Delhi District Court
Shri Deepak Nischal vs Shri Mohan Lal Bajaj @ Mon Lal Bajaj on 1 February, 2013
IN THE COURT OF SHRI RAJ KUMAR: JSCC: ASCJ: GUARDIAN JUDGE
(NORTH EAST) KARKARDOOMA COURTS, DELHI.
Suit No. 47/11
Unique Case ID No. 02402C0037492011
Shri Deepak Nischal
s/o Late Shri Durga Dass Nischal
r/o 1/7597, Gali no.8, East Gorakh Park,
Shahdara, Delhi110032.
........... Plaintiff.
VERSUS
Shri Mohan lal Bajaj @ Mon Lal Bajaj
s/o Late Shri Sukh Dayal Bajaj
r/o 1/6842, Pratap Gali, East Rohtash Nagar,
Shahdara, Delhi110032.
......... Defendant.
Date of institution of the suit : 03.02.2011
Date on which order was reserved: 08.01.2013
Date of decision : 01.02.2013
SUIT FOR RECOVERY OF POSSESSION, ARREARS OF RENT & FUTURE
DAMAGES.
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiff is the absolute owner of property no. 1/6709, East Rohtash Nagar, Shahdara, Delhi, wherein two built up shops are situated on the ground floor bearing property no. 23 out of which shop no. 3 (hereinafter called the suit property/shop in question, specifically shown in red colour in the site plan) was let out to the defendant by the previous owner Smt. Kanta Aggarwal. It has been further stated that the said shops were purchased by the plaintiff on 17.09.2010 from Smt. Kanta Aggarwal vide registered sale deed and the defendant was issued letter of attornment dated 15.10.2010. It has been further stated that despite service of letter of attornment dated 15.10.2010, the defendant failed to pay the rent to the plaintiff after 17.09.2010 at the rate of Rs.5500/ per month excluding other charges. It has been further stated that the defendant has illegally and unlawfully took out the basement without any permission from the MCD and thus, has caused damages to the shop of the plaintiff. It has been further stated that the plaintiff terminated the tenancy by means of legal notice dated 27.12.2010 u/s 106 of the Transfer of Property Act. It has been further stated that the tenanted premises is situated in the revenue estate of Sikdarpur which has not been so far notified u/s 1 (2) of the Delhi Rent Control Act. It has been further stated that the defendant shall be deemed as an unauthorized occupant after service of legal notice and as such, the defendant is liable to pay Rs.10,000/ per month as damages for use and occupation. The plaintiff has also prayed for arrears of rent w.e.f. 17.09.2010 till 01.02.2011 @ Rs.55/ per month which comes to Rs.247.50/ and damages @ Rs.10,000/ per month w.e.f. 02.02.2011 till the vacation of the suit property by the defendant.
2. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree of Possession in favour of the plaintiff and against the defendant with respect to private shop no.3, situated at ground floor in property no. 1/6709, East Rohtash Nagar, Shahdara, Delhi110032. The plaintiff has also prayed for a decree of Rs.247.50/ towards the arrears of rent w.e.f. 17.09.2010 till 01.02.2011 @ Rs.55/ per month alongwith interest @ 18% per annum in favour of plaintiff and against the defendant. The plaintiff has also prayed for future damages @ Rs.10,000/ per month w.e.f. 02.02.2011 till the date of vacation of the suit property by the defendant. The plaintiff has also prayed for the costs of the suit as well.
3. Written statement has been filed on record by the defendant stating therein that the the present suit is barred by DRC Act; the present suit is based on false and frivolous facts; the present suit is without any cause of action; the plaintiff has no locus standi to file the present suit because the tenanted shop of the defendant is a part of property bearing no. 1/6710, East Rohtash Nagar, Shahdara, Delhi110032 and not the part of property bearing no. 1/6709, East Rohtash Nagar, Shahdara, Delhi110032 and as such, the plaintiff has got no concern with the tenanted premises of the defendant. It has been further stated that the defendant has not received any attornment letter dated 15.10.2010. The defendant has taken the stand that Smt. Kanta Aggarwal was/is the landlord in respect to the shop of the defendant. The defendant has taken the stand that he has been regularly making the payment of rent. The defendant has denied the causing of any damages by digging any illegal or unlawful basement. The defendant has further stated that the tenanted premises is covered by the Delhi Rent Control Act. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with costs.
4. Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement.
5. From the pleadings of the parties, the following issues were framed by this court vide orders dated 30.08.2011.
1) Whether the present suit is barred by the provisions of DRC Act ? OPD
2) Whether the plaintiff is entitled for the relief of Possession as prayed for by the plaintiff in the plaint ? OPP
3) Whether the plaintiff is entitled for a decree of amount alongwith future interest as prayed for by the plaintiff in the plaint ? OPP
4) Whether the plaintiff is entitled for damages ? If so, at what rate and for what period ?
OPP
5) Relief.
6. In order to prove their respective cases, the plaintiff has examined himself as PW1, the previous owner of the suit property namely Smt. Kanta Aggarwal as PW2. The defendant has examined himself as DW1. The detailed testimonies of these witnesses shall be discussed during the later part of this judgment.
7. I have carefully gone through the entire material on record. Both the parties have filed on record their respective written final arguments in support of their respective stands. I have also carefully gone through the written final arguments filed on record by both the parties.
8. My issuewise findings on the abovesaid issues are as under:
Issue No. 1.
The bone of contention in between the parties to the present suit is as to whether the present suit is hit by Delhi Rent Control Act or not. In the written final arguments filed on record by the plaintiff, it has been vehemently argued that the suit property is part of the Revenue Estate of Sikdarpur and it is the admitted case of the parties that the area of Revenue Estate Sikdarpur has not so far been notified under the Delhi Rent Control Act as provided under Section 1 (2) of the said Act. Ld. Counsel for the plaintiff has relied upon the observation of the Hon'ble High Court of Delhi in RFA No. 140/10 in the case titled as Tilak Raj Arora Vs. Abhimanu Verma & Anr. vide orders dated 30.04.2012. It has been further argued that the Hon'ble High Court of Delhi has held that there is no provision under Section 1 (2) of the Delhi Rent Control Act though, the area has been urbanized under section 507 of the MCD Act for extending the limits of Delhi Rent Control Act in the said area. Ld. Counsel for the plaintiff has further relied upon an authority cited as 85 (2000) DLT 658 (SC) titled as Mitter Sen Jain Vs. Shakuntala Devi, wherein it has been held by the Apex Court that merely because an area is urbanized, the same would not fall within the scope of the operation of DRC Act 1958 to the area in question.
9. Whereas in the written final arguments filed on record by the defendant, Ld. Counsel for the defendant has argued that vide notification dated 16.12.1954, the area of village Sikdarpur was included in the limits of Municipal Committee Shahdara, Delhi. Ld. Counsel for the defendant has relied upon an authority titled as R.K. Luthra Vs. Bal Kishan Dass Ram Kishore Gupta and another cited as 19 (1981) DLT 266 wherein in para no.5 it has been held as under: "The appellant is a member of the Government Servants' Cooperative House Building Society Ltd. He took the plot of land at Shanti Niketan in terms of a lease deed dated 4th March 1968 executed between President of India through the Deputy Secretary (Land & Building) Delhi Administration, the Government Servants' Cooperative House Building Society Ltd. and the appellant. This lease deed describes the plot of land as residential plot and the lay out plan of the area was sanctioned by the local authorities, namely the Municipal Corporation of Delhi by a Resolution No. 692 dated 16th September 1964. It therefore appears that in 1964 when the lay out plan was sanctioned the plot of land was urbanized land. Besides this, the respondents have placed on record a notification dated 4th March, 1954 issued by the Delhi State and published in the Government Gazette dated 11th March 1954 whereby the Chief Commissioner of Delhi in exercise of the powers conferred by Sub section (6) of Section 4 of the Punjab Municipal Act, 1911was pleased to declare the area mentioned therein to be a Municipality of the second class under the Punjab Municipal Act. D.B. Singh Clerk of the Municipal Corporation of Delhi appeared as A.W. He brought with him the plans of all the municipalities which were before the Municipal Corporation of Delhi came into being. Ex. AW4/1 is the true copy of one of the plans. He deposes that the entire area shown in the said plan and encircled in red was a part of South Delhi Municipality which merged in the Corporation with effect from 7th April, 1958. Reading the Gazette notification dated 11th March 1954 and the site plan it is clear that the suit property fell within the jurisdiction of South Delhi Municipality as on 7th April, 1958 when it merged with the Municipal Corporation of Delhi. The Delhi Rent Control Act was made applicable to the urban areas within the limits of the Municipal Corporation of Delhi as detailed in the first schedule to the Delhi Rent Control Act, 1958. This schedule includes the area within the jurisdiction of the South Delhi Municipality as it existed on 7th April, 1958. Thus the provisions of the Delhi Rent Control Act, 1958 were made applicable to the said land where the appellant built the house. Learned counsel for the appellant further submits that the provisions of the Delhi Rent Control Act, 1958 were made applicable to the newly built property by a notification dated 27.03.1979. His argument is that the plot of land is a part of Mohammad Pur, Munirka, Basant Nagar and Archpur Bagh Mochi villages as mentioned in the lease deed Ex. A.2 in favour of the appellant. It is correct that certain areas of the revenue estate of these village were urbanized by the Municipal Corporation of Delhi by means of notification dated 03.06.1966 and the provision of the Delhi Rent Control Act were extended to the said area by means of a notification dated 27.03.1979. Col.4 of this notification mentions the particular of the area proposed to be urbanized. There it is mentioned, "the entire remaining area of the said revenue estate which has not so far been urbanized". Thus it appears to me that some area of these villages were urbanized prior to 03.06.1966. No notification other than of 1954 has been brought to my notice to support the contention that the plot of land of the property in question was urbanized. But it is definite that this notification dated 03.06.1966 declaring the land as urbanized area and the notification dated 27.03.1979 extending the provisions of the Delhi Rent Control Act does not cover the plot of land of the property in question for the reason that the land of the plot taken on lease by the appellant was urbanized prior to 1964 as there is a mention in the lease deed that the lay out plan of the residential plots of Shanti Niketan was sanctioned by resolution no. 692 dated 16.09.1964. It is not possible for the local authorities to sanction the lay out plan of a colony without first urbanizing the land of the colony. When the lay out plan was sanctioned in 1961, they must have issued a notification urbanizing the land earlier. Such a notification appears to be a notification of 04.03.1954 published in the gazette dated 11.03.1954. Thus on a consideration of evidence on record, it must be hold that the provisions of the Delhi Rent Control Act 1958 were applicable to the plot of the property in question. Nothing has been brought to my notice to reverse the finding of the lower court on this aspect of the matter."
10. Ld. Counsel for the defendant has relied upon the judgment of Shri Saurabh Kulshreshtha, Ld. CCJ in suit no. 1484/08 titled as Shri Jitender Kumar Sood and Anr. Vs. Shri Rakesh Kumar wherein it has been held as under: "A bare perusal of section 1(2) of the Delhi Rent Control Act establishes that the Act is extended to such urban areas falling within the limits of the Municipal Corporation of Delhi as specified in the first schedule. The Delhi Rent Control Act came into fore in the year 1957. The necessary Concomitant is that the Delhi Rent Control Act applies to the areas which were already urbanized and fell within the limits of the Municipal Corporation of Delhi and which have been specified in the first schedule to the Delhi Rent Control Act without there being any separate notification under the Delhi Rent Control Act.
As far as the proviso to sub section (2) of section 1 of the Delhi Rent Control Act is concerned, the scope of operation of proviso is limited to only those areas, which are after wards urbanized by virtue of the provisions of section 507 of the Delhi Municipal Corporation Act after Delhi Rent Control Act came into force. It is only in respect of such areas which are urbanized afterwards that a second notification under the proviso to sub section (2) of section 1 of the Delhi Rent Control Act would be required for extending the provisions of the Delhi Rent Control Act to such subsequently urbanized areas in addition to the notification under section 507 of the Delhi Municipal Corporation Act.
Thus the legal position is that an area, which was already classified as an urbanized area and fell within the limits of the Municipal Corporation of Delhi on the date of Commencement of the Delhi Rent Control Act no separate notification under the Delhi Rent Control Act is required."
11. Ld. Counsel for the defendant has further argued that though this court is not bound by the said judgment of Shri Saurabh Kulshreshtha, Ld. CCJ, but a copy of the same is being filed for reference because the controversy in question is the same.
12. The defendant in the written statement has taken the stand that the tenanted premises of the defendant is part of property no. 1/6710, East Rohtash Nagar, Shahdara, Delhi and not the part of the property no. 1/6709, East Rohtash Nagar, Shahdara, Delhi. In this regard it has to be seen that in the cross examination, the defendant himself i.e. DW1 has categorically admitted that the plaintiff is the owner of his shop now. DW1 i.e. the defendant has further admitted it to be correct that he has deposited the amount in the name of the plaintiff. Keeping in view of the abovesaid unequivocal admission of the defendant i.e. DW1 in the cross examination, I am of the opinion that the abovesaid controversy is over and the defendant has himself admitted the plaintiff to be a tenant in respect of the tenanted premises.
13. Again, the vital question to be considered by the court is as to whether the present suit is covered by the Delhi Rent Control Act or not. Ld. Counsel for the plaintiff has relied upon the authority cited as 85 (2000) DLT 658 (SC) titled as Mitter Sen Jain Vs. Shakuntala Devi, wherein the Hon'ble Supreme Court of India has held :
"Even if any new area is included within the urban area of Municipal Corporation of Delhi, a further notification is required to be issued under proviso to Sub section (2) of Section 1 of the Delhi Rent Control Act. Unless the area is so specified in the Schedule by a notification, the provisions of Delhi Rent Control Act cannot be made applicable to that area. It is admitted that no notification has yet been issued under the proviso to Sub section (2) of Section 1 of the Delhi Rent Control Act specifying Sagarpur area within the Schedule of the Act. In absence of such a notification, the provisions of Delhi Rent Control Act cannot be enforced to the area, namely Sagarpur."
14. There cannot be any dispute with the provisions of law as laid down in the abovesaid authority of the Hon'ble High Court of Delhi. Ld. Counsel for the plaintiff has further relied upon the orders dated 20.03.2012 and Orders dated 30.04.2012 passed in RFA No. 140/10 titled as Tilak Raj Arora Vs. Abhimanu Verma & Anr. In the above stated orders of the Hon'ble High Court of Delhi as well, the abovesaid authority of the Hon'ble Supreme Court of India has been reiterated. It has to be seen that in the above stated orders, photocopy of which has been filed on record, it has not been mentioned as to where the suit property was situated. But I have already stated herein above that the ratio of the authorities relied upon by the Ld. Counsel for the plaintiff cannot be challenged. The area where the tenanted premises in the present suit is situated is in the village Sikdarpur, Revenue Estate of village Sikdarpur. Ld. Counsel for the defendant has filed on record the notification no. F.4(19)/50L.S.G. dated 08.12.1954 wherein Sikdarpur has been included in the Municipal Committee, Delhi Shahdara and DRC Act is of the year 1958 and the said notification is of the year 1954. Schedule 1 to the DRC Act clearly provides the land of urbanized area within the limits of MCD to which the Act extends and mentions but thereafter, the MCD is included. Section 1 (2) of the DRC Act 1958 provides as under: "It extends to the areas included within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and to such urban areas within the limits of the Municipal Corporation of Delhi as are specified in the First Schedule.
Provided that the Central Government; may, by notification in the Official Gazette, extend this Act or any provision thereof, to any other urban area included within the limits of the Municipal Corporation of Delhi or exclude any area from the operation of this Act or any provision thereof."
15. The question is as to whether the subsequent notification under section 1 (2) of the DRC Act is necessary when the area in question i.e. village Sikdarpur has already been included in the notification of the year 1954 which came into existence prior to the enactment of the DRC Act in the year 1958 and the answer, to my mind, is in the negative because as per Schedule 1 of the DRC Act 1958, the areas which were included in the Municipal Committee Delhi Shahdara, immediately before the 7th of April 1958, the DRC Act ipso facto applies. It has to be kept in mind that the notification is of the year 1954 and DRC Act is of the year 1958 and as such, the notification is prior in time. The Municipal Committee Delhi Shahdara, appears at serial no.4 of the first schedule appended to the DRC Act 1958. As per the said notification dated 08.12.1954, Sikdarpur village is included in the limits of the Municipal Committee Delhi Shahdara which appears at serial no.4 of the first schedule of the DRC Act. Para 3 of the judgment titled as Mitter Sen Jain Vs. Shakuntala Devi reads as under:
"Subsequently, by a notification dated 24.10.1994 issued under Section 507 of the Delhi Municipal Corporation Act, the rural area falling under Sagarpur when the property in dispute is situate was included within the urban area of Delhi Municipal Corporation. It is on the strength of this notification, learned Counsel urged that once the area has been included as urban area within the Delhi Municipal Corporation ipso facto, the Delhi Rent Control Act shall be applicable, the argument is totally misconceived. Even if any new area is included within the urban area of Municipal Corporation of Delhi, a further notification is required to be issued under proviso to Subsection (2) of Section 1 of the Delhi Rent Control Act. Unless the area is so specified int he Schedule by a notification, the provisions of the Delhi Rent Control Act cannot be made applicable to that area. It is admitted that no notification has yet been issued under the proviso to Subsection (2) of Section 1 of the Delhi Rent Control Act specifying Sagarpur area within the Schedule of the Act. In absence of such a notification, the provisions of Delhi Rent Control Act cannot be enforced to the area, namely, Sagarpur."
16. It has to be seen that in the said judgment, the property in question falls under Sagarpur area and vide notification dated 24.10.1999 under section 507 of DRC Act, the said area was urbanized. In that scenario, Hon'ble Supreme Court of India has held that notification 1 (2) of DRC Act was necessary. But in the case in hand, the area of village Sikdarpur is already included in MCD, Shahdara, Delhi vide notification of the year 1954. As such, I am of the opinion with due respect to the observations of the Hon'ble High Court of Delhi and of the Hon'ble Apex Court of the land, in the said authorities, the present case stands at different footing and DRC Act is squarely applicable. Accordingly, issues no. 1 is decided in favour of the defendant and against the plaintiff. Issues no. 2, 3 and 4.
In view of my findings upon issue no.1, I am of the opinion that these issues are not required to be dealt with in detail because the present suit is hit by section 50 of the DRC Act.
Relief In the light of the abovesaid discussion, the present suit of the plaintiff is hereby dismissed being not maintainable before this court. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( RAJ KUMAR) on this 01st day of February 2013. JSCC/ASCJ/G. Judge (NE) Karkardooma Courts, Delhi.