Delhi District Court
M/S Dcm Limited vs . Sh. Baljeet Sharma Th. Lrs on 14 January, 2013
M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs
IN THE COURT OF SH. SONU AGNIHOTRI,
ADDL. RENT CONTROLLER, NORTH DISTT. DELHI.
E No. 96/2012
Unique Case ID No: 02401C0232382012
M/S DCM LIMITED
Vikrant Tower,
4, Rajindra Place,
New Delhi -110008 ...Petitioner
Versus
SHRI BALJEET SHARMA (DECEASED)
THROUGH L.Rs:-
(i) SMT. GANGA DEVI (WIDOW)
(ii) MR. ASHOK KUMAR
(iii) MR. KISHORE KUMAR
(iv) MR. PRAVEEN KUMAR ............ All sons of Baljeet Sharma
All R/o H. No. 35, Rama Park,
Kishan Ganj, Delhi-110006.
.........Respondents
Date of institution of the petition : 01/08/1996
Date on which order was reserved : 12/12/2012
Date of Decision : 14/01/2013
JUDGMENT
14.01.2013 Vide this judgment, I shall dispose of petition filed by E no. 96/2012 Page 1/17 M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs petitioner U/sec. 14 (1) (g) & (l) of the Delhi Rent Control Act, 1958 (herein after referred to as D.R.C. Act, 1958).
Relevant facts for disposal of the present petition are as follows:-
1. Before coming to factual aspect of the matter, I will like to point out that present petition was adjourned sine die on 23.08.2001 on an application moved by petitioner under Section 151 CPC because of pendency of scheme of agreement under Section 391-394 of Companies Act before Hon'ble High Court of Delhi on account of termination of agreement of petitioner with builders M/s Kailash Nath & Associates and M/s Ansal Properties and Industries Ltd. Present petition was revived vide order dated 04.01.2005. Vide order dated 04.01.2005, my ld. Predecessor allowed application of petitioner under Order 22 Rule 4 CPC whereby legal heirs of respondent Baljeet Sharma were brought on record as respondents and also allowed application of petitioner under Order 6 Rule 17 CPC seeking amendment in the petition to incorporate the fact that original agreement with builders M/s Kailash Nath & Associates and M/s Ansal Properties and Industries Ltd.
Stood terminated and another company DEIL promoted by petitioner company undertook to take reconstruction and development work. Initially before matter was adjourned sine die, pleadings were complete and evidence of two witnesses for petitioner was recorded. Examination in chief of AW-1 Subhash Yadav was not completely recorded and it E no. 96/2012 Page 2/17 M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs was deferred for production of site plan [thereafter AW-1 not appeared for completing his examination in chief]. Testimony of AW-2 Yash Kumar Sharma was recorded complete in all respects i.e. his examination in chief as well his cross-examination was recorded.
2. In the amended petition, it is stated that petitioner is landlord/owner and deceased respondent Baljeet Singh was tenant in respect of Shop No.1 bearing Municipal Number 9406, Ganesh Lines, Ward No.16, Double Phatak Road, Near Gaushala, Kishan Ganj, Delhi-6 as shown in red colour in the site plan annexed with the petition (hereinafter referred to as 'suit property'). It is stated that monthly rent of suit property is Rs. 6.25/- excluding water and electricity charges.
3. It is stated that suit property is required bonafidely by petitioner for the purpose of building/re-building and making substantial additions/alterations thereto in order to carry out building work in pursuance of an improvement scheme/development scheme under Delhi Master Plan,1962 as approved by Hon'ble High Court of Delhi and Hon'ble Supreme Court of India. It is stated that the said work of re- building/alteration/ improvement work can not be carried out without suit property being vacated by respondent.
4. It is stated that petitioner company is a Public Limited Company and is owner of 52 Acres of land in Bara Hindu Rao and Kishanganj area of Delhi. It is stated that the said area has been declared as a Slum E no. 96/2012 Page 3/17 M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs area under the provisions of Slum Areas [Improvement & Clearance] Act,1956 and permission has been obtained by petitioner to file present petition from Competent Authority, Slum on 28.08.1995.
5. It is stated that Mr. Ashok Kumar Aggarwal, Sr. Manager [Legal and Administration] is authorized to file present petition on behalf of petitioner. It is stated that petitioner set up a textile mill in the year 1889 in the name of Delhi Cloth Mills on the abovementioned property. It is stated that the said mill has been closed w.e.f. 01.04.1989 in terms of permission granted by Delhi Administration and order dated 01.03.1989 of Full Bench of Hon'ble High Court of Delhi and order dated 27.03.1989 of Hon'ble Supreme Court of India.
6. It is stated that after coming into force of Delhi Development Act, 1957 [hereinafter called DD Act], DDA proceeded to prepare Master plan of Delhi. It is stated that Master Plan prepared by DDA was approved by Central Government under Section 9[ii] of DD Act and was published in September,1962. It is stated that in view of provisions of Delhi Development Act,1957, the said Master Plan has statutory force and any person using land and building in contravention of Master Plan would contravene provisions of Section 14 of DD Act and would be liable to be penalized under Section 29 of DD Act. It is stated that under the Master Plan, Delhi has been divided into various zones and zonal development plans have been prepared. It is stated that Bara Hindu Rao complex falls within District 'B' of Zone B-1 prepared under the E no. 96/2012 Page 4/17 M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs Master Plan.
7. It is stated that under the Master Plan, user of petitioner Company's property in Bara Hindu Rao and Kishanganj areas, including suit property has been provided for Residential Complex and Flatted Factories. It is stated that on Page Number 18 of Master Plan, use of DCM Site is quoted as under:
The Delhi Cloth Mills have to move out of this congested area to the extensive industrial districts according to the time schedule given for non-conforming uses. The present site should be developed for Flatted Factories in gradual stages to relocate the industries now located in Ahata Kidara and other areas.
8. It is stated that in view of provisions of Master Plan requiring petitioner Company to shift its Textile Mill from Bara Hindu Rao, petitioner Company decided to close Delhi Cloth Mills as running of Textile Mill in the area of Bara Hindu Rao was a non-conforming use of the said land. It is stated that in view of Master Plan as the use of land of petitioner Company was specified for Residential and Flatted Factories, petitioner company decided to put its property to use provided under the Master Plan. It is stated that petitioner Company got drawn proposal for redevelopment of Bara Hindu Rao and Kishan Ganj area from architects M/s Kanvinde & Rai and handed over the same to DDA at a meeting held in this regard on 19.07.1982. It is stated that DDA vide Resolution dated 26.02.1983 resolved that petitioner E no. 96/2012 Page 5/17 M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs company's proposal for redevelopment of property into group housing residential complex and Flatted Factories be approved and granted its No Objection for the said redevelopment Scheme.
9. It is stated that Lt. Governor of Delhi granted permission to petitioner Company under Section 25-O of Industrial Disputes Act to close down Delhi Cloth Mill at Bara Hindu Rao and Kishan Ganj area on 30.03.1989. It is stated that pursuant to above orders, petitioner Company closed the mill w.e.f. 01.04.1989.
10. It is stated that on 08.05.1989, petitioner Company submitted layout plan of the proposed Flatted Factories to MCD for its approval. It is stated that on 26.05.1989, petitioner Company submitted layout plan of proposed Residential Complex at Kishan Ganj to MCD for its approval. It is stated that on 24.11.1989, MCD vide Resolution No. 1136 & 1137 approved layout plans submitted by petitioner Company. It is submitted that suit property is covered by abovementioned resolutions. It is stated that MCD vide letters dated Ist/6th November,1991 returned to petitioner, duly approved layout plans for Bara Hindu Rao site and vide letter dated 17.12.1991 returned duly approved layout plans for Kishan Ganj site. It is stated that vide letter dated 16.01.1992, MCD conveyed its approval to demolition plans submitted by petitioner Company for demolition of existing structures for its proposed Flatted Factory Complex.
11. It is stated that right of petitioner Company to redevelop its E no. 96/2012 Page 6/17 M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs property at Bara Hindu Rao and Kishan Ganj areas has been upheld by Full Bench of Hon'ble High Court of Delhi in CWP No. 2687/86 titled as 'DCM Limited Vs Delhi Development Authority'. It is stated that Hon'ble Supreme Court of India vide judgment dated 13.03.1990 upheld Resolution No. 26 of DDA dated 01.02.1983 whereby scheme of petitioner for redevelopment of its land for Flatted Factories and Residential Complex was approved. It is stated that Hon'ble Supreme Court of India vide order dated 01.05.1991 passed in I.A Nos 4-7 of 1990 in C.A. Nos 1401 & 1402 of 1990 upheld right of petitioner to redevelop its 52 acres of freehold land.
12. It is stated that petitioner Company requires suit property bonafidely for the purpose of rebuilding under petitioner Company's redevelopment scheme as mentioned above and that petitioner Company is obliged under Master Plan of Delhi to do so. It is stated that redevelopment work cannot be carried out without suit property being vacated by respondent as suit property is part of property on which redevelopment work is to be carried out. It is stated that eviction of respondent from suit property is in interest of improvement and clearance of slum and would give effect to Master Plan of Delhi.
13. It is stated that petitioner Company had entered into a collaboration agreement with builders M/s Kailash Nath & Associates and M/s Ansal Properties & Industries Pvt. Ltd. for redevelopment and construction of Flatted Factories and Residential Group Housing Complex but unfortunately the said builders did not discharge their E no. 96/2012 Page 7/17 M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs obligation and dispute arose with the said builders. It is stated that later on dispute with the said builders was settled and agreement entered into with them was cancelled. It is stated that in the meantime a Company known as DCM Estates and Infrastructure Limited [hereinafter referred to as DEIL] promoted by petitioner Company agreed to acquire right to sell the residential flats and factories in the abovementioned project of petitioner and undertook to carryout the redevelopment work at its own costs. It is stated that it was further agreed between petitioner Company and DEIL that petitioner Company would be responsible for removal of all squatters, occupiers, tenants from the premises and passover the vacant possession of the same to DEIL. It is stated that the aforesaid scheme has been approved by Hon'ble High Court of Delhi vide its orders dated 30.09.2003 and 29.10.2003 under Section 394 of the Companies Act.
14. It is stated that petitioner Company needs to redevelop the premises at the earliest to implement Master Plan of Delhi. It is stated that the requisite funds to carryout the redevelopment work are available with DEIL. It is stated that petitioner has been granted permission under Section 19(4)(b) of Slum Areas Act,1956 by Competent Authority [Slum] on 28.08.1995, the copy of which is attached with the petition.
15. Petitioner has prayed for passing order of eviction from suit property in favour of petitioner and against respondent alongwith Costs.
E no. 96/2012 Page 8/17M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs
16. In written statement filed by respondents to amended petition, status of respondent as tenant is not denied but it is denied that petitioner is owner of suit property. It is disputed that there exists relationship of landlord and tenant between parties. Preliminary objection has been taken that suit property is situated in the Slum area and no permission has been granted for eviction of respondent from suit property. It has been admitted that suit property is a shop and was let out for commercial purposes.
17. It is stated that petitioner has no right to evict respondents on the ground of rebuilding/reconstruction of suit property as petitioner is not owner of suit property. It has been denied that eviction of respondent from suit property is in interest of improvement and clearance of Slum and implementation of Master Plan. It is stated that petitioner has not placed on record any documents showing availability of huge funds for such redevelopment scheme. It is stated that agreement and undertaking between petitioner Company and DEIL has not been filed on record by petitioner. It is stated that petitioner is wrongly interpreting judgments of Hon'ble High Court of Delhi. It is stated that Competent Authority Slum has not granted permission for eviction with reference to suit property. Respondents have prayed for dismissal of the petition.
18. Replication was filed by petitioner. It has been denied that petitioner is not owner of suit property and that there exists no relationship of landlord and tenant between parties. Petitioner has reiterated contents of petition in response to WS filed by respondents. It is stated that all the E no. 96/2012 Page 9/17 M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs necessary documents with DEIL now known as Purearth Infrastructure Ltd. were produced before Hon'ble High Court of Delhi and that the same finds mention in the orders of Hon'ble High Court of Delhi. It is reiterated that requisite permission under Section 19 of the Slum Act has been granted vide order dated 28.09.1995.
19. Petitioner examined Mr. Subhash Yadav as AW-1 in petitioner's evidence but as already mentioned in inception of this judgment his examination in chief was not complete and was deferred for production of site plan and that Mr. Subhash Yadav never appeared to complete his examination in chief and as such his incomplete examination in chief can not be read in evidence. Mr. Yash Kumar Sharma appeared as AW-2 and exhibited Certificate of Incorporation of petitioner Company vide Ex. AW2/1, Copy of GPA in favour of Mr. Ashok Aggarwal vide Ex.AW2/2 and Site plan vide Ex.AW2/3. Copy of minute book from page No. 194 to 202 was exhibited in cross-examination of AW-2 vide Ex. AW2/R1. Mr. Ajay Khanna was examined as PW-3 by petitioner. PW-3 exhibited his affidavit in evidence vide Ex.P3, copy of orders of Hon'ble High Court of Delhi in petition No. 247/2000 and 251/2000 dated 29.10.2003 and 30.09.2003 [regarding scheme of restructuring between petitioner Company and DEIL] vide Ex. PW-3/1 and PW-3/2 respectively[inadvertently on Court record Ex. PW-3/2 has been wrongly exhibited as Ex. PW-3/3 in place of Ex. PW-3/2] and copy of fresh certificate of incorporation of M/s Purearth Infrastructure Ltd. consequent to change of name of DEIL to M/s Purearth Infrastructure Ltd. vide Ex. PW-3/3. Mr. Harish Chandra Singh was examined as PW-4 in E no. 96/2012 Page 10/17 M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs petitioner's evidence. PW-4 exhibited his affidavit in evidence vide Ex. PW-4/A, exhibited copy of judgment of Hon'ble High Court of Delhi in CWP No. 2687/86 vide Ex. PW-4/1 and order dated 13.03.1990 passed by Hon'ble Supreme Court of India in SLP challenging order of Hon'ble High Court of Delhi vide Ex. PW-4/2. He also exhibited Resolution No.1137 which as per petitioner covers suit property vide Ex. PW-4/3, Copy of order of Hon'ble Supreme Court of India dated 01.05.1991 vide Ex. PW-4/4 and copy of layout plan vide Ex. PW-4/5. Petitioner's evidence was closed vide statement given by counsel of petitioner in this regard on 06.08.2009.
20. Respondents examined respondent Kishore Kumar as RW-1 in respondent's evidence. Evidence of respondent was observed to have been closed in terms of order of Hon'ble High Court of Delhi in order dated 01.08.2011. RW-1 exhibited his affidavits in evidence vide Ex. RW-1/A and Ex. RW-1/B. RW-1 has exhibited copy of bill of contractor Prem Chand dated 27.05.1968 vide Ex. RW-1/1, copy of letter of MCD dated 16.12.1997 vide Ex. RW-1/2, Copy of Application for Slum permission Vide Ex. RW-1/3, Copy of Resolution No. 1137 dated 24.11.1989 vide Ex. RW-1/4, Copy of letter dated 20.05.1968 written by Estate Officer of Petitioner's Company vide Ex. RW-1/5, Copy of sale deed dated 24.07.1983 vide Ex. RW-1/6, Copy of site plan filed by petitioner in other proceedings vide Ex. RW-1/7 and Copy of reply 04.09.2009 received from MCD vide Ex. RW-1/8. Vakalatnamas filed by respondents were exhibited in cross-examination of RW-1 vide Ex. RW-1/P1 and Ex. RW-1/P2.
E no. 96/2012 Page 11/17M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs
21. I have heard arguments addressed by respective counsels and perused the record including judgment filed on behalf of respondents.
22. Before proceeding further, I will first determine as to whether there exists a relationship of landlord-tenant between parties which is sine qua non for taking up proceedings under DRC Act as respondents in WS filed by them have denied that petitioner is owner/landlord qua suit property. Respondents have as such not denied their status in suit property as tenant in WS filed by them. In additional affidavit of RW-1 i.e. Ex. RW-1/B, respondents have claimed ownership of suit property by way of adverse possession. During cross-examination of PW-4 on 22.10.2008,question was asked from PW-4 with regard to filing of ownership documents of petitioner on record which was objected to by Counsel for petitioner on the ground that since relationship of landlord and tenant is admitted by respondent, so respondent being tenant is estopped from challenging the ownership of landlord/owner. Counsel for respondents on it admitted the relationship of landlord and tenant between parties. On admission of counsel for respondent in this regard, Court disallowed this question asked on behalf of respondents. Respondents through Vakalatnama given to their counsel gave authority to their counsel to make statement/ admissions on their behalf and admission has been made by counsel for respondents before Court in cross-examination of PW-4 on 22.10.2008 regarding relationship between parties. It is well settled that a party can not be allowed to blow hot and cold at the same time. Plea of respondents that they became E no. 96/2012 Page 12/17 M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs owner of suit property by way of adverse possession can not be relied upon in view of prior admission of their counsel before Court as mentioned above. Further respondents have failed to produce any evidence in this regard that they have become owner of suit property by way of adverse possession. Even if RW-1/5 be considered in evidence [ though it has not been proved on record by respondents as per provisions of Indian Evidence Act], it also does not prove ownership of suit property in favour of respondents by way of adverse possession. In these circumstances, I am of the opinion that there exists a relationship of landlord and tenant between parties in view of stand taken by respondents in their WS that they are tenant qua suit property and in view of admission on part of their counsel before Court on 22.10.2008.
23. Now when relationship of landlord-tenant stands upheld , let me now examine the question as to whether present petition has been filed by petitioner after taking requisite permission from Competent Authority[Slum] under Section 19 of Slum Areas [Improvement and Clearance] Act,1956. Petitioner in petition filed by it has asserted that permission from Competent Authority, Slum has been taken by petitioner before instituting present petition and copy of the same has been annexed with the petition. Perusal of Court record shows that no copy of order under Section 19 of Slum Areas [Improvement and Clearance] Act,1956 granting permission to petitioner to institute present eviction petition has been placed on record by petitioner. Perusal of record further shows that no order in this regard has been proved on record by E no. 96/2012 Page 13/17 M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs petitioner. Section 19 of Slum Areas [Improvement and Clearance] Act, 1956 provides as below:-
SECTION 19: PROCEEDINGS FOR EVICTION OF TENANTS NOT TO BE TAKEN WITHOUT PERMISSION OF THE COMPETENT AUTHORITY (1) Notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the competent authority,-
(a) institute, after the commencement of the Slum Areas (Improvement and Clearance) Amendment Act, 1964, any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area; or
(b) where any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of a tenant from any building or land in such area, execute such decree or order.
(2) Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed. (3) On receipt of such application, the competent authority after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing either grant or refuse to grant such permission. (4) In granting or refusing to grant the permission under sub-section (3) the competent authority shall take into account the following factors, namely :-
(a) whether alternative accommodation within the means of the tenant would E no. 96/2012 Page 14/17 M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs be available to him if he were evicted;
(b) whether the eviction is in the interest of improvement and clearance of the slum areas;
(c) such other factors, if any, as may be prescribed. (5) Where the competent authority refuses to grant the permission, it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant.
Perusal of provisions of Section 19 of Slum Areas Act,1956 shows that it has been given overriding effect on provisions of any other law. It has been admitted by counsel for petitioner during course of final arguments that suit property falls in Slum area and permission under Section 19 of Slum Areas [Improvement and Clearance] Act,1956 is required for instituting present petition. Counsel for petitioner on 12.12.2012 submitted that he may file certified copy of order of Competent Authority within a week from today in order to show that permission under Section 19 of Slum Areas Act was obtained by petitioner against respondents with regard to suit property. No such order has been placed on record by counsel for petitioner till today i.e. date of pronouncement of judgment in present case. Petitioner has exhibited true copy of resolution No.1137 dated 24.11.1989 vide Ex. PW-4/3 on record. PW-4 in para No. 6 of his affidavit has stated that suit property is covered by Resolution No. 1137. Alongwith Ex. PW-4/3,Annexure C-1 has been placed on record by petitioner. Annexure C-1 is letter dated 04.10.1989 written by Commissioner [Slums] and Competent Authority, Slum Wing- DDA sent to petitioner in which reference has been made to issue of No Objection Certificate in respect of Properties No. 7303 to 7661 in Bara Hindu Rao and E no. 96/2012 Page 15/17 M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs Properties No. 8654 to 9340 in Kishan Ganj for reconstruction of buildings for Flatted Factories and Group Housing Flats under Section 6-A of Slum Areas[ Improvement and Clearance] Act,1956. Suit property is located in Kishan Ganj area and number of suit property does not find mention in Annexure C-1. One judgment in case titled as 'Harish Chander Malik Vs Vivek Kumar Gupta & Ors 186(2012) DLT 697' has been filed on behalf of respondents in which Hon'ble High Court of Delhi considered scope of Section 19 of Slum Areas Act and held that Slums Act makes no distinction between premises fetching rent above Rs.3500/- and those fetching rent below Rs. 3500/-. Language of Section 19 of Slum Areas Act,1956 is plain in itself and has an overriding effect over any other law including Delhi Rent Control Act. Question has been asked from RW-1 in his cross-examination in this regard to which RW-1 has admitted filing of a petition seeking permission from Slum Authorities by petitioner Company against his father but has volunteered that it was not pertaining to suit property. RW-1 has further stated that his father contested the Slum case and that he is not aware whether the slum case was decided against his father. No suggestion has been given to RW-1 that only one Slum case was filed by petitioner Company against father of RW-1 and that was pertaining to suit property. Further even if no suggestion of this sort was given on behalf of petitioner, petitioner had full opportunity to produce order under Section 19 of Slum Areas Act against father of RW-1 with regard to suit property but petitioner failed to produce and prove it on record and when specific plea in this regard has been taken by respondents in WS filed by respondents, non production of the same is fatal to case of petitioner. Petition of petitioner is dismissed for want of permission under Section 19 of E no. 96/2012 Page 16/17 M/S DCM LIMITED Vs. SH. BALJEET SHARMA TH. LRs Slum Areas Act,1956 without which present petition can not be filed. There is no requirement of discussing matter further on merits as condition precedent for filing petition i.e. permission under Section 19 of Slum Areas Act,1956 being not proved on record by petitioner. Petition filed by petitioner is therefore dismissed. No order as to costs. File be consigned to Record Room.
Announced in the open Court on 14 January, 2013.
Sonu Agnihotri A.R.C. (NORTH)/Delhi.14.01.2013 E no. 96/2012 Page 17/17