Delhi High Court
Kushal Anand vs Mandhir Sachdeva on 18 July, 2022
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~69(Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 681/2022 & CM No.31182/2022, CM No.31183/2022
KUSHAL ANAND ..... Petitioner
Through: Mr. Manu Sishodia, Adv.
versus
MANDHIR SACHDEVA ..... Respondent
Through: Mr. N.P.Singh, Mr. Mohit
Singh Gulia and Mr. Shantanu Dubey, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% J U D G M E N T (ORAL)
18.07.2022
1. Eviction Petition E-477598/2016 was preferred by the
respondent Mandhir Sachdeva, seeking eviction of the petitioner
Kushal Anand from the premises located at R-875, New Rajender
Nagar Delhi (hereinafter "the tenanted premises") invoking, for the
said purpose, clauses (d) and (h) of the proviso to Section 14(1) of the
Delhi Rent Control Act, 1958 ("the DRC Act"). For the sake of
convenience, the provisions would be referred to, hereinafter, as
Sections 14(1)(d) and 14(1)(h) respectively.
2. It is not in dispute that the tenanted premises were allotted to Jai
Singh Sachdeva, the grandfather of the respondent, by the Ministry of
Rehabilitation, vide letter dated 10th April, 1954 and that Jai Singh
Sachdeva inducted Surinder Nath Anand, the now deceased husband
of the petitioner Kushal Anand, as a tenant in the first floor of the
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tenanted premises in 1960. The tenancy was for residential purposes
at a monthly rent of ₹ 175, excluding water and electricity charges.
The respondent contended, in his Eviction Petitions that, after Jai
Singh Sachdeva expired on 27th December, 1968, his parental uncle
Jagdish Singh, as one of the co-owners who had succeeded to the
ownership of the tenanted premises as a legal heir of Jai Singh
Sachdeva, terminated the tenancy of the petitioner vide notice dated 6th
January, 1970, with effect from 31st January, 1970.
3. It was further contended that Surinder Nath Anand had acquired
eight immovable properties, including three in Rajender Nagar. Of the
eight immovable properties so acquired by Surinder Nath Anand, the
respondent contended that Surinder Nath Anand shifted, in 1974, to
one of the said properties, situated at A-42, Kailash Colony, New
Delhi, which was acquired by him vide registered Sale Deed dated 5th
August, 1972. After Surinder Nath Anand died, the petitioner,
contended the respondent, further acquired premises located at K-228,
Sainik Farms, New Delhi, where she was residing with her daughters.
4. Consequent to the death of Jai Singh Sachdeva, and the
execution of relinquishment/release deeds in the respondent's favour
by the remaining co-sharers who had succeeded to ownership of the
tenanted premises, the respondent contended that he came into
ownership of the said premises by way of Conveyance Deed dated 15th
November, 2011 issued by the Land and Development Office ("the
L&DO").
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5. Alleging that (i) electricity to the tenanted premises stood
disconnected with effect from 19th October, 2003, and (ii) the
petitioner was, even otherwise, residing at K-228, Sainik Farms, New
Delhi and had also succeeded to ownership of the immovable
properties acquired by Surinder Nath Anand during his lifetime
including the property situated at A-42, Kailash Colony, New Delhi,
the respondent, vide the aforesaid Eviction Petition E-477598/2016,
sought eviction of the petitioner under Section 14(1)(d) and Section
14(1)(h) of the DRC Act1.
6. The eviction petition came to be allowed by the learned
Additional Rent Controller ("the learned ARC") under Section
14(1)(d) as well as Section 14(1)(h) of the DRC Act, vide judgment
dated 18th June, 2020.
7. The petitioner appealed to the learned Rent Controller vide RCT
41/2020. The judgment dated 20th May, 2022, of the learned RCT,
dismisses the said appeal.
1
14. Protection of tenant against eviction.
(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 favour of the landlord
against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for
the recovery of possession of the premises on one or more of the following grounds only, namely;-
(d) that the premises were let for use as a residence and neither the tenant nor any member of his
family has been residing therein for a period of six months immediately before the date of the filing
of the application for the recovery of possession thereof;
xxx
(h) that the tenant has, whether before or after the commencement of this Act, built, acquired vacant
possession of, or been allotted, a residence:
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8. Aggrieved, the petitioner has invoked the jurisdiction vested in
this Court by Article 227 of the Constitution of India.
9. Mr. Sishodia submits, at the outset, that he is not raising the
issue of existence or non-existence of a landlord-tenant relationship
between the respondent and the petitioner, or disputing the ownership
of the respondent over the tenanted premises, though these issues had
been raised before the learned ARC and the learned RCT. He restricts
his challenge to the impugned order to three contentions.
10. The first is that Eviction Petition E-477598/2016 was barred by
time. For his purpose, Mr. Sishodia relies on Ganpat Ram Sharma v.
Smt. Gayatri Devi2.
11. The second is that the alternate properties possessed by Surinder
Nath Anand, on the basis of which Section 14(1)(h) of the DRC Act
had been invoked by the respondent, had been acquired by him prior
to the petitioner succeeding to his estate and could not, therefore, be
regarded as a residence acquired by the petitioner on the basis of
which an eviction petition under Section 14(1)(h)) could be
maintained. Mr. Sishodia cites, in this context, Abdul Sattar v.
Khutejabi3.
12. The third, relatable to Section 14(1)(d) of the DRC Act, is that
the learned RCT erred in holding that the petitioner had failed to prove
that she had been residing in the tenanted premises for a period of six
2
AIR 1987 SC 2016
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months prior to the filing of the eviction petition.
13. Apropos the first submission, Mr. Sishodia's contention is that
Article 67 of the Limitation Act applies in the present case, under
where a suit by a landlord to recover possession from the tenant is
required to be filed within twelve years of determination of the
tenancy.
14. To a query from the Court as to whether the eviction petition
filed by the respondent could be regarded as a suit by the respondent
to recover possession from the petitioner, Mr. Sishodia relies on
Ganpat Ram Sharma2.
15. The learned RCT has observed that, as against Ganpat Ram
Sharma2, the Supreme Court has, in later decisions in Prakash H.
Jain v Marie Fernandes4 and Prithipal Singh v. Satpal Singh (dead)
through LRs5 held that the provisions of the Limitation Act would not
apply to a proceeding before the Rent Controller, as the Rent
Controller was not a civil court. Adverting to Ganpat Ram Sharma2,
too, the learned RCT observes that, as the Eviction Petition was filed
by the respondent on 14th March, 2014, soon after the respondent
acquired ownership of the tenanted premises on 15 th November, 2011,
the Eviction Petition could not be said to be time barred.
16. In my opinion, the decision in Ganpat Ram Sharma2 itself
defeats the contentions advanced by Mr. Sishodia.
3
2003 5 SC 647
4
(2003) 8 SCC 431
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17. Shorn of superfluities, in that case, the tenants acquired
ownership of the alternate premises in 1958. Gayatri Devi, the
respondent-landlady who instituted the proceedings under Section
14(1)(h) of the DRC Act, purchased the suit property on 9 th April,
1973. As the suit property was situated in a slum area, she applied for
clearance for permission to institute eviction proceedings, under
Section 19 of the Slum Area (Improvement and Clearance) Act, 1956,
on 28th September, 1973. Permission, as sought, was granted by the
competent authority on 12th December, 1974. The eviction petition,
under Section 14(1)((h) was instituted by Gayatri Devi on 16 th April,
1975.
18. Computing the limitation from the date when Gayatri Devi
acquired ownership of the tenanted premises i.e. 9 th April, 1973, the
Supreme Court held that no laches or delay could be attributed to her.
19. Applying the said principle to the present case, the respondent,
admittedly, acquired ownership over the tenanted premises only on
15th November, 2011, vide Conveyance Deed executed by the L&DO.
The eviction petition was instituted on 14th March, 2014. It cannot,
therefore, be said that the eviction petition was barred by time. The
decision of the learned RCT, to the said effect, therefore, does not call
for any interference.
20. The second contention of Mr. Sishodia is that, as the alternate
5
(2010) 2 SCC 15
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properties had been acquired by Surinder Nath Anand during his
lifetime, before the petitioner succeeded to tenancy of the tenanted
premises as a statutory tenant, the said properties could not constitute
the basis of an eviction petition under Section 14(1)(h) of the DRC
Act.
21. No such ground was ever urged either before the learned ARC
or before the learned RCT.
22. The court, in the present case, is exercising jurisdiction under
Article 227 of the Constitution of India, which Article 227 of the
Constitution of India does not confer appellate jurisdiction. The court
is only required to examine whether the authority which has passed
the impugned order has, in doing so, exposed itself to supervisory
correction. The power conferred on the High Court by Article 227 is a
power of superintendence and not a power of judicial review. An
implicit corollary is that the manner of exercise of its jurisdiction by
the court or forum below cannot be gauged on the basis of
submissions which were never advanced before it. In my considered
opinion, therefore, a submission which was never advanced by the
petitioner before the court or forum whose order is assailed under
Article 227, cannot be raised before the High Court either.
23. Though, therefore, the petitioner cannot, in the present petition
under Article 227 of the Constitution of India, be allowed to urge the
second contention canvassed by Mr. Sishodia i.e. that, as the alternate
properties had been acquired by Surinder Nath Anand prior to the
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petitioner succeeding to tenancy of the tenanted premises, such
acquisition could not constitute the basis of an eviction petition under
Section 14(1)(h) of the DRC Act, the contention fails even on merits.
24. The impugned order has noted that, apart from the properties
acquired by Surinder Nath Anand during his lifetime, the petitioner
had herself acquired a property situated at K-228, Sainik Farms, New
Delhi. Apropos this property, paras 15 and 17 of the impugned order
dated 20th May, 2022 read thus:
"15. The acquisition of premises No. A-42, Kailash
Colony. New Delhi by the original tenant Shri Surinder
Nath Anand followed by sale thereof vide Sale Deed dated
26.04.2000 also stands established by way of evidence
adduced on record. The said Sale Deed describes the
address of the appellant as K-228, Sainik Farms, New
Delhi. According to the present respondent, the said
property in Sainik Farms was acquired by the appellant
and she is residing there alongwith her daughters.
Although according to the appellant, the Sainik Farms
property is exclusively owned and possessed by her
daughter Ms. Suparna Anand and she (the appellant) stays
with her daughter on frequent visits for medical care, but
no reliable evidence was adduced by the appellant to
establish that she was residing in the tenanted premises at
the relevant time.
*****
17. In her cross-examination as RWI, the appellant
stated that she never acquired property no. K-228, Lane
W-12, Sainik Farms, New Delhi but on being confronted
with documents from original record produced by the
record clerk of South Delhi Municipal Corporation
reflecting her address as K-228, Sainik Farms, New Delhi,
she stated that the same do not bear her signatures. The
trial court marked copies of those documents as Mark X-2
and at that stage, at request of counsel for the present
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respondent, the entire original file of South DMC was
retained by the trial court. I have examined the said
original record of South DMC and compared the
signatures of the appellant on the memo of appeal with her
purported signatures in the said original records and find
the same completely similar to each other. The entire
original South DMC record consisting of various notices,
replies, written submissions and even documents reflect
residential address of the appellant even in the year 2013
as K-228, Sainik Farms, New Delhi."
25. The Sainik Farms property having been acquired by the
petitioner after she had succeeded as a statutory tenant in respect of
the tenanted premises, the prayer for eviction under Section 14(1)(h)
of the DRC Act, at the instance of the respondent, was maintainable.
26. The third contention advanced by Mr. Sishodia relates to
Section 14(1)(d) of the DRC Act.
27. Mr. Sishodia has drawn my attention to several communications
between the petitioner and BSES Yamuna Power Ltd., in or around
2014, to contend that the petitioner was residing in the tenanted
premises within a span of six months prior to the institution of the
eviction petition and that, therefore, the finding, to the contrary, of the
learned RCT, was incorrect.
28. On this aspect, the learned RCT has held, in paras 14 and 16 of
the impugned order, thus:
"14. It is the admitted position that the tenanted premises
fall in a residential area and Shri Surinder Nath Anand was
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inducted as a tenant therein for residential purpose only. It is
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also not in dispute that electricity supply to the tenanted
premises got disconnected sometime in the year 2003.
According to the present respondent, the electricity supply got
disconnected because nobody was residing in the tenanted
premises, while according to the appellant, she was somehow
managing the electricity requirement with the help of
generator and inverter. But no reliable evidence was led by
the appellant to corroborate her bald testimony as regards use
of generator and/or inverter and I find it difficult to believe
that the person of her financial status, owning large number of
immovable properties, would have lived across so many years
only on generator and/or inverter electricity supply.
Apparently, since the year 2003, when the electricity supply
got disconnected in the tenanted premises, the appellant has
not been residing there.
*****
16. On the contrary, the certified copies of judicial
proceedings Ex. RWIIX4 to Ex. RWIIX6 consisting of the
proceedings earlier pending before the Hon'ble Delhi High
Court repeatedly reflect residential address of the appellant in
the applications as well as affidavits to be A-42, Kailash
Colony, New Delhi. Even the certified copy of the registered
Release Deed dated 21.04.1994 Ex. RW1/XI reflects the
appellant's residential address as A-42, Kailash Colony, New
Delhi. There is nothing on record to reflect that at any
subsequent stage, the appellant shifted back to the tenanted
premises."
29. The learned RCT has, therefore, appreciating the evidence
before him, arrived at a conclusion that there was no evidence that the
petitioner was residing at A-42, Kailash Colony, New Delhi and there
was no evidence to indicate that she had ever shifted to the tenanted
premises.
30. Concurrent findings of facts having been returned by the
learned ARC and learned RCT on this issue, no case for interference
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therewith, under Article 227 of the Constitution of India, can be said
to exist. One may refer, in this context, to the decisions in Roshanlal
v. State of Rajasthan6, State of Haryana v. Manoj Kumar7 and K.
Arjun Das v. Commissioner of Endowment, Orissa8.
31. For the aforesaid reasons, I find no merit in this petition, which
is, accordingly, dismissed in limine.
C. HARI SHANKAR, J.
JULY 18, 2022 dsn 6 (2004) 13 SCC 559 7 (2010) 4 SCC 350 8 (2019) 10 SCC 355 Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CM(M) 681/2022 Page 11 of 11 Signing Date:20.07.2022 18:41:23