Delhi District Court
Sh. Tej Pal Singh vs Sh. Abdul Gaffar on 15 October, 2012
IN THE COURT OF SH. SUMIT DASS, ADMINISTRATIVE
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER (NORTH-EAST),
COURT NO. 60, KKD COURTS, DELHI.
Suit No.134/12
Unique Case ID No.: 02402C0118912012
In the matter of :
Sh. Tej Pal Singh
S/o Sh. Kulwant Singh,
R/o 53-C, Dilshad Garden,
Near R-Block, Jain Mandir,
Delhi - 110 053. ....Plaintiff
Versus
Sh. Abdul Gaffar
S/o Sh. Mohd.Shafiq,
53A & C, Dilshad Garden,
Opposite State Bank of India,
Delhi - 110 095. ....Defendant
Date of Institution : 28.04.2012
Date of Final Argument : 11.10.2012
Date of Pronouncement : 15.10.2012
JUDGMENT :
In short, facts and the controversy involved is succintly stated as under :
Plaintiff had filed the present suit for declaration, mandatory injunction, recovery of rent / mesne profit / damages for use and occupation of the premises. The brief gravaman or the basis upon which the suit has been filed that earlier there existed a relationship of landlord and tenant inter-se the parties in as much as the premises measuring 12 X 24 Ft. situated at 53-A & C, Dilshad Garden, Delhi - 95 were let-out at a monthly rent of Rs.640/- per month. The market value of the said premises in so far as the rental aspect is concerned in the estimation of the plaintiff was Rs. 12,000/- per month, even though the same was claimed on a lower side. Prior thereto, a legal notice dt. 17/02/2012 was served in this regard whereby the tenancy was also terminated, if the defendant does not agree to enhancement of the said sum of money being the rent. The legal basis for demanding such an amount was that a part of the Delhi Rent Control Act, 1958 i.e. Section 4, 6 and 9 were struck down by the Hon'ble High Court in Suit No.134/12 Page 1 to 10 Raghunandan Saran Ashok Saran Vs. Union of India's case. The freezing of rent and the curb upon the landlord to increase the same was alleged to be over which is the main contention in the suit in hand and the reliefs were also so claimed whereby rent was sought to be declared to be Rs.12,000/- and consequently, the liability of the tenant to pay the same was also sought to be enforced upon recovery of said amount was sought.
2. The defendant resisted the suit. He denied the material allegations and sought dismissal of the suit. The factual dispute area is not relevant for the present discussion.
3. On 05/09/2012, in view of the pleadings and also to adjudicate pertaining to the very maintainability of the suit a preliminary issue was framed which is also as under :
"Whether the suit is maintainable in the present form is as much as by way of unilateral increase of rent by the plaintiff on the basis of rental prevailing therein the earlier contract for payment can be altered which was also governed by special statute of the Delhi Rent Control Act, 1958"?
4. I have heard the submissions advanced at bar.
5. Ld counsel for the plaintiff has predicated his entire reasoning on the basis of decision as rendered by the Hon'ble High Court in Raghunandan Saran (HUF) Vs. UOI reported in 95 (2002) DLT 508 (DB). The main contention was to the effect that the provisions of standard rent having been declared unconstitutional in terms of the aforesaid decision, the bar which precluded the plaintiff to raise the rent stood abolished. Plaintiff can file a suit and demand the market rent. Contractual tenancy was terminated in terms of the earlier legal notice. Still, defendant was holding the tenancy even thereafter, and therefore, liable to pay market rent / market charges as such. The reasoning adopted in the aforesaid case was also pressed upon to support the contention that the defendant was an unauthorised occupant and, therefore, liable to pay market rent.
The issue which has been agitated upon, find mention in a large number of cases which are based on the same reasoning stated in the said case (Raghunandan Saran).
6. I have carefully gone through the said citation.
The Rent Act and its various provisions have to be examined so as to Suit No.134/12 Page 2 to 10 decipher whether the suit is maintainable in the sense it discloses any cause of action or not. I am understanding cause of action in a very pertinent manner as whether such a suit can be filed or not i.e. as to whether plaintiff has any legal right or not.
7. The provisions of Delhi Rent Control Act, 1958 (in short hereinafter referred as Act) particularly section 3, section 50 and section 14 are of importance. I shall take a historical perspective also to appreciate the arguments of Ld counsel for the plaintiff. The Delhi Rent Control Act, same was enacted for twin purposes namely i.e for control of eviction and fixation of rent. This aspect was stated in "Rahabar Productions Pvt. Ltd. Vs. Rajender Kumar Tandon" reported in AIR 1998 SC 1639 wherein Hon'ble Apex Court has observed as under :
"The Act which was brought on the Statute book in 1958 is a composite legislation in the sense that while providing protection to the tenants, who, under common law, including Transfer of Property Act, could be evicted from the premises let out of them, at any time by the landlord on the termination of their tenancy, it restricts the right of the landlords to evict the tenants at their will."
8. The Act as framed in 1958 had substantially undergone a change by the amendments incorporated in 1976. The definition of Section 2l i.e. tenant was expanded to incorporate the explanation. The said explanation limited the rights of tenants to inherit the tenancy with regard to the residential premises.
9. The amendments of 1976 were to the fact that the protection of the Rent Act enured for residential premises for a limited period while there was no such restriction with regard to commercial premises. The case law on the aforesaid aspect is also not free from any difficulty, way back in 1977 in ''Mohan Lal and others Vs. Sri Krishan and others'' decided on 08.08.1977 reported in All India Rent Control Journal, 1977 (2) by Hon.'ble Mr. Justice Awadh Bihari had also held / interpreted the explanation annexed in the Act to the effect that the said explanation curtailed the rights of tenant. This decision was set aside by the Hon'ble Apex Court wherein the entire law on this aspect was discussed in case titled as "Gyan Devi Anand Vs. Jeevan Kumar" reported in AIR 1985 SC 796. The essence of the Act was crystalized and stated as under :
Suit No.134/12 Page 3 to 10
10. Particularly, the concurring judgement rendered by Hon'ble Justice Bhagwati is relevant and some paras are as under : "'Statutory tenant' is not an expression to be found in any provision of the Delhi Rent Control Act, 1958 or the rent control legislation of any other state. It is an expression coined by the judges in England and, like many other concepts in English law, it has been imported into the jurisprudence of this country and has become an expression of common use to denote a tenant whose contractual tenancy has been determined but who is continuing in possession of the premises by virtue of the protection against eviction afforded to him by the rent control legislation.
The rent control legislation in fact, as pointed out by this Court in a seven judge Bench decision in V. Dhanapal Chettair Vs. Yesodia Ammal (1980) 1 SCR 334 does not make any distinction between contractual tenant and statutory tenant. "It does not permit the landlord to snap his relationship with the tenant merely by his act of serving a notice to quit on him. In spite of the notice, the law says that he continues to be tenant and he does so enjoying all the rights of a lessee and is at the same time deemed to be under all the liabilities such as payment of rent etc. in accordance with the law." The distinction between contractual tenancy and statutory tenancy is thus completely obliterated by the rent control legislation. Though genetically the parentage of these two legal concepts is different, one owing its origin to contract and the other to, rent control legislation, they are equated with each other and their incidents are the same. If a contractual tenant has an estate or interest in the premises which is heritable, it is difficult to understand why a statutory tenant should be held not to have such heritable estate or interest. In one case, the estate or interest is the result of contract while in the other it is the result of statute. But the quality of the estate or interest is the same in both cases. The difficulty in recognizing that a statutory tenant, can have estate or interest in the premises arises from the fact that throughout the last century and the first half of the present, almost until recent times, our thinking has been dominated by two major legal principles, namely freedom of contract and sanctity of private property and therefore, we are unable to readily accept that legal relationship Suit No.134/12 Page 4 to 10 can be created by statute despite want of contractual consensus and in derogation of property rights of the landlord."
The Act was treated as a beneficial piece of legislation whereupon rights of the landlord were curtailed by a statute.
Needless to state, statute being a creation of legislation supersedes contractual obligations.
The said judgment clears the view on the aforesaid aspect as to the rights of the statutory tenant in inheriting the estate. The Hon'ble Apex Court in para no. 24 and 36 had further observed which is as under :
"Para 24 : Keeping in view the main object of Rent Control Legislation, the position of a tenant whose contractual tenancy has been determined has to be understood in the light of the provisions of the Rent Acts. Though provisions of all the Rent Control Acts are not uniform, the common feature of all the Rent Control Legislation is that a contractual tenant on the termination of the contractual tenancy is by virtue of the provisions of the Rent Acts not liable to be evicted as a matter of course under the ordinary law of the land and he is entitled to remain in possession even after, determination of the contractual tenancy and no order or decree for eviction will be passed against a tenant unless any ground which entitles the landlord to get an order or decree for possession specified in the Act is established. In other words, the common feature of every Rent Control Act is that it affords protection to every tenant against eviction despite termination of tenancy except on grounds recognized by the Act and no order or decree for eviction shall be passed against the tenant unless any such ground is established to the satisfaction of the Court. Para no. 36 : Accordingly, we hold that if the, Rent Act in question defines a tenant in substance to mean a tenant who continues to remain in possession even after the termination of the contractual tenancy till a decree for eviction against him is passed, the tenant even after the termination of the tenancy continues to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable.
As the protection afforded by the Rent Act to a tenant after Suit No.134/12 Page 5 to 10 determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenants, it is open to the Legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfillment of the condition in the manner and to the extent stipulated in the Act."
The said paras clearly delineated the spirit of the Act. The Hon'ble Apex Court held that the statutory tenant continues to be in possession subject to all obligations which he had which includes payment of standard rent and other permitted increases.
11. The said ratio clearly explained the ambiguity (existed) with regard to the scope of the amendment in section 2l of Delhi Rent Control Act, 1958.
The words used were that though, the landlord had a right to snap the contractual ties still he cannot evict a tenant unless and until the grounds enumerated under the Act are made out. The liability of the tenant to pay the standard rent or permitted increases, however, continues. Needless to state that in the event if he failed to do so, he cannot be subject to pay mesne profits, it is the non-compliance of the said obligations for which remedy is under the Act alone.
12. Thereafter, in 1988, another set of amendments were brought by the legislature which inter-alia include the incorporation of section 3(c) and 3 (d). The tenancies whose monthly rental was more than Rs. 3500/- were excluded from the ambit of the Delhi Rent Control Act. Interestingly on this particular aspect i.e. section 3(c) came up for discussion pertaining to the fact as to whether if the premises fetch more than Rs. 3500/- as rent, what would be its position. In 1997, the Hon'ble High Court in P.S. Jain Company Ltd. Vs. Atma Ram Properties reported in 65 (1997) DLT 308, the case held that for the purposes of section 3(c) as under :
"The point for consideration in the appeal is : Whether a tenant who is paying a rent of Rs.900/- p.m. (less than Rs. 3,500/- as specified in Section 3 (c) of the Delhi Rent Control, 1958) can be evicted by a Suit No.134/12 Page 6 to 10 simple notice under section 106, Transfer of Property Act, through the Civil Court if he has lawfully sublet the premises in two tenants, one for Rs. 40,000/- p.m. and another for Rs. 4,500/- p.m. (in each case for more than Rs. 3,500/- p.m.) ?"
In our view, the intention behind section 3 (c) is that a premises which fetches a rent of Rs. 3,500/- p.m. should be exempt and that protection should be restricted to buildings fetching a rent less than Rs. 3,500/- p.m. In case a tenant paying less than Rs. 3,500/- p.m. to his landlord has sublet the very same premises may be lawfully for a rent above Rs. 3,500/- p.m., then the question naturally arises whether such a tenant can be said to belong to weaker sections of society requiring protection. By sub-letting for a rent above Rs. 3,500/- p.m., the tenant has parted with his physical possession. He is receiving from his tenant (i.e. The sub-tenant) more than Rs. 3,500/- p.m. though he is paying less than Rs. 3,500/- p.m. to his landlord. The above contrast is well-illustrated by the facts of the case before us. The appellant tenant is paying only Rs. 900/- per month to the plaintiff, while he has sublet the premises in two units, one for Rs. 40,000/- per month and another Rs. 4,500/- per month. In regard to each of these units, the sub- tenants have no protection of the Rent Act. IN our view, the purpose of Section 3 (c) is not to give any protection to such a tenant."
Thus, the premises which was yielding more than Rs. 3500/- as rent were excluded from the ambit of Act.
13. The fact that the Act as such with passage of time had become lopsided / its objective was not fulfilled, necessitated a new line of interpretation whereupon certain judicial pronouncements expounded the said view.
The judgment cited by Ld counsel for the plaintiff i.e Raghunandan Saran (HUF) Vs. UOI scraps the section 6, 8 and 9 of the Act, unconstitutional as it affronts article 14 of the constitution.
In this regard, the precursor of the said judgement can be a judgement by Hon'ble Karnataka High Court in AIR 2000 Karnataka 334 case titled as "Arun Balavant Chandagadkar and etc. Vs. Khutubuddin Shabhakan Pathan, Major & Ors." wherein similar provisions of Karnataka Rent Act were struck down as in constitution as it violated article 14 of the Suit No.134/12 Page 7 to 10 Constitution. Similarly, in Khem Chand Vs. State of Rajasthan reported in AIR 1999 Rajasthan 305, it was so held.
Both the aforesaid judgements had relied upon AIR 1998 SC 602 :
case titled as "Malpe Vishwanath Acharya Vs. State of Maharastra"
reported in AIR 1998 SC 602.
14. I am bound by the decision of the Hon'ble Delhi High Court. The said decision abrogates the concept of standard rent.
15. That being the legal situation, in that eventuality, the statutory protection stand qua fixation of rent is breached. Parties are left to their original status under ordinary common law i.e Transfer of Property Act. Tenancy is a creation of contract. It is a bilateral Act. Rent is fixed by a contract. It necessarily implies consensus. Unilaterally, the rent cannot be increased or arbitrarily fixed. Same has to be either on the basis of the contract for example, the lease deed etc. or by mutual consensus.
16. It would be a dichotomy that on one hand, a person enjoys the protection of the suit against the eviction, simultaneously, he is asked to pay the market rent / damages. Once, he pays more than Rs. 3500/- in any form as damages / market rent (whatever terminology used), the protection under Act looses. Reference can be made to Atma Ram Properties (P) Ltd. Vs. Pal Properties (India) Pvt. Ltd. & Ors. reported in 91 (2001) DLT 438 The easiest way of doing so would have been to ask for market rent and if the tenant is made to pay the same, he looses the protection of Act. The underlined philosophy of the Delhi Rent Control Act, even if the same is substantially eroded i.e. protection of tenants would be given a complete go by and it would be a totally redundant Act as such.
17. Needless to state that the said Act still remains and is in operation. A person whose contract of tenancy comes to an end shall be a statutory tenant.
18. The point which needs to be decided is whether he has to pay damages on account of the fact i.e. contractual tenancy has come to an end in the sense that alike a tenant by sufferance, he is liable to pay damages. This would imply giving a complete go by to the provisions of the Act. Liability to pay damages only arises when the possession is unlawful or unauthorised. Possession is still authorised because it is protected by statute. No liability to pay damages arose. Possession may be against Suit No.134/12 Page 8 to 10 the wishes of the landlord but not against the statute. That being the position, it can be said that the liability to pay damages does not arises unless and until protective umbrella against eviction is there.
19. The crux of the matter and the concept of Rent Control Act was succinctly stated by Hon'ble Justice Bhagwati in the portion of the judgment Gyan Devi's case (supra) referred to as above.
20. The Rent Control legislation had put fetters whereby contractual powers of the parties to negotiate rent as well as eviction was regulated by beneficial piece of legislation. Viz. a viz. the fixation of rent that fetters have been removed in the sense that standard rent does not survive any more.
21. The question which remains to be answered is that in a situation, if the tenancy has been contractual terminated, what would be the liability of a person to continue in possession thereafter. Is he liable to pay damages ? Or is he liable to pay the earlier rent ? The proposition of law put forth by Ld. Counsel for plaintiff that he is liable to pay market rent / a sum of money not exceeding market rent upon the ratio of Raghunandan Saran's case, in my opinion is not made out.
22. Common English law has three concepts i.e. a. tenant holding over ;
b. tenant by sufferance and ;
c. tenancy at will.
In so far as tenant holding over is there, the same is prescribed u/s 116 of Transfer of Property Act.
In so far as tenant by sufferance is there, he holds the premises only on account of the fact that there is neither dissent or assent to such continuance and he is liable to pay occupation charges.
This is a legal concept which is used to describe a person in the hiatus period after determination of his tenancy and any positive act for his eviction / ejectment. Whereas tenancy at will denotes / arises by implication of law in cases of permissive occupation when a person is in possession of the premises with the consent of the owner, or it may arise expressly by an agreement to let for a indefinite term. It is also not a scenario herein.
Once, Rent Control Act legislation applies, in that eventuality to say that a person is liable to pay market rent and at the same time can enjoy the protection of the act, both these things cannot be together.
Suit No.134/12 Page 9 to 10
23. The ratio of Gyan Devi's judgment states that a person who is a statutory tenant is under same obligation and has to pay all permitted rent increases. In other words, permitted increases means that either it can be subject to contract i.e. in case, if there was a lease deed or any agreement whatsoever then rent can be enhanced on that basis or some other yardstick; the true import of Raghunandan's judgement is that it allows / defreezes the parties to renegotiate rent. That itself implies the consensus i.e. a bilateral act has to be there. Unilaterally, damages cannot be asked.
24. That being the situation, in my humble opinion, the present suit is devoid of any cause of action in as much as there is no right to sue for damages / ask for market rent or any sum not exceeding market rent from the tenant whose tenancy has been terminated and therefore, the issue is accordingly so decided and suit is liable to be dismissed.
25. The suit is accordingly dismissed as being not maintainable at the first instance and also on account of the fact that the declaratory relief in so far as the fixation of rent / damages is concerned per-se is not possible as it is not distinct legal right in reference to which a declaratory relief can be granted. Suit is accordingly dismissed. No order as to costs.
Decree-sheet be drawn accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court (SUMIT DASS)
Dt.15.10.2012 ACJ/ARC (NE),
KKD COURTS,
DELHI.
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