Delhi District Court
Shri P.C. Srivastava vs . M/S. Glory Promoters (P) Ltd. on 17 February, 2016
Shri P.C. Srivastava vs. M/s. Glory Promoters (P) Ltd.
In the Court of Additional District Judge02, South District, Saket Courts
Complex Room No. 602, 6th Floor, New Delhi
In the matter of :
MCA No. 04/2015
Unique No. 02406C0374342015
Date of filing of appeal:19.11.2015
Date of Institution of appeal :19.11.2015
Decision reserved on : 04.02.2016
Date of decision: 17.02.2016
Shri P.C. Srivastava, S/o Late Laljee Srivastava,
R/o C8/7, Vasant Vihar, New Delhi110057. ...Appellant
Versus
1. M/s. Glory Promoters (P) Ltd.,
Through its Director Mr. Lalit Mohan Madhan,
Having its Office At : B2627, Community Center,
Janak Puri, New Delhi110058.
2. Mr. Lalit Mohan Madhan S/o Shri Madhan,
Director - M/s. Glory Promoters (P) Ltd.,
Having its Office at B2627, Community Center,
Janak Puri, New Delhi110058.
3. Uppal Housing Private Ltd.,
through its Director Mr. B.K. Uppal,
Having its Office At 5th Floor, South Tower,
NBCC Palace, Pragti Vihar, Lodhi Road,
New Delhi110003. ...Respondents
MCA No. 04/2015 Page 1 of 14
Shri P.C. Srivastava vs. M/s. Glory Promoters (P) Ltd.
JUDGMENT
(on appeal under section 341 Cr.P.C. r/w Section 151 CPC) 1.1 (Introduction) What happened, that M/s. Glory Promoters Private Ltd. (respondent no. 1 herein) through its Director M/s. Lalit Mohan Madhan (respondent no. 2 herein) filed an Eviction Petition under section 14(1)(f) &(g) of the Delhi Rent Control Act, 1958 (in brief Act 1958) in respect of premises No. A3/3, Vasant Vihar, New Delhi against Shri P.C. Srivastava (appellant herein). There was some settlement took place in respect of premises in eviction petition, an application under order XXIII Rule 3 CPC was filed. On 31.07.2014, report was furnished by the Local Commissioner with regard to the delivery of possession of premises to respondent no. 1 and statement of respondent no. 2 was also recorded.
The appellant filed an application u/s 340 Cr.P.C r/w Sections 193 and 120B IPC that respondents no. 1 and 2 made false statement on Oath on 31.07.2014 and let an appropriate inquiry be initiated u/s 340 Cr.P.C r/w section 151 CPC. Whereas, the Court of Ms. Surya Malik Grover, Senior Civil JudgecumRent Controller, South District, Saket, New Delhi (hereinafter referred as the Rent Controller/trial Court) dismissed the application without considering the merits of application by MCA No. 04/2015 Page 2 of 14 Shri P.C. Srivastava vs. M/s. Glory Promoters (P) Ltd. holding/concluding in order dated 06.10.2015... "At the outset, without touching upon the merits of this case, I am constrained to hold that this Court, being the Court of the Rent Controller, is not empowered to make a complaint as it is not a Court as envisaged under section 340 Cr.P.C. proceedings and hence, application is not maintainable for want of jurisdiction".
The appellant feeling aggrieved by that order filed appeal u/s 341 Cr.P.C. r/w Section 151 CPC.
1.2 The appellant narrates facts from the record and proceedings visavis the contents of application u/s 340 Cr.P.C and provisions of Section 36(2)(d) of the Delhi Rent Control Act, 1958 to demonstrate that the Rent Controller/trial court has not considered the merits nor touched the contents of application for initiating inquiry but primafacie formed an opinion that it is not Court to invoke her jurisdiction u/s 340 Cr.P.C, which is contrary to law, therefore, the said order is liable to be set aside. The appellant deserves appropriate direction, so that the application under section 340 Cr.P.C may be proceeded as per law. 2.1 Notice on this appeal was issued to the respondents no. 1 to
3. Shri Ajay Kalra, Advocate for respondents no. 1 and 2 (M/s. Glory MCA No. 04/2015 Page 3 of 14 Shri P.C. Srivastava vs. M/s. Glory Promoters (P) Ltd. Promoters Private Limited and its Director Shri Lalit Mohan Madhan), Counsel Shri Ashok Kumar, Advocate for Uppal Housing Company Private Limited / respondent no. 3 put the appearance on their behalf. 2.2 The respondents have contested the appeal, while supporting the conclusion drawn by the Rent Controller. The Trial Court record was also called.
3.1 (Submissions on behalf of Appellant) During arguments, Ld. counsel Shri Ravi Shankar Kumar, Advocate for appellant has made similar contentions on the point of law, which has been compiled in paragraph 1, above, as introduction visavis the gist of ground of appeal. Further, the provisions of Section 340 Cr.P.C has been reconciled with the Section 195 Cr.P.C and Section 36(2)(d) of the Act 1958 that for the purposes of sections 193 and 228 of the Indian Penal Code, the Controller shall be deemed to be a Civil Court within the meaning of Section 480 and 482 of the Code of Criminal Procedure, 1898 (which corresponds with Section 346 and 345, respectively of new Code of Criminal Procedure, 1973). The appellant's application u/s 340 Cr.P.C. was in respect of allegations pertaining to offences u/ss 193 and 120B MCA No. 04/2015 Page 4 of 14 Shri P.C. Srivastava vs. M/s. Glory Promoters (P) Ltd. IPC; section 340 Cr.P.C is to be read in consonance with section 195 Cr.P.C. Therefore, the Rent Controller / trial Court failed to exercise its jurisdiction for the purposes of inquiry under section 340 Cr.P.C, the findings given are contrary to law.
3.2 (Submissions on behalf of the Respondents No. 1 and 2) Whereas, the respondents through their Counsel, opposed the appeal vehemently that neither the applicant / appellant could file the application under section 340 Cr.P.C, particularly in view of the proceedings in contempt petition M/s. Glory Promoters Pvt. Ltd. & Lalit Mohan Madhan vs. Shri Prakash Chandra Srivastava [CAS(C) No. 732/2014, date of decision - 05.05.2015], which became infructuous in view of another contempt case Prakash Chandra Srivastava vs. Lalit Mohan, MD, M/s. Glory Promoters [CAS(C) No. 798/2014, date of decision - 14.11.2014], thus, no occasion was left for the applicant to file such application.
In addition, the Rent Controller is not a Court for the purposes of prosecution under section 195 of Cr.P.C and by reading Section 195(1)(b)(i) with subsection (3) of 195, it is abundantly clear that the Rent Controller has not been described as a Court for the purposes of prosecution. The appellant could file private complaint, if so desired, MCA No. 04/2015 Page 5 of 14 Shri P.C. Srivastava vs. M/s. Glory Promoters (P) Ltd. otherwise, complaint could not be initiated before the Rent Controller. The Controller has rightly returned the findings that it is not a Court. The respondents no. 1 and 2 also derives their reason from the following case law
1. Iqbal Singh Narang & Ors. vs. Veeran Narang (2012) 2 SCC 60 - wherein provisions of Section 195, 340 and 482 Cr.P.C along with complaint under section 193, 420, 425, 120B IPC qua false statement in the rent control proceedings under the East Punjab Urban Rent Restriction Act 1949 were under consideration and held that Rent Controller is not Court within the meaning of Section 195(1) Cr.P.C, Rent Controller discharges quasi judicial functions, it is not a Court, therefore, it cannot make complaint under section 340 Cr.P.C.
2. Vandana Saraf vs. Deepak Aggarwal (RCT No. 23/2014, date of decision - 03.03.2014) - wherein Ld. Rent Control Tribunal, Delhi also dealt the provisions of Section 340 Cr.P.C, while referring Gajanan Saamadhan Lande vs. Sanjay Shyamrao Dhotre (2012) 2 SCC 64 (paragraph 12) "The same views were also expressed by this Court in Om Prakash vs. Ashwani Kumar Bassi wherein it was held that in the absence of a specific power being vested in the Rent Controller, it being a creature of statute, it could only act in terms of the powers vested in it by the statute and could not, therefore, entertain an application under section 5 of the Limitation Act for condonation of delay, since the statute did not vest him with such power". Also held that Rent Controller discharges quasi judicial functions, he is not a Court.
Therefore, the Controller/trial Court has rightly opined that Rent Controller is not a Court in terms of Section 340 Cr.P.C. The appeal deserves dismissal.
MCA No. 04/2015 Page 6 of 14 Shri P.C. Srivastava vs. M/s. Glory Promoters (P) Ltd. 3.3 (Submission on behalf of the Respondent No. 3) - Ld. counsel for respondent no. 3 has identical submissions as presented on behalf of other respondents no. 1 and 2. The plain reading of Section 340(4) along with Section 195(3) Cr.P.C, it is crystal clear that name of Rent Controller is not mentioned in the array of Courts defined, consequently, the Rent Controller is not a Court for the purposes of Section 340 Cr.P.C. The Rent Controller cannot be a complainant.
3.4 (Counter submissions of Appellant) - Whereas, Ld. counsel for appellant requests that provisions of section 36(2) of the Delhi Rent Control Act 1958 are to be read with the provisions of Cr.P.C and then it is to be concluded whether the Rent Controller is a Court, the said provision incorporates the Rent Controller as a Court for the purposes of Section 195 Cr.P.C, since appellant's application was under section 193 and 120B IPC. There is a statutory bar for the appellant to file private complaint because of Section 195(1)(b)(i) of Cr.P.C, as the compliant is to be filed by the Court. The appeal is to be allowed, so that the Rent Controller as a Court may proceed as per law on the said application. FINDINGS 4.1 The contentions of both the sides are considered, analyzed MCA No. 04/2015 Page 7 of 14 Shri P.C. Srivastava vs. M/s. Glory Promoters (P) Ltd. and assessed, keeping in view the findings given by the Rent Controller/ trial court (its operating part has already been reproduced in paragraph 1.1, above) and the provisions of law. In order to appreciate the contentions of both sides and to adjudicate the issue raised, it is appropriate to recite relevant provisions of the Delhi Rent Control Act, 1958, the East Punjab Urban Rent Restriction Act, 1949 and of the Code of Criminal Procedure, 1973 to arrive, whether or not the Rent Controller is a Court, for the purposes of appellant's application under section 340 Cr.P.C; the said provisions are :
the Delhi Rent Control Act, 1958 Section 36 Powers of Controller (1) xxxxx (2) The Controller shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit, in respect of the following matters, namely :
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) issuing commissions for the examination of witnesses;
(d) any other matter which may be prescribed, and any proceeding before the Controller shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code (45 of 1860), and the Controller shall be deemed to be a civil court within the meaning of Section 480 and Section 482 of the Code of Criminal Procedure, 1898 (5 of 1898) (underlined supplied) MCA No. 04/2015 Page 8 of 14 Shri P.C. Srivastava vs. M/s. Glory Promoters (P) Ltd.
The East Punjab Urban Rent Restriction Act, 1949 Section 16 For the purposes of this Act, an appellate authority or a Controller appointed under the Act shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Court under the Code of Civil Procedure, 1908.
Section 2(b) "Controller" means any person who is appointed by the State Government to perform the functions of a Controller under this Act. the Code of Criminal Procedure, 1973 Definition Section 2(i). "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath. Section 195 Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence - (1) No Court shall take cognizance
(a) xxxxx
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in Section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in subclause(i) or subclause(ii), [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate].
2. xxxxx
3. In clause (b) of subsection (1), the term "Court" means a Civil, Revenue or MCA No. 04/2015 Page 9 of 14 Shri P.C. Srivastava vs. M/s. Glory Promoters (P) Ltd.
Criminal Court, and includes a tribunal constituted by or under a Central Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (underlined supplied) Section 340. Procedure in cases mentioned in Section 195 Section 340(1) xxxxx Section 340(2) xxxxx Section 340(3) xxxxx Section 340(4) In this section, "Court" has the same meaning as in Section 195. 4.2 With the introduction of relevant provisions of law, now facts and features of the situation in hand is to be assessed. The Controller / Trial Court has not opined on the merits of the application but the Controller declined to exercise the power on the ground of want of jurisdiction visais Controller is not a Court, in fact this sole question is to be determined in the present appeal. It is also apparent that provisions of Section 340 Cr.P.C are to be read in consonance with Section 195 Cr.P.C. Section 195(3) Cr.P.C defines Court, section has already been reproduced hereinabove. The respondents stand is that Rent Controller is not within the purview of definition of Court as defined in Section 195(3) Cr.P.C as well as the law laid down in Iqbal Singh case (supra) and in view of findings in Vadana Saraf (supra).
The Iqbal Singh case (supra) is based on the East Punjab MCA No. 04/2015 Page 10 of 14 Shri P.C. Srivastava vs. M/s. Glory Promoters (P) Ltd. Urban Rent Restriction Act, 1949, its Section 16 defines the power of Appellate authority and of Controller appointed under the Act 1949, with regard to summons and enforced attendance of witnesses and compelling the production of evidence, part of the Section 36(2) of the Delhi Rent Control Act, 1958 is replica of Section 16 of the Act 1949 but there is also an addition and deeming provision that any proceeding before the Delhi Rent Controller shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of IPC. The judicial proceedings are defined under section 2(i) of Cr.P.C and the Controller also records evidence on oath of the petitioner or respondents or their witnesses. Meaning thereby, the proceedings before the Delhi Rent Controller are judicial proceedings. There are deeming provisions {of Section 36(2) of powers of Controller} under the Delhi Rent Control Act, 1958 but same are not existing in the East Punjab Urban Rent Restriction Act, 1949, Iqbal Singh case (supra) is under the Act 1949. To say, the Iqbal Singh case (supra) is governed by the provisions of Act 1949 and Controller exercises the power under section 16 of that Act 1949 and Iqbal Singh case (supra) is not arising from the provisions of the Delhi Rent Control Act 1958. It can also be said that there are different scope of powers of the Controller in the Act 1949 and the Act 1958. MCA No. 04/2015 Page 11 of 14 Shri P.C. Srivastava vs. M/s. Glory Promoters (P) Ltd.
In Padama Sundara Rao vs. State of Tamil Nadu 2002 (3) SCC 533 it was held that ratio of a case is facts specific i.e ratio of case has to be read as per the facts of a particular case and even change of a single fact can make difference to the ratio of a case and on the basis of spirit of this precedent, provisions of the specific Act are to be considered with the features of the case. Since the Iqbal Singh case (supra) is not arising from the deeming provisions of the Delhi Rent Control Act, consequently, its facts are distinguishable from the feature of this case and on the same analogy, the case of Vandana Saraf (supra) is also distinguishable.
To say, Section 36(2) of the Act 1958, by virtue of deeming provisions, the proceedings before the Controller shall be deemed to be judicial proceedings, in respect of allegations of sections 193 and 228 IPC and judicial proceedings are defined u/s 2(i) of Cr.P.C. Consequently, Section 195(3) of Cr.P.C read with section 340(4) Cr.P.C are not to be read in aloof, excluding the provisions of Section 36(2) of the Act 1958. Since section 193 of IPC is subject matter of Section 195(1)(b)(i) of Cr.P.C, consequently, the special piece of legislation of Act 1958 and its deemed provision is also to be read while forming an opinion to arrive at a definition of the Court. The respondents' contention is that for allegations MCA No. 04/2015 Page 12 of 14 Shri P.C. Srivastava vs. M/s. Glory Promoters (P) Ltd. under section 193 IPC, if any, before the Controller are to be initiated by way of private complaint is not tenable, as the legislature in its wisdom, incorporated the specific deeming provision in Section 36 of the Act 1958, so that the Controller is not powerless but to act as a Court.
5. Hence, it is abundantly clear that on harmonious construction of provisions of sections 2(i), 195 and 340 Cr.P.C, section 36 of the Delhi Rent Control Act, 1958 and also Section 16 of the East Punjab Urban Rent Restriction Act, 1949, the provisions of Act 1949 cannot be looked into for the facts of this case pertaining to the proceedings before the Delhi Rent Controller and by virtue of deeming provisions of section 36(2) of Act 1958 and inclusive definition of court U/s 195(3) of Cr.P.C, it is held that the Rent Controller is a Court to entertain and try/inquire the application under section 340 Cr.P.C r/w Section 193 IPC. Therefore, impugned order dated 06.10.2015 of Rent Controller/trial court is set aside, while allowing the appeal and holding that Rent Controller is a Court for the purposes of Section 340 Cr.P.C r/w Section 193 IPC, it can exercise the jurisdiction.
Since the said order dated 06.10.2015 opines that the Delhi Rent Controller is not a Court and Controller declined to exercise MCA No. 04/2015 Page 13 of 14 Shri P.C. Srivastava vs. M/s. Glory Promoters (P) Ltd. jurisdiction, however, this order is set aside, therefore, Controller shall proceed with application as a Court as per law, it has jurisdiction. However, any expression given in the present order would not tantamount to be any opinion on the merits of the application U/s 340 Cr P C. The appellant and the respondents no. 1 to 3 are directed to appear before the Court/Trial Court/Rent Controller on 20.02.2016 (at 10 am).
Trial Court record be sent back while certifying the copy of this judgment. Both sides will bear their own costs. It being an appeal under section 341 Cr.P.C r/w sec. 151 CPC, so it does not require to draw any formal decree.
File be consigned to record room.
Announced in the open court (Inder Jeet Singh)
th
on Wednesday 28 Magha, Saka 1937 Addl. District Judge02(South)
Saket, New Delhi / 17.02.2016
MCA No. 04/2015 Page 14 of 14
Shri P.C. Srivastava vs. M/s. Glory Promoters (P) Ltd. MCA No. 04/2015 17.02.2016 Present : Shri Ravi Shankar Kumar, Counsel for appellant.
Proxy counsel for respondents no. 1 and 2.
Shri Ashok Kumar, Counsel for respondent no. 3.
Vide separate judgment announced today, impugned order dated 06.10.2015 of Rent Controller/trial court is set aside, while allowing the appeal and holding that Rent Controller is a Court for the purposes of Section 340 Cr.P.C r/w Section 193 IPC, it can exercise the jurisdiction.
Since the said order dated 06.10.2015 opines that the Delhi Rent Controller is not a Court and Controller declined to exercise jurisdiction, however, this order is set aside, therefore, Controller shall proceed with application as a Court as per law, it has jurisdiction. However, any expression given in the present order would not tantamount to be any opinion on the merits of the application U/s 340 Cr P C. The appellant and the respondents no. 1 to 3 are directed to appear before the Court/Trial Court/Rent Controller on 20.02.2016 (at 10 am).
Trial Court record be sent back while certifying the copy of this judgment. Both sides will bear their own costs. It being an appeal under section 341 Cr.P.C r/w sec. 151 CPC, so it does not require to draw any formal decree.
File be consigned to record room.
(Inder Jeet Singh)
ADJ02 (South), Saket
N New Delhi / 17.02.2016
MCA No. 04/2015 Page 15 of 14