for publication in the Official
Gazette] a list of Sunni 4 [auqaf] or Shia 4 [auqaf] in the
State, whether in existence at the commencement of this Act or
coming into existence thereafter, to which the report relates,
and containing such other particulars as may be prescribed.
(3) The revenue authorities shall-- (i) include the list of auqaf
referred to in sub-section (2), while updating the land
records; and (ii) take into consideration the list of auqaf
referred to in sub-section (2), while deciding mutation in the
land records.
(4) The State Government shall maintain a record of the lists
published under sub-section (2) from time to time.
54. Thus, when the suit property has admittedly, till date, not been
notified as Waqf property in terms of Section 5 of the Act, there is no reason
for this Court to interfere with the findings already recorded by the learned
Trial Court on 30.05.2003, holding that the suit property is not Waqf
property. Though the respondents have also urged that the Waqf, which
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initially owned the suit property, was, infact, not a valid Waqf as it did not
meet the mandatory requirements of Section 3(r) of the Act, in view of my
conclusion hereinabove that the suit property was no longer Waqf property
after 07.12.1960, I do not deem it necessary to delve into these issue.
55. Before concluding, I may also refer to the decision in Vijay Eknath
Lad (supra) relied upon by the appellant to urge that it is always open for a
lessee to assail the derivative title of the respondents and therefore,
irrespective of the appellant having accepted Mst. Sultana Bi as the landlord,
it was entitled to challenge the title of the respondents. In my considered
view, this decision is not applicable to the present case as even though, the
appellant apparently claims to be challenging the title of the respondents,
who had purchased the property from Mst. Sultana Bi, it is infact,
challenging the competence of the original landlord/Mst. Sultana Bi to sell
the property. The entire case setup by the appellant is that Mst. Sultana Bi
was not the owner but was only the Mutawali of the suit land and therefore,
had no right to sell the property to the respondents. It is thus evident that the
appellant is infact, challenging the title of the original landlord and not the
derivative title of the respondents as is sought to be contended.
56. Even otherwise, the appellant having entered the suit property as a
tenant under Mst. Sultana Bi vide lease deed dated 26.08.1968 and having
never raised any challenge to her title during the subsistence of the lease,
cannot now to be permitted to claim that Mst. Sultana Bi was not the owner
of the suit property. Once the appellant without any demur, had recognised
Mst. Sultana Bi as the landlord of the suit property and had been voluntarily
paying rent to her till 31.07.1988, it was estopped under Section 116 of the
Indian evidence Act to later lay any challenge to her title.
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57. The appellant, having entered the suit property as a lessee cannot be
permitted to challenge the title of the respondents to the same and, that too,
without having laid any challenge whatsoever to the registered sale deed
dated 31.12.1997 executed in its favour. The appellant, who has absolutely
no right to occupy the suit property, is without paying any rent whatsoever
for the last more than 34 years, holding on to the same even after the expiry
of the extended period of lease w.e.f. 01.09.1998. The appellant's lease
stood terminated years ago and therefore, the Court cannot permit it to
continue to occupy the suit property any longer by taking frivolous pleas to
challenge the title of the rightful owner, who has already waited patiently for
more than 21 years before the learned Trial court before a decree of
possession was passed in its favour.
58. I therefore find no infirmity with the impugned judgment. The appeal
being meritless, is dismissed, with costs of Rs.2,00,000/-.
(REKHA PALLI)
JUDGE
NOVEMBER 25, 2022
KK
Signature Not Verified
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By:GARIMA MADAN
Signing Date:25.11.2022
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