Delhi District Court
Colony (South Area Of Mahd Mandi) vs Ishwar Ram Attal (Since Deceased) on 18 January, 2019
BEFORE THE DISTRICT & SESSIONS JUDGE (HQs)
RENT CONTROL TRIBUNAL
TIS HAZARI COURTS, DELHI
CNR NO. DLCT010007032013
RCT Appeal 30250/2016
Ishwar Lal Aggarwal (Since Deceased)
Through LRs:
1)Prakash Chand Gupta
S/o Ishwar Lal Aggarwal
R/o 14A/102, Second Floor,
W.E.A. Karol Bagh,
New Delhi110005.
2)Anand Prakash
S/o Ishwar Lal Aggarwal
R/o Khasra No.42/3, Gali No.4,
Sanjay Colony, Safiyabad Road,
Near Nandimal School,
Narela, Delhi110040
3)Kamal Prakash Gupta
S/o Ishwar Lal Aggarwal
R/o 14A/102, Ground Floor,
W.E.A. Karol Bagh,
New Delhi110005.
4)Smt. Krishna Devi
W/o Ishwar Lal Aggarwal
(Since Deceased) Through:
A)Prakash Chand Gupta
RCT No. 30250/16 Ishwar Lal Aggarwal v. Ishwar Ram Attal Page 1 of 10
S/o Ishwar Lal Aggarwal
R/o 14A/102, Second Floor,
W.E.A. Karol Bagh,
New Delhi110005.
B)Anand Prakash
S/o Ishwar Lal Aggarwal
R/o Khasra No.42/3, Gali No.4,
Sanjay Colony, Safiyabad Road,
Near Nandimal School,
Narela, Delhi110040
C)Kamal Prakash Gupta
S/o Ishwar Lal Aggarwal
R/o 14A/102, Ground Floor,
W.E.A. Karol Bagh,
New Delhi110005.
D)Smt. Ratna Garg
W/o Brij Mohan Garg
D/o Ishwar Lal Aggarwal
R/o 1387, Ward No.13,
Sarkari School Wali Gali,
Krishna Colony, Jind,
Haryana110052
E)Smt. Manju Gupta
W/o Sanjeev Gupta
D/o Ishwar Lal Aggarwal
R/o H.No. 22/273, Gali No.3,
Malavir Park, Bahadurgarh, Haryana
F)Smt. Shakuntala Gupta
W/o Raj Kumar Mittal
D/o Ishwar Lal Aggarwal
RCT No. 30250/16 Ishwar Lal Aggarwal v. Ishwar Ram Attal Page 2 of 10
R/o B1878, Shastri Nagar,
Delhi110052
G)Smt. Jai Shree Gupta
W/o Manoj Goyal
D/o Ishwar Lal Aggarwal
R/o H.No.316, Purani Anaj Mandi,
Colony (South Area of Mahd Mandi)
TehsilGohana, Distt.Sonipat
5)Smt. Ratna Garg
W/o Brij Mohan Garg
D/o Ishwar Lal Aggarwal
R/o 1387, Ward No.13,
Sarkari School Wali Gali,
Krishna Colony, Jind,
Haryana110052
6)Smt. Manju Gupta
W/o Sanjeev Gupta
D/o Ishwar Lal Aggarwal
R/o H.No. 22/273, Gali No.3,
Malavir Park, Bahadurgarh,
Haryana
7)Smt. Shakuntala Gupta
W/o Sh. Raj Kumar Mittal
D/o Ishwar Lal Aggarwal
R/o B1878, Shastri Nagar,
Delhi110052
8)Smt. Jai Shree Gupta
W/o Sh. Manoj Goyal
D/o Ishwar Lal Aggarwal
R/o H.No.316, Purani Anaj Mandi,
RCT No. 30250/16 Ishwar Lal Aggarwal v. Ishwar Ram Attal Page 3 of 10
Colony (South Area of Mahd Mandi)
TehsilGohana, Distt.Sonipat .....Appellants
Versus
Ishwar Ram Attal (Since Deceased)
Through LRs:
1)Gian Chand
S/o Ishwar Ram Attal
R/o 56/4220, Reghar Pura
Karol Bagh, New Delhi.
2)Atam Chand
S/o Ishwar Ram Attal
R/o 56/4220, Reghar Pura
Karol Bagh, New Delhi.
3)Virender Kumar
S/o Ishwar Ram Attal
R/o 56/4220, Reghar Pura
Karol Bagh, New Delhi.
4)Smt. Pushpa
D/o Ishwar Ram Attal
R/o 75/5591, Reghar Pura
Karol Bagh, New Delhi.
5)Smt. Raj Kumari
D/o Ishwar Ram Attal
R/o B172, Madipur, New Delhi.
6)Smt. Geeta
D/o Ishwar Ram Attal
RCT No. 30250/16 Ishwar Lal Aggarwal v. Ishwar Ram Attal Page 4 of 10
R/o C34, X2, MIG Flats,
Dilshad Garden, New Delhi.
7)Ms. Anju
D/o Ishwar Ram Attal
R/o 54/4420, Reghar Pura
Karol Bagh, New Delhi.
8)Delhi Development Authority
Through Deputy Director
OS Branch, 2nd Floor,
BBlock, DDA, Vikas Sadan,
New Delhi .....Respondents
Date of filing of Appeal : 29.01.2013
Date of reserving Order : 03.01.2019
Date of Order : 18.01.2019
ORDER ON APPEAL UNDER SECTION
38 OF THE DELHI RENT CONTROL ACT, 1958
The appellants have preferred the present appeal against impugned order dated 04.01.2013 passed by Ld. Addl. Rent Controller (ARC) / Central whereby the appellant / tenant was directed to stop misuse of the premises in question and was also directed to pay misuse charges of Rs.4,52,354/ to the DDA within one month, failing which eviction order under Section 14(1)(k) of the Delhi Rent Control Act, 1958 (DRC Act) shall be deemed to have been passed.
RCT No. 30250/16 Ishwar Lal Aggarwal v. Ishwar Ram Attal Page 5 of 102. Notice of the appeal was issued to legal heirs of the respondent.
3. I have heard Ld. Counsel for both the sides and perused the record.
4. Ld. Counsel for legal heirs of the appellant has submitted that an occupier is permitted to put the premises to mix land use and word 'landlord' or 'tenant' have not been used any where in Master Plan of Delhi; conversion charges were paid; shop in question falls on commercial street; it is less than 20 sq. meter in area; occupier is not defined in Master Plan; appellant is an occupier and not a tres passer and he is entitled to use the shop for commercial purpose; so the judgment passed against the appellants by Ld. ARC is liable to be set aside.
5. On the other hand, Ld. Counsel for legal heirs of the respondent has submitted that DDA cannot go beyond Lease Agreement; subtenancy is void; there is no privity of contract of DDA with appellants, who are subtenants; as per clause 40A, lessee cannot use the pemises for any other purpose except for residential use; RTI reply is not specific; no prior permission for mix land use was taken; hence, the judgment of Ld. ARC does not need any interference from this Tribunal.
6. Ld. Counsel for the respondent/landlord has submitted permission to use the premises for commercial purpose on payment of misuse charges is for the landlord and not for the tenant; landlord can RCT No. 30250/16 Ishwar Lal Aggarwal v. Ishwar Ram Attal Page 6 of 10 use the premises for other commercial activities permitted in MPD and not the tenant.
7. In the present case, the core issue before Ld. ARC was whether the appellant / tenant was to be directed to stop misuse of the tenanted premises and further to pay misuser charges to the DDA. Report under Section 14(11) of the DRC Act was filed by the DDA alongwith affidavit of Sh. Ram Chander, Assistant Engineer, OSB Branch, DDA. In the report of the DDA, it is mentioned that the tenanted shop has been under misuse since 31.12.1981 and same still continues and that said misuser of the shop was to be stopped. It was also claimed that misuser charges were also to be paid to the DDA and that DDA has right to cancel lease deed and reenter the property as the property is situated in the residential area and was meant for residential purposes only; the shop in question was being used for commercial purpose and as per Master Plan of 2021 the user of the shop cannot be converted to commercial as tenant had encroached upon the area of the shop and that the tenant had no right for conversion of the property and it is only owner who could get the property converted.
8. In the objections filed on behalf of the appellant / tenant, it was denied that he had encroached upon the area and that area of the shop in question is 4.875 sq. meter; suit premises has a mixed land use as declared by the MCD; tailoring is being carried out from the shop in question, which falls in the category of condonable items and RCT No. 30250/16 Ishwar Lal Aggarwal v. Ishwar Ram Attal Page 7 of 10 communication was made to the DDA in that regard, but no decision was taken thereon by the DDA.
9. DDA had filed reply to the objections of the appellant / tenant stating therein that misuser charges are to be condoned on condonable items and where premises is being used by the owner and not by the tenant.
10. Ld. ARC observed that it is undisputed fact that occupation of tailoring falls in the category of condonable items, but it should be in use of the owner / landlord himself and not by tenant. The shop in question is in occupation of the appellant / tenant and he has been doing work of 'tailoring' since 30.12.1981. In that background, it was ordered by Ld. ARC that appellant / tenant was directed to stop misuse of the premises in question and was also directed to pay misuse charges of Rs.4,52,354/ to the DDA within one month, failing which eviction order under Section 14(1)(k) of the Delhi Rent Control Act, 1958 ( DRC Act) shall be deemed to have been passed.
11. Rule 15.9 (vi) of MPD2021 modified upto 31.03.2017 provides:
"in respect of residential premises already under mixed use on 7.2.2007 in Special area, the owner / allottee / occupier of the plotted development shall be required to declare such mixed use by filling up a form in this respect and depositing it with local body concerned and pay one time registration charges and conversion charges without penalty on or before 30.062009 at the rate to be notified with the approval of the Government from time to time."RCT No. 30250/16 Ishwar Lal Aggarwal v. Ishwar Ram Attal Page 8 of 10
No definition of occupier is provided anywhere in the Master Plan.
12. In State Estate Management Private Ltd. vs. N.D. M.C. AIR 20000 Del. 391 it has been held that occupier is one who is in the use or enjoyment of a thing or the person having the actual use or occupation.
13. In International Publishers vs. Union Territory of Chandigarh, AIR 2000 P & H 260, it has been held that the term 'occupier' under Section 2(h) of Capital of Punjab (Development and Regulation) Act, takes within its ambit the tenant of the owner.
14. From the above, it is clear that the word "occupier" takes within its ambit the person, who is in actual physical possession of the premises and it covers the tenant as well. Moreover, in reply dated 10.04.15 to RTI application of Sh. Prakash Chand Gupta, it was replied by the DDA that properties no. 4419, 4420 (property in dispute) & 4421 existing at Vishnu Mandir Marg, Regharpura, Karol Bagh are on Commercial Streets as per approved list of GNCTD, MPD2021.
15. It is also admitted that conversion charges in respect of mix land use stood paid in respect of property in question. It is admitted case that work of " tailoring" falls within the list of condonable items, hence, no misuser charges to be paid for the same. Since, appellant being tenant has been occupying the shop in question since 1981 so he is entitled to continue the work of tailoring from the shop in question. The tenant falls within the ambit of occupier. Hence, he should not RCT No. 30250/16 Ishwar Lal Aggarwal v. Ishwar Ram Attal Page 9 of 10 have been ordered to pay misuser charges of Rs. 4,52,354/ nor he could have been asked to stop the work of tailoring as property has been declared to be situated on a commercial street. Therefore, impugned order is set aside and present appeal stands allowed. Copy of the order be sent to Ld. Trial Court for information.
Appeal file be consigned to record room.
Digitally signed by TALWANT TALWANT SINGH
SINGH Date: 2019.01.19
16:01:37 +0530
Announced in the open Court (TALWANT SINGH)
Dated: 18th January, 2019 District & Sessions Judge (HQs)
Rent Control Tribual
Tis Hazari Courts : Delhi
RCT No. 30250/16 Ishwar Lal Aggarwal v. Ishwar Ram Attal Page 10 of 10