Delhi High Court
Birla Institute Of Scientific Research vs Union Of India And Ors. on 12 July, 1993
Equivalent citations: 1993IIIAD(DELHI)282, 53(1994)DLT342
JUDGMENT Jaspal Singh, J.
(1) The Birla Institute of Scientific Research, which is the petitioner before me, is a Society duly registered under the West Bengal Society Registration Act, 1961. By a lease agreement dated March 17, 1971 the Society took premises bearing No. 13, Mahatma Gandhi Road, Lajpat Nagar Iv, New Delhi from Mrs. Santosh Chandiok, who is respondent No. 4 on a monthly rent of Rs. 4000.00 . Mrs. Chandiok had purchased the land underneath the said premises from one Mr. Sat Prakash Kapur. The original lessee was the President of India who had demised the same by a lease in writing dated April 3, 1959. One of the terms and conditions of the said lease and which is relevent for our purpose was as follows: "1.The lessee doth to the intent that the burden of the covenants may run with the said land and may bind any permitted assignee thereof hereby covenant with the Lesser as follows:- (i) ................... (ii) ------------------ (iii) ................... (iv) ------------------- (v) ------------------- (vi) not without the written consent of the Chief Commissioner, Delhi to carry on or permit to be carried on, on the said land and buildings erected thereon during the said lease any trade or business whatsoever or use the same or permit the same to be used for any purpose other than of a single storeyed building consisting of one or two residential flats in all, with a barsati on top, as may be approved for the locality or as provided in the building already erected on the said land."
(2) It so happened that after the letting to the Society notices were issued by the Land and Development Office to Mrs. Chandiok alleging that the entire premises were being misused as office by the Society and that the breach was in contravention of Clause (vi) of the lease deed. The Land and Development Office which is arrayed as respondent No. 3 before me also claimed misuse charges. consequent upon the said notices by the Land and Development Office, Mrs. Chandiok filed an eviction petition against the Society-under Clause (k) of Sub-section (1) of Section 14 of the Delhi Rent Control Act. That provision runs as follows:- "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 favor 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- (k) 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 giving him a lease of the land on which the premises are situate."
(3) The said eviction petition resulted in a settlement between the parties. In view of the compromise arrived at between the parties, the learned Additional Rent Controller recorded the statements of Counsel for the parties. The statement made by Counsel for the Society was as follows: "We concede to the grounds for eviction of the petitioner. We be allowed four years time as per written compromise Ex.CX to vacate the premises in suit. The compromise is filed by Sh. Suresh J.Desai Director in charge of respondent No. 1 and Harish Chandra Adv. for respondent No. I as an Advocate for respondent No. 1. Respondent concedes the grounds of eviction set out in the petition and admit the notice got receipt mentioned under written para No. 18(2). Eviction order be passed against this respondent No. 1 in terms of the compromise Ex. CX. Parties be left to bear their own costs. Ex.CY is correct."
This was followed by the statement of Counsel for the petitioner and profitably, I may reproduce the same also. It runs as under: "I have heard the statement of the Counsel for respondent No.1. The lease is correct. Eviction order be passed in terms of compromise. Ex. Cx is signed by the petitioner and her Advocate, myself and Miss. Poonam. The terms are correctly stated therein. In terms of Ex. Cx a cheque No. 6182605 dt. 23.10.78 for Rs. l,36000.00 drawn by Manager United Commercial Bank, Parliament Street, New Delhi on its own branch has been received by Sh. F.C. Bedi, Advocate for petitioner. Similarly I have handed over a letter dated 23.10.78 written by petitioner to Sh. M.M. Bedi, Vice Chairman D.D.A. with Advocate for respondent No. 1. Petition be decreed. Parties be left to bear their own costs."
Consequent upon those statements the learned Addl. Rent Controller passed an order of eviction in the following terms. "I am satisfied from the admissions of respondent that grounds u/Section 14(l)(e)(k) are made out by petitioner. I pass eviction order in terms of Ex. Cx which may be read as part of my order. File be consigned to R.R."
(4) It may be mentioned that before the recording of the statements which have been reproduced by me above, an application was moved before the learned Additional Rent Controller on behalf of the parties.The relevent paragraphs for our purpose are 6, 7 and 10. They run as under: "6.That the Land and Development Office has demanded a payment of Rs. l,30,000.00 as charges for regularisation up to 14th July, 1977 of the breaches of the conditions of the lease in respect of the plot oi) which the premises in suit have been built. The respondent No. 1 has handed over to the petitioner a Bank Manager Cheque for the said amount of Rs. l,30,000.00 for payment to the Land and Development Office, New Delhi to get the breaches regularised. 7. That the respondent No. 1 will be using the premises for office purposes. During this period of four years and for the period from 15th July, 1977 to the date of eviction order, respondent No. I to pay all the regularisation charges that may be demanded by the Land & Development Office in respect of the breaches of the terms of the lease of the plot of land above referred to within one month from the receipt of the letter from the petitioner mentioning the amount claimed by the Land & Development Office to the petitioner Along with the letter of the Land and Development Office for payment to the Land & Development Office. If respondent No. I makes default in this, time being essence of the agreement, the petitioner will be entitled to execute the eviction order forthwith. 10. That the petitioner jointly with respondent No. 1 will strive to have the charges claimed by the Land & Development Office for use of the premises by respondent No. 1 as its office, set aside, waived or reduced. This is without prejudice to the payment to be made by respondent No. 346 1 towards charges for use and occupation, amount demanded by the Land &: Development Office for regularisation or by the Delhi Development Authority."
Consequent upon this settlement and the order of eviction, the Society made payments through the landlady to the Land & Development Office towards its claim for misuse charges. Ordinarily the matter ought to have finished there. It has not.
(5) The Society has now filed this writ petition saying that it had never misused the premises. It claims that the premises were never used for commercial purpose and that the only purpose to which it was put was the housing of a library which was incidental to the objects of the Society, and that, for that reason, no misuse charges could be levied. Secondly, it is contended that the misuse charges claimed are not according to any rules or prescribed formula and that in any case inflated amounts have been claimed. It is this writ petition which has led to this order.
(6) Coming to the first contention it has been submitted before me that as the petitioner Society had been established to, inter alia, foster, promote and sustain the cultivation of science and scientific research in all its aspects, pure, applied and educational and to carry out research on problems in the domain of the arts, including economics, history and sociology and as the premises were used for promoting those very objects by housing therein a library, it could not be said that the user was in any way, in violation of Clause (vi) of the lease granted by the President of India.
(7) I feel that, as tar as the first contention is concerned, the entire exercise of the petitioner has been in futility. I have already given a detailed treatment to the past litigation inters the Society and Mrs. Chandiok before the learned Additional Rent Controller. The landlady alleged in unambiguous terms that there was misuse in terms of the paramount lease granted by the President of India. The Society not only in the application referred to above but even in the statement recorded before the Additional Rent Controller unequivocally admitted that claim and the learned Additional Rent Controller relying upon those admissions passed an order of eviction under Clause (k) thereby putting his seal of approval to the claim of the landlady that it actually was a case of misuse within terms of Clause (vi) of the paramount lease granted by the President of India. It is thus not open now to the Society to rake up the issue again and try to reopen it. It has become irretrievably final. There cannot now be any how and why to it. The petitioner Society must abide by it. That much as far as the first contention is concerned.
(8) Coming to the second contention, the answer lies within the embryo of paragraph 6 of the application moved by the petitioner Society and Mrs. Chandiok before the learned Additional Rent Controller. Its examination would go to show that the petitioner Society had agreed without any objection, without any demur and without any protest, to make the payments towards misuse charges. This is further borne out from what is incorporated in paragraph 7 of the said application. Of course, paragraph 10 speaks of a joint effort, but that does not wash away the liability. But then, the question is about the extent of the liability. The Land and Development Office has stated in its counter to the writ petition that all the charges were claimed as per the rules and prescribed formula. Obviously they cannot claim any amount arbitrarily. The learned Counsel for the Land and Development Office has drawn my attention to a handbook entitled "Information for the Guidance of Lease Holders" published by Government of India, Land and Development Office, Ministry of Urban Development, Nirman Bhawan, New Delhi. It contains a formula in Clause 1.7 at page 3 for calculating misuse charges. Besides, he has drawn my attention to the Schedule of Market Rates of Rent in Delhi/New Delhi brought out by Government of India, Ministry of Works and Housing, Land and Development Office, Nirman Bhawan by its office order No. 26/81 dated October 23, 1981. I am informed that the amounts claimed had been calculated keeping in view the said formula and the Schedule as referred to above. However, the learned Counsel for the petitioner submits that the market rates referred to above and the formula in question have no relevance in view of Clause (8) of Order 23/76. It is argued that as per that clause only 1% of the misuse charges could be levied. The said Clause 8 of the Order No. 23/76 runs as follows: "8.In case where the lessee/ex lessee files suit for eviction against defaulting tenants on receipt of our notice for misuse and are successful in evicting such tenants one per cent of the charges will be recovered as token penalty in consultation with the Ministry of Works and Housing and Finance."
(9) It may be mentioned that this very clause was taken note of by Mahinder Narain, J. on November 5, 1986 in this very writ petition. On its basis he directed that only one per cent of the misuse charges could be recovered for the period January 15, 1981 to October 22, 1982. However, as per the learned Counsel for the Land and Development'Office Clause 8 of Order No. 23/76 is not applicable. It is argued that since there was no contest and the order of eviction was passed under Section 14(1)(k) of the Delhi Rent Control Act on the basis of consent of the parties and since time had been agreed to be granted to the tenant Clause 8 would be of no assistance to the petitioner Society. I may mention that these very contentions were raised before Mahinder Narain, J. but were turned down. With respect I find myself in complete agreement with that view. An order of eviction remains an order of eviction whether it is after much fire-work or with amicable settlement. An order of eviction has no different hues. Moreso, when it has not been challenged and has attained finality. Even Clause 8 of the Order No. 23/76 makes no such distinction. What it requires is the filing of a suit by a landlord for eviction against the defaulting tenant on receipt of notice of misuse and his becoming "successful" in evicting such tenant. Where does Clause 8 say that such success must be attained not by compromise but only by hard fought battles in the arena of the law Courts? And pray, does an order of eviction cease to be so merely because it grants some time to the tenant to vacate the premises? Will the landlord in such a case not be termed as "successful in evicting such tenants"? Neither an order of eviction changes its hues on account of its being a compromise decree not it turns the 'success' into a failure by grant of time. In such cases it would not be permissible to rob a party of the benefit of the above referred Clause 8. I am, therefore, inclined to hold that in view of the order of eviction referred to above the Land and Development Office can recover only one per cent of the charges for the period in question. I order accordingly but leave the parties to bear their own costs.