Delhi High Court
N.K. Rustogi vs K. Gupta And Ors. on 18 January, 1993
Equivalent citations: 49(1993)DLT548, 1993(25)DRJ88, 1993RLR186
JUDGMENT Usha Mehra, J.
(1) In this petition, the petitioner, a tenant has raised a very important and interesting point pertaining td the interpretation of the word "built a residence" appearing under Section 14(1)(hh) of the Delhi Rent Control Act (hereinafter called as "the Act"). The petitioner was allotted a flat by the Delhi Development Authority (hereinafter called the 'DDA') under its Self Financing Scheme (hereinafter called as "SFS"). The question for consideration is whether this flat allotted by the Dda would amount to building a residence by the petitioner? Can he seek the exemption stipulated under Section 14(1)(hh) of the Act?
(2) In order to appreciate the arguments, in brief the facts relevant and admitted for determination of this issue are that petitioner was inducted as tenant on the ground floor premises bearing No.A-75, Ashok Vihar Phase Iii Delhi vide agreement dated 15th June, 1978 for residential purposes on monthly rent of Rs.l200.00 . Respondent be rein is the landlord. Petitioner-tenant has acquired vacant possession of a flat allotted by Dda bearing No. 1671(0/1, Vasant Kunj, New Delhi. Since tenant acquired vacant possession of a residential flat of his own, therefore, the landlord filed the eviction petition under Section 14(1)(h)- of the Act. Petitioner took the objection before the trial court that the premises allotted to him by Dda under Sfs amounts to construction of the flat by him through the agency of the Dda under the 5th SFS. Hence exempted from the eviction for 10 years as stipulated in Clause (hh) of Section 14(1) of the Act. Section 14(1)(h) of the Act as stood prior to its amendment of 1988 reads as under:- Section 14(1)Qi) "that the tenant has, whether before or after the commencement of this Act, built, acquired vacant possession of, or been allotted a residence."
(3) But after the amendment of 1988 the word "built" has been omitted from Clause (h) and a new clause has been inserted as (hh) in the Act which reads as under.' Section 14(1)(hh) "THAT the tenant has, after the commencement of the Delhi Rent Control (Amendment) Act, 1988, built a residence and ten years have elapsed thereafter;"
(4) The bill NO.XXV of 1988 docs not give any purpose or object for omitting the word built from Clause 'h' and inserting new Clause 'hh' except that when a tenant built a residence he will get exemption from eviction for 10 years. In the Act, the word 'built' has not been defined. According to the Concise Oxford Dictionary 'build' means "construct (a house) by putting parts or material together", "commission, finance and oversee the building of." But this does' not mean that tenant must construct a residence himself. He can get the premises built by another agency. The dispute is not that the house allotted by Dda is not a residential premises or is not vacant. The question is of protection and exemption for 10 years if it is held that Sfs flats constructed by Dda means a residence built by the petitioner.
(5) Admittedly, the flat in question was built by the Dda and was allotted to the petitioner after construction. He got himself registered in the Self Financing Housing Regulation Scheme. Pursuance to which be has been allotted this flat by the draw of lots. The scheme was introduced in order to enable people interested in having a flat in Delhi to "own your house". This scheme sought financial participation of the intending purchasers during the process of the construction of flats. As a matter of fact this scheme has been introduced by the Dda in order to overcome the acute-shortage of-housing in Delhi and in order to increase the housing activities in the capital through the involvement of the people. The intending purchaser has to get himself registered first under the scheme and thereafter the Dda under the said scheme indicates the mode of payment of the cost of the flat. Allotment is decided on the basis of the lots. If the number of applicants exceeds the number of available flats, then a registered applicant cannot be allotted flat in that draw of lots. The contract between the intending purchaser and the Dda is not a simple voluntary agreement between the parties but one hedged in by statutory restrictions in all its aspects. The Dda remains the owner of the land. The plan of the multistory building constructed by the Dda under the Sfs is decided and approved by the DDA. The supervision of the construction, alteration of the plan till completed and allotted remains with the DDA. The only participation of the intending purchaser is to give the Installments as indicated by the DDA. In fact it is the Dda which maintains and has a hold on the common portions and common services of these flats till such time it hands over the same to the Municipal Corporation of Delhi. The land underneath these flats had been acquired by the DDA. How many houses are to be built in a particular locality (6) In the case in hand, the petitioner registered himself under the Sfs vide brochure Ex.A.W.1/R.7 and A.W.1/R.8. The bare reading of the same show tint the Dda will remain the overall in charge of these constructed flats. The allottee has no freedom to deal the same in any manner be likes. He is bound by the rules and regulations as stipulated by the DDA. Clause 13 of Ex.A.W.1/R-.7 shows that the Dda has a right to cancel the allotment or even reject the applications if it is found that there is some misrepresentation or suppression of facts in the application by the applicant. The learned Tribunal has summarised the various clauses of this scheme which is applicable to the facts of this case and which clearly show that the supremacy of the construction and allotment over the building remains with the DDA. So much so the heading "mis-use" additions and alterations etc. also indicates the supremacy of the DDA.
(7) Under the Heading of Mis-use, additions alterations etc. it has been stated in Ex.A.W.1/6 as under:- "THE flat shall not be used for any purpose other than that of residence. The allottee shall not be entitled to sub-divide the dwelling unit or amalgamate it with any other dwelling unit or to make any structural additions alterations, without prior written permission of the DDA. In case of violation of the above conditions, the allotment shall be liable to be cancelled and the possession of flat resumed by the DDA."
(8) Under the Heading of Disposal/Transfer/Mortgage of the flat, it has further been provided that:- "THE allottee shall not be entitled to transfer, mortgage or otherwise part with the possession of the whole or any part of the flat without the previous consent of the authority in writing, and the authority shall be entitled to refuse the permission in its absolute discretion. Provided that in the event of a transfer being made without obtaining previous consent of the authority in writing, such transfer shall not be recognised by the authority and it shall be open to the authority to cancel the allotment and resume the possession."
(9) These two clauses clearly indicate that the petitioner has acquired this flat from Dda by allotment under the SFS. In fact it is the Dda which has constructed these houses and sold to intending purchasers i.e. petitioner. The only participation of the petitioner was finances and that too given at the dictate of the DDA. He has no right to transfer, mortgage or otherwise part with the possession of this flat. If he had constructed his own house on his own land he would have full supremacy over the same. He would not have been guided and regulated by the terms set down by the Dda nor would have to apply its sanction for mortgage this flat. Therefore I will not hesitate in holding that the flat allotted and the vacant possession of which has been given to the petitioner would not constitute "build a residence" by him or through his agency. It would definitely be covered by a definition of acquiring the flat by allotment by the Dda to the petitioner. Hence the Trial Court was right in coming to the conclusion that the case of the petitioner is covered under Clause (h) and not under (hh) of Section 14(1) of the Act. The petition has no merits. Dismissed.