Delhi District Court
M/S Shrishti Properties Pvt. Ltd vs Smt. Mohinder Kaur W/O Late Sh. Balwant ... on 1 November, 2021
IN THE COURT OF SH. DINESH KUMAR SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE /
RENT CONTROL TRIBUNAL, PHC, NEW DELHI
In the matter of :
RCT No. 172/2016 (Old RCT No. 27/2014)
M/s Shrishti Properties Pvt. Ltd.
44, Janpath, New Delhi
Through its Director Sh. Umesh Bhatt
...Appellant
Versus
1. Smt. Mohinder Kaur W/o Late Sh. Balwant Singh
2. Sh. Kuljit Singh S/o Late Sh. Balwant Singh
Both R/o 361, Dr. Mukherjee Nagar, Delhi
3. Sh. Pritam Singh S/o Late Sh. Balwant Singh
4. Sh. Jitender Singh S/o Late Sh. Balwant Singh
Both R/o 2556, Gali Naiwara
Chawri Bazaar, Delhi
5. Ms. Darsan Kaur W/o Sh. Harcharan Singh
D/o Late Sh. Balwant Singh
R/o 118, Sector 33A, Chandigarh
6. Ms. Upash Kaur W/o Sh. Mahinder Singh
D/o Late Sh. Balwant Singh
R/o C45, Mahendru Enclave, Delhi
7. Ms. Kawaljit Kaur W/o Sh. Arvinder Singh
D/o Late Sh. Balwant Singh
R/o C141, Mahendru Enclave, Delhi
8. Ms. Paramjit Kaur W/o Sh. Gurdeep Singh
D/o Late Sh. Balwant Singh
R/o 245, Chitranjan Park, New Delhi
RCT No. 172/16 (Old RCT No. 27/2014)
Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 1 of 23
9. Ms. Harinder Kaur W/o Sh. Inderjit Singh
D/o Late Sh. Balwant Singh
R/o C580, New Friends Colony
New Delhi ...Respondents
Date of filing : 13.10.2014
Date of arguments : 26.10.2021
Date of judgment : 01.11.2021
JUDGMENT
1. This judgment shall dispose of the appeal filed under Section 38 of the Delhi Rent Control Act, 1958 (in short "the DRC Act"), challenging the impugned order dated 02.09.2014, whereby the Ld. ARC, New Delhi, dismissed the eviction petition filed under Section 14(1)(k) of the DRC Act.
2. In backdrop, a petition under Section 14(1)(k) of the DRC Act was filed by the appellant for eviction of the respondents from the premises viz. one Kolki, measuring 4'6" x 4'9" in the shape of shop situated on the ground floor forming part of the premises No. 44, Janpath, New Delhi110001. It is stated that the tenanted premises was let out to Sh. Balwant Singh in the year 1964 vide rent agreement dated 21.03.1964. After the death of Balwant Singh, his LRs viz. respondents, stepped into his shoes as tenants. It is alleged that respondents without any written RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 2 of 23 consent or permission of the owner/landlord of the premises had constructed unauthorised wooden mezzanine including covering of passage up to the sky and had extended the mezzanine floor with the length of 9ft. and width of 6ft. and also extended unauthorisedly a wooden showcase in front of the tenanted premises with width of 5.5ft. and besides the same also, installed the wooden stair case in the common passage. It is further alleged that the respondents have also put a wooden almirah on the pillar on the common passage. Accordingly, the legal notices dated 27.08.1984, 04.02.1985 and 24.03.2004 were served upon the respondents to remove the aforesaid unauthorised constructions.
3. The respondents in their written statement stated that the petition is barred on the principle of res judicata as Sh. Vijay Narain Seth & Another from whom the petitioner allegedly purchased the property in dispute, had filed a petition bearing No. E166/1985 on the similar grounds. Respondents further stated that the petitioner cannot be allowed to reagitate the issue which has once been withdrawn on 05.07.2004. It was further stated that petition is also liable to be dismissed on account of non joining of Union of India, Ministry of Work and Housing, Nirman Bhawan, RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 3 of 23 New Delhi as necessary and proper party. It was further stated that the wooden mezzanine in the premises in question were constructed by the erstwhile owner of the premises and was in existence when the tenanted premises was let out to the Late Sh. Balwant Singh. In fact, the said wooden mezzanine was removed by the erstwhile owner as it had become unsafe and built pacca one on iron angle with stone slabs. The said structure was a temporary in nature and not a pacca one. It was stated that the covered area of the plot was neither reduced nor increased. It was further stated that the property in question is situated in the commercial area and loft construction, which is not a mezzanine, is permissible under law. It was further stated that wooden showcase was used for displaying the confectionery items. Respondents, however, denied that any showcase was extended or constructed in the tenanted premises or that any wooden almirah was put on the pillars of the common passage in the tenanted premises.
4. In the replication filed by the petitioner, averments made in the petition were reaffirmed and contentions made in the written statement have been denied.
5. The petitioners/landlords examined three witnesses in RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 4 of 23 order to prove his case. On behalf of the respondents also, the evidence was led.
6. The Ld. Trial Court after appreciating the evidence and considering the rival contentions of the parties inter alia, held that the petitioner company had failed to prove its case and accordingly, dismissed the eviction petition. The Ld. Trial Court held that letter Ex.AW1/11 nowhere mentioned the unauthorized construction, which included construction of wooden mezzanine including covering of passage up to the sky, extension of mezzanine floor with the length of 9 ft. and width of 6ft., extension of wooden showcase in front of the tenanted premises with the width of 5.5ft. and installation of wooden staircase in the common passage and placing wooden almirah on the pillar in the common passage. It was further held by the Ld. Trial Court that Ex.AW1/11 on its part nowhere alleged that there were any unauthorized construction in the premises in question by respondents or erstwhile respondents. Said conclusion was also conceded by Vijay Narain Seth, erstwhile owner of premises in question, in his letter Ex.PW3/D1, where he replied on merits that the premises in property viz. 44, Janpath, New Delhi, referred by L&DO in its letter Ex.AW1/11 belong to Royal Guest House, RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 5 of 23 Royal Nepal Airlines, M/s Saran Motors and Chaman Lal Jakki. The said reply nowhere mentioned the fact that any part of premises in property viz. 44, Janpath, New Delhi, referred by L&DO office, in its letter Ex.AW1/11 belong to respondents or Balwant Singh, (erstwhile tenant). The only conclusion, which can be drawn, after seeing the said documents, was that neither L&DO nor petitioner or erstwhile landlord, found any unauthorized construction in the premises, occupied by the respondents in the property viz. 44, Janpath, New Delhi.
7. The Ld. Trial Court held that the letter Ex.PW3/2 and PW3/3 sent by the L&DO regarding regularization of breaches nowhere mentioned the factum of unauthorized construction occupied by the respondents in the tenanted premises. Rather, respondents on the other hand, clarified in their reply Ex.AW1/9 that erstwhile owner of premises in question viz. Vijay Narain Seth and others had removed the wooden mezzanine, in the premises in question, as it had become unserviceable and unsafe and had built a Pacca mezzanine on the angel iron with stone slabs, after removing it. The said change in the nature of mezzanine, was not found by L&DO, to be an unauthorized construction, resulting in breach of perpetual lease Ex.AW1/6.
RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 6 of 23 Therefore, even if the said version of respondents had to be appreciated, then also the only conclusion, which can be drawn, was that the pacca mezzanine built in the premises in question, was not an unauthorized construction, as the same was not declared to be so by L&DO. The Ld. Trial Court further held that the only conclusion, which can be drawn was that premises in question, possessed by respondents was not having any breaches, in contravention to the perpetual lease Ex.AW1/6.
8. The Ld. Trial Court further held that all the demand notices/breach notices, viz. Ex.PW3/1 to Ex.PW3/3, issued by L&DO office, were related to various portions of property no.44, Janpath, New Delhi, but did not include the premises in question, occupied by respondent and held that petitioner failed to prove its case.
9. In regard to the competency of PW1 Sh. Umesh Bhatt, the Ld. Trial Court held that this witness had no personal knowledge about the facts of the present case. He was a witness, who was simply authorized by the petitioner company to pursue the matter, on the basis of his authority Ex.AW1/3. He simply had placed on record the documents on behalf of petitioner company, without knowing the contents of the same and without RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 7 of 23 knowing the circumstances, under which the said documents were prepared. The Ld. Trial Court further held that PW1 was not the correct person, who could have deposed, on behalf of petitioner company. The said witness had also not filed any resolution in his favour executed by the petitioner company for filing present petition. Resolution copy Ex.AW1/3 is a general power of attorney, given to PW1 to represent petitioner company in all the litigations, pending in the courts. The said document, in the light of shortcomings, in the testimony of PW1 did not help the case of petitioner company.
10. In regard to the objection raised by the respondents that the petition is barred by principle of res judicata, the Ld. Trial Court held that the said argument was not tenable as the said prior eviction petition had not been heard and finally decided by the competent court within the rigors of Section 11 CPC. Even otherwise, ground for eviction U/s 14(1)(k) of the Act gives the landlord a continuous cause of action to file eviction petition.
11. The appeal has been filed challenging the impugned order on the ground that the impugned order is based upon conjectures and surmises. The Ld. Trial Court did not consider that the portion shown in Rent Note executed between the parties, RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 8 of 23 clearly shown the portion let out to the predecessor of the respondent, is not the same as the same is at present in existence. The Ld. Trial Court failed to appreciate that the witness appeared on behalf of respondent has stated that he was not present at the time of letting of the premises in question and that the rent note was also not executed in his presence then how it can be establish that there is no change in the suit premises since the day it was let out.
12. Notice of the appeal was issued to the respondent.
13. Sh. Ajay Kumar Gupta, Ld. Counsel for the appellant has submitted that the Ld. Trial Court has wrongly held that PW1 does not have any personal knowledge of the matter in dispute. The Ld. Trial Court failed to appreciate that the entire proceedings in the present matter is relied upon only on the basis of the documents and there is no such personal knowledge is required in the matter in dispute. Ld. Counsel further submitted that in all such matters where the proceeding is instituted through companies, there is no necessity of any personal knowledge to the person concerned who appeared in witness box.
14. Ld. Counsel for the appellant further submitted that the rent agreement is an undisputed document and if there is any RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 9 of 23 addition or alteration in the tenanted premises, the same must have been raised by the respondents/tenants. Even otherwise, the site plan filed by the petitioner is not disputed by the tenant / respondents. The existing structure of the property has also duly been shown in the site plan, which is also an undisputed document.
15. Ld. Counsel for the appellant further submitted that the Ld. Trial Court failed to appreciate that tenants/respondents themselves admitted that the wooden mezzanine had been removed and in its place, a pacca mezzanine on the angle iron with stone slabs were constructed, which amounts to addition and alteration besides breach of lease deed Ex.AW1/6.
16. Sh. Amit Kumar, Ld. Counsel for the respondents has submitted that the respondents or their predecessorininterest have not raised any unauthorized construction/addition/ alterations in the tenanted premises. In fact, the wooden mezzanine was constructed by the erstwhile owner of the premises and was in existence when the premises was let out to the respondents. The said wooden mezzanine was removed by the erstwhile owner as it had become unsafe and built pacca one on angel iron angle with stone slabs, which was a temporary RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 10 of 23 structure.
17. Ld. Counsel for the respondents further submitted that letter Ex.AW1/11 nowhere mentioned that the unauthorized construction, which included construction of wooden mezzanine including covering of passage up to the sky, extension of mezzanine floor with the length of 9 ft. and width of 6 ft., extension of wooden showcase in front of the tenanted premises with the width of 5.5 ft. and installation of wooden staircase in the common passage and placing wooden almirah on the pillar in the common passage. Ld. Counsel further submitted that Ex.AW1/11 on its part nowhere alleged that there were only unauthorized construction in the premises in question by respondents or erstwhile respondents. Further, it was also conceded by Vijay Narain Seth, erstwhile owner of premises in question, in his letter Ex.PW3/D1, where he replied on merits that the premises in property viz. 44, Janpath, New Delhi, referred by L&DO in its letter Ex.AW1/11 belong to Royal Guest House, Royal Nepal Airlines, M/s Saran Motors and Chaman Lal Jakki. The said reply nowhere mentioned the fact that any part of premises in property viz. 44, Janpath, New Delhi, referred by L&DO office, in its letter Ex.AW1/11, belong to respondents or RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 11 of 23 Balwant Singh (erstwhile tenant).
18. Ld. Counsel for the respondents further submitted that PW1 Sh. Umesh Bhatt was not a properly authorised person on behalf of the appellant company to depose before the Ld. Trial Court as he had no personal knowledge about the present case.
19. Both the parties have also filed their written submissions in support of their arguments.
20. I have heard the learned counsel for both the parties and perused the record carefully.
21. Section 38 of the DRC Act specifically provides that the appeal can only be filed on the question of law. The Court of Ld. Rent Controller/Addl. Rent Controller is considered to be the final arbiter on the facts. Before proceeding further, it is necessary to examine the scope of jurisdiction to be exercised by the Rent Control Tribunal. Section 38 of the DRC Act provides that an appeal shall lie from every order of the Controller made under this Act only on questions of law. It is pertinent to mention here that the jurisdiction was restricted by an amendment in the year 1988. In Kulwant Singh & Anr. Vs. Arjun Singh, CM (Main) No. 1063/2004, DOD 15.11.2006, the Hon'ble Delhi High Court RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 12 of 23 inter alia held that u/s 38 DRC Act, the RCT is to act as an Appellate Court only on a question of law. Similarly, in Dr. Mrs. Sushil Puri & Ors. Vs. Sh. Jai Gopal & Ors., Cav. No. 120/06, DOD 10.11.2006, the Hon'ble Delhi High Court inter alia held as under:
"An important aspect which cannot be lost sight of is that the legislature in its wisdom has amended the said Act whereby the appeal to the Tribunal under Section 38 of the said Act has been confined to only a question of law and second appeal to this Court has been abolished...."
22. In Smt. Kiran Sajjan & Ors. Vs. Smt. Swarnkanta Mahajan, DOD 25.08.2006, the Hon'ble Delhi High Court inter alia held as under:
"It cannot lost sight under the provisions of the said Act that the appeal lies to the Tribunal under Section 38 of the said Act only on a question of law. This was in terms of the legislative intent as a conscious decision was taken to amend the said provision in December 1988 prior whereto the appeal was both on a question of law and on a question of fact. Thus, the scope of scrutiny itself by the Tribunal was said to be restrictive and the Additional Rent Controller was construed to be a final Court for appreciation of evidence....."
RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 13 of 23
23. Thus, a bare reading of the legislative provision and the judgments on the point, makes it clear that the court of RCT is required to restrict itself to the question of law. Thus, in the present case, it has to be examined that whether the appellant has raised any question of law.
24. The present petition has been filed under Section 14(1)
(k) of DRC Act. Section 14(1)(k) of the DRC Act provides as under : "(k) That the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate"
25. The bare perusal of Section 14(1)(k) DRC Act indicates that requirements of clause (k) may be analysed as follows : "1) The user of the premises by the tenant should be contrary to a condition imposed on the landlord by the Government.
2) Such user must continue even after a notice to discontinue the same is given by the landlord.
3) The condition which is contravened by the user of the tenant RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 14 of 23 should be one which is imposed on the landlord by the Government "while giving him a lease of the land on which premises are situate."
26. The objective behind clause (k) is that if a tenant has misused or dealt with the premises in a manner contrary to any condition imposed on the landlord by the government while giving him the lease of the land on which the premises are situated, the tenant shall be liable for eviction. The provision in clause (k) is intended to protect the interest of the landlord who may face termination of the lease and lose the property for breach of conditions imposed by the superior lessor on him while granting the lease of the land. The purpose is to rescue the landlord from the consequences of misuser of the premises and breach of conditions of lease. The emphasis is on compliance with the conditions subject to which lease of the property was given to the lessee who is the landlord of the tenant in occupation of the premises.
27. It is also pertinent to mention here that legislative intention is to put an end of unauthorised use of the leased land rather than merely to enable the authorities to get back possession of the leased lands as indicated in inquiry under Section 14(11) RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 15 of 23 DRC Act. Clause (k) of Section 14(1) DRC Act has been enacted to serve the purpose of the government and therefore, even if the premises has been let out for a purpose contrary to the terms of the lease, the landlord can seek eviction to serve the interest of the government. Therefore, the agreement between the landlord and the tenant is irrelevant inasmuch as it is the interest of the government which is to be safeguarded under clause (k).
28. It is also relevant to refer to the judgment of Faqir Chand vs Shri Ram Rattan Bhanot 1973 AIR 921 wherein, it was inter alia held by the Hon'ble Supreme Court as under :
"9. The legislature has clearly taken note of the fact that enormous extents of land have been leased by the three authorities mentioned in that clause, and has expressed by means of this clause its anxiety to see that these lands are used for the purpose for which they were leased. The policy of the legislature seems to be to put an end to unauthorised use of the leased lands rather than merely to enable the authorities to get back possession of the leased lands. This conclusion is further fortified by a reference to subsection (11) of section 14. The lease is not forfeited merely because the building put upon the leased land is put to an unauthorised use. The tenant is given an opportunity to comply with the conditions imposed on the landlord by any of the authorities referred to in clause (k) of the proviso to subsection (1). As long as the condition imposed is complied with there is no forfeiture. It even enables the Controller RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 16 of 23 to direct compensation to be paid to the authority for a breach of the conditions. Of course, the Controller cannot award the payment of compensation to the authority except in the presence of the authority. The authority may not be prepared to accept compensation but might insist upon cessation of the unauthorized use. The subsection does not also say who is to pay the compensation, whether it is the landlord or the tenant. Apparently in awarding compensation the Controller will have to apportion the responsibility for the breach between the lessor and the tenant.
10. The provision of clause (k) of the proviso to sub section (1) of section 14 is something which has to be given effect to whatever the original contract between the landlord and the tenant."
29. The genesis of the present case is alleged unauthorised construction by the respondent/tenant. In the petition it was stated that premises was let out to husband of respondent no.1 i.e. Kolki, measuring 4'6" x 4'9" in the shape of shop situated on the ground floor forming part of the premises No. 44, Janpath, New Delhi110001. It was alleged that the tenant, without any written consent or permission of the owner/landlord of the premises constructed an unauthorised wooden mezzanine including covering of passage up to the sky and had extended the mezzanine floor with the length of 9ft. and width of 6ft. and also RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 17 of 23 extended unauthorisedly a wooden showcase in front of the tenanted premises with width of 5.5ft. and besides the same, also installed the wooden staircase in the common passage. The tenant also put a wooden almirah in the pillar on the common passage. This was denied by the respondent in the written statement. The plea of the respondent/tenant is that no unauthorized construction has been carried out by the tenant. It was stated that the wooden mezzanine floor is a temporary structure and the same was not built by the respondent or their predecessorininterest. The plea taken by the respondent was that the wooden mezzanine in the premises was got constructed by the predecessorininterest of the petitioner at the time when the possession of the tenanted premises was given initially, however, later on, the wooden mezzanine become unsafe, unserviceable and unuseable and this fact was brought to the notice of the petitioner. In fact, the petitioner had built a pacca mezzanine on the angel iron with stone slabs, after removing the same. It was stated that this is a temporary structure and not a pacca one. It was further stated that in any case this construction is not in violation of the terms of the lease deed.
RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 18 of 23
30. The petitioner in his affidavit has relied upon the notice served by the L&DO dated 23.09.1996 (Ex.PW3/1). It is advantageous to reproduce the said notice :
" Government of India
Ministry of Urban Affairs and Employment
Land and Development Office
Nirman Bhawan, New Delhi.
No. L&DO/LI9/134(20)/96/341 Dated 230996
To
Sh. Vijay Narain Seth & Others
C/o. Jagat Talkies Distributors
1488 Chandni Chowk
Delhi6
Subject : Notification of the breaches on account of
the Unauthorised Construction/misuse in
Plot No. 134 Block No. Known as 44
Janpat, New Delhi
.....
Dear Sir (s)/Madam,
On inspection of the above premises on 6194 as per direction of High Court the following breaches were notices at site by the Inspecting official :
1) Whole S.P. is being used as Royal Guest House+ Unauthorised Mazzine Construted on S.F. area 2380 sq. feet + (28 3/4' X 92/3') - (33 ½' X12') + 12 1/3' X 8 ½') + (33 ½' X 12').
2) Unauthorised Mazz. has been constructed in rear Verandah. G.f. is being used as office of Royal Nepal Air Lines Area = 19 ½' X 14 ½'.
RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 19 of 23
3) Unauthorised ACC sheets shed fixed on the angle iron in Central open C.Yard at G.F. has been constructed and is being used for Motor work shop by M/s. Saran Motor Area (30' X 18') + (90' X 14 ¼' ) + (30' X 10 ½').
4) Unauthorised Mazz. on S.F. Royal Guest House Area = (28 3/4' X 92/3') - (33 ½' X12') + (33 ½' X 12') + (9 ¾' X12') + (12 1/3' X 8 ½').
5) Unauthorised Construction on terrace Floor. Two pucca rooms Area 24'X17' and is being used as Royal Guest House.
6) W/C has been constructed on terrace floor area (10' X 5¾').
These breaches are in contravention of clause 2(5) & 2(6) of the Lease deed.
Your are, therefore, hereby required to remedy the breaches within 30 days of date of receipt of this notice. In the event of your failure to remedy the breaches within this period, you will be liable to pay the charges for having committed the breaches of terms of the lease shown in Praa I for the period of their existence. These charges can be intimated to you on your making a request for temporary regularisation of the breaches.
In case you have any point to clarify in connection with the above notice, you may kindly see the undersigned by prior appointment on tel. No. 3015612 between 2 to 4 P.M. in the afternoon within a week or the date of receipt of this notice, it may, however, be clarify understood that your inability to avail of th is RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 20 of 23 opportunity of personal hearing/discussion will not be acceptable as a ground for not taking further action in the matter under the terms of lease.
Yours faithfully, sd (R.S. SINHA) VigilancecumLegal Officer for & on behalf of the President of India"
31. The further plea of the petitioner was that respondent failed to remove the unauthorised construction despite notice being given. In the crossexamination, PW1 stated that he cannot say orally as to what unauthorised construction has been raised by the respondents nor was able to remember that the unauthorised construction was raised by the respondents. In the cross examination, PW1 was also not able to remember that whether the wooden mezzanine/loft exists since the year 1971.
32. Now, if we read the document Ex.PW3/1 along with crossexamination of petitioner, two things are clear. Firstly, that the unauthorised construction, as alleged by the petitioner, is not reflected in the notice dated 23.09.1996 issued by the L&DO (Ex.PW3/1) and secondly, that in the entire affidavit or in the crossexamination, the petitioner has not been able to prove by way of cogent evidence that the respondent in any manner has RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 21 of 23 raised any construction in violation of the lease deed. This point was also considered by the Ld. Trial Court and it was held as under : "23. Aforesaid letter nowhere mentioned the unauthorized construction, referred by petitioner, which included construction of wooden mezzanine including covering of passage up to the sky, extension of mezzanine floor with the length of 9 feet and width of 6 feet, extension of wooden showcase in front of the tenant premises with the width of 5.5 feet, installation of wooden staircase in the common passage and placing wooden almirah on the pillar in the common passage. Therefore Ex. AW1/11, on its part nowhere alleged that there were any unauthorized construction in the premises in question by respondents or erstwhile respondents. Said conclusion, was also conceded by Vijay Narain Seth, erstwhile owner of premises in question, in his letter Ex.PW3/D1, where he replied on merits that the premises in property viz. 44, Janpat, New Delhi, referred by L & DO, in its letter Ex.AW1/11 belong to Royal Guest House, Royal Nepal Airlines, M/s. Saran Motors and Chaman Lal Jakki. The said reply nowhere mentioned the fact that any part of premises in property viz. 44, Janpat, New Delhi, referred by L & DO office, in its letter AW1/11 belong to respondents or Balwant Singh (erstwhile tenant).
RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 22 of 23 The only conclusion, which can be drawn, after seeing the said documents, was that neither L &DO nor petitioner or erstwhile landlord, found any unauthorized construction in the premises, occupied by the respondents in the property viz. 44, Janpat, New Delhi."
33. I consider that in the absence of any cogent and credit worthy evidence to the effect that respondent by way of raising unauthorised construction has used or dealt with the premises in a manner contrary to the terms of the lease. There is no ground to interfere in the order of the Ld. Trial Court. The appellant has failed to raise any question of law on the basis of which the order of the Ld. Trial Court can be interfered with.
34. In view of the discussions made hereinabove, the appeal is dismissed.
35. TCR along with copy of the judgment be sent to the Ld. Trial Court, and thereafter file of appeal be consigned to Record Digitally signed by DINESH Room. DINESH KUMAR KUMAR SHARMA SHARMA Date: 2021.11.01 16:37:45 +0530 Announced in the open (DINESH KUMAR SHARMA) Court on 01.11.2021 Principal District & Sessions Judge/ Rent Control Tribunal PHC, New Delhi RCT No. 172/16 (Old RCT No. 27/2014) Shrishti Properties Pvt. Ltd. Vs. Smt. Mohinder Kaur & Ors. Page No. 23 of 23