Delhi District Court
S Jasdev Singh vs Banarasi Das Ahluwalia on 10 July, 2015
Old E No. 22/89
New E No. 34/08 1 10.07.2015
IN THE COURT OF Ms. KIRAN GUPTA, SENIOR CIVIL JUDGECUM
RENT CONTROLLER, NEW DELHI DISTRICT, PATIALA HOUSE
COURTS, NEW DELHI
Old E No. 22/89
New E No. 34/08
Unique ID No. 02403C0000921989
S. Hardev Singh
S/o. Late S. Rajdev Singh
2, KG Marg, New Delhi 110 001
(Deleted vide order dt. 08.12.2014)
1. S Jasdev Singh
S/o. Late S Rajdev Singh
4, K. G Marg, New Delhi 110001
2. Mrs. Alape Kaur
D/o. Late S Rajdev Singh
224, Jor Bagh, New Delhi 110003
....Petitioners
Versus
Banarasi Das Ahluwalia
(since deceased on 06.10.2005)
Represented by:
1. Mrs. Sunita Devi ... Widow
2. Sh. Kapil Ahluwalia ... Son
3. Sh. Mahender Ahluwalia ...Son
4.Sh. Surender Ahluwalia ...Son
5. Sh. Verinder Ahluwalia ... Son
6. Ms. Kanta ...Daughter
7. Ms. Meena ...Daughter
8. Ms. Neena ...Daughter
9. Ms. Madhu ...Daughter
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10.Ms. Saroj ...Daughter
Shop no. 20, block "b", Connaught Place,
New Delhi 110 001
Second address
UNESCO Apartments, Plot no. 55
Patparganj, Delhi 110 092
...... Respondents
Date of institution : 25.01.1989
Order reserved on : 06.07.2015
Date of pronouncement of judgment : 10.07.2015
JUDGMENT:
1 Present petition is under section 14 (1)(j) of the Delhi Rent Control Act (hereinafter referred as the Act), for recovery of possession of shop bearing no. 20B, Connaught Place, New Delhi as shown blue in the site plan filed along with the petition (hereinafter referred as tenanted premises) on the ground of causing substantial damage to the tenanted premises.
2 Brief facts of the case as stated in the petition are that:
Petitioners are the owner of the tenanted premises. The tenanted premises comprising of one big showroom facing Connaught place with mezzanine floor on the back and other rooms on the back was let out to Sh. Banarasi DasAhluwalia alone on 01.08.1948 at the monthly rent of Rs. 284.62/. It is alleged that Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 2of 26 Old E No. 22/89 New E No. 34/08 3 10.07.2015 respondent on or about end of May 1988 has made addition and alteration in the tenanted premises without prior written consent of petitioners thereby causing substantial damage to the property by the acts of omission and commission. Respondent without prior written consent of petitioners constructed illegal and unauthorised pucca mezzanine consisting of steel girder's, agrastone and concrete flooring on the top having an area of approx. 837.8 sq ft. and caused and / or permitted to be caused substantial damage to the tenanted premises. The character and the shape of the tenanted premises has been changed as respondents have made material alterations in the tenanted premises, thereby effecting the age and utility of the building.
The building stand totally different from the building that was let out. The utility of the premises has been impaired. The material structural additions and alterations have caused collosal loss to petitioners.
2.1 It is stated that while the unauthorised and illegal construction was going on, NDMC passed an order dt. 03.06.88 under section 195 A of Punjab Municipal Act and sealed the tenanted premises. Thereafter notice dt. 06.06.1988 U/s. 195 B for demolition of unauthorised construction was issued and served by NDMC upon the respondent and petitioners.
2.2 Petitioners vide their letter dt. 07.06.1988 requested the respondent to rectify the violation of the provisions of Punjab Municipal Act committed by him and to demolish the illegal and unauthorised construction of Mezzanine floor as the same was built Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 3of 26 Old E No. 22/89 New E No. 34/08 4 10.07.2015 without any information or permission of petitioners or NDMC. Despite the same, respondent has neglected and failed to demolish the illegal and unauthorized construction.
2.3 Petitioners also replied the notice of NDMC vide their letter dt. 07.06.1988 stating that respondent had violated the provisions of Punjab Municipal Act by erecting an illegal and unauthorized construction of mezzanine floor without any intimation and permission of landlord and requested NDMC to demolish the said illegal construction. Order of demolition of unauthorised and illegal construction was passed by NDMC vide order dt. 06.06.1988.
2.4 Respondent filed an appeal No. 102/ATMCD/88 against the said demolition order dt. 06.06.88. Vide order dt. 04.07.1988, Appellate Tribunal M.C.D remanded the matter to Chief Engineer (C) for redecision after hearing.
2.5 Respondent filed another appeal bearing no.
103/ATMCD/88 against the order of sealing dt. 03.06.1988 which was dismissed. Thereafter respondent again filed an appeal No. 139 of 1988 CA which was decided by the Lt. Governor who remanded it back to Chief Engineer (Civil) NDMC for redecision vide order dt. 26.10.1988.
2.6 The Chief Engineer (Civil) after hearing both the parties, vide order dt. 02.01.89 directed the respondent to demolish 264.50 sq Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 4of 26 Old E No. 22/89 New E No. 34/08 5 10.07.2015 ft. of Mezzanine floor and held that 660.41 sq. ft has been unauthorizedly constructed.
2.5 It is alleged that extension of pucca mezzanine constitutes structural alteration , giving new form to the structure of the premises . The construction of new mezzanine is going to cause substantial harm to the owners besides it would effect the FAR of the property, thereby it has impaired, materially the utility of the premises. Despite service of notice dt. 07.06.1988, the respondent has failed to demolish the unauthorised and illegal construction, hence the present eviction petition.
3 In Written statement filed on behalf of respondent, he has admitted the relationship of landlord and tenant between him and petitioners and the fact that the premises was let out for non residential purpose. It is stated that petitioners in collusion with officials of NDMC have caused immense loss to his business by illegally securing initiation of proceedings for demolition of portion of mezzanine floor. The description of the property has been disputed by respondent . It is stated that since no copy of the site plan has been given to him , he can neither deny or admit the correctness of the site plan. The rent payable is not denied. It is not denied that the building was completed prior to 1939. It is stated that premises was let out to respondent in the year 1947 and not on 01.08.1948.
3.1 It is denied that an unauthorised pucca mezzanine
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consisting of iron girder, agrastones and concrete has been
constructed in the premises which admeasures 837.8 sq ft. without the permission and consent of petitioner as alleged. The respondent has denied the entire contents of para 18 (a) (i) .
3.2 It is stated that no construction whatever was either going on or made by the respondent on 03.06.1988. The notice of NDMC and consequent sealing is not denied by the respondent. It is stated that petitioners in collusion with the officials of NDMC built up a false story of construction of a potion of mezzanine in June 1988 and in furtherance thereof have sent letter dt. 07.06.1988. The said mezzanine had been in existence since prior to 1977. The Chief Engineer (Civil), NDMC in his order has categorically held that mezzanine floor measuring 660.49 sq ft. had been in existence prior to 1977. It is denied that the pucca Mezzanine constitutes structural alteration and is likely to cause any harm to petitioners or has effected the FAR of property or impaired the utility of the premises. It is stated that the extended portion of mezzanine floor was constructed in the year 197677 and the said mezzanine floor had been in existence as it is , since then and it was constructed with the consent of petitioners.
3.3 Due to the construction of extended mezzanine, NDMC sought to enhance the house tax of the premises and passed a resolution in 197778 in this respect. The enhanced house tax was assessed in the year 197879 and 197980 and the petitioners filed the objections before the committee against the enhanced house tax on Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 6of 26 Old E No. 22/89 New E No. 34/08 7 10.07.2015 the ground that there had been no increase in rent by respondent. Eventually the plea of petitioners was accepted by the committee and the proposal relating to enhanced house tax was drafted. The petitioners had been demanding from respondent enhanced house tax which was levied by the committee on account of the construction of the said additional mezzanine floor.
3.4 The allegations that the said construction was erected in June 1988, is absolutely false, concocted and made by the petitioners for ulterior reasons. Even the committee , on reconsideration of the whole matter came to the conclusion that 660.40 sq ft. had been existence since 1977 and only a portion measuring 264.50 sq ft was additionally constructed. This finding of committee is erroneous and has already been assailed by respondent before the Hon'ble High Court of Delhi. After having filed an appeal against the order dt. 02.01.89 of Chief Engineer (Civil) NDMC, petitioners settled the matter with the respondent and agreed to withdraw the appeal filed before the Appellate Tribunal.
3.5 The present suit is without any cause of action and further no notice of determination of tenancy has been received by the respondent. Letter dated 07.06.1999 sent by the petitioners cannot constitute any legal notice to the respondent. No cause of action survives to the petitioner and the petition is liable to be dismissed.
4 In the replication filed by petitioners, they while denying
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the contents of written statement have reiterated the facts as stated in petition. It is stated that the extension of pucca mezzanine by respondent constitutes structural alterations in the premises and the construction of new mezzanine had caused harm to the petitioner and has affected the FAR and has impaired materially utility of the premises. It is denied that extended portion of the mezzanine floor was constructed as far back as 197677. It is also denied that the said mezzanine had been existing since 197677 and was constructed with their consent. The alleged plea that due to the construction of extended mezzanine NDMC sought to enhance the house tax of tenanted premises and tax was enhanced in the year 197879 and 197980 has got no bearing on this petition for eviction on the ground of causing substantial damages to the premises by respondent. It is denied that petitioners had been demanding from respondent enhanced house tax because of the construction of said additional mezzanine floor. It is denied that plea that said construction was erected in June, 1988 is false , concocted and made up by the petitioners for ulterior reasons. The alleged finding of the NDMC that 660.40 sq ft. had been in existence in 1977 and only a portion measuring 264.50 sq . ft. was additional construction has got no bearing on this petition for eviction filed on the ground of causing substantial damages to the premises by making illegal and unauthorized construction of a pucca mezzanine.
5 During pendency of present petition, petitioner no. 2 expired in February 2002 and consequently his LRS were impleaded Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 8of 26 Old E No. 22/89 New E No. 34/08 9 10.07.2015 vide order dt. 11.09.2002. The respondent also expired and his LRs were impleaded vide order dt. 21.02.2008. LR no. 2, 6, 7 and 8 of respondent were also proceeded exparte vide order dt. 21.02.2008.
6 The name of petitioner no. 1 was deleted from the array of parties vide order dt. 08.12.2014 on the basis of statement of his counsel that he has no right or interest in the suit property.
7 Petitioners in support of their case have examined Sh. Kailash Joshi as AW 1 and Sh. Anil Kumar Gupta, Architect as AW 2 Sh. Om Prakash LDC, NDMC Chief Architect Department as AW 3.
8 Respondent in support of his contentions has examined Sh. Kapil Aluwalia as RW 1 who has tendered his evidence by way of affidavit dt. 12.05.2003 Ex. RW 1/A .
9. It is argued by the counsel for petitioners that respondent without the written consent of petitioners has illegally and unauthorisedly constructed a pucca mezzanine made of Steel girder, agra stones and concrete flooring having an area of approximate 837.8 sq ft. and caused substantial damage to the tenanted premises. It is further argued that RW 1 during his cross examination has specifically admitted that a pucca mezzanine has been construed with the iron girder in the shop. He has admitted that the notices were issued by NDMC for unauthorised construction to his father in the year 198788 Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 9of 26 Old E No. 22/89 New E No. 34/08 10 10.07.2015 and the tenanted premises was sealed after issuance of notice to his father. It is further argued that RW 1 further admitted that their appeal which was against sealing order and unauthorised construction has been dismissed. RW 1 further admitted that complete mezzanine floor is still existing in the tenanted premises. It is argued that from the cross examination of RW 1 it is evident that complete mezzanine floor is still existing as RW 1 himself has failed to show any site plan in respect of the tenanted premises as it was originally let out or about its present position. It is further argued that respondents despite the order of Hon'ble High Court of Delhi did not demolish 264.50 sq ft additional mezzanine area as ordered vide order dt. 04.12.1991. On the contrary, petitioner had to pay Rs. 35,54,713/ as demanded by L & DO vide letter / notice dt. 22.06.2004 plus Rs. 11,05,545/ claimed by L & DO vide affidavit dt. 17.04.2010 besides interest and other charges. These charges have been paid by petitioner to L & DO on 30.05.2010. In support of his arguments, Ld. counsel for petitioners has relied upon following judgments:
a. Pearey Lal & Anr. Vs. Surendra Nath & Ors, 162 (2009) DLT 412 b. Shakuntala Devi Vs. Avtar Singh , 2004 (2) RCR 718 (Delhi) c. M/s. British Motor Car Co. Vs. Madan Lal Sagi 2004 (2) RCR 693 (SC) d. Gurbachan Singh Vs. Shivalak Rubber Indust. 1996(1) Rent Control Reporter 398 (SC).
e. Ranju @ Gautam Ghosh Vs. Rekha Ghosh & Ors.
1(2008) Supreme Laws Today 12 f. Pushpa Mayee Dasi Vs. Jyotsna Daw & Ors. 1 (2008) Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 10of 26 Old E No. 22/89 New E No. 34/08 11 10.07.2015 Supreme Laws Today 714 g. Sant Lal & Anr Vs. Ram Laxman Gupta 169 (2010) DLT 448. h. Sudesh Kumar Bajaj Vs. P C Khanna & Ors. , 2012(2) RCR 13 (Delhi ) i. Purushottam Das Bangur & Ors Vs. Dayanand Gupta 2012 (2) RCR 447 (SC)
10. Per contra, it is argued by the counsel for respondents that the mezzanine floor was constructed in 1977 with the consent of petitioners. It is further argued that NDMC issued the notice dt. 03.06.1988 regarding unauthorised construction and also sealed the premises. The said notice was followed by the demolition order dt. 06.06.1988 whereby the entire 851 sq ft. of the mezzanine floor was directed to be demolished. It is pursuant to the said order that petitioners sent the notice / letter dt. 07.06.1988 to respondent. Respondent against the order dt. 03.06.88 and 06.06.88 preferred appeal before the Tribunal which was dismissed. The respondent again preferred second appeal before Lt. Governor who allowed the appeal and remanded the matter back to NDMC for fresh consideration. In 1989 NDMC again reexamined the premises and heard the parties and held that 660 sq ft of the mezzanine was constructed wayback 1977 which is evident from the order dt. 02.01.1981. Petitioner also preferred appeal against the said order, however withdrew the same subsequently in view of the settlement between the parties. In the meantime, respondent went to Hon'ble High Court of Delhi, wherein vide order dt. 04.12.1991 it was held that the finding regarding unauthorised construction in respect of 260 sq ft.
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of mezzanine floor was correct and it further directed NDMC to regularize 660 sq. ft. of the area of mezzanine floor. Pursuant to the said order, NDMC regularized 660 sq ft. area and remaining 260 sq ft area was demolished by respondent.
11. In rebuttal, it is argued by Ld. counsel for petitioners that respondents have not demolished 260 sq ft. area and the entire mezzanine floor is still in existence which is evident from the testimony of RW 1 also.
12. Heard counsels for the parties. Perused the complete record file. In the present matter, there is no dispute regarding the relationship of landlord and tenant between the parties. There is no dispute regarding the rate of rent. The undisputed facts are that NDMC had issued the notice dt. 03.06.88 to respondent for unauthorised construction and sealed the tenanted premises on 03.06.88. The said notice was followed by order of demolition dt. 06.06.88, against which respondent preferred appeal which was dismissed . It is on the second appeal preferred by respondent , that the matter was remanded back by the Lt. Governor for reconsideration by NDMC . The Chief Engineer (Civil) NDMC after hearing both the parties in detail passed the order dt. 02.01.1989.
12.1 The petitioners in the petition themselves have stated that tenanted premises comprises of mezzanine floor at the back side, Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 12of 26 Old E No. 22/89 New E No. 34/08 13 10.07.2015 however the exact measurement regarding the mezzanine floor which was part of the tenanted premises is not stated by the petitioners. It is alleged that respondent has extended mezzanine floor unauthorisedly without the permission of the petitioners. The construction of the additional mezzanine floor is not disputed by the respondent, however it is stated that it was constructed in the year 1977 with the permission of petitioners. No document that the permission of petitioners were sought for the construction of the mezzanine floor in the year 1977 has been placed on record by respondent. As per the case of petitioners, the additional mezzanine floor was constructed in the year 1988 and reliance in this regard has been placed on the notices and the letters of NDMC. The said notices and letters of NDMC have been admitted by the respondent also.
13. Under section 14 (1) (j), the tenant is liable for the order of eviction if he has caused or permitted to be caused substantial damage.
13.1 In Om Pal v. Anand Swarup, (1988) 4 SCC 545, the Supreme Court observed that:
"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 room or making minor alterations for convenient use of Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 13of 26 Old E No. 22/89 New E No. 34/08 14 10.07.2015 accommodation would not materially alter the building".
13.2 In Savitri Devi v. U.S. Bajpai and Another, AIR 1956 Nagpur 60, it has been held that :
"the tenant had raised temporary shed which did not alter or demolish any part of the house except a portion of the front wall. So far as the erection of temporary shed was concerned it was observed that it could not be said to be an act of waste. It was further observed that if the damage done is not significant and could be easily repaired such an act would not entitle the landlord to the grant of permission to terminate the tenancy unless it is likely to impair materially the value or the utility of the building.
13.3 In Moti Ram Banarsi Dass v. Shiv Dayal Trust, 1984(2) RCR 421, Himachal Pradesh High Court held that "the landlord could only succeed if he was able to prove by cogent evidence that the construction of three Parchattis by the tenant was held to have materially impaired the value and utility of the building".
13.4 Punjab and Haryana High Court in Madan Lal Saggi and Another v. British Motor Car Company, 1984(2) RCR 572, held that:
"where the landlord did not give the date of making of additions and alterations by the tenant the landlord's application must fail. In the said case, the tenant had covered the Veranda into rooms but character of the building remained commercial. It was held that the tenant was not liable to be ejected. There should be structural alterations which change the nature and character of building to bring the act of tenant within the mischief of the statute it was held.
13.5 Punjab and Haryana High Court again in Gurmit Singh v.
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Smt. Kirpal Kaur, 1992(2) RLR 271, held that:
"false ceiling of temporary nature does not in any way impair the value and utility of the premises. It was held that replacement of roof and staircase was not material alterations in the tenancy premises".
13.6 In Vipin Kumar v. Roshan Lal Anand and Others, (1993) 2 SCC 614, it was held by the Supreme Court that:
"the impairment of the value or utility of the building is from the point of view of the landlord and not of the tenant. The acts of the tenant must be such that construction of the wall had materially impaired the value or utility of the demised premises. Whether the value and utility had materially been impaired is an inferential fact to be deduced from proved facts. In the said case the tenant without the consent of the landlord had constructed walls and put up doors herein which had stopped the flow of air and light. He had removed the doors. The Supreme Court held that the value and utility of the premises has been materially affected. It was further observed by the Supreme Court that "In determining the question the Court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and the structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant". In considering that language it was held that putting up a door to the Veranda is not a material alteration".
14 Thus the onus of proving that the tenant has caused substantial damage to the demised premise is upon the landlord and he must prove that addition and alteration in the tenanted premises is carried out by the tenant without his consent. 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. An eviction order under Clause (j) could be Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 15of 26 Old E No. 22/89 New E No. 34/08 16 10.07.2015 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. 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 utilization aspect of the building. A temporary alteration or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises. 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. 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.
15 The petitioners in order to show that the construction of additional mezzanine floor has caused substantial damage to the tenanted premises have examined three witness. Their testimony is discussed as follows:
15.1 AW 1 during his examination in chief deposed that he looks after the property and legal work of petitioner no. 1. He has seen the shop in dispute. The respondent has constructed a mezzanine floor in the tenanted premises by fixing steel girders. The measurement of the said mezzanine floor is about 20 ' to 30'X 15' or 20'. Cracks have developed in the walls due to construction of the Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 16of 26 Old E No. 22/89 New E No. 34/08 17 10.07.2015 mezzanine floor and unnecessary load has been put on the premises and there is danger that it may collapse. Respondent has also caused damage to the floor of the shop and the original look of the shop has been changed. The respondent has done the above acts without consent of petitioners and without obtaining any sanction from NDMC. Substantial damage has been caused to the tenanted premises. He during his cross examination stated that he is looking after the tenanted premises since 1986 i.e. when he joined the services of petitioners. He does not know the condition of premises prior to 1986. He admitted that he did not take the measurements personally.
He stated that the back portion of mezzanine was constructed in 1977 and remaining was built afterwards. He denied the suggestion that cracks have not been caused in the building due to the construction of mezzanine or that the outlook of the premises has not changed. He denied the suggestion that Chief Architect of NDMC held that the entire construction as now existing is an old one. He denied the suggestion that construction is prior to 1977. He admitted that he has no knowledge that prior to 1986 there was no unauthorised construction.
15.2 AW 2 Sh. Anil Kumar during his examination in chief deposed that he is practicing as Architect since 1987 and is registered licence holder and building supervisor of MCD with licence no. S 1094. He deposed that he had inspected the tenanted premises on 24.01.1998 at about 5:30 pm. Mr. Manoj Vashist, clerk of petitioner and staff from the side of tenant were also present at that time. He Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 17of 26 Old E No. 22/89 New E No. 34/08 18 10.07.2015 prepared the rough site plan. He inspected the damages and alterations made in the tenanted premises and prepared the report in respect of the damages Ex. AW 2/1. He deposed that unauthorised construction is shown in red colour in the site plan Ex. AW 2/2. The portion shown yellow in site plan Ex. PW 2/3 has been demolished. He during his cross examination admitted that he had not given any notice or information to the respondent before inspection of the site. He had visited the tenanted premises first time on 24.01.1998. Before 24.01.1998, he had never seen the tenanted premises. The rough notes and rough site plan prepared by him are not available with him. He stated that he is not aware of the position of the tenanted premises which was let out to respondent. He stated that site plan was shown to him by petitioner which he has not brought today. He stated that he does not remember the names of the persons present at the site from the side of respondent . He admitted that he has not taken anyone's signature from the side of respondent on his rough notes or otherwise. Mr. Manoj Vashist was present at the time of inspection. He denied that he had prepared the report as per the instructions of petitioner. He denied that he has not seen any alteration or demolition or that he prepared the false report in collusion with petitioner.
15.3 AW3 LDC NDMC, Chief Architect Department, Palika Kendra during his examination in chief deposed that notice dt. 03.06.88 was issued by their office. He placed on record the photocopy of the said notice as Ex. AW 3/1. He deposed that another notice dt. 06.06.88 was also issued to respondent from their office which was Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 18of 26 Old E No. 22/89 New E No. 34/08 19 10.07.2015 signed by Chief Engineer (Civil ) and proved the carbon copy of the same as Ex. AW 3/2. He during his cross examination stated that he was posted in House tax department on 03.06.1988. He had no concern at all with the unauthorised construction cell of MCD at that time. He admitted that notice dt. 03.06.88 and 06.06.88 was not signed or issued in his presence or before him. He stated that he cannot recognize the signatures on both the notices and cannot tell who had signed the said notices.
16 AW 1 is basically the AR of petitioner no. 1 and has deposed on the basis of his knowledge as he is looking after the property and legal work of petitioner no. 1. He in his testimony for the first time has stated that the measurement of the mezzanine floor constructed by the respondents is about 20' to 30' X 15' or 20'. Though he has deposed that cracks have developed in the walls due to the construction of mezzanine floor and it has caused damage to the floor and the look of the shop has been changed, however no such document in this regard has been placed on record by AW 1 or any of the petitioners. No photographs that the cracks have developed in the walls due to the extension of mezzanine floor or it has caused damage to the load bearing wall has been placed on record by the petitioners.
17 AW 2 is the Architect that is the expert witness examined by the petitioners who has deposed that he had inspected the premises on 24.01.1998 and was accompanied with Mr. Manoj Vashist, Clerk of petitioners. His report is Ex. AW 2/1 and the unauthorised Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 19of 26 Old E No. 22/89 New E No. 34/08 20 10.07.2015 construction is shown in red colour in Ex. AW 2/2 and has also shown the portion which have been demolished by the respondents in site plan Ex. AW 2/3.
18 I have perused the entire report Ex. AW 2/1. The relevant clauses which talks about the mezzanine floor, reads as under:
"1. The above said premises i.e. the shop along with mezzanine old possession shown in the attached plan annexure B which is Ex. AW 2/3.
8. The mezzanine have been extended above 9'.0"
length constructed by the tenant so the cause of damage to the premises."
19. In the end of the report it is concluded that the additional construction is shown in red colour in the attached plan annexure A which is Ex. AW 2/2, which is the cause of damage to the premises and the old position of the shop is shown in attached plan annexure B which is Ex. AW 2/3. The concerned expert in the entire report has not stated specifically as to how the construction of the additional mezzanine floor has caused substantial damage to the tenanted premises. The report is completely silent on this aspect. Even during his cross examination he admitted that he prepared the rough notes and rough site plan , however no such rough notes and rough site plan have been placed on record by the concerned witness. He further admitted that the signature of the representative of respondent was not taken by him on his rough notes or otherwise.
20. In the petition under clause (j), the Controller has first to Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 20of 26 Old E No. 22/89 New E No. 34/08 21 10.07.2015 determine the question whether the tenant has caused or permitted to be caused substantial damage to the tenanted premises. The burden is on the landlord to prove that the construction has caused substantial damage to the property or has materially impaired the value and utility of the building. In the entire report of AW 2 Ex. AW 2/1, it is nowhere stated as to how the construction of the additional mezzanine floor has caused substantial damage to the property or has materially impaired the value and utility of the property.
21. The most important aspect in the present case is the order of Chief Engineer (Civil) NDMC dt. 02.01.1989. The relevant para no. 7 of the said order is reproduced as under :
" 7. After hearing the arguments of all the three parties viz NDMC , the owners and the appellant (Sh. B D Ahluwalia ) 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 839.51 sq ft. of covered area which might have been constructed at the time of original construction of the building and 660.49 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 plus 924.99 sq ft . as extension portion) against 1500 sq ft. as assessed in house tax record in the year 197778, 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 the extended portion of the mezzanine had been Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 21of 26 Old E No. 22/89 New E No. 34/08 22 10.07.2015 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 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, throughout the width of the shop towards the verandha. The appellant is further directed to submit plans in accordance with the provisions contained in the byelaws to NDMC for the regularization of 660.49 sq. ft. of covered area of mezzanine floor which has been unauthorisedly reconstructed and till then 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 shop B 20 of which appellant is the tenant."
22. From the said order it is evident that the total covered area of the mezzanine floor which was in existence on 02.01.1989 was 1764.50 sq ft. The Chief Engineer has categorically stated that out of 1764.50 sq ft. 839.51 sq. ft., is the old structure supported of jack arches while 924.99 sq ft is the extension portion against 1500 sq ft. as assessed in house tax record in the year 197778, meaning thereby that 264.50 sq ft. additional covered area has been constructed. He further held that total covered area of 924.99 sq ft. of extended portion is of the same material and has same finish and as such the extended portion has been reconstructed and 264.50 sq ft. of covered area has further been added and directed the appellant to demolish the additional covered area of 264.50 sq ft. It further directed the appellant to submit plan for regularization of 660.49 sq ft. of covered area which have been unauthorisedly reconstructed.
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23. The said order was challenged by the respondent herein before the Hon'ble High Court of Delhi. Hon'ble High Court of Delhi vide order dt. 04.12.1991 directed NDMC to regularize the area of 660.59 sq. ft. at mezzanine floor as per the new plans submitted by respondents without insisting on no objection by petitioners. The respondent was directed to submit fresh plan and comply with the requirements specified by NDMC in its letter dt. 16.01.1991. It was clarified that no right was given to respondent as against petitioners and he was directed to submit the revised plan within two weeks and NDMC was directed to regularize the mezzanine upto the area of 669.49 sq. ft. within six months thereafter. The respondent was further directed to demolish 264.50 sq ft. of additional covered area at mezzanine floor as directed by NDMC.
24. It is argued by the counsel for petitioners that the respondent has not removed the extended mezzanine floor measuring 264.50 sq. ft of additional covered area as per the order of NDMC and Hon'ble High Court of Delhi. Per contra, it is argued by the counsel for respondent that respondent has duly removed 264.50 sq ft. and the remaining 660 sq. ft. has been regularized by NDMC. The argument of counsel for petitioners that respondent has not removed 264.50 sq ft. is contrary to the site plan filed by their witness AW 2 i.e. the Architect. As per the original site plan filed by the petitioners, the respondent has constructed additional mezzanine floor in the entire area of 924.99 sq. ft. minus 87.19 sq ft. = 837.8 sq. ft. However in the site plan Ex. AW 2/2, the unauthorised construction of extended mezzanine is shown in the Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 23of 26 Old E No. 22/89 New E No. 34/08 24 10.07.2015 lesser area as compared to the original site plan. The dimensions of the extended mezzanine are not stated in the site plan. From the comparison of the original site plan filed along with the petition and the site plan Ex. AW 2/2 , it is evident that respondent has removed certain portion of the extended mezzanine floor. Thus the argument of Ld. counsel for petitioners that the respondent has not removed 264.50 sq. ft. is misconceived and not tenable and contrary to the site plan filed by his own witness AW 2.
25 Further counsel for petitioners have filed certain documents at the stage of final arguments i.e the notices of L & DO claiming misuser charges. Even in the said notices, one of which is dt. 22.06.2004, the damages for unauthorised construction for the area 851 sq. ft. has been levied only till 23.01.1992. In the letter dt. 06.11.2008 and 10.11.2010 of L & DO, the mezzanine in front side area is stated to be around 584.43 sq . ft. Thus from the said notices of L & DO also it is evident that respondent has removed 264.50 sq ft. approximately areas as per the order of NDMC and Hon'ble High Court of Delhi.
26 At this stage, Ld. counsel for petitioners was critical about the admissions made by RW 1 during his cross examination that complete mezzanine floor is still existing in the tenanted premises. The said admission has no relevance in view of the above discussion and on the basis of the documents placed on record and also on the basis of site plan Ex. AW 2/2 filed on record by the petitioners Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 24of 26 Old E No. 22/89 New E No. 34/08 25 10.07.2015 themselves. Further the entire testimony of the witness has to be considered. Ld. counsel for petitioners has ignored the later part of admission by RW 1 that mezzanine existing in the area is lesser about 260 sq . ft. than the entire floor area of the tenanted premises. RW 1 during cross examination specifically stated that 250 sq. ft. has been demolished after the order of the Court and NDMC.
27 It is not the case that respondent has constructed a mezzanine floor in the tenanted premises. It is the case where mezzanine floor was already in existence at the back portion of the tenanted premises and the same has been extended by the respondent. Petitioners have not lead any evidence as to how the extension of mezzanine floor by the respondent has caused substantial damage to the tenanted premises or impaired its value and utility. The very fact that NDMC has regularized the extended mezzanine floor, implies that though the extended mezzanine is an unauthorised construction but nowhere it has been proved that the same has caused substantial damage to the tenanted premises.
28 The judgments relied upon by the counsel for petitioners are not applicable to the present case as the facts of present case are slightly different. Firstly, the mezzanine floor was already in existence and has been only extended by the respondent. Further 660 sq ft. has already been regularized by NDMC . No doubt, respondent has raised unauthorised construction and extended the mezzanine floor however, petitioners are at liberty to claim damages in respect of the Jasdev Singh & Anr. V. Banarsidas Ahluwalia (since deceased through LRs.) Page 25of 26 Old E No. 22/89 New E No. 34/08 26 10.07.2015 same, if same is or has been levied by any authority.
29 In the given facts and circumstances and on the basis of above discussion, since the petitioners have failed to prove that respondents have caused substantial damage to the tenanted premises or impaired its value or utility, the petition of petitioners under section 14 (1) (j) of the Act is dismissed. No order as to costs.
File be consigned to record room.
ANNOUNCED IN OPEN ( KIRAN GUPTA )
COURT ON 10.07.2015 SCJCUMRENT CONTROLLER
PATIALA HOUSE COURTS:NEW DELHI
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