Delhi District Court
Jasdev Singh vs Shri Banarasi Das Ahluwalia on 17 November, 2022
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE : NEW DELHI
PATIALA HOUSE COURTS : NEW DELHI
RCT136/2016
CNR No. DLND010010702015
1. Jasdev Singh
S/o Late Sh. Rajdev Singh
R/o 2, K.G. Marg, New Delhi110001
Through his registered GPA:
Mr Gobind Singh Akoi
R/o 2, K.G. Marg, New Delhi11001
2. Mrs. Alape Kaur
D/o Late S. Rajdev Singh
R/o 224, Jorbagh,
New Delhi110001 .......Appellants
Versus
Shri Banarasi Das Ahluwalia
(Since deceased through LRs)
1. Smt. Sunita Devi
2. Sh. Kapil Ahluwalia
(Since deceased through his LRs)
2(a) Mrs. Mukta Ahluwalia
W/o Late Mr. Kapil Kumar Ahluwalia
2(b) Master Anirudh Ahluwalia
S/o Late Sh. Bharat Ahluwalia
Grandson of Late Mr. Kapil Kumar Ahluwalia
C/o Next friend and grandmother (Mrs. Mukta Ahluwalia
Both R/o BC53, Nirvana Colony, South CityII,
Sector50, Gurugram, Haryana, 122015
RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 1 of 24
2(c) Mrs. Pooja Chaudhry
W/o Sh. Nitin Chaudhry
D/o Late Mr. Kapil Kumar Ahluwalia
E543, Greater KailashII,
New Delhi110048
2(d) Mrs. Carishma Gill
W/o Mr. Kunal Gill
D/o Late Mr. Kapil Kumar Ahluwalia
R/o A502, Gazdar Apartments,
Juhu Tara Road, Juhu,
Mumbai, Maharashtra400 049
3. Shri Mahender Ahluwalia
4. Shri Surender Ahluwalia
5. Shri Virender Ahluwalia
6. Ms. Kanta
7. Ms. Meena
8. Ms. Neena
9. Ms. Madhu
10.Ms. Saroj
At Shop No. 20, BlockB, Connaught Place,
New Delhi110001
Also at:
UNESCO Apartments, Plot No.55,
Patparganj, Delhi110092 .......Respondents
Date of filing of Eviction Petition : 25.01.1989
Date of impugned judgment : 10.07.2015
Date of filing of the appeal : 01.09.2015
Date of arguments in appeal : 03.11.2022
Date of judgment : 17.11.2022
Appearances:
Sh. Yogender Vashisht, Advocate for the appellants.
Sh. Atul Gupta, Advocate for respondent Nos. 1,3,4,5 and 9.
Sh. Nitish Chaudhary, Advocate for LRs of deceased respondent No.2.
RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 2 of 24
JUDGMENT:
1. This judgment shall decide an appeal preferred by the appellants/landlords under Section 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as the 'DRC Act') assailing judgment dated 10.07.2015 passed by Ms. Kiran Gupta, the then Ld. Senior Civil Judge cumRent Controller, New Delhi District, Patiala House Courts, New Delhi (hereinafter referred as 'Ld. Rent Controller'), whereby the eviction petition bearing E.No. 34/2008 under Section 14 (1) (j) of the DRC Act filed by the appellants/landlords against the respondents was dismissed. FACTUAL BACKGROUND:
2. Briefly stated, it was the case of the appellants/landlords that they are the owners of the tenancy premises, viz., a shop stated to be a big Showroom bearing No. 20, Connaught Place, New Delhi, with mezzanine floor on the back and other rooms on the rear/back let out to Sh. Banarasi Das Ahluwalia w.e.f. 1st August, 1948 at a monthly rent of Rs. 284.62/Paisa. It was the grievance of the appellants/landlords that the respondent on or about the end of May 1988 made certain additions and alterations in the tenancy premises without their written consent, thereby causing substantial damage to the property; and that the respondent without the written consent constructed illegal unauthorized pucca mezzanine floor consisting of steel grider's, agra stone and concrete flooring on the top having an area of approximately 837 Sq. Feet and caused or permitted to be caused substantial damage to the tenanted premises so much so that the character and the shape of the tenancy premises has been changed, thereby affecting the age and utility of the building and thereby, causing colossal loss to the appellants/landlords.RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 3 of 24
3. It was further the case of the appellants/landlords that while unauthorized and illegal construction was going on, the NDMC passed an order dated 03.06.1988 under Section 195A of the Punjab Municipal Act Ex.AW3/1 and sealed the tenancy premises, and thereafter, notice dated 06.06.1988 Ex.AW3/2 under Section 195B of the Punjab Municipal Act was also issued for demolition of the unauthorized construction and the appellants/landlords also vide letter dated 07.06.1988 called upon the respondent to rectify the violations under the provisions of Punjab Municipal Act and to demolish the illegal unauthorized construction of mezzanine floor that was built without their permission but in vain. It is further the case of the appellants/landlords that the respondent filed an appeal bearing No. 102/ATMCD/88 against the impugned demolition order dated 06.06.1988 and the appeal was allowed vide order dated 04.07.1988, whereby the Ld. ATMCD remanded the matter back to the Chief Engineer (Civil) for a fresh hearing on the matters in issue. It is stated that another appeal was filed by the respondent bearing No. 103/ATMCD/88 against the order of sealing dated 03.06.1988, which was dismissed and on an appeal filed before the Lieutenant Governor, Delhi Administration No. 139/1988, the matter was remanded back to the Chief Engineer (Civil), NDMC for a redecision vide order dated 26.10.1988. It is further stated that the Chief Engineer (Civil) after hearing both the parties, passed an order dated 2 nd January, 1989 thereby directing the respondent to demolish 264.50 Sq. Feet of mezzanine floor and also held that there was unauthorized construction on an area measuring 660.49 Sq. Feet. The appellants/landlords, therefore, claimed that the extension of pucca mezzanine constitute structural alterations giving RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 4 of 24 a new kind of form to the structure of the premises resulting into substantial harm to the owners as it impaired FAR of the property, thereby, impairing utility of the premises; and despite service of notice dated 07.06.1988, the respondent failed to demolish unauthorized and illegal construction and hence eviction of the respondent was sought under Section 14 (1) (j) of the DRC Act.
4. The respondent contested the eviction petition and in his written statement submitted inter alia admitted the relationship of landlord and tenant between the parties and letting out of the premises for nonresidential purposes. However, denying the case put forth by the appellants/landlords, it was stated that the appellants/landlords were in collusion with the officials of the NDMC and have caused immense loss to his business by illegally securing initiation of proceedings for demolition of the portion of the mezzanine floor; and that the respondent disputed the description of the property pointing out that no copy of the site plan had been supplied to him.
Further, on merits, it was not denied that building was completed prior to 1939. However, it was stated that the premises was let out to the respondent in the year 1947 and not w.e.f. 1st August, 1948. It was denied that unauthorized pucca mezzanine floor consisting of iron girder, Agrastones and concrete has been constructed in the premises measuring 837.8 Sq. Feet without permission and consent of the appellants/landlords. It was further denied that any construction was either going on or had been made by the respondent on 03.06.1988 and it was stated that the mezzanine floor had been in existence since prior to 1977, which was constructed after consent RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 5 of 24 of the appellants/ landlords and in this regard the order of the Chief Engineer (Civil), NDMC was referred wherein inter alia it was held that mezzanine floor measuring 660.49 Sq. Feet had been in existence prior to 1977.
5. It was denied that pucca mezzanine has caused any structural alterations or that it was likely to cause any harm or caused any harm to the appellants/landlords for being more then FAR of the property. It was stated that construction of the extended mezzanine led to the NDMC enhancing the housetax of the premises, which has been paid since 197879 and the appellants/landlords had filed objection before the Committee against such enhancement on the ground that there had been no increase of any rent by the respondent, which plea was eventually accepted by the Committee. Nonetheless the appellants/landlords have been demanding enhanced house tax from the respondent. It was denied that any unauthorized construction was raised in the month of MayJune1988; and that the Committee on reconsideration of the whole matter came to the conclusion that 660.409Sq. Feet had been in existence since 1977 and the entire portion i.e. 264.50 Sq. Feet was additionally constructed; and although the matter was taken up to the Hon'ble High Court of Delhi by the respondent by filing an appeal against the order dated 02.01.1989 of the Chief Engineer (Civil), the parties settled the matter and thus, there was no cause of action in favour of the appellants/landlords; and lastly denying that any notice of determination of tenancy was received it was stated that the letter dated 07.06.1988 by the appellants/landlords did not constitute any legal notice to the answering respondent.
RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 6 of 246. The appellants/landlords filed replication and refuted the submissions and allegations levelled by the respondent, reiterating and reaffirming the averments in the eviction petition. During the course of trial, the petitioner No.2 expired in February 2002 and his LRs were brought on the record vide order dated 11.09.2002 and the respondent also expired and his LRs were impleaded vide order dated 21.02.2008 and the LRs No. 2, 6, 7 and 8 have since been proceeded ex parte vide order dated 21.02.2008. It is pertinent to mention that name of the petitioner No.1 was also deleted from the array of parties vide order dated 08.12.2014 consequent to the submission made by the learned Counsel that he was left with no right and interest in the property.
7. The appellants/landlords in order to support their case examined Sh. Kailash Joshi as AW1, whose examinationinchief was recorded on 24.04.1995 and he was crossexamined on 31.08.1999; and Sh. Anil Kumar Gupta, Architect was examined as AW2 and another summoned witness was AW3 Om Prakash, LDC from NDMC, Chief Architect Department. On the other hand, the respondents in support of their case examined Sh. Kapil Ahluwalia as RW1, who tendered his affidavit in evidence Ex.RW 1/A dated 12.05.2003 and was crossexamined on 30.05.2003. This Court shall reflect upon their deposition later on in this judgment. IMPUGNED JUDGMENT:
8. Ld. Rent Controller vide impugned Judgment dated 10.07.2015 observed that the appellants/landlords admitted the position that the tenancy premises comprised of mezzanine floor at the backside but without giving exact measurements and in so far respondent is concerned, although it was RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 7 of 24 his case that additional mezzanine floor was constructed in the year 1977 with permission of the appellants/landlords, no document was placed on the record to that effect. It was observed by the learned Rent Controller that the onus to prove that tenant had caused substantial damage to the tenancy premises was upon the landlord and AW1 examined on behalf of the appellants/ landlords failed to substantiate the allegations levelled in the eviction petition; and that AW1 for the first time in his evidence stated that measurements of the mezzanine floor was about 20 feet to 30 feet x 15 feet or 20 feet but there was no corroboration as to any cracks developing in the wall since no photographs were shown or proven to that effect. In so far as testimony of AW2 is concerned, learned Rent Controller observed that he had inspected the premises on 24.01.1988 and he testified about his report Ex.AW2/1 in which unauthorized construction was shown in red colour in Ex.AW2/2 besides portion which was demolished as shown in the plan Ex.AW2/3. To cut the long story short, the learned Rent Controller, on perusal of report Ex.AW2/1 and looking into the order dated 2 nd January, 1989 by the Chief Engineer (Civil), NDMC, came to the conclusion that evidence brought on the record raises an inference that mezzanine floor was already in existence at the back/rear portion of the tenancy premises and the same has merely been extended by the respondent, which did not result in diminishing its utility. There were found no evidence led on the record as regards extended construction of mezzanine floor causing any substantial damage to the tenancy premises or impairing its value or utility. Ld. Rent Controller in its Judgment relied upon decision in Om Pal v. Anand Swarup,(1988) 4 SCC 544; Savitri Devi v. U.S. Bajpai and Anr., AIR RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 8 of 24 1956 Nagpur 60; Moti Ram Banarsi Dass v. Shiv Dayal Trust, 1984 (2) RCR 421; Madan Lal Saggi & Anr. v. British Motor Car Company, 1984 (2) RCR 572; Gurmit Singh v. Smt. Kirpal Kaur, 1992(2) RLR 271; and Vipin Kumar v. Roshan Lal Anand & Ors., (1993) 2 SCC 614.
GROUNDS FOR APPEAL:
9. The impugned Judgment dated 10.07.2015 passed by the learned Rent Controller has been assailed inter alia on the grounds that the learned Rent Controller erred in not following the judgment of the Hon'ble Division Bench of the High Court of Delhi in WP (C)3649 of 1990 decided on 04.12.1991; and that the Ld. Rent Controller failed to appreciate that earlier orders/judgments between the parties concerning illegal construction made by Sh. Banarasi Das Ahluwalia with regard to mezzanine floor in the tenanted shop and the order passed by Sh. S.S.K. Bhagat, Chief Engineer (Civil) and Chief Architect, NDMC besides Lieutenant Governor, Delhi Administration merged into final judgment of the Hon'ble High Court of Delhi in the aforesaid decision on 04.12.1991; and that the Ld. Rent Controller committed grave jurisdictional error in not considering the fact that NDMC was directed to regularize the mezzanine up to the area of 660.59 Sq. Feet as per the revised plan without prejudice to the rights and contentions of the parties; and that the Ld. Rent Controller completely overlooked the pleadings vide paragraph 18(a)(i), (ii), (iii), (iv), (v), (vi),
(vii), (viii) of the eviction petition; and that the Ld. Rent Controller failing to take into consideration the subsequent events and the documents brought on the record in the form of various notes etc. and admission of certain RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 9 of 24 documents by RW1 viz. Ex.RW1/P2, RW1/P3, RW1/P4, RW1/P5 and RW1/P6 and acknowledgment by RW2 Sh. Kapil Ahluwalia that his father had not submitted any plan of construction in the suit premises after 1990. The impugned judgment is also assailed inter alia on the ground that the Ld. Rent Controller failed to fully appreciate the ratio of the cases cited at the Bar; and that the Ld. Rent Controller ought to have relied upon the detailed order dated 21.05.2010 passed by Sh. Anand Swaroop Aggarwal, the then Ld. Rent Controller, Patiala House Courts, New Delhi and orders dated 20.05.2011, 12.04.2012 and 24.09.2012.
10. Notice of the present appeal was served upon the LRs of the deceased respondent, who have contested the appeal as well. LEGAL SUBMISSIONS:
11. Sh. Yogender Vashisht, Ld. Counsel for the appellants/landlords made brief submissions to the effect that the Ld. Rent Controller failed to appreciate that vide order dated 02.01.1989 passed by the passed by the Chief Engineer (Civil), NDMC wherein it was categorically held that 660.59 Sq. Feet of area was unauthorizedly built and its regularization by the Municipal Authorities had no bearing on the merits of this case; and that keeping in mind the fact that unauthorized construction of 264.50 Sq. Feet was done, which was also not permitted; and that the appellants/landlords were entitled to succeed in the present matter. Reference in this regard was made to decisions in the case of Shakuntala Devi v. Avtar Singh, S.A.O. 171 of 1988 decided on August 18, 2002 and Shri Pearey Lal v. Surendera Nath & Anr., RCSA No. 8/2002 & CM No. 27/2002 decided on 27th August, 2009, both by the Hon'ble High Court of Delhi, New Delhi.
RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 10 of 2412. Per contra Mr. Atul Gupta, Ld. Counsel for the LRs of deceased respondent was also brief and it was canvassed that there is no iota of evidence led by the appellants/landlords that additional construction in the premises either prior to 1977 or for that matter or about May 1988 had impaired the value and utility in any manner. It was vehemently urged that findings given vide impugned judgment dated 10.07.2015 raises no substantial question of law and it is not shown by the appellants/landlords that findings given by the Ld. Rent Controller are contrary to the evidence or no evidence at all.
DECISION:
13. I have given my thoughtful consideration to the lengthy submissions made by the learned Counsel for the rival parties at the Bar. I have meticulously gone through the oral as well as documentary evidence brought on the record.
14. In order to decide the instant appeal, it would be expedient to reproduce the relevant provisions of Section 14 (1) (j) of the DRC Act for our better understanding, which goes as under:
"Section 14 : Protection of tenant against eviction (1) Not withstanding 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 favour of the landlord against a tenant.
Provided 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 grounds only.
Section 14 (1) (j) : that the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises;RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 11 of 24
15. In the case of Suraj Prakash Chopra v. Baij Nath Dhawan & Anr., 103 (2003) DLT 645, after analysis of plethora of case law cited on behalf of both the parties, the proposition of law was laid down as under:
(i) the onus of proving that the tenant has caused substantial damage to the demised premises is upon the landlord;
(ii) landlord must prove that addition and alteration in the tenancy premises is carried out by the tenant;
(iii) tenant has made his construction without the consent of landlord;
(iv) the said construction has materially affected the tenancy premises and further that the construction which had been carried out by the tenant had materially altered the premises;
(v) Court must determine the nature, character of the construction and the extent to which they make changes in the structure of the premises having regard to the purpose for which the premises have been let out;
(vi) landlord has to prove it by cogent evidence and wherever necessary expert witness should be examined;
(vii) an eviction order under Clause (j) could be passed if the tenant has carried out such additions or alterations and structural changes in the tenancy premises which had brought about material impairment in the value and utility of premises;
(viii) every construction or alteration does not impair the value and utility of the building and that construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from utilisation aspect of the building;
(ix) a temporary alteration or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises;
(x) every change, addition or alteration in the tenancy premises will not invite eviction of the tenant under Clause (j) and that each case would depend upon its own facts; and RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 12 of 24
(xi) the impairment of the value and utility of the building is to be seen from the point of view of the landlord and not tenant.
16. However, before we embark on appreciation of evidence on the present matter and a decision thereupon, it is pertinent to mention here that the aforesaid cited case of Suraj Prakash Chopra v. Baij Nath Dhawan & Anr (Supra), was a case where the Rent Controller allowed the petition under Section 14 (1) (j) of the DRC Act, thereby directing the tenant to repair the damages caused by construction of walls changing the situation of the door of the WC; blocking of windows at Points 'A' & 'B' shown in the site plan Ex.AW1/1; and the construction of the Tin Shed in the open courtyard. The tenant was directed to carry out necessary repairs and restore the tenancy premises in its original shape within a month, failing which making him liable to be evicted under Section 14 (1) (j) of the DRC Act. On appeal, the Rent Control Tribunal declined to grant any relief except that it modified certain directions with regard to repairs of the tenancy premises. On a challenge before the Hon'ble High Court in the Second Appeal, the aforesaid proposition of law was laid down and it was held that additions and alterations were not substantial damages and it was also held as under: "34. Examining the facts of the case on the touchstone the above proposition of law it may be noticed that the tinshed is of temporary nature. It has not been built up by digging foundation or erecting the walls. It has no puce structure. The tinsheets are resting on the existing walls of the building. May be the girder is used in the erection work but there is no evidence leading to inference that the use of the girder in the erection work has increased the weight upon the load bearing wall to endanger or it has brought about weakness in the existing puce construction of the building. The tinsheet has not caused any damage to the walls on which it is resting. It can be removed easily without RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 13 of 24 causing damage to the main building. It is not understood as to how the Controller and the Tribunal on these facts could draw an inference that a mere tinshed covering a portion of the courtyard, or even major portion, could have impaired the value or utility of the premises or could fall within the mischief of substantial damage for which the tenant may be evicted under Clause (j). The additions and alterations which cause impairment in the value and utility of the premises, no doubt, are to be viewed from the point of view of the landlord but temporary shed of the nature which is in existence in the courtyard would by no stretch of reasoning be said to have caused damage much less substantial damage to the demised premises covered by Clause (j) if it is viewed in the light of the case law cited above.
17. In the light of the aforesaid legal proposition, reverting to the instant matter, the issue of alleged construction or extension of mezzanine floor in the shop was admittedly clinched by the decision given by Mr. S.S.K. Bhagat, Chief Engineer (Civil), NDMC vide order dated 02.01.1989 and the operative portion of the order is extracted, which goes as under: "After hearing the arguments of all the three parties viz. New Delhi Municipal Committee, the owners and the appellant and from the record placed before me, I accept the contention of the appellant that total covered area of 1500 sq. ft. used to exist at the mezzanine level which includes 839 sq. ft. of covered area which might have been constructed at the time of original construction of the building and 66.49 sq. ft. covered area of extended portion which was constructed around 1977 as total 1500 sq. ft. covered area at mezzanine floor was shown in existence in the house tax assessment of 197778 and subsequent years.
I find that total covered area at mezzanine floor as detailed above now existing is 1764.50 sq. ft. (839.51 sq. ft. old supported on jack arches + 924.99 sq. ft. as extension portion) against 1500 sq. ft. as assessed in House Tax record in the year 7778, meaning thereby that 264.50 sq. ft. additional covered area has been constructed.
I also find that total covered area of 924.99 sq. ft. of extended portion is of the same material and has same finish and as such RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 14 of 24 the extended portion of the mezzanine has been reconstructed and 264.50 sq. ft. of covered area has further been added. This has been carried out unauthorisedly without any valid sanction.
In view of the above the appellant is directed to demolish 264.50 sq. ft. of additional covered area at mezzanine floor, by demolishing a strip of mezzanine floor, through out the width of the shop towards the verandah. The appellant is further directed to submit plans in accordance with the provisions contained in the Building Byelaws to New Delhi Municipal Committee for the regularisation of 660.49 sq. ft. of covered area of mezzanine floor which has been unauthorisedly reconstructed & till then the appellant is not allowed to use the mezzanine floor. Further, the access to the mezzanine shall only be from within the existing covered area of the shop B20, of which the appellant is a tenant."
18. It is also admitted position that the aforesaid order dated 02.01.1989 was challenged by the respondent in CWP No. 3649/1990 & CM 1029/1991 and the Hon'ble Division Bench of the High Court of Delhi vide judgment dated 4th December, 1991 while hearing the matter found that there was no perversity or illegality in the impugned order dated 02.01.1989. However, since the respondent and the NDMC brought out a proposal that while there was no issue with regard to demolition of 264.50 Sq. Feet of additional covered area at the mezzanine floor, they were open to regularization of 660.59 Sq. Feet covered area at the mezzanine floor. However, the said proposal was not acceptable to the appellants/ Landlords. The operative portion of the order dated 04.12.1991 reads as under: "we consider it appropriate that respondents 1 & 2 - New Delhi Municipal Committee will regularize the mezzanine upto the area of 660.59 sq. ft as per the revised plans without prejudice to the rights and contentions raised by respondents 3 and 4 in the suit for ejectment filed by respondents 3 and 4 against the petitioner. The New Delhi Municipal Committee is, therefore, directed to regularize the are of 660.59 sq. ft. at mezzanine floor RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 15 of 24 as per the new plans submitted by the petitioner without insisting on No Objection by respondents 3 and 4. Since the time for regularisation has now expired, the petitioner will submit fresh plans and comply with the other requirements specified by the New Delhi Municipal Committee in their letter dated 16.1.1991. We make it clear that our order does not give any right to the petitioner as against respondents 3 and 4. The petitioner will submit the relevant plans within two weeks from today and the New Delhi Municipal Committee will regularize the mezzanine upto the area of 660.49 sq. ft. within six weeks thereafter. Since we have now directed the New Delhi Municipal Committee to regularize the new plans for a covered area of 660.49 sq. ft. of mezzanine floor, the petitioner will comply with the order of the New Delhi Municipal Committee dated 2.1.1989 and demolish 264.50 sq. ft. of additional covered area at mezzanine floor as directed by the New Delhi Municipal Committee.
The writ petition is disposed of in the above terms."
19. A careful perusal of the aforesaid order dated 04.12.1991 supports the contention of the learned Counsel for the appellants/landlords that such regularization of 660.59 Sq. Feet has no bearing on the merits in this case. Having said that, the plea of the learned Counsel for the appellants/ landlords that respondent has not demolished coverage of 264.50 Sq. Feet of the mezzanine floor, is contrary to the their own case setup during the course of recording of evidence. In this regard, the Ld. Rent Controller rightly observed that AW2 testified that he had visited the tenancy premises on 24.01.1998 and he had inspected the site and proved the report as Ex.AW2/1 and the unauthorized construction was shown in the red colour in Ex.AW2/2 besides showing yellow portion, which had been demolished by the respondent in the site plan marked Ex.AW2/3. Ld. Rent Controller rightly observed that RW1 was categorical in his evidence that about 250 Sq. Feet of area had already been demolished by them in terms of order of the Court RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 16 of 24 and the NDMC. Ld. Rent Controller rightly observed that the burden of proving that the tenant had caused substantial damage or permitted to have caused substantial damage was upon the landlord and the plea that additional coverage of 264.50 Sq. Feet was not demolished was rejected. Infact, there is no denying that fact that the Ld. Rent Controller rightly observed that AW1, who testified that he was looking after the property and legal works of the petitioner No.1 since 1986, only for the first time revealed in his testimony that the regularization of the mezzanine floor was about 20 feet to 30 feet x 15 feet or 20 feet and AW1 also acknowledged that he had not taken the measurements nor he was an expert in construction work besides the fact that the report Ex.AW2/1 was not bringing as to how construction of additional mezzanine floor has caused substantial damage to the tenanted premises.
20. All said and done, the observations by the Ld. Rent Controller that the appellants/landlords have not led any evidence as to how the extension of mezzanine floor by the respondent has impaired its value or utility, to my mind the Ld. Rent Controller has not appreciated the proposition of law correctly, which shall be discussed hereinafter, and accordingly the instant appeal raises a substantial question of law and maintainable under Section 38 of the DRC Act. Reasons are not far to seek. Ld. Rent Controller relied on decision in the case of Om Pal v. Anand Swarup (Supra),wherein it was held as under: "Every construction or alteration does not impair the value and utility of the building and that the construction must be of material nature which should substantially diminish the value of building either from commercial and monetary point of view or from utilization aspect of building. It was further held that the construction of Chabutra, almirah, opening of window, closing of a Verandah, replacing of leaking roof, placing partition in a RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 17 of 24 room or making minor alterations for convenient use of accommodation would not materially alter the building."
21. However, what the Ld. Rent Controller failed to appreciate was that it was a case under the East Punjab Urban Rent Restriction Act, 1949 vide Section 13 (2) (iii) which provided that "the tenant may be evicted if he has committed such acts which are likely to impair materially the value and the utility of the building or rental rent". It was a case where where the appellant had taken on lease a room from the respondent for running a dry cleaning shop and later he had put a parchhati in the shop for storing clothes. The respondentlandlord sought eviction of the tenant under section 13(2)
(iii) of the East Punjab Urban Rent Restriction Act, 1949 on the ground that the construction of the parchhati was an act of causing material impairment to the building. What fell for consideration before the Hon'ble Judge of the Supreme Court was the import of the words "acts as are likely to impair materially the value or utility of the building" occurring in Section 13(2)(iii) of the Act. Both the Rent Controller and the Appellate Authority upheld the contention of the respondent. The High Court, in revision, affirmed their findings. Allowing the appeal of the appellant / tenant, it was held:
"(1) It is not every construction or alteration that would result in material impairment to the value or the utility of the building. (2) In order to attract s. 13(2)(iii) the construction must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e. of a substantial and significant nature.
(3) When a construction is alleged to materially impair the value or utility of a building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building."RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 18 of 24
22. Further, in so far as the case of Savitri Devi v. U.S. Bajpai and Anr (Supra) is concerned that has been relied upon the Ld. Rent Controller, it was a case where a temporary shed had been constructed on the portion of front wall and whereas the case of Moti Ram Banarsi Dass v. Shiv Dayal Trust (Supra) was one where the tenant had constructed three parchattis and was held to have materially impaired the value and utility of the building. The decision in the case of Madan Lal Saggi & Anr. v. British Motor Car Company (Supra) was again passed on the interpretation of the East Punjab Urban Rent Restriction Act, 1949. It is well settled that no proposition of law which is enunciated by the Superior Courts can be read divorced from the context of the case. The contextual background including the law on the subject are very crucial in deciphering any proposition of law. Reference can be had to decision in the case of Padmausundara Rao (Dead) & Ors v. State of Tamil Nandu & Ors., (2002) 3 SCC 533.
23. To my mind, having regard to the plain and grammatical interpretation of Section 14 (1) (j) of the DRC Act coupled with the ratio decidendi laid down in the case of Suraj Prakash Chopra v. Baij Nath Dhawan & Anr. (Supra), the appellants/landlords have been able to demonstrate that extended area of 660.49 Sq. Feet had been done after the tenancy premises was let out in 194748 probably sometimes prior to 1997 without the consent of the appellants/landlords, and the additional coverage area of 264.50 Sq. Feet had been done on or about MayJune, 1988. Ld. Counsel for the appellants/landlords on the said subject referred to the RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 19 of 24 decision in the case of Shri Pearey Lal v. Surendera Nath & Anr. (Supra), wherein the Landlord sought eviction under section 14(1)(j) of the DRC Act alleging that the tenant unauthorizedly and illegally removed the walls as shown yellow in site plan and unauthorisedly constructed mezzanine in the shop as shown in red in site plan besides making an opening in the roof of the shop. He also made some encroachment upon the terrace of shop on which he had no right. The tenant caused substantial damage to the premises in question and changed entire identity of the shop. It was an admitted case of parties that vide Ex.AW1/R1, written permission was granted to the tenant by the landlord with respect to: (i) Change of roof; and (ii) To increase height of roof by two feet; and the document specifically stated that "Except for this no other alteration can be done". Examining the issue from the point of view of section 91 of the Indian Evidence Act, it was held that when a written document existed, no oral evidence can be accepted about any permissible deviation from the written test. As regards, the issue of substantial and alteration in the tenancy premises, the Hon'ble Judge High Court of Delhi approved the following observations of the Ld. Rent Tribunal:
"Any construction by which the structure of the premises is altered amounts to substantial damage to the premises as per the said judgment. Any structure which impairs the rights of the landlord amounts to substantial damage to the premises. Any structure which weakens the wall or puts additional load on the wall amounts to substantial damage to the premises. Admittedly the mezzanine has been constructed and opening has been made towards the roof. This is changing of the structure of the premises. Where structure of the premises are changed which are detrimental to the interests of landlord it amounts to substantial damage within the meaning of Sec. 14(1) (j) read with Section14 (10) of the DRC Act. The court below being impressed by the statement of the appellant that the beauty of the shop was enhanced forgot to look into the changes in the RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 20 of 24 structure which were cause d which were putting loads on the wall. The result was that it dismissed the petition. Appellant was just in raising the grievance that after the permission of 1985 was granted respondent had opened the opening towards the roof from the shop and has constructed mezzanine. This opening has effected the rights of the landlord to raise the structure over the roof of shop in question. It is a substantial damage within the meaning of Section 14(10) of the DRC Act. Consequently, case u/S 14(1) (j) was made out. The impugned judgment, therefore, cannot be maintained as far as the mezzanine and opening towards the roof is concerned."
"Assuming that the respondent was not entitled to use the roof since it was a single storey shop , its user was permissive and in any case roof is not part of the tenancy accommodation. At the most it could be an amenity attached to the shop in question which was given in tenancy in the form of Kutcha phoos, shop with stone slabs, wooden karies and attached tin shed. Since at the most roof falls in the category of an amenity no importance can be attached to the argument of Sh. Andlay in this regard."
24. Further, reference can be invited to the decision in the case of Shakuntala Devi v. Avtar Singh (Supra) cited by the learned Counsel for the appellants/landlords, wherein it was not disputed that a parchhati had been built by the tenantrespondent, which was equivalent in area to the room let out and a wooden structure was built up by inserting girdles into the walls upon which wooden planks were nailed and finishing was done by using ply wood. The Ld. ARC held that such erection of parchhati in the room by the tenant was sufficient to prove that damage had been caused under Section 14(1)(j) of the Act. On appeal, the Ld. Tribunal set aside the said order and dismissed the eviction petition. The Hon'ble Judge Delhi High Court set aside the order in appeal passed by the Ld. Rent Control Tribunal, holding as under:
"6. Having analysed the reasonings of the courts below, I am of the view that the very fact that the tenant-respondent has punctured the weight-bearing walls of the premises in question RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 21 of 24 and created additional space for himself by way of parchhati equivalent to the floor area, admits of increase of weight on the load-bearing walls and certainly can be said to have caused substantial damage to the premises in question. The tenant cannot damage the walls, erect additional space and yet claim that no substantial damage has been caused to the premises in question. Structural change which brings about additional load on the existing load-bearing walls, is substantial damage to the premises in question. It is not necessary that the walls must crumble under additional weight to bring the mischief of the tenant under Section 14(1)(j) of the Act. Suffice it to say in the facts and circumstances of the present case where the tenant has punctured holes into the walls, created additional space by erecting a parchhati equivalent to the floor area of the room in question and is using the same for either storage of goods and/or residence purposes, would come within the mischief of Section 14(1)(j) of the Act. The tenant is not permitted to make any changes/alterations so as to increase load on the walls which are otherwise designed to hold the structure as was let out to the tenant.
25. Reverting to the instant case, at the cost of repetition, it is established that the construction or extension of the mezzanine floor to the extent of measuring 264.50 Sq Feet on a portion of the mezzanine floor has since been demolished in terms of order dated 02.01.1989, as upheld by the Hon'ble High Court of Delhi in the aforesaid Writ Petition bearing CWP No. 3649/1990 dated 04.12.1991. However, the very fact of construction or extension of mezzanine floor to the extent of demolished 264.50 Sq. Feet and additional 660.49 Sq. Feet that stands regularized otherwise, per se amount to changing or altering the nature and character of the tenancy premises. In other words, the extension of the mezzanine floor has brought about structural changes bringing about additional load on the existing load bearing walls and there is no evidence by the respondent that he had obtained consent of the appellants/landlords prior to carrying out the extension of the mezzanine floor. The law remains very elementary on this point that the RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 22 of 24 tenant cannot be allowed to erect additional space, thereby damaging the walls and yet claim that no substantial damage has been caused to the tenancy premises in question. Although, much mileage was sought to be taken from the testimony of AW1 Sh. Kailash Joshi or the lack of it, yet there is no denying the fact that the matter as regards construction or extension of the mezzanine floor is squarely covered by the decision dated 02.01.1989 by the Chief Engineer (Civil), NDMC as upheld by the Hon'ble Judge of the High Court of Delhi, New Delhi in the Writ Petition No. 3649 of 1990 decided on 04.12.1991. There is no merit in the plea of the learned Counsel for the LRs of the deceased respondent that no evidence was led about any impairment as to the utility of the tenancy premises as the construction or extension of the mezzanine floor without consent of the Landlords manifestly amounts to causing substantial damages. The construction or extension of the mezzanine was not a temporary alterations or additions by the respondent, which could be easily repaired without causing further damage to the tenancy premises. At the cost of repetition, the issue of impairment of the value and utility of the building is to be seen not from the view of the tenant but from the point of view of the Landlord.
26. In view of the foregoing discussions, I find that that the impugned Judgment dated 10.07.2015 passed by the Ld. Rent Controller, is based on misappreciation of the facts and law on the subject, and thus cannot be sustained in law. Accordingly, the same is setaside and the eviction petition filed by the appellants/landlords under Section 14 (1) (j) of the DRC Act is allowed holding that area of mezzanine floor measuring 660.49 Sq. Feet, which although regularised by the NDMC, has caused substantial RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 23 of 24 damage to the tenancy premises. However, the matter is remanded back to the Ld. Senior Civil JudgecumRent Controller, New Delhi District, Patiala House Courts, New Delhi to conduct necessary proceedings in terms of Section 14 (10) of the DRC Act, and pass an appropriate order as per law. The parties are directed to appear before the Ld. Senior Civil Judgecum Rent Controller, New Delhi District, Patiala House Courts, New Delhi on 01.12.2022.
27. Trial court record be sent back along with copy of the judgment for information and necessary compliance. The appeal file be consigned to Digitally signed by the Record Room. DHARMESH DHARMESH SHARMA SHARMA Date: 2022.11.17 17:48:05 +0530 Announced in the open Court (DHARMESH SHARMA) on 17th November, 2022 Principal District & Sessions Judge (NDD) Patiala House Courts, New Delhi RCT No.136/2016 Jasdev Singh v. Banarasi Das Ahluwalia Page 24 of 24