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[Cites 15, Cited by 0]

Delhi District Court

Shri Pradeep Kumar Singh vs Sh. D.C. Bafna S/O Sh. F.R. Bafna on 31 July, 2012

                                      1

   IN THE COURT OF Ms. VEENA RANI :  ADDITIONAL RENT 
   CONTROLLER: NEW DELHI DISTRICT : PATIALA HOUSE 
                  COURTS, NEW DELHI


Eviction Petition No:21/09/2002

M/s Shrishti Properties Pvt. Ltd. 

6, Babar lane, Bengali Market

New Delhi­110001

through its Director

Shri Pradeep Kumar Singh                              .....Petitioner

                        Versus

Sh. D.C. Bafna s/o Sh. F.R. Bafna,

Director of M/s Royal Guest House (P) Ltd.,

44, Janpath / 41 , Keeling Road,

New Delhi­110001                                      .....Respondent



PETITION UNDER SECTION 14 (1)(k) OF DELHI RENT CONTROL 

                                  ACT, 1958



 DATE OF INSTITUTION      
                                    
                                    :08­07­2002
                                               

 DATE OF FINAL ARGUMENT      
                            :07­06­2012
                                       

  E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd.  Vs.  D.C. Bafna
                                                                        
                                             2

 DATE OF FINAL JUDGMENT       
                            :         
                                      31.07.2012
                                                



JUDGMENT

1. Petitioner M/s Shrishti Properties Pvt. Ltd through its Director Sh. Pradeep Kumar Singh has filed the present eviction petition u/s 14(1)

(k) of Delhi Rent Control Act, 1958 (Amended upto date) against the respondent Sh. D.C. Bafna for his eviction. Briefly stated the facts for the disposal of above application are as under:­

2. Petitioner has filed the present petition for eviction of the tenant/respondent u/s 14(1)(k) of Delhi Rent Control Act, in respect of the premises no:44, Janpath, New Delhi. It is submitted that petitioner is the owner of the property bearing No:44, Janpath, New Delhi as the same has been purchased by the petitioner from its erst­while owners Sh. Vijay Narain and Sh. Virender Narain Seth vide registered sale deed duly executed in favour of the petitioner on 25­09­1996.

3. It is stated that second floor portion, of premises bearing No:44, Janpath, New Delhi, as shown in red colour in the site plan was let out to the respondent at the monthly rent of Rs.400/­ p.m excluding all other charges. It is further stated by the petitioner that the portion shown in yellow colour in the site plan has been unauthorizedly constructed by the respondent which is also in possession of the E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 3 respondent. It is stated that respondent unauthorizedly and illegally made certain additions and alterations as well as constructed unauthorizedly and illegal certain portions in the tenanted premises as shown in yellow colour in the site plan and also unauthorizedly constructed mezanine floor as well as room on the terrace floor and WC on third floor without knowledge and written consent of the petitioner. It is stated that respondent as such has permitted and/or permitted to be caused substantial damage to the tenanted premises.

4. It is submitted that non­withstanding to the previous notice dt. 22­02­2002, the respondent has used and dealt with tenanted premises in the manner contrary to the conditions as agreed to between the petitioner/landlord and the L&DO permanent lessor while giving to the petitioner the property in question on leave on which the premises in suit are situated. It is stated that premises in question are constructed on a plot of land which has been on lease vide Lease Deed dt.16­9­1938 by the Governor General in Council, whose sucessors in interest is Land & Development officer, Ministry of Works and Housing, Nirman Bhawan, New Delhi. It is further stated that respondent has not removed the unauthorized construction as mentioned above despite service of notice dt.22­02­2002. It is submitted that L&DO has demanded the charges and penalty for E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 4 contravention of the terms of the lease deed on which the premises in question was given to the petitioner and also threatening the petitioner to cancel the lease if the user of the premises in contravention of the lease is not stopped immediately. Hence, the present petition.

5. Respondent filed written statement and raised preliminary objection that present eviction petition u/s 14(1)(k) of DRC Act is not maintainable as the ground for the eviction taken by the petitioner are not as per the provisions of the law. It is further stated that petitioner has no locus standie to file the present petition as he is not the owner or lessee of suit premises in the records of the L&DO and no proof of ownership has been filed or disclosed by the petitioner before this court. It is stated that premises in question is used for running a Guest House and the permission for running the same has been duly obtained from Delhi Development Authority in 1983. It is stated that premises in question and entire area is non residential. It is denied by respondent that premises in question is residential premises. It is submitted that landlord of the respondent is M/s Jagat Talkies Distributors and they have given permission in writing to run the Guest House and the DDA has also given the permission to run the Guest House. Respondent denied that any portion in the suit premises has been unauthorizedly constructed by him. Respondent further E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 5 denied that any damages have been caused to the premises by the respondent/tenant. It is denied by respondent that he has become tenant under the petitioner as alleged by petitioner. It is further denied by respondent that any notice dt.24­3­2001 was ever served by the petitioner.

6. Petitioner filed replication to the written statement of respondent and reiterated its averments made in the petition. Petitioner reiterated that he is the owner of the suit premises and respondent has made unauthorized construction in the suit premises and has not removed the same despite notice given to the respondent. Petitioner denied that grounds for eviction taken in the present petition are not as per the provisions of law. It is stated by the petitioner that since the respondent is misusing the property and also raised unauthorized construction, therefore, under the compelling circumstances, the petitioner has filed the present petition. Petitioner denied that landlord of the respondent is M/s Jagat Talkies Distributors or that they have given permission in writing to run the Guest House or that DDA has also given the permission to run the Guest House as alleged by the respondent. It is denied by the petitioner that the entire construction on the premises is regularized or that the same has been done with the approval of the concerned government authorities and E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 6 the original owner. Petitioner denied that he remained silent for the six years after having become the owner of the property as alleged. It is submitted that petitioner contacted the respondents for a number of times for the removal of the unauthorized construction and the respondent promised to remove the same but unfortunately, the respondent put off the matter on one pretext or the other with malafide intention and did not remove the same.

7. In support of his case , petitioner has examined Sh. Umesh Gupta as AW1 and filed his evidence by way of affidavit. AW1 in his evidenciary affidavit reiterated the averments made in the petition. AW1 is the one of the Directors of the petitioner company and is duly authorized to sigh, file and verify the evidenciary affidavit which is Ex. AW1/1. AW1 deposed that he has been incorporated as one of the Directors as per Form 32 which is Ex. Aw1/2. Memorandum of Association of petitioner's company is Ex. AW1/3. Form No:18, showing the registered office of the petitioner's company is Ex. AW1/4. Registered Sale deed in respect of the property bearing No:

44, Janpath, New Delhi , in favour of the petitioner's company is Ex. AW1/5. AW1 reiterated that respondent is tenant in the premises shown in the red colour in the site plan Ex.AW1/6. AW1 deposed in his evidenciary affidavit that respondent has raised unauthorized and E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 7 illegal construction in the tenanted premises without the written consent and permission of the petitioner. Aw1 further deposed that respondent has been enjoying the tenanted premises for running his guest house without the written consent and permission of the petitioner and has also unauthorizedly and illegal constructed the tenanted premises which has been more specifically shown in yellow colour in the site plan Ex. AW1/6. Aw1 deposed that respondent has also unauthorizedly constructed mezzanine floor as well as room on the terrace floor without the knowledge and written consent of the petitioner and has caused and permitted to be caused substantial damage to the tenanted premises. Perpetual lease deed executed by L&DO in favour of the erst­while owner is Ex. AW1/7. AW1 deposed that since the respondent has raised illegal and unauthorized construction in the tenanted premises, the L&DO has demanded the charges for said unauthorized construction as per their letter Ex. AW1/8 and officials of the L&DO have also threatened for cancellation of lease deed in case unauthorized construction is not revoked. It is deposed by Aw1 that a notice dt.22­2­2002 was served upon the respondent to call upon to remove the unauthorized and illegal construction from the tenanted premises. Said notice dt. 22­2­2002 is Ex. AW1/9 and its postal receipt is Ex. AW1/10, UPC E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 8 receipt is Ex. AW1/11 and Acknowledgment card is Ex. AW1/12. It is deposed by AW1 that since the respondent has not stopped the illegal use and has also not removed the unauthorized and illegal construction in spite of the legal demand notice, the present eviction petition has been filed by the petitioner company.
During his cross examination AW1 has stated that the property in question was purchased by the petitioner on 25­9­1996 and thereafter same was let out to respondent for residential purpose. He further stated that he do not remember whether the premises was used by the respondent for residential purpose or for commercial purpose at the time of purchase of the property. AW1 further stated that they did attend the office of L&DO after receipt of notice/letter Ex. Aw1/8, however, he do not remember the date on which they attend the office of L&DO but it was in the year 2001. Witness further stated that he does not remember if at the time of purchase of the property respondent was running a guest house under the name and style of M/s Royal Guest House Pvt. Ltd. It is stated by AW1 that at the time of purchased of property no construction was illegal. AW1 further stated that today the premises is being used for commercial purposes and respondent is running the Guest House. He further stated that ground floor of the property is being used for E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 9 commercial purposes and first floor of the suit property are being used for both purposes commercial as well as residential. AW1 stated that business activities are carried out by the tenant without our permission. AW1 denied the suggestion that as he was not the Director of the company at the time of purchase of property in suit he is not aware of the facts of the case.

8. Petitioner has also examined Sh. B.L. Nirwan, LDC from L&DO, who has brought the summoned record of document Ex. AW1/7 and same is true and correct as per their record. Original record was seen by the court and returned to the witness. AW2 has also brought the carbon copy of document Ex. AW1/8 which has been duly signed by the legal office of their department. AW2 deposed that photocopy of the same placed on record is the true and correct as per their record. Original of the Ex.AW1/8 also seen and returned by the court. AW2 deposed that a notice dt.27­12­1996 bearing No:L&DO/L/19/134(20)/96/476 was also issued pertaining the property in dispute for removal of unauthorized constructions. The copy of the same is Ex.AW2/1. It is deposed by AW2 that an inspection was also carried out of suit property by the officer concerned. The inspection report as well as the rough sketch are Ex. AW2/2 , Ex. AW2/3 and Ex.AW2/4.

E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 10 In his cross examination AW2 has stated that he has not seen the suit property nor he is aware about the fact that whether the same is being used for residential or commercial purposes or whether the area in which the suit property is situated is residential or commercial. AW2 stated that unauthorized construction if on any property is regularized by the L&DO only. He further stated that he can not say as to from when the L&DO is regularizing the unauthorized constructions or that any point of time NDMC was authorized to regularize the unauthorized construction, if any. AW2 stated that he is working inL&DO office since, 1991 and he has no knowledge of any steps taken by the L&DO of the regularization of the property before his joining. After going through his file AW2 stated that he does not find any document of regularization of the property in question in his file. AW2 further stated that if the user of the property is to be converted from residential to commercial, the same is done by the L&DO and not by Delhi Development Authority. AW2 stated that DDA was never authorized to convert the user of the property from residential to commercial or vice­versa. It is stated by AW2 that on the notice sent on 27­12­1996, no further action was taken and finally on 4­3­2003, a letter was written to the erstwhile owner and after that no further action was taken. AW2 stated that as per his records Sh. E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 11 Vijay Narain Seth is still the owner of the property. It is further stated by AW2 that no action has been taken on the unauthorized construction accept the notice being given.

9. Petitioner has also examined Sh. Shiv Kumar, Head Clerk, NDMC as AW3. It is deposed by AW3 that first assessment order of property No:44, Janpath, New Delhi was assessed in the year 1973­74, the copy of the same is Ex. AW3/1. AW3 deposed that as per their record the tax of the property has been enhanced due to room rent charged by the respondent as shown in the survey report Ex. AW3/1. Last survey report conducted by the department has also been shown in Ex. AW3/2. The report of the property as per the survey conducted by AE(UACC) , NDMC, Delhi is Ex. AW3/3 & Ex. AW3/4. The history of the property for the purpose of rent as well as for the purpose of construction as per survey report submitted lastly on 5­6­2003 is Ex. AW3/5 and various committee decisions are Ex. AW3/6. Original of all documents exhibited during the examination of AW3 has been seen and returned by the court.

In his cross examination AW3 stated that department has sent a notice regarding the assessment of house tax to Sh. D.C. Bafna on 29­12­1986 , which is Ex. AW3/R1. It is stated by AW3 that after that notice the department started assessing the house tax on room rent E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 12 basis. AW3 further stated that written objection to the notice of NDMC were filed by M/s Jagat Talkies Distributors on 24­1­1990 and the same is Ex. AW3/R2. It is stated by AW3 that said objections were duly considered by NDMC. AW3 further stated that he can not say as the construction is authorized or unauthorized as the same is the work of architect department of NDMC and he has no personal knowledge of the same. It is stated by AW3 that no information was sent to the house tax department of NDMC by the architect department regarding the regularization of the construction raised on the premises in question. It is stated by AW3 that as per the record of NDMC, Smt. Kamla Devi and others C/o Jagat Talkies Distributor are the owners of the premises in question till date and the department is sending the house tax assessment order to the said persons only. AW3 further stated that petitioner has applied for the mutation of the premises in question on 28­5­2003 and till date i.e. 10­3­2005 (date of deposition of AW3 in the court) the property is not mutated in the name of the petitioner. AW3 stated that he can not say as to whether after the entry in their record of the regularization of the premises of house tax of the same will be considerably reduced or not. Witness further deposed that only the guest house is being assessed on the basis of room rent and the remaining premises is assessed only on the E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 13 basis of rent. AW3 stated that the assessment of the property in question in respect of the other tenants using the premises for commercial purposes is made on the basis of the rent.

10. AW4 Sh. Sat Pal Devgan deposed that site plan Ex. AW1/6 has been prepared by him, which is correct as per the site. He further deposed that site plan does not bear his signature and stamp as the same could have not been put inadvertently.

In his cross examination AW4 stated he has prepared the site plan after personally visiting the site

11. Respondent Sh. D.C. Bafna has examined himself as RW1 and filed his evidence by way of affidavit and in his evidenciary affidavit he has reiterated his averments made in his written statement. In his examination in chief RW1, in his evidenciary affidavit Ex. RW1/A, witness deposed that he is a tenant in respect of the second floor portion forming part of the property no:44, Janpath, New Delhi. He further deposed that premises in question is a non residential premises and the entire building is used for commercial purpose only. Witness further deposed that premises No:44, Janpath was let out to him for commercial use i.e. for running of a guest house. RW1 further deposed that second floor portion of the premises No:44, Janpath, New Delhi was let out to him for running a guest house and he is E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 14 running the ;same with the consent and permission of the erstwhile owner, M/s Jagat Talkies Distributors, of the premises. It is deposed by AW1 that he was permitted to run a guest house vide letter dt. 24­11­1981 which is Ex. RW1/1. He further deposed that Delhi Development Authority vide their letter dt.27­1­1983 permitted him to run a guest house in the second floor portion of the premises No:44, Janpath, New Delhi. Said letter is Ex.RW1/2. It is stated by RW1 when the tenancy was created between him and erstwhile owner, the petitioner was nowhere in the picture. RW1 deposed that no portion of the construction on the premises is unauthorized nor any unauthorized construction has been done/raised by him in the suit premises. It is deposed by RW1 that whatever construction has been raised in the suit premises is with the consent and permission of the erstwhile owner and the said construction has been duly regularized by New Delhi Municpal Committee on 8­4­1981. Witness deposed that the confirmation letter of the NDMC dt.8­4­1981 is ex. RW1/3. RW1 deposed that petitioner has purchased the suit property from Sh. Vijay Narain Seth and Sh. Virender Narain Seth in the year 1996 only and the construction that has been done by him on the second floor had been raised long before that. RW1 further deposed that he has not dealt with the premises in any manner which is contrary to any E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 15 condition imposed on the landlord by the Government or the DDA or the MCD or L&DO and whatever construction has been done, the same has been done by following all the rules and regulations of all the concerned authorities.

During his cross examination RW1 stated that he has brought the copy of the Rent Note which was executed between him and the erstwhile landlord the same bears his signature at point A, the copy of the same is Ex. RW1/A­1. RW1, after seeing the site plan Ex. AW1/6, stated that site plan is correct as per the site. He further stated that entire portion as shown in the site plan is in my possession and even the terrace shown in the site plan is in his possession. RW1 further stated that portion shown in yellow colour in site plan has been constructed by him. RW1 voluntarily stated that said portion is authorized. RW1 stated that all the rooms constructed on the second floor and terrace, he has been running the guest house. He again said except in 3 rooms. RW1 denied the suggestion that the construction in question has been raised by him unauthorizedly or that no permission has been sought by him to raise any construction from any authority. In his cross examination RW1 denied the suggestion that document Ex. RW1/5 and RW1/6 are forged and fabricated documents. He admitted that he has not placed any document or E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 16 application or site plan on the record which has been referred in document Ex. RW1/5. RW1 further admitted the suggestion that he has not placed any documents on record to show what permission has been granted to him or that he has constructed the same according to that permission. He denied the suggestion that portion shown in yellow colour in site plan is unauthorized construction. He further admitted that he has not raised any unauthorized construction or construction in the tenanted premises except of those portion which was permitted to him by NDMC vide Ex. RW1/5. RW1 denied the suggestion that the document Ex. RW1/5 is fabricated document and he has not obtained any permission from L&DO office for raising the construction.

12. Respondent examined Sh. Jagvir Singh, JE, DDA, Vikas Sadan, Enforcement Branch (Lands) as RW2, who deposed that violation of the provisions of the master plan of Delhi is under the jurisdiction of DDA. He further deposed that action in respect of the violation of master plan in respect of the Janpath area, New Delhi will be taken by DDA. RW2 deposed that letter dt.27­1­1983 pertains to DDA and the same may be available in the records of DDA and being very old record same is to be found out in the records. He further deposed that for finding the said letter the respondent will have to move an E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 17 application to the concerned department. RW2 deposed that this case pertains to the L&DO Department and not to DDA.

13. RW3 Sh. Vijay Narain Seth, deposed in the court that property No:44, Janpath is owned by him and his brother Sh. Virender Narain Seth and they had entered into an agreement to sell with M/s Sristhi Properties­petitioner herein but they have not got the sale deed registered in their name and the property stands in their name with L&DO and NDMC. He further deposed that respondent is a tenant on the first floor of the suit premises since long and premises was let out to the respondent initially for residential purposes but in the year 1981 the permission was given by him for running a guest house in the said premises. Permission letter dt.24­11­1981 is mark A and same bears his signature at point B. Witness further deposed that he do not remember whether the rent of the premises was increased thereafter as it is the matter of record.

Cross examination of RW3 was deferred and thereafter RW3 never appeared for cross examination by the counsel for the petitioner.

14. Respondent also examined Sh. Ashok Kumar, JE, Building Plan, Architect Department, NDMC as RW4, who deposed that as per the record available the record dt.8­4­1981 written by Chief Architect, NDMC is not available in the record. the file brought by him contains E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 18 the record till 1973. Further examination of RW4 was deferred as he has not brought the complete record but thereafter he never appeared along with record.

15. RW5 Sh. Sugan Chand Sharma, Head Assistant, House Tax Department, NDMC brought the summoned record i.e. Statement of account of property tax in respect of premises No:44, Janpath, New Delhi from the year 1979 till 2008­2009 and same is Ex.RW5/1.

In his cross examination RW5 stated that Ex.RW5/1 has been prepared by him on the basis of entries entered in demand and collection register. He further stated that the rateable value of Rs. 257768/­ has been mentioned by me on the basis of file. RW5 stated that he has not brought the assessment file thereof and he do not know for what reason, the assessment value has been enhanced for the period w.e.f. 1987­1988. RW5 admitted that the area on the basis of which, the tax has been assessed is not mentioned in demand in collection register.

16. Sh. Gopi Chand, Assistant Master Plan Department, DDA has been examined as RW6, who has brought the summoned record which is a letter dt.27­1­1983. The same is Ex. RW6/1 , original of which has been seen and returned by the court. In his cross examination RW6 stated that letter dt.27­1­1983 was not written in his presence nor the E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 19 same has been signed by concerned person in his presence. RW5 denied the suggestion that Ex.RW6/1 is a false and fabricated fabricated.

17. I have heard ld. Counsel for the parties and perused the record carefully.

18. It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner, howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 20 acts dishonestly.

19. It was held in Rajender Kumar Sharma & others Vs. Leela Wati & ors., 155 (2008) Delhi Law Times 383 that "Landlord is not supposed to prove absolute ownership as required under Transfer of Property Act, he is required to show only that he is more than tenant." Whether the plaint has been properly instituted by a validly constituted person­ YES.

20. In the present case Sh. Umesh Gupta (AW­1) has instituted the present eviction proceedings who has exhibited his authorization dated 29.11.2002 which is Ex. AW­1/1. The Apex Court in United Bank of India Vs. Naresh Kumar & Ors (1996) 6 SCC 660 has taken a view that in cases where the suits are instituted or defended on behalf of the petitioner corporation, the public interest should not be permitted to be defeated on a mere technicality. The court further held that as a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. The memorandum and articles of association of the plaintiff company are also placed on record E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 21 Ex. AW­1/3. The witness Sh. Umesh Gupta (AW­1) had the authority to institute the present petition.

WHETHER THERE WAS A SALE DEED EXECUTED IN FAVOUR OF THE PETITIONER­HEREIN (LANDLORD) ­ YES

21. The witness RW­3 (Sh. Vijay Narain Seth) has deposed that the premises No.44 Janpath, New Delhi was owned by him and his brother. There was an agreement to sell between them and the petitioner­herein, however, no sale deed had been entered therefore the said witness RW­3 and his brother continues to be owners as per the records of the NDMC and L&DO. The said piece of evidence is claearly countered by the Ex.AW­1/5 which is a certified copy of the registered sale deed between Sh. BVijay Narain, Sh. Virender Narain and Smt. Kamla Devi. The said sale had been duly registered and entered in the records of the sub­ registrar on 25.09.1996.

WHETHER THE CASE IS MADE OUT UNDER 14(1)(k) OF THE DRC ACT,1958? (YES)

22. The petitioner­landlord has tried to establish a case under S. 14(1)(k) of the DRC Act by alleging that the tenant­respondent has built a E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 22 mezzanine floor which was against the building by­laws. To appreciate the contention of the petitioner, it is desirable to refer to Section 14(l)(k) and Section 14(11) of the Act, which read as under :

S. 14(1) : Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant : 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 of the following grounds only, namely :­
(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 situated;

S. 14(11) : No order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of the proviso to sub­section (1), if the tenant, within such time' as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.

E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 23

23. Under clause (k) if the tenant does not stop the user of the premises contrary to the conditions imposed on the landlord under the lease a right of action arises to the landlord to seek eviction of the tenant. The Sub­section (II) is mandatory. It requires the Controller not to pass an order of eviction, if one of the alternatives is complied with by the tenant. The two alternatives are (1) to stop the misuse within the time to be specified by the Controller or (2) to pay to the concerned authorities by way of compensation such amount as may be determined by the Controller. This Sub­section intends that the Controller should determine these questions because in a case where the default can be remedied by payment of compensation, the amount of compensation payable by the tenant is to be determined. The two questions under Section 14(11) of the Act are in the alternative. If the tenant agrees to stop the misuse, further question of determining the compensation would not arise. But if the tenant wants to continue the use of the premises contrary to the conditions imposed under the lease deed the Controller has to approach the authority concerned to find out if non­conforming use is to be permitted, if so on what terms. If the non­conforming user is not permitted by the authority the controller has no alternative but to pass the order of eviction. But if the authority is inclined to permit the non­ conforming user, the Controller has to determine the compensation for E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 24 non­conforming user. This determination shall be with respect to the past non conforming user as well as for the future. This question for determining the compensation or permission for non­conforming user is to be decided by the Controller after notice to the authority concerned. Neither the landlord nor the tenant can be directed to approach the authority for regularization of the non­conforming user or for determination of the compensation.

24. In Dr. K.Madan v. Krishnawati (Smt.) and Anr. [(1996) 6 SCC 707], it was held that where the premises are used in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or Municipal Corporation of Delhi, then the landlord will be entitled to recovery of possession under Section 14(1)(k) of the Act and that sub­section (11) of Section 14 of the Act enables the Controller to give another opportunity to the tenant to avoid an order of eviction. The first opportunity to the tenant is given when the notice is served on him by the landlord and the second opportunity is given when an conditional order under Section 14(11) of the Act is passed directing the tenant to pay the amount by way of compensation for regularization of user up to the date of stopping the misuse and further directing stoppage of unauthorized use. The continued unauthorized user would give the paramount lesser the right to re­ enter after the cancellation of E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 25 the lease deed.

25. The case of the petitioner is that the respondent­tenant is running the guest house at the premises without any written consent /permission of the petitioner­landlord. Apart from that the respondent­tenants have raised unauthorized construction as shown in yellow in the site plan. The illegal construction includes the mezzanine floor, the room on the terrace and the WC.

26. The respondent­tenant has contended that he had obtained the permission to run the guest house from the erstwhile owner i.e. M/s Jagat Talkies Distributors vide their letter dated 24/11/1981 and the same is MARK­A. It has been further stated that the prior permission was also obtained from the DDA vide the letter dated 27/01/1983 and the same is Ex. RW­1/1. According to the tenant­herein there was no need to obtain written permission / consent from the present landlord when such a permission was already taken from the erstwhile landlord. It has also been deposed by the witness RW­1 that he had raised no unauthorized construction and any construction raised by him was authorized by the NDMC vide its confirmation letter dated 8th April 1981 and the same is Ex. RW­1/5. The regularization charges have been paid by the tenant­ herein vide receipt Ex. RW­1/6. According to the tenant, the landlord­ E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 26 herein had complete knowledge of the construction and occupation of the tenanted premises being run as the guest house. As per the testimony of RW­1 the government authorities are not levying any penalty with regard to the construction in the premises.

27. The situation­herein is hinged upon two categories of documents / letters from the government authorities:

i. The communication during the times when the erstwhile landlord i.e. M/s Jagat Talkies were the landlord. The letters exhibited by the respondent­tenant are :
i. the letter dated 24/11/1981 (MARK­A) which is purportedly the permission to run the guest house from the erstwhile owner i.e. M/s Jagat Talkies Distributors;
ii. the letter dated 27/01/1983 (Ex. RW­1/1) which is the prior permission obtained from the DDA;
iii. the letter dated 8th April 1981 (Ex. RW­1/5) which is the purported confirmation from the NDMC;
E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 27 iv. the receipt (Ex. RW­1/6) depicting the regularization charges have been paid by the tenant­herein.
ii. The communication during the time when the petitioner­ herein became the landlord. The documents relied upon by the petitioner­landlord are:
i. the notice dated 27/12/1996 (Ex. AW­2/1);
ii. the inspection report is Ex.AW­2/2 and the sketch is Ex. AW­2/3 and Ex.AW­2/4.
iii. The letter dated 23.09.1996 vis­à­vis the violations (Ex.AW­1/8);
iv. The legal notice Ex. Aw­1/9.
28. As far as MARK­A 9 (the letter dated 24/11/1981) is concerned the admissibility of the same doubtful because it is not a primary evidence. It being a secondary evidence the procedure under S. 63 & 66 of the Indian Evidence Act has not been followed. The fundamental rule of the admissibility of the documents is contained in S. E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 28 64 of the Indian Evidence Act which is that the "Documents must be proved by primary evidence except in the cases hereinafter mentioned."

It has not been explained by the respondent­tenant how 'MARK­A' has satisfied the requirements under s.64 of the Indian Evidence Act. Therefore MARK­A is not admissible as evidence. Even if it was admissible the contents therein does not disclose any 'written consent' from the erstwhile landlord. The said contents would only reveal that the respondent­tenant was desirous of seeking a consent.

29. As far as Ex. RW­1/1 is concerned the said letter is the clarification from the Deputy Commissioner of Police (Licensing) thereby offering a general opinion that a Guest House could be run in the premises No. 44, New Delhi in view of it being situated in a commercial area from the land use point of view. The said opinion was written not to the landlord (M/s Jagat Talkies) but to the tenant directly.

30. As far as the regularization of the unauthorized construction is concerned the Ex.RW­1/5 had regularized the construction on 08.04.1981 pertaining to :

E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 29 b. A loft over verandah;
c. other inter brick masanory enclosing toilets etc.

31. However, we have to see whether a any further construction was raised after 08.04.1981. As per Ex. AW­1/8 (letter dated 23.09.1996) the L&DO had written to the erstwhile landlord (Sh. Vijay Narain Seth) was served a notice thereby intimating him of the violations. It intimated that :

a. the whole second floor was being used as the Guest house and that a mezzanine floor was unauthorizedly constructed; b. An unauthorized mezzanine was also constructed on the rear verandah;
c. Unauthorized shed of ACC sheets was on the eagle iron in the central open courtyard;
d. Unauthorized construction on terrace. Two pucca rooms on the terrace;
e. WC constructed on the terrace floor area.
E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 30

32. The notice of the letter dated 23.09.1996 (Ex. AW­1/8) has been examined as RW­3 and has admitted during his cross­examination that the respondent­tenant was inducted as tenant in the first floor. He had also admitted that his name continues to exist in the records of the NDMC and L&DO. The said evidence perused along­with the evidence on the sale of the premises vide a registered sale deed (dated 25.09.1996) would depict that the violation had occurred much before the petitioner­ herein had become the landlord. The erstwhile landlord had taken no steps to have the unauthorized construction removed. The notice on behalf of the new landlord i.e. the petitioner­herein had been sent to the respondent­tenant (EX.AW­1/9) to remove the unauthorized construction.

33. The site plan as submitted by the petitioner­landlord as EX. AW­1/6 depicts a mezzanine above the second floor (as unauthorized). The site plan also depicts the unauthorized construction on the terrace which comprises of two rooms, toilet and passage etc. In that regard the testimony of Sh. B.L. Nirwan (LDC from L & D Office) becomes relevant. The said witness AW­2 has deposed that the notice dated 27/12/1996 (Ex. AW­2/1) was issued and an inspection was carried out by the officers concerned. The inspection report is Ex.AW­2/2 and the sketch is Ex. AW­2/3 and Ex.AW­2/4. A suggestion was put to the said E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 31 witness that the unauthorized construction was regularized. However, the said suggestion was denied by the said witness. The contents of the inspection report Ex. AW­2/2 shows that the whole second floor was being used as Royal Guest house and that there was a mezzanine construction in the rear verandah and the G.F. was used as the office.

34. The respondent­tenant has admitted during his cross­ examination that he understands a site plan and that the site plan Ex. AW­1/6 is correct as per the site. It was admitted that he had in possession the entire portion as depicted in the site plan including the terrace. It was further admitted that the portion shown in yellow in the site plan was constructed by him. The rooms constructed on the second floor was run as a guest house by the respondent­tenant. On further cross­examination the respondent­tenant has admitted he had not placed any site plan vis­à­vis Ex.RW­1/5 to establish that any permission was granted to him.

35. The respondent­tenant has raised objections on the admissibility of the exhibits placed by the Sh. B.L. Nirwan (LDC from L & D Office). It was admitted by the said witness AW­2 that he had himself not visited the premises and that he himself had no knowledge of the inspection. In E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 32 that regard S.35 of the Indian Evidence Act is relevant. Accordingly An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact. The section is based upon the assumption that public officials must have performed an official duty correctly and that the entries made by persons statutorily enjoined also do it correctly and after lapse of several years, they may not be available to give evidence. Section 35 refers to book, register or record.

36. The reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high. A decision of the Privy Council in Ghulam Rasul Khan v. Secretary of State for India in Council held that the statements in public documents are receivable to prove the facts stated on the general grounds because they are made by the authorized agents of the public in the course of official duty and respecting facts E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 33 which are of public interest or required to be recorded for the benefit of the community. In many cases, in deed, in nearly all cases, after lapse of years it would be impossible to give evidence that the statements, contained in such documents were in fact true, and it is for this reason that such an exception is made to the rule of hearsay evidence," (Taylor's Law of Evidence, 10th ed., s. 1591).

37. In the present case the factum of the inspection was duly kept in a register maintained by the department. Therefore S.35 applies and the evidence given by AW­2 is admissible.

38. It has also been argued on part of the respondent­tenant that the petitioner­landlord had not earlier objected to the structure therefore the same cannot be objected now. In that regard FAQIR CHAND VS. SHRI RAM RATTAN BHANOT, (1973) 1 SCC 572 would be relevant where a property had been given on lease by the Delhi Development Authority but the landlords had permitted tenants to use portion of the building for commercial purposes. In that case The Development Authority issued notice to the landlords calling upon them to discontinue the use of land for commercial purposes, failing which cause should be shown as to why the lease should not be determined and the property re­entered. E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 34 Thereupon the land­lords sought eviction of the tenants under Section 14(1)(k) of the Act. One of the contentions which were raised to behalf of the tenants was that the land­lords were estopped or otherwise prohibited from getting possession of the property because the land­lords themselves had let­out the property for commercial purposes. Dealing with the contention that the land­lords were estopped from filing or getting any relief under clause (k), lt was held that:

"There is no estoppel here because both the landlord and the tenant knew that the tenancy was not one permitted under the terms of the lease of the land. In any case there can be no estoppel against the statute. It would not benefit the tenant even if it is held that the landlord cannot, under the circumstances, evict him. The landlord will lose his property and the tenant also will lose."

39. The Delhi Rent Control Act is a piece of social legislation and it was enacted in order to protect the tenants from frivolous eviction petitions. At the same time, in order to do justice to the landlord and to avoid placing such restriction on their rights to evict the tenants as to destroy their legal rights to the property, certain salutary provisions have been made by the legislation to give relief to the landlord. The evidence as adduced by the petitioner­landlord establishes that there had indeed E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 35 been a construction beyond what was regularized on 08.04.1981.

40. The respondent­tenant has also stated that the erstwhile landlord i.e. M/s Jagat Talkies had appointed Sh. Narender Bafna s/o Sh. D.C. Bafna as their attorney to collect the rent from all the tenants. The said GPA dated 10th July 1987 is marked as MARK RW­A. The said piece of evidence is not admissible on account of it being a here­say evidence. The son of the respondent­tenant has not been examined. There is one more reason of rejecting the said piece of evidence. Even if the erstwhile landlord had ever authorized the son of the tenant­herein to collect the rent, such an authority seized to have an effect when the new landlord took over.

41. In view of the above observations and discussion the petitioner succeeded in establishing his case u/s 14(1)(k) of DRC Act. Under Section 14 (11) DRC Act, no order of recovery of possession of any premises can be made under section 14 (1)(k) of DRC Act, if the tenant within such time as may be specified in this behalf by the Controller compliance with the condition imposed on the landlord by any of the authority referred to in that clause or pays to that authority such amount by way of compensation within the controller may directed.

42. Accordingly, order u/s 14 (11) of DRC Act are hereby passed E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna 36 and notice be issued to the L&DO to file its reply by the next date to ascertain whether it is prepared to condone the violation and if so, on which terms. Ordered accordingly. No order as to cost. File be consigned to record room. 


Announced in the open court on 
this 31st day of July, 2012                    (VEENA RANI)
                                        ADDITIONAL RENT CONTROLLER, 
                                     PATIALA HOUSE COURTS, NEW DELHI

E.P :No:21/09/2002, M/s Shrishti Properties Pvt. Ltd. Vs. D.C. Bafna