Delhi District Court
Sh. Vipin Kumar vs Smt. Saroj Devi Mittal on 4 January, 2021
IN THE COURT OF SH. DINESH KUMAR SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE /
RENT CONTROL TRIBUNAL, NEW DELHI
In the matter of :
RCT No. 218/16
Sh. Vipin Kumar
S/o Late Sh. Bishambher Singh
Village Bhangela, Post Khatauli
District Muzaffarnagar251 201 (UP) ...Appellant
Versus
Smt. Saroj Devi Mittal
W/o Late Sh. Narender Kumar Mittal
R/o WZ273, Inderpuri, New Delhi110 012 ...Respondent
Date of filing : 29.07.2016
Date of arguments : 04.01.2021
Date of judgment : 04.01.2021
JUDGMENT
1. Vide this judgment, I propose to dispose of the present appeal filed u/s 38 of the Delhi Rent Control Act, 1958 (in short "the DRC Act") by the appellant challenging the impugned order dated 25.07.2016, whereby the objections filed by the appellant were dismissed.
2. Before going deep into the facts of the case, Ld. Counsel RCT No. 218/16 Page No. 1 of 14 for the appellant was requested to address arguments on the maintainability of the present appeal in view of Chapter IIIA of the DRC Act.
3. The eviction petition u/s 14(1)(e) read with Section 25B of the DRC Act was filed by Sh. Narinder Kumar Mittal against Sh. Maheshwari Prasad and Sh. Vinit Bajaj for the premises WZ 273/1, Inderpuri, New Delhi. The eviction petition bearing No. 07/2012 was decided in favour of the petitioner and an eviction order was passed against Sh. Maheshwari Prasad and Sh. Vinit Bajaj u/s 14(1)(e) read with Section 25B of the DRC Act vide judgment dated 17.05.2013.
4. After passing of the eviction order, an execution petition bearing No. 53216/16 was filed by the respondent. In this execution petition, the appellant herein, filed objections u/s 47 of the DRC Act. Ld. ARC dismissed the objections, which led the appellant to file the present appeal.
5. In order to ascertain the maintainability, it is necessary to have bird eye view of the facts. Briefly stated, the appellant has claimed that he is the owner and in possession of the premises in dispute. The premises in dispute was owned by his father late Sh. Bishamber Singh along with Sh. Nathu Singh Tanwar and Sh.
RCT No. 218/16 Page No. 2 of 14Rati Ram Tanwar. Subsequently, there was an oral family partition between Sh. Bishamber Singh along with Sh. Nathu Singh Tanwar and Sh. Rati Ram Tanwar, on account of which the premises fell into the share of Sh. Bishamber Singh. The appellant also claimed that an relinquishment deed was also executed by Sh. Nathu Singh Tanwar and Sh. Rati Ram Tanwar. Sh. Bishamber Singh died on 15.06.2008, and thereafter the appellant became owner/landlord of the property in question. The appellant has stated that in fact Sh. Narinder Kumar Mittal, the deceased husband of the respondent, had approached Sh. Bishamber Singh in the year 1980 to give the shop on rent to run the business of sweets and confectionery. Though request to let out the shop was not accepted, however, upon such request, a partnership was entered between Sh. Narinder Kumar Mittal and Sh. Bishamber Singh. Late Sh. Narinder Kumar Mittal, in pursuance of partnership, started paying Rs.1000/ per month as profit in the business besides Rs.100/ as licence fee. Initially, Sh. Bishamber Singh had collected the rent, and thereafter the same was collected by Sh. Nathu Singh Tanwar on behalf of late Sh. Bishamber Singh.
6. The plea of the appellant is that after some time, late Sh. Narinder Kumar Mittal stopped paying profit and licence fee and RCT No. 218/16 Page No. 3 of 14 illegally let out the shop to Sh. Maheshwari Prasad and Sh. Vinit Bajaj, regarding which the eviction petition was filed. In the said eviction petition, the appellant had moved an application under Order 1 Rule 10 CPC, which was dismissed by Ld. ARC. It is pertinent to mention here that the appellant did not challenge the order of such dismissal. However, the plea of the appellant is that subsequently, the respondents/tenants Sh. Maheshwari Prasad and Sh. Vinit Bajaj handed over the vacant and peaceful possession of the premises to the appellant before the judgment dated 17.05.2013.
7. The appellant primarily filed objections on the ground that the eviction order could not have been passed against the owner in possession and, therefore, the eviction order is bad in law. The objections taken by the appellant have not been detailed herein for the reasons that this Court is primarily looking as to the maintainability of the present appeal. The objections were dismissed by Ld. ARC vide detailed order dated 25.07.2016. The appellant has challenged the order of dismissal on several grounds as detailed in the appeal.
8. Sh. S.K. Tomar, Ld. counsel for the appellant was directed to address arguments on the question of maintainability RCT No. 218/16 Page No. 4 of 14 of the appeal. Ld. Counsel has relied upon Section 25B(9) of the DRC Act, which reads as under:
"Where no application has been made to the High Court on revision, the Controller may, exercise the powers of review in accordance with the provisions of Order XLVII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908)."
9. Ld. counsel for the appellant has submitted that since he has not filed any revision, the power of review rests in Ld. ARC and Ld. ARC dismissed the objections without taking into account the facts and merits of the case. Ld. Counsel has further submitted that the Ld. Trial Court should not have dismissed the objections. Ld. Counsel has relied upon the following case law:
i) Mitter Sen Jain Vs. Shakuntala Devi, 85 (2000) DLT 658 (SC);
ii) M.S. Khalid & Anr. Vs. K.R. Rangaswamy & Anr., 2003 (2) KarLJ 247;
iii) Prabhakar Singya Vs. Natthu Khan, WP No. 2417/2017, MP High Court, DOD 04.05.2017;
iv) S. Rajeswari Vs. S.N. Kulasekaran & Ors., Appeal (Civil) No. 1417/2001, Supreme Court of India, DOD 29.03.2006;
v) Smt. Usha Jain & Ors. Vs. Manmohan Bajaj & Ors., AIR 1980 MP 146; and
vi) H. Abnash Chander Sehgal etc. Vs. V.K. Kharbanda, 1987 (13) DRJ 233.RCT No. 218/16 Page No. 5 of 14
10. Per contra, Sh. A. Alam, Ld. Counsel for the respondent has submitted that Chapter IIIA of the DRC Act provides complete mechanism and its bare perusal indicates that an appeal against any order passed in the proceedings u/s 14(1)(e) of the DRC Act is not appealable and the only remedy available is revision before Hon'ble High Court. Ld. Counsel has further submitted in its reply that in fact the respondent/tenant had filed a revision against the eviction order dated 17.05.2013, which was dismissed.
11. Section 14 DRC Act provides that notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favor of the landlord and against a tenant. Thus, the order for eviction of recovery of possession is prohibited u/s 14 DRC Act. However, the proviso to this provides that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the grounds mentioned in Section 14 DRC Act. These grounds are mentioned from Section 14(1)(a) to 14(1)(j) DRC Act. The petitioner can file a petition for eviction of the tenanted premises on the ground of bonafide requirement under clause (e) of Section 14 DRC Act.
RCT No. 218/16 Page No. 6 of 14Section 14(1)( e) DRC Act reads as under:
"14. Protection of tenant against eviction. (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant :....
(e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and the landlord or such person has no other reasonably suitable residential accommodation;"
12. It is relevant to mention here that Chapter IIIA DRC Act provides summary trial of certain applications. Clause (1) of Section 25B DRC Act reads as under:
"25B Special procedure for the disposal of applications for eviction on the ground of bona fide requirement. -
(1) Every application by a landlord for the recovery of possession of any premises on the ground specified in clause (e) of the proviso to subsection (1) of section 14, or under section 14A [or under section 14B or under section 14C or under section 14D] shall be dealt with in accordance with the procedure specified in this section."RCT No. 218/16 Page No. 7 of 14
13. It is also relevant to refer to clause (8) of Section 25B DRC Act which is as follows:
"No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section:
Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit."
14. It is advantageous to refer to Section 38 DRC Act. Clause (1) of Section 38 DRC Act reads as under:
"Appeal to the Tribunal. -
(1) An appeal shall lie from every order of the Controller made under this Act [only on questions of law] to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette:
[Provided that no appeal shall lie from an order of the Controller made under section 21.]"
15. Thus, the conjoint reading of Section 25B and Section 38 DRC Act indicates that no appeal is maintainable u/s 38 DRC Act in case of order for recovery of possession of any premises made by the Controller in the petition u/s 14 (1)(e) or 14(A), 14(B), 14(C), 14(D) DRC Act. The question is whether an RCT No. 218/16 Page No. 8 of 14 appeal is barred only if the Controller makes an order for recovery of the possession or this bar will be applicable regarding any order passed in the proceedings u/s 14(1)(e), 14(A), 14(B), 14(C), 14(D) DRC Act.
16. In Vinod Kumar Chaudhary Vs. Narain Devi Taneja, AIR 1980 SCC (2120), it was interalia held as under:
"Subsection (8) no doubt in terms speaks only of an order "for the recovery of possession of any premises" and does not mention one which refuses the relief of eviction to the landlord; but then it appears to us that the expression "order for the recovery of possession of any premises" has to be construed, in the context in which it appears, as an order deciding application for the recovery of the possession of any premises. Our reasons in this behalf are twofold.
Firstly, if an order in favour of the landlord alone was meant to be covered by subsection (8), an order refusing such relief would be liable to be called in question by way of an appeal or second appeal under Section 38 so that there would be two procedures for the endproduct of the Controller's proceedings being called in question; one when the same is in favour of the landlord, and another when it goes against him, which would obviously entail discrimination and make the subsection suffer from a constitutional invalidity. We do feel that the language used is not happy but then it would not be doing violence to it if it is construed as just above stated.RCT No. 218/16 Page No. 9 of 14
Secondly, the scheme of the Act and the object of the introduction of Section 14A and Chapter IIIA into it by the Amending Act make us form the opinion that subsection (8) of Section 25B is exhaustive of the rights of appeal and revision in relation to the proceedings held under that Chapter".
17. In the above noted case, it was inter alia held that clause (8) of Section 25B DRC Act abolishes right of appeal and second appeal u/s 38 & 39 DRC Act and confers power only in High Court to revise the order passed by the Trial Court. In Ravi Dutt Sharma Vs. Ratan Lal Bhargava, 1984 (1) RJ 325, Hon'ble Supreme Court inter alia held that all the applications under Section 14(1)(e) of the Act fall within the protective umbrella of the new procedure provided in Chapter IIIA. In R.K. Parikh Vs. Smt. Uma Verma, 1978 (2) RCR 275 (Delhi High Court), it was interalia held that the policy and purpose of the legislature in enacting Sections 25A, 25B and 25C is to introduce a swift and expeditious procedure for trial where the landlord's application for eviction is founded on the ground of bonafide requirement. It was inter alia held as under:
"12. The legislature seems to have entered a period of cautious weighing and adjusting. Fashions in legal thinking and parliamentary draftsmanship are RCT No. 218/16 Page No. 10 of 14 not unchanging. The legislature now wanted to free the procedure from the shackles and constraints of the Slum Act, the rigidity of a full length trial and the road blocks of the first appeal and the second appeal All these consumed time. How to shorten the time was the question. The old procedure was dialatory. It did not keep pace with the time. The landlord's need was urgent. The procedure was tardy. The pace was too slow. The legislature has now increased its pace. Where once the courts and tribunals moved slowly the legislature of late has accelerated their pace. It has introduced in Ch. IIIA "an accelerated remedial procedure", to use a phrase of Krishna Iyer J. (See Kanta Goel v. B.D. Pathak (1977) 2 S.C.C. 814(819) and Busching Schmitz v.P.T. Menghani,(1977) 2 S.C.C. 835 (839). In a word the legislature has quickened the pace of procedure.....
16. The paramount object of Chapter IIIA being to avoid delay in the trial of applications for eviction on the ground of bona fide requirement it would be absurd to hold that an appeal lies to the Tribunal under s. 38 of the Act from the order of the Controller granting the tenant leave to contest the application. The truth is that in the scheme of Chapter IIIA the Tribunal has no role to play and no function to perform. It has completely gone out of the picture. When first and second appeals are expressly barred from the final order of recovery of possession it is inconceivable that the legislature intended to retain for the landlord his right to appeal to the Tribunal from an intermediate order granting leave to the tenant. So incompatible and incongruous is the right of appeal to the Tribunal with the "accelerated remedial procedure" provided RCT No. 218/16 Page No. 11 of 14 by s. 25B of the Act that the legislature could never have intended to preserve it.....
20. The object of the legislature in incorporating the non obstante clause both in s. 14A and s. 25A of the Act is to do away with the first and second appeals contained in ss. 38 and 39 of the Act because they are "inconsistent". And anything inconsistent to be found "elsewhere in this Act" must give way to the paramount provisions of s. 14A and s. 25A.
21. The non obstante clause, the vesting or a right to immediate recovery in the landlord under s. 14A, the creation of a summary procedure under s. 25B, the overriding effect of that special procedure, the tone and tenor of the new amendments, all emphasise that the right of appeal (s. 38) and second appeal (s. 39) have been abolished at one single stroke with a view to meet an old standing and persistent "demand for simplifying the procedure" for eviction of tenants in case the landlord requires the premises bona fide for his personal occupation (Statement of Objects and reasons dated 4th January, 1976).
22. On the ground that the legislature has given a primacy to Chapter IIIA which has an overriding effect even over the provisions of the Slum Clearance Act the Supreme Court held in Sarwan Singh v.Kasturi Lal, A.I.R. 1977 S.C. 265 that the Slum Act is inconsistent with Chapter IIIA of the Act. Following that line of reasoning I would hold that the right of first appeal to the Tribunal under s. 38 is inconsistent with the symmetry and design of Chapter IIIA. The two cannot coexist. This is what "inconsistent" means. The overriding procedure such as we have in Chapter IIIA is both dominating and hegemonic. So superior is its authority that it RCT No. 218/16 Page No. 12 of 14 subordinates everything to itself."
"The door to defence" has been "narrowed down"
by a "chain of stiff provisions" as was observed by Krishna Iyer J in Busching Schmitz Pvt. Ltd. v. P.T. Menghani,(1977) 2 S.C.C. 835."
18. Reference can also be made to Pran Nath Kapur Vs. Ram Shiksh Mehta & Ors. 1980 RLR 451 (Delhi High Court).
19. I have gone through the judgments cited by Ld. Counsel for the appellant. The judgments cited on behalf of the appellant are respectfully distinguished on the facts and circumstances of the case. Thus, in view of the discussion made herein above, it is clear that no appeal is maintainable in the proceedings u/s 14(1)
(e) DRC Act even if an interlocutory or intermediate application has been dismissed. The scheme of the Act is that the powers of the Tribunal has been taken away relating to any order in the petitions filed on the ground of bonafide requirements. The purpose of legislature is to avoid delay and giving power only to the Hon'ble High Court to entertain the revision instead the parties taking a route of first appeal and second appeal.
20. In view of the above facts and circumstances, I consider that at the outset, the appeal is not maintainable in view of Section 25B(8) of the DRC Act. The appeal is dismissed being not maintainable.
RCT No. 218/16 Page No. 13 of 1421. TCR along with copy of the judgment be sent to the Ld. Trial Court.
22. Appeal file be consigned to Record Room.
Digitally signed by DINESH DINESH KUMAR
KUMAR SHARMA
Date: 2021.01.04
SHARMA 16:02:20 +0530
Announced through (DINESH KUMAR SHARMA)
electronic mode on Principal District & Sessions Judge/
04.01.2021. Rent Control Tribunal
PHC, New Delhi
RCT No. 218/16 Page No. 14 of 14