Delhi District Court
Ms. Neha Gupta vs Sh. Satish Kumar Gupta on 19 July, 2017
IN THE COURT OF GAURAV RAO, SENIOR CIVIL JUDGE
CUMRENT CONTROLLER, SOUTH EAST DISTRICT,
SAKET COURT COMPLEX, NEW DELHI
E No. 5063/16 (Old no. 04/13)
CNR No. DLSE030000022017
1. Ms. Neha Gupta
d/o Late Sh. Jagmohan Gupta,
R/o 33/A, Sunder Nagar Market,
Sunder Nagar, New Delhi.
2. Sh. Sushil Gupta
s/o Sh. Devi Chand Gupta
through his next friend,
sister Smt. Saroj Aggarwal
R/o F71, Green Park,
New Delhi.
.... Petitioners
Versus
Sh. Satish Kumar Gupta
Proprietor of India Art Palace,
Plot No. 33, Block 171,
Sunder Nagar Market,
Sunder Nagar, New Delhi ....Respondent
Date of institution : 22.02.2007
Date of conclusion of arguments : 19.07.2017
Date of order : 19.07.2017
Decision : Dismissed
JUDGMENT
1 The present petition has been filed u/s 14 (1) (k) of the
E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 1 of 27
Delhi Rent Control Act 1958 for eviction and recovery of possession of portion of the ground floor and mezzanine between the ground and first floor of property/Plot no. 33, Block 171, Sunder Nagar Market, Sunder Nagar, New Delhi (hereinafter referred to as the tenanted premises and as shown in red colour in the site plan filed along with the petition).
Petition
2. The version of the petitioners is that the tenanted premises is constructed on a leasehold plot, the lease of which was granted by the President of India for Fuel Depot.
2.1 It is further their case that the tenanted premises was let out to the respondent at monthly rent of Rs. 330/ per month excluding other charges which was increased to Rs. 363/ per month w.e.f. 01.01.2007.
2.2 It is further their case that the tenanted premises is being used by the respondent for running the business of India Art Palace instead of a fuel depot and thus the respondent is misusing the tenanted premises.
2.3 It is further their case that respondent has notwithstanding the previous notice used the premises in a manner E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 2 of 27 contrary to the condition imposed on the landlord by the Government while giving them the land on lease on which the tenanted premises is situated. It is further their case that Land & Development Office has imposed penalties in respect of the misuse by the respondent and in this regard had issued a notice No. L&DO/LIV/171 (shop 33/2003/dated 7.1.2005 in which the penalties etc. for misuse has been claimed and they have been called upon to stop the misuse.
2.4 It is further their case that they served a notice dated 13.11.2006 upon the respondent to stop the misuse and pay the damages imposed by the Land & Development Office for the past misuse but no reply was received from the respondent.
2.5 Hence the present petition.
3. The respondent was duly served with the petition and he filed his written statement on 24.09.2007.
Written Statement
4. It was pleaded that the the petition is liable to be rejected as the petitioners have not approached the court with clean hands and have not disclosed the true facts.
E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 3 of 274.1 It was further pleaded that present petition is liable to be dismissed as the same has not been filed by the competent person as petitioner no. 2 is not a mentally retarded person and is a man of sound disposing mind hence the petition filed through his sister is not maintainable in the eyes of law.
4.2 It was further pleaded that present petition is nothing but a misuse of law with the sole motive to evict the respondent from the tenanted premises.
4.3 It was further pleaded that present petition is liable to dismissed for misjoinder and non joinder of necessary parties as India Art Palace is the necessary and proper party as India Art Palace is the tenant of petitioners which fact stands verified by the rent receipt issued by the petitioners.
4.4 It was further pleaded that he is using the tenanted premises for the purpose for which the same was let out. It was pleaded that he is running the business of Handicrafts in Brass, Copper, iron, wood curious, silver and English Art etc. under the name & style of India Art Palace since the inception of tenancy.
4.5 It was further pleaded that petitioners are also running their business from the same premises under the name and style of Jain Art and Crafts.
E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 4 of 274.6 It was further pleaded that rate of rent is Rs. 330/ per month and it was denied that rent was increased to Rs. 363/ per month w.e.f. 01.01.2007 as no notice dated 13.11.2006 was served upon him.
4.7 It was further pleaded that petitioners have raised illegal and unauthorized construction in the premises hence they could not obtain the required completion certificate.
4.8 It was denied that lease of the premises was granted by the President of India for fuel depot or that he is misusing the tenanted premises by running the business of India Art Palace instead of a fuel depot.
4.9 It was further pleaded that he has no knowledge regarding imposition of penalty by L&DO in respect of misuse of property by him.
Replication
5. The petitioners filed their replication to the Written Statement denying the entire averments of the written statement while simultaneously reiterating and reaffirming the contents of the petition.
E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 5 of 276. Thereafter, the parties led their respective evidence.
6.1 Vide judgment dated 14.12.2011 the Ld. Predecessor of this court disposed of the petition while making the following observations:
"......As observed hereinbefore, the suit premises can be used only for running the fuel depot as per the lease Ex. PW1/4 and the respondent by running the business of handicrafts under the name and style of M/s India Art Palace which is in violation of the terms of lease. The respondent has failed to discontinue the misuse of the suit premises despite service of legal notice dated 13.11.2006 Ex. PW1/5. Hence, the petitioners have proved the ground u/s 14 (1)
(k) of DRC Act. However, no eviction order is called for at this stage. First, notice u/s 14 (11) of DRC Act is required to be issued to L&DO to inform whether the breaches can be condoned temporarily or permanently and on what conditions only after proceedings u/s 14 (11) of DRC Act are held. Let the notice be issued to L&DO for next date of hearing. Petition u/s 14 (1) (k) of DRC Act is disposed off in these terms. Put up on 15.02.2012 for issuance of notice to L&DO u/s 14 (11) of DRC Act."
6.2 The judgment as above was challenged before the court of the then Ld. District & Sessions Judge Sh. R.K. Gauba (now Hon'ble Mr. Justice R.K. Gauba) and vide judgment dated 08.03.2013 the file was remanded back with the following observations:
"30. Thus, the evidence led on both sides of the divide in this litigation is deficient and the issues raised cannot be decided with finality either way on such basis.
31. Faced with this situation, the counsel for the respondents, at this stage of the dictation of the judgment, submitted that he agrees (on instructions from the respondents) to the appeal being allowed and the matter being remanded to the ARC, adding that the respondents may also be allowed permission to lead further/additional evidence.
32. For the foregoing reasons, and in view of the submissions now made by the counsel for the respondents, the appeal is allowed. The impugned judgment is set aside. The matter is remanded to the court of rent Controller for further E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 6 of 27 proceedings in accordance with law.
33. The Rent Controller shall afford opportunity to the respondents, and also (thereafter) to the appellant to adduce further evidences in support of their respective contentions before deciding afresh the petition for eviction preferred by the respondents. Needless to add, at the time of fresh adjudication, the Rent Controller shall not feel bound by the view taken earlier in the impugned judgment."
6.3 Thereafter both the parties led their respective evidence (additional evidence).
Petitioner evidence
7. In support of their case the petitioners examined five witnesses. Sh. Amit Kumar Gupta was examined as PW1 who tendered his evidence by way of affidavit as Ex. P1 and relied upon the following documents:
(a) General Power of Attorney as Ex. PW1/1,
(b) Certificate regarding appointment of Smt. Saroj Aggawal as Guardian and Manager of Sh. Sushil Gupta as Ex.PW1/2
(c) site plan as Ex. PW1/3,
(d) certified copy of the perpetual lease as Ex.PW1/4,
(e) Notice dated 13.11.2006 as Ex. PW1/5,
(f) Original postal receipt as Ex. PW1/6,
(g) Original UPC as Ex. PW1/7,
(h) Original AD card as Ex.PW1/8 and
(i) notice bearing no. L&DO/LIV/171 dated 07.01.2005 as Ex. PW1/9.
7.1 During his additional evidence he tendered his evidence E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 7 of 27 by way of affidavit as Ex. PW1/A1 and relied upon the following documents.
(a) certified copy of registered sale deed as Ex. PW1/10,
(b) invoice issued by the firm of respondent as Ex. PW/11
(c) acknowledgment of online complaint dated 10.02.2015 as Ex. PW1/12.
7.2 The petitioners also examined V. Ramakrishnan, UDC, L&DO as PW2, who proved on record the application form for registration as Ex. PW2/1.
7.3 During additional evidence petitioners examined Sh. Mukesh Kumar, Record Keeper Ward no. 85, Trade and Taxes Department who proved on record affidavit dated 14.04.1981 filed by Sh. Tara Chand Gupta as Ex. PW2/2, order sheets for registration as Ex.PW2/3, partnership deed dated 01.04.1982 as Ex. PW2/4 and registration certificate as Ex. PW2/5.
7.4 The petitioners also examined Sh. Sanjay, UDC Licensing Department, City Zone MCD as PW3.
7.5 Sh. S.K. Sehgal, HC, L&DO SDMC, New Delhi was examined as PW4 and he proved on record letter dated 11.03.2002 as Mark PW4/A and letter dated 29.01.2016 as Ex. PW4/1.
7.6 The petitioners also examined Sh. Vinod Sharma, E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 8 of 27 Superintendent, L&DO as PW5 and he proved on record the letter dated 11.03.2002 as Ex. PW5/A. Respondent Evidence
8. The respondent examined himself as RW1 and tendered his evidence by way of affidavit as Ex. RW1/A. 8.1 During his additional evidence he tendered his evidence by way of affidavit as Ex. RW1/X and relied upon the following documents:
(a) letter dated 09.08.1962 as Ex. RW1/A1,
(b) RTI reply dated 30.12.2011 as Ex. RW1/A2.
8.2 Respondent also examined Sh. S.K. Sehgal, Dealing Assistant, L&DO SDMC and he proved on record the following documents:
(a) letter dated 16.11.1968 as Ex. RW2/1,
(b) undertaking dated 10.04.1974 given by Sh. Devi Chand Gupta as Ex. RW2/2,
(c) letter dated 22.09.1975 issued by Devi Chand Gupta as Ex. RW2/3,
(d) letter dated 17.11.1975 as Ex. RW2/4,
(e) letter dated 18.12.1975 as Ex. RW2/5,
(f) letter dated 18.12.1975 as Ex. RW2/6, E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 9 of 27
(g) letter bearing reference no. ENF.I.3 as Ex. RW2/7 and
(h) letter dated 21.08.1962 as Ex. RW2/8.
8.3 Respondent also examined Sh. Balwant Singh Rawat, UDC, Office of Registrar of Companies and he proved on record AOC4 form for the year 01.04.2014 to 31.03.2015 as Ex. RW3/1 and incorporation certificate of company M/s Meru Infrastructure Pvt. Ltd. as Ex. RW3/2.
9. I have heard the Ld. counsels for the parties, have given due consideration to the rival contentions raised at bar and have carefully gone through the record.
Findings
10. In every eviction petition, the foremost thing which has to be considered, is the relationship of landlord and tenant between the parties. It is only when this relationship is established that the petitioner can succeed in an eviction petition subject of course to the satisfaction of the essential ingredients of the distinct provisions of section 14 under which the petition has been filed.
10.1 As far as relationship of landlord and tenant is concerned the same stands duly admitted and there is no dispute whatsoever.
E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 10 of 2710.2. It is also the admitted case of the parties that the tenanted premises and relationship of parties is governed by as per the provisions of Delhi Rent Control Act, 1958. Though there is dispute regarding rate of rent, as the petitioners claimed same to be Rs. 363/ per month whereas the respondent claimed the same to be Rs. 330/ per month, however once it stands admitted that the tenanted premises is governed by the provisions of Delhi Rent Control Act the rate of rent becomes insignificant as the present petition has been filed u/s 14 (1) (k) of the Act. Otherwise none of the parties led any evidence to prove the rate of rent.
10.3 The present petition being filed u/s 14 (1) (k) of the Delhi Rent Control Act, 1958 which reads as "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 given him a lease of the land on which the premises are situated" therefore to succeed in the same the petitioner has to establish the following ingredients:
(1) The user of the premises by the tenant should be contrary to a condition imposed on the landlord by the Government.
(2) Such user must continue even after a notice to discontinue the same is given by the landlord.
(3) The condition which is contravened by the user of the tenant should be one which is imposed on the landlord by the Government "while giving him the lease of the land on which premises are situated."E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 11 of 27
10.4 In the case at hand after considering the entire material available on record I am of the considered opinion that the petitioners have failed to make out a case so as to be entitled to the relief prayed for.
10.5 As per the perpetual lease dated 13.01.1972 i.e. Ex. PW1/4 property bearing no. shop/plot no. 33, Block No. 171, Sunder Nagar, of which the tenanted premises is a part, was leased to Sh. Shambu Dayal, Sh. Banwari Lal and Sh. Ram Chander, the erstwhile landlords with a stipulation that the property shall not be used for a purpose other than fuel depot building. The relevant clause i.e. clause 2 (7) reads as under:
" 7 The Lessee will not carny on or permit to be carried on, on the said premises any business, trade or manufacture which in the opinion of the Chief Commissioner of Delhi, is noisy, noxious or offensive, or permit the said premises to be used for any purpose otherwise than as Fuel depot building as or do or suffer to be done thereon any act or thing whatsoever which in the opinion of the Chief Commissioner of Delhi may be an annoyance or disturbance to the President of India or his tenants in the New Capital of Delhi and will not without the prior sanction of the Chief Commissioner of Delhi use the said premises or permit the said premises to be used for the sale of grains or of articles of food or drink of any kind or description whatsoever."
10.6 However admittedly the respondent i.e. the tenant is not using the same for the said purpose but is using the same for running the business of Handicrafts in Brass, Copper, iron, wood curious, silver and English Art etc. under the name & style of M/s India Art Palace. Still even in this eventuality no case for passing of any order, allowing the eviction petition u/s 14 (1) (k) is made out.
E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 12 of 2710.7 Despite the mandate in Ex. PW1/4 restriction in the perpetual lease the tenanted premises could not be used for running a fuel depot. Reason being the said activity was not permitted by the concerned authorities at the relevant time as stands unambiguously established in view of Ex. RW1/A1 dated 09.08.1962 i.e. since 10 years prior to the execution of the perpetual lease. Ex. RW1/A1/Ex. RW2/7 reads as under:
" No. Eng. I3 Government of India Ministry of Works Housing and supply, Land and development office Scindia House, New Delhi, the To The Land and Development Officer, New Delhi.
Sub: Fuel depots in sunder Nagar, New Delhi.
Dear sir/Madam, I am directed to inform you that as the Delhi Municipal Corporation has refused to grant license to you for running fuel shop in Sunder Nagar, New Delhi, as these plots do not conform to bylaws for running fuel depots. One alternative site will be offered to you by the New Delhi Municipal Committee in Kaka Nagar for running the depot.
You are, therefore, advised to accept the allotment of the site in Kaka Nagar, New Delhi. In case you wish to run a fuel depot so that the fuel depot not running here may be shifted there. You will be permitted to run here some other shop business except food grains, cooked food and drinks etc. on such terms as Chief Commissioner, Delhi may fix. In case you do not want the alternative site, then you will loose the chance of getting a site for fuel deport and at the present site also you will be prohibited from running the fuel depot.
Your acceptance may please be sent to this office within fifteen days from the date of issue of this letter.
Yours faithfully,
E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 13 of 27
sd./
(K.B. Menon)
Land and Development Officer
No.. Enf./I_3 ( ) / Dated, the
Copy to:
1. O&M Sec.
2. Allot. II Sec.
Sd./
(K.B. Menon)
Land and Development Officer
10.8 Despite Ex. RW1/A the erstwhile owners, perpetual
lessees (Sh. Shambhu Dayal, Banwari Lal and Ram Chander) did not opt for an alternate site as was offered and finally perpetual lease i.e. Ex. PW1/4 was executed in their favour in respect of property bearing no. Plot/shop no. 33, Block 171, Sunder Nagar Market, Sunder Nagar of which the tenanted premises is a part.
10.9 Though Ld. Counsel for the petitioners argued that Ex. RW1/A1 was never addressed to the perpetual lessees, erstwhile owners and has no reference to property/plot/shop no. 33 of which the tenanted premises is a part and therefore no reliance can be placed upon the same however I find no merits in the said contentions. Firstly, even if the said communication Ex.RW1/A1 does not specifically refer to property/shop no. 33 however it is to be seen that the said communication/letter in respect of Sunder Nagar as a whole. The subject of the letter reads as "Fuel depots in Sunder Nagar, New Delhi." The property/shop no. 33, the tenanted premises is admittedly E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 14 of 27 situated in Sunder Nagar and therefore I find no reasons to carve out any exception for the tenanted premises. Secondly, Ex. RW2/8 which is a letter written by the erstwhile owners/ perpetual lessees to the Land & Development Officer proves that Ex. RW1/A1 had a direct reference to their property. The said letter is reproduced hereunder:
M/s Shambhu Dayal, Banwari Lal & Ram Chander 6430 Lady Harding Road, (Goal Market), New Delhi.
To The Land & Development Officer, Scindia House, New Delhi.
Subject: Fuel shop plot no. 33 at Sunder Nagar Market, New Delhi. Dear Sir, We beg to acknowledge the receipt of your letter No. Enf.I--3 (398) dated 9862. Before acceptance of an alternative site to run a fuel depot at Kaka Nagar in place of above mentioned, we would like to know the following:
1. A plot or shop will be given to us as alternative of the present premises, Kindly mention the area.
2. Whether the plot or a shop will be sold so as or on rental basis. Please specify the cost in case of sale and rate of rent in case of tenancy.
3. We will be allowed to construct the coal godown and room for office in plot or otherwise.
4. Please clarify the conditions if the present lease terms are changed.
5. We have not understood the conditions to run some other business except Food Grains, Cooked Food and Cold Drinks are imposed on us. We request to you to withdraw these condition and allow to run all types of business except fuel depot business.
Thanking you and hoping an early reply.
Yours faithfully (Ram Chander) For Shambhu Dayal, Banwari and Ram Chander E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 15 of 27 Dated August 21, 1962"
10.10 Apart from Ex. RW1/A1/ Ex. RW2/7 the respondent had sought certain information under the Right to Information Act from the Deputy Commissioner, Land & Estate Department Municipal Corporation of Delhi vide Ex. RW1/A2 bearing letter no. D/AC/ (PIO)/L&E/201112/5542 dated 30.12.2011. The relevant information sought and provided is reproduced hereunder:
"Q. Whether fuel depot can be open in Plot no. 33, Block171, Sunder Nagar Market, Sunder Nagar, New Delhi and if not, under what resolution/ notification/ circular MCD is not giving permission/ licence for running fuel depot in Sunder Nagar, New Delhi.
Ans. No fuel depot can be opened in Plot no. 33, Block - 171, Sunder Nagar Market, Sunder Nagar, New Delhi though the trade specified at the time of allotment is running of a coal depot. However the decision to ban Fuel Depots was that of GOI and MCD is only complying with the directions of the GOI. As such running of coal depot is not permitted."
10.11 Hence the same department of Government of India i.e. Land & Development Office which executed the perpetual lease in favour of the erstwhile owners, predecessor in interest of the petitioners itself prohibited running of fuel depot at the tenanted premises and in fact property no. 33 as a whole. Not only running of fuel depot was prohibited but the erstwhile owners, perpetual lessees were permitted to run "some other shop business except foodgrains, cooked foods and drinks etc." in case they did not opt for an alternate site for a fuel depot offered at Kaka Nagar vide Ex. RW1/A1.
E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 16 of 27Admittedly the alternate site was never opted for. The business presently being run by the respondent does not fall under the prohibited businesses as per clause 2 (7) of Ex. PW1/4 and Ex. RW1/A1. Hence much prior to the execution of the perpetual lease the purpose for which the property could be used i.e. "fuel depot" was prohibited and therefore the said clause was rendered redundant. It was for the concerned authorities i.e. L&DO to reconcile these two inconsistent aspects in Ex. PW1/4 and Ex. RW1/A1. They did not do so for reasons best known to them but the respondent cannot be prejudiced for their mistake/lapses.
10.12 It has to be remembered that though the perpetual lease was executed in 1972 however it is writ large from the perpetual lease that the erstwhile owners/lessees i.e. Shambu Dayal, Banwari Lal and Ram Chander were the lessees in property no. 33 since 24.02.1951. At this stage before proceeding further I am constrained to observe that neither the petitioners nor the respondent have been completely honest with the court. Numerous documents which ought to have been in their possession were never produced on record and were deliberately withheld. Sincere efforts were not made to procure the documents/ communications for reasons best known to the parties. Though both the parties are seeking justice, adjudication of their respective rights however conduct of neither of the parties has been absolutely clean in conducting the present trial.
E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 17 of 2710.13 Coming back to the facts of present case there is no document on record which even remotely proves that property no. 33 and the tenanted premises was ever used as a fuel depot. Rather it is apparent from the record that it was used for purposes other than fuel depot. Same stands proved in view of letter dated 16.11.1968 i.e. Ex. RW2/1 written by Shambu Dayal, Banwari Lal and Ram Chander to L&DO with reference to communications dated 24.06.1968 and 30.06.1968 the import of which is that L&DO had found "a general merchant shop" being run at the said property, at the "entire ground floor".
10.14 The property no. 33 was purchased by Sh. Devi Chand grandfather of petitioner no. 1 and father of petitioner no. 2 on 28.06.1974 vide sale deed Ex. PW1/10. It is vide this sale deed that Sh. Devi Chand acquired right, title, interest in the said property. Sh. Devi Chand Gupta had given an undertaking to the L&DO department on 10.04.1974 (more than 2 months prior to the registration of the sale deed) which further proves that the premises/property in question was not used for running a fuel depot and that the breaches if any were regularized by the erstwhile owners/lessees i.e. Shambu Dayal, Banwari Lal and Ram Chander upto 14.07.1974. The undertaking/affidavit i.e. Ex. RW2/2 is reproduced hereunder:
UNDERTAKING: (AFFIDAVIT) I, Devi Chand Gupta son of Shri Harbilas resident of 37 Masjid E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 18 of 27 Road, Bhogal, New Delhi, do hereby solemnly affirm and declare as under: That I am the prospective purchaser of shop on plot no. 33 Block No. 171, Sunder Nagar, New Delhi. That I understand that there are certain breaches in the above said premises and the lessee has got these regularised upto 14.7.74.
I hereby undertake to get the breaches removed by 14.7.74 or get them regularised beyond that date for the period for which these will remain in existence and that would change the purpose from fuel depot to general shop (except) food grain cooked food and drinks etc. on payment of additional premium. I shall have no hesitation in making the payment at the rate which will be fixed by Government from time to time.
I have clearly understood that the ground rent and other charges for the breaches have been accepted from the lessee, subject to the compliance of the terms of this undertaking.
DEPONENT VERIFICATION I, the above named do hereby solemnly affirm and declare that the above given statement of mine is true and correct to the best of my knowledge and belief and that nothing has been concealed therein.
DEPONENT NEW DELHI April 10, 1974 10.15 Ex. RW2/3 dated 22.09.1975 which is another letter written by Late Sh. Devi Chand to the L&DO in respect of certain unauthorized construction in the property/premises in question goes on to establish that no fuel depot was ever run at the said property/premises. The relevant portion of Ex. RW2/3 is reproduced hereunder:
"..........Regarding G. floor i.e. entire Fuel depot is not being used as karyana shop & restaurant. Only front is being used as karyana shop and back is vacant i.e. it is not being for any purpose. Therefore you kindly send the bill of the front portion after 14.7.74 We are also interested in getting the purpose changed of our shop. So you kindly send us the estimate of the charges i.e. for permanent lease charges, E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 19 of 27 the estimate should be sent to us."
10.16 Ex. RW2/4 dated 17.11.1975, Ex. RW2/5 and Ex.RW2/6 dated 18.12.1975 further prove that Devi Chand was using the premises/property for a Kiryana shop and a carpet shop.
10.17 The above letter/ communication was replied by the L&DO vide Ex. RW2/P1 dated 12.01.1977 which proves that there were certain breaches which were regularized upto 14.07.1977 by the concerned department. The relevant portion reads as under:
"With reference to your letter dated 18.12.75 I am to say that the lessor will be pleased to regularise the breaches temporarily upto 14.7.77 in the premises mentioned above provided you comply with the following terms & conditions in full in advances"
10.18 Vide Ex. RW2/P1 dated 12.01.1977 Late Sh. Devi Chand was also called upon to pay additional charges for change of purpose. There were numerous breaches in the form of unauthorized construction etc. however the relevant clause for our purpose is Clause B which is reproduced hereunder:
"B. Addl. Charges for change of purpose (From portion of GF as shop continued breaches"
10.19 Hence the above documents prove that though the perpetual lease was executed in respect of property no. 33, block 171, Sunder Nagar Market, Sunder Nagar, New Delhi with a mandate to E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 20 of 27 use the same for running a fuel depot but running of a fuel depot was banned by Government of India since atleast 1962 and hence no fuel depot could ever be run at the said premises of which the tenanted premises is a part. Once no fuel depot could be run at the said premises no question of misuse by the respondent arises more so when Ex. RW1/A1/Ex. RW2/7 permitted running of other shop businesses except food grains, cooked food and drinks etc. The business of the respondent does not fall in the above prohibited categories.
10.20 The petitioners have based their case for eviction u/s 14 (1) (k) on Ex. PW5/A dated 11.03.2002 and Ex. PW1/9 dated 07.01.2005 i.e. letters written by Land & Development Office to the Legal Heirs of Late Sh. Devi Chand Gupta. I have considered both these documents. The relevant portion of Ex. PW5/A for our purpose is reproduced hereunder:
To The Heirs and Executors of Late Sh. Devi Chand Gupta, C/o Sh. Pankaj Gupta 55, Gandhi Road, Dehradun 248001.
Sub.: Notification of the breaches on account of unauthorized construction in the Property Shop no. 33, Block No. 171, known as Sunder Nagar, New Delhi. Sir/Madam, On inspection of the premises on 18.01.2002 by the field staff of this office. It has been reported that the following breaches have been noticed at site.
(1) Ground floor area 1222 16' - 13' 2 ¼" = 1011 sq. ft. is being E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 21 of 27 misused as shop of Indian Art Palace by Sh. Satish Gupta.................
These breach are in contravention of Clause 2 (7) & 2 (9) of the Lease Deed/Agreement for Lease."
10.21 Ex. PW1/9 is in continuation of Ex. PW5/A whereby the Legal heirs of Late Sh. Devi Chand Gupta i.e. petitioners were called upon to get the breaches regularized. It has already been discussed above there is no question of any breaches or contravention of clause 2 (7) of the lease deed/agreement for lease i.e. Ex. PW1/4 as much prior to the execution of the perpetual lease the user of the same as a fuel depot had been prohibited by the perpetual lessor, Land & Development Office, Government of India as is evident from Ex. RW1/A1. The failure on the part of the L&DO department, Government of India to remove the inconsistency in Ex. PW1/4 and Ex. RW1/A1, apathy on their part to bring the two documents in consonance with each other cannot be allowed to prejudice the respondent.
10.22 Having said that as far as other breaches are concerned i.e. unauthorized construction etc. as was brought to the notice of the petitioners vide Ex. PW5/A and Ex. PW1/9 it is the petitioners who are under an obligation to rectify/ regularize those breaches. Those breaches are not in relation to the tenanted premises. They are in the portion under the occupation of the petitioners i.e. rear portion measuring around 25'0" x 13'2 ¼". It is not the case of the petitioners that respondent has raised the unauthorized construction.
E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 22 of 27The petition has not been filed for those unauthorized construction but only for misuse, for not running a fuel depot. Even the notice Ex. PW1/5 was not served for any other breaches. Moreover no evidence has been led on record by the petitioners to even remotely establish or prove that the unauthorized constructions or the other breaches as reflected in Ex. PW5/A and Ex. PW1/9 are attributable to the respondent.
10.23 There is one more aspect which is necessary to be dealt with before parting with the present judgment and that is the commencement of the tenancy. Undoubtedly as the present petition has been filed u/s 14 (1) (k) and the law being well settled that cause of action arises only when the notice to stop the misuser is given by the landlord to the tenant (which in this case is 13.11.2006) and the tenant does not stop the misuser within the time prescribed in the notice therefore the period of letting becomes irrelevant. But with the evidence led by the parties, material brought on record and final arguments advanced regarding commencement of the tenancy in my opinion this contentious issue needs to be dealt with and adjudicated upon.
10.24 As far as commencement of tenancy is concerned the pleadings of the parties remained silent in that regard. Neither the petitioner nor the respondent gave any specific date of commencement of tenancy. It was for the first time during the cross E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 23 of 27 examination of PW1 (as recorded on 15.04.2008) that the date/year of letting was suggested to be 1994. PW1 submitted his inability to dispute the same. Thereafter RW1 during his evidence, asserted in his affidavit Ex. RW1/A that he was inducted as a tenant in the year 1994 and during his cross examination no efforts were made to refute the same. The Ld. Appellate Court in its judgment dated 08.05.2013 made the following observations in para 11 of the judgment regarding the date of letting i.e. "Thus, it has emerged as uncontrovertible fact that the appellant became the tenant in the demise portion in 1994".
10.25 However during the additional evidence, from the evidences led by the parties what has emerged on record is that the respondent inherited the tenancy from his father Sh. Tara Chand Gupta who was a tenant in the tenanted premises since 01.04.1979.
10.26 The plea of the respondent, RW1 that he had taken the premises on rent in 1994 from Sh. Jagmohan Gupta does not inspire confidence and the fact remains that he had inherited the tenancy from his father who was admittedly in possession of the tenanted premises till the time of his death. The relevant portion of cross examination of RW1 in this regard read as under:
"My father Tara Chand Gupta was in possession of the suit property in the year 199293. My father had vacated the suit property and handed over the possession to the landlord. I cannot tell the date, month or year as to when the property was vacated by my father. Vol. After the death of my father I met Jagmohan Gupta who allowed me to do my business in the suit property. I requested him to do my business in the suit property which he E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 24 of 27 allowed. It was in the end of 1994 when Sh. Jagmohan Gupta allowed me to start the business in the suit property and handed over the possession of the suit property. I started the business of handicrafts in the year 1994 from the suit property. The same business was being done by my father in the suit property. I applied a new sales tax number for my business. Again said, I got my name incorporated on the same sales tax registration number which was being used by my father.............It is correct that after the death of my father I never offered to hand over the lock and key of the suit property to the landlord i.e. Jagmohan Gupta."
10.27 It has already been discussed above that at the time when property no. 33 was purchased by Sh. Devi Chand Gupta (grandfather of petitioner no. 1 and father of petitioner no. 2) Sh. Tara Chand was already a tenant in the tenanted premises as is duly reflected in the sale deed i.e. Ex. PW1/10.
10.28 Ex. PW2/1 i.e. application form for registration, proved by Sh. Mukesh Kumar, Record Keeper, Trade and Taxes Department goes on to prove that Sh. Tara Chand, father of the respondent was carrying on the same business in the same name and style in the year 198081 and thus in possession of the tenanted premises at that time. In fact it is mentioned in Ex. PW2/1 that the business in respect of which the application was made i.e. trading of handicrafts goods was started by Late Sh. Tara Chand Gupta on 01.04.1979. Same stands further proved in view of affidavit of Tara Chand Gupta i.e. Ex. PW2/2 which is accompanying his application for registration Ex. PW2/1. Ex. PW2/3 to Ex. PW2/5 further on to establish that atleast since 01.04.1979 Tara Chand Gupta, father of the respondent was a E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 25 of 27 tenant in the tenanted premises.
10.29 It also stands established in view of the answer given by RW1 during his cross examination that there was never a break in tenancy, the tenanted premises was never vacated and the possession never handed over to Sh. Jagmohan Gupta (father of petitioner no. 1 and brother of petitioner no. 2). Same business under the same name and style continued to be run by the respondent. Hence thus if not since the date of the sale deed Ex. PW1/10, which records the possession of Late Sh. Tara Chand i.e. father of the respondent as a tenant in the tenanted premises (because Ex. PW4/D1/Ex. RW2/3 and Ex. PW4/D2/Ex. RW2/5/Ex. RW2/6 dated 22.09.1975 and 18.12.1975 written by Late Sh. Devi Chand do not reflect the tenanted premises being in occupation of Late Sh. Tara Chand and rather shows that the premises was in his possession) then atleast since 01.04.1979 the respondent's father was the tenant and respondent has merely succeeded to, inherited the tenancy immediately after his death and it is not a case of fresh tenancy being created in his favour as claimed by him.
10.30 In the case at hand notice Ex. PW1/5 dated 13.11.2006 was served upon the respondent by the petitioner however as discussed above running of fuel depot was not permitted, was unlawful as per Ex. RW1/A1 hence no case of misuse is made out. Rather using the tenanted premises for fuel depot would not only be a E No. 5063/2016 Neha Gupta Vs. Satish Kumar Gupta Page 26 of 27 misuse but also unlawful/illegal activity.
10.31 In view of the above discussion the eviction petition stands dismissed.
11. File be consigned to record room after necessary compliance.
(Gaurav Rao) Announced in the open court on SCJCumRC(SouthEast) on 19.07.2017 Distt.Courts, Saket,New Delhi.
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