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S.S. Makhijani Vs. V.K. Jotwani - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 477 of 1976 and Civil Miscellaneous (Main) Appeal No. 1712 of 1976
Judge
Reported inILR1977Delhi769; 1977RLR207
ActsDelhi Rent Control Act, 1958 - Sections 14A(1)
AppellantS.S. Makhijani
RespondentV.K. Jotwani
Advocates: B.R. Saini and; S.P. Mahajan, Advs
Cases Referred(Smt. V. L. Kashyap v. R. P. Duri
Excerpt:
.....a difference dwelling house. in case it be held that premises no. 185a constitutes a different dwelling house than tenement no. 186, the petition of the landlord under section 14a(1) is likely to fail. this is a question of fact. the order of the learned rent controller having been passed ignoring the proviso to section 14a(1), the order is not in accordance with law and is liable to be revised under the proviso to sub-section (8) of section 25b of the act.; further, that for determination of the aforesaid questions which are disputed question of fact and if established would defeat the petition filed by the landlord, it was, thereforee, necessary that leave to defend ought to have been granted to the petitioner.; (ii) words & phrases--expression `dwelling house'--meaning..........that the landlords as contemplated by section 14a should evict all their tenants from different dwelling houses.(15) it will be noticed that the act as amended uses different expressions, such as 'premises' in section 14a(1), 'residential accommodation' in section 14a(1) and again 'dwelling house' or 'dwelling houses' in the proviso to section 14a(1). the expression 'premises' has been defined in the act whereas the expression swelling house' has not been so defined. the premises as defined means 'any building or part of a building which is, or is intended to be, let separately. . . . thereforee, so far as the word 'premises' is concerned, it will include the whole of any building or any part thereof. the expression 'dwelling house' does not mean the premises as defined.(16) i.....
Judgment:

Yogeshwar Dayal, J.

(1) This is a petition for revision under proviso to sub-section (8) of Section 25B of the Delhi Rent Control Act as amended, hereinafter called 'the Act', on behalf of Shri S. S Makhijani against the order dated July 8, 1976 passed by Shri R. K. Saim. Rent Controller, Delhi dismissing his application for leave to defend a petition filed against him by Shri V. K. Jotwani, landlord, under section 14A(1) of the Act.

(2) The respondent-landlord filed a petition on or about 14-1-1976 against the petitioner under section 14A(1) of the Act wherein the landlord pleaded that he was the owner of house No. 185-A, Block No. 30, New Double Storey Quarters, Lajpat Nagar, New Delhi. It was further pleaded by the respondent that he is in occupation of official residential accommodation bearing No. D-11-260, Vinay Marg, ChanKyapuri, New Delhi, allotted to him by the Centra) Government and has now been required by the Government, in pursuance of the general notification dated 9-9-1975, followed by a letter bearing No. 389/80/75 dated 24-11-1975, to vacate the said government accommodation by December 31, 1975 on the ground that he owns the premises in question, it was further alleged in the eviction petition that the landlord has been further informed that on his failure to do so by December 31, 1975, the said allotment of the government accommodation shall be deemed to have been cancelled, rendering him liable to pay the license fee at the market rate. It was thus averred in the petition that there has accrued to the landlord a right to recover immediately possession of the premises in question let out to the aforesaid tenant.

(3) The petitioner-tenant filed an application under section 25B(4) & (5) of the Act for leave to contest and defend the eviction petition. In this petition the tenant averred that the respondent-landlord is the owner of four houses bearing Nos: 185, 185A, 186 and 186A, New Double Storey quarters, Lajpat Nagar, New Delhi, one of which is the demised premises. House No. 185 which is a modified house having three rooms, with bath, latrine and open courtyard in front with a big public park in front is also available to the landlord and more or less comprises the same accommodation as is presently held by the respondent-landlord in government accommodation. It was further pleaded that house Nos. 185 and 186 are situate on the ground floor whereas house Nos. 185-A and 186-A are situate on the first floor. House No. 186 is in occupation of one Shri C. L. Jotwani and is contiguous and adjascent to house No. 185. Shri C. L. Jotwani is also a government servant and has got two houses of his own in Tilak Nagar and he has already filed eviction petition against his two tenants on the ground of bona fide personal necessity which are now pending in the courts and are 'fixed for 28-2-1976'. These suits are already on the advanced stage. Shri C. L. Jotwani is ready and willing to vacate the premises in his tenancy as soon as his house becomes available to him.

(4) This applicattion for leave to defend is dated February 5-2-1976 and the application was directed to be pat up on the date already fixed by order of the Rent Controller dated 12-2-1976. Another application was filed on 12-2-1976 which was also directed to come up on the date fixed. The eviction petition, was fixed for hearing for 16-2-1976.

(5) While application for leave to defend was pending, the petitioner filed another application dated 5-4-1976 under sections 10 and 11 Civil Procedure Code read with section 25B of the Delhi Rent Control Act, wherein it was further pleaded that the respondent-landlord had filed another petition on the same ground against one Shri Subarya in respect of house No. 186-A, New Double Storey quarters, Lajpat Nagar 'and the same has been decreed from this court after the filing of the application' ior leave to defend. The reference of the case was given as V. K. Jotwani v. Subarya decided recently (Suit No. 39 of 1976). It was submitted in this application that in view of the above circumstances .since the petitioner has. got a decree for eviction, the present petition is pot maintainable and it has become infructuous. The demised premises in the case of Shri Subarya have got similar accommodation as that of the present applicant and that accommodation, after passing of the decree in favor of the landlord, has become available which could be occupied by the landlord. It was pleaded that the present eviction application is either infructuous or not maintainable or in the alternative the tenant may be given leave to defend the petition.

(6) In reply to this application. the rcspondent-landlord admitted that a petition for eviction was filed against Shri K. S. Subaraya in respect of premises No. 136A but it was wrong that the same has been decreed ; on the contrary the same was withdrawn by the landlord on March 9,1976.

(7) On or about 21-4-1976, the petitioner-tenant filed another affidavit where it was mentioned that in another case. Suit No. 40 of 1976 (Dr. V. K. Jotwani v. Chhibbal) an order for eviction has been passed on 20-4-1976 in favor of the landlord from the court of Shri R. K. Sain, Rent Controller, Delhi in respect of house No. 186, mentioned above; and as such the respondent has got available with him three independent houses bearing Nos. 185, 186. both on the ground flooor and 186A, New Double Storey Quarters, Lajpat Nagar, New Delhi on the first floor, it is also pleaded in this affidavit that the combined accommodation of three quarters now available to the landlord exceeds the allotted accommodation of the landlord.

(8) There was no denial by the respondent-landlord about the eviction order being passed against Shri Chhibbal with respect to the aforesaid house No. 186, on the ground floor.

(9) The learned Rent Coatroller, while dismissing the application for leave to defend and contest the eviction petition, observed as under:

'AVAILABILITYof alternative accommodation is hardly any defense to petition under Section 14A. Letting out of other Sat at enhanced rent earlier has also no bearing on this petition because under Sec. 14A bona fides or otherwise of landlord have not to be gone into. The other contention of counsel for respondent that a portion contiguous to portion in occupation of petitioner is likely to fall vacant and suits petitioner more is also no defense to this petition. Under Sec. 14A all that a petitioner is called upon to show is that he is allottee of Govt. accommodation which he has been called upon to vacate and that he owns house in dispute in which respondent is a tenant under him. Examined from that angle this stands prima fade proved on record that petitioner is owner of premises in dispute. His ownership is admitted by respondent. Relationship of landlord and tenant between the parties is also not disputed. That petitioner is allottee of Govt. accommodation which he has been called upon to vacate has also not been disputed and petitioner has placed OB. record original order calling upon him to vacate Govt. allotted accommodation and has also placed on record original order under which w.e.f. 1-1-1976 he is being, charged market rent @ Rs. 463.00 p.m. for Govt. allotted accommodation on his failure to vacate Govt. allotted accommodation. In my option respondent has not been able to make out a cass for granting permission'.

WHILE.the petitior. was pending before the Rent. Controller, the respondent landlord filed an original lease-deed dated 21-3-1959 and the certificate of sals granted by the. Settlement Commissioner, Government Built Property New Delhi in respect of tenement No. 185- 185A, Lajpat Nagar, New Delhi in his favor. The landlord also filed a certified copy of the lease-deed and a certificate of sale issued by the Managing Officer of the Office of the Settlament Commissioner, New Delhi dated 7-10-1959 whereby tenment Nos. 186-186A in the same block was transferred to Shrimati Sugi Bai. It appears from the sale certificates in fayour of the landlord and. Srimati Sugi Bai that tenement Nos. 185 and 185A were purchased by the landlord, Vishan K.jotwani public auction and similarly tenement Nos. 186 and 186A were purchased by Shrimati Sugi Bai, also in public auction. The landlord also filed a. copy of the will dated December 3, 1964 purporting to be of Shrimati Sugi Bai, bequeathing her aforesaid double storcyed house Nos. IS6 and 186A to the landlord.

(10) Learned counsel for the petitioner tenant has submitted that since .admittedly the landlord has obtained eviction order under section 14A(1) of the Act against Shri Chhibbal with respect tenement No. 186, he has no right to recover pessession from the petitioner another dwelling house and the order of the .Rent Controller is thus contrary to the proviso to Section 14A(1). Section 14A(1) and the proviso read as under :

'14A(1) Where a landerd who, being, a person in occupation of any residential premises allotted to him by the Central. Governmert or any local authority is required, by, or in pursuance of, any general or special order made by that Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations, on the ground that be owns, in the Union Territory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on arid from the date of such order, to such landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether express. or implied), custom or usage to the contrary, a right to recover immediately possession of any premises let out by him ;

PROVIDED that nothing in this section shall be construed as conferring a right on a landlord owning, in the Union territory of Delhi, two or more dwelling houses, whether in his own name or in the name of his wife or dependent child, to recover the possession of more than one dwelling house and it shall be lawful for such landlord to indicate the dwelling house, possession of which he intends to recover.'

(11) It will be noticed that the proviso to Section 14A(1) works as an exception to the Section and the benefit of this Section can be obtained by such landlord as is contemplated therein to recover possession of not more than one dwelling house.

(12) In view of the documents filed by the landlord, tenement Nos..185 and 185A were purchased by him as one unit and was sold by the Government assuch, whereas tenement Nos. 186 and 186A were purchased by his mother from the Government and the Government also sold it as a separate tenement though situated in the same block No. 30. Both the tenements are double storeyed. Tenement No. 185 is on the ground floor and on its first floor is tenement No. 185A. Similarly, tenement No. 186 is on the ground floor and on its first Soar is tenement No. 186A. The landlord has also obtained an order for recovery of possession with respect to tenement No. 186 which was earlier in occupation of Shri Chhibbal under Sec. 14A(1) of the Act.

(13) The question thus arises whether having obtained an order for recovery of possession of flat No. IS6, the respondent-landlord is still entitled to obtain an order for recovery of possession of tenement No. 185A which is in occupation of the petitioner.

(14) Section 14A and the connected provisions are, in a sense, emergency legislation in view of the policy of the Government that those government servants who have their own house should vacate the government accommodation allotted to them in order to make room for the other government servants waiting in queue who have neither their own accommodation nor an accommodation allotted by the government; some of the government servants who owned their own house either in their own name or in the name of their -wife or dependent children had let them out while being in residential accommodation allotted by the government, would have been in great difficulty if, on the one hand they are required to vacate the government allotted accommodation and on the other hand they could get their tenants evicted from their tenanted properties according to the old procedure of the Delhi Rent Control Act before its amendment. To overcome this difficulty and the others, the Parliament enacted the Delhi Rent Control (Amendment) Act. 1976 and Inserted Section 14A and also provided special procedure turn their trial as contained in Section 25B notwithstanding anything inconsistent contained elsewhere in the Act or any other law for the time being in force. At the same time safeguard was provided in proviso to Section 14A(1) that the right to obtain immediate possession of dwelling house will be restricted to recover possession of only one dwelling house, it was not the intention of the Legislature that the landlords as contemplated by Section 14A should evict all their tenants from different dwelling houses.

(15) It will be noticed that the Act as amended uses different expressions, such as 'premises' in Section 14A(1), 'residential accommodation' in Section 14A(1) and again 'dwelling house' or 'dwelling houses' in the proviso to Section 14A(1). The expression 'premises' has been defined in the Act whereas the expression Swelling house' has not been so defined. The premises as defined means 'any building or part of a building which is, or is intended to be, let separately. . . . thereforee, so far as the word 'premises' is concerned, it will include the whole of any building or any part thereof. The expression 'dwelling house' does not mean the premises as defined.

(16) I have been referred to the judgment of B. C. Misra, J. in civil Revision No. 369 of 1976 (Smt. V. L. Kashyap v. R. P. Duri), decided on September 22, 1976(1) where the learned Judge went at length into the question of the meaning of the word 'dwelling house' and the learned Judge observed : that the expression 'dwelling house' is synonymous with residential accommodation as distinct from a house of business, warehouse, office shop, commercial or business premises. The learned Judge also took the view that the expression 'dwelling house' is not synonymous with the word 'premises'. The learned Judge then went on to examine when two parts of a building can consist of more than one 'dwelling house' and after a very elaborate discussion came to the conclusion as under :-

'INorder to determine whether two parts of the building consist of one or more dwelling houses the test to be applied is this : (1) consider the building and see whether it constitutes a whole house or part of the house (2) if one part is reasonably needed for convenient and comfortable occupation and enjoyment of the other part of the building then both the parts of the building constitute one dwelling house within the meaning of the proviso to section 14A. To arrive at this finding the relevant factors to be taken into consideration are : (a) the situation; (b} the entrance; (c) the municipal numbers ; (d) nature ofthe construction; (e) inter-communications betweenthe two parts (f) completeness and independence of each unit (g) other relevant and material circumstances. None of these taken singly is decisive but their cumulative effect must be considered.'

(17) I am in respectful agreement with this approach. However, in the earlier part of the judgment, the learned Judge observed as under :

'ITis, thereforee, clear to me that the use of the word 'dwelling house' ir section 14A is not synonymous with the word 'premises' as defined in the Act. The reason is that the allottees of Government residential accommodation are not only class Iv and class Iii officers (who may be occupying one or two room tenements in Government premises' but they include Secretaries and Joint Secretaries falling in class I who are accustomed to live in complete bugalows, consisting of three or more bed rooms in addition to other appurtenances and conveniences. If the intention of the amendment is to require them to quit Government accommodation and live in their own house. it is reasonable to infer that they arc required to live in their whole house and not only in one premises in part of the building with tenants residing in other premises inthe same building.'

ITappears that the learned Judge made these observations in the context of a building built as one unit. The same principle may not, however, apply to multi-storeyed buildings which may be double-storeyed or of more than two storeyes and not built as a single unit. In such a situation, it cannot be visualised that the Legislature contemplated that a landlord like the one contemplated by Section 14A should be in a position to get the entire multi-storeyed or double storeyed building vacated. Though it may constitute one building, yet it may consist of more than one dwelling house. It is also possible that a single or multi-storeyed building may be big enough to accommodate more than one tenant and his family and yet be built only as a single unit or single dwelling house.

(18) Due to the problem of paucity of accommodation in Delhi since the Second World War, and which problem became more acute after the .partition of the country, and due to the consequent shortage of space, the accent now is on multi-storeyed buildings which may consist of different units and each unit constituting a dwelling house. It is all a question of fact whether such different apartments/units in multi-storeyed buildings or double-storeyed buildings constitute a single dwelling house or more than one dwelling house.

(19) There is no material on this record to show as to how the two tenements consisting of Nos. 185 and 185A on the one hand, and 186 and 186A on the other, situate in block No. 30, have been constructed. They were admittedly purchased separately by different persons though at the time of the filing of the petition they may be owned by one person.

(20) The learned Rent Controller was correct in observing that availability of alternative accommodation or letting out of other property at enhanced rent earlier or that a portion contiguous to the portion in occupation of the petitioner is likely to fall vacant are really no defenses to a petition under section 14A(1) of the Act; but the exception to Section 14A(1) is provided in its proviso. It is this proviso which the learned Rent Controller completely lost sight of. Admittedly, the landlord had already obtained an order for recovery of possession under section 14A(1) with respect to tenement No. 186. Unless it could be said that premises No. 185A in occupation of the petitioner is part of the same dwelling house No. 186 so as to constitute one dwelling house, the respondent-landlord would not be entitled to a second order for recovery of possession as in that case premises No. 185-A would constitute a different dwelling house. In case it be held that premises No. 185A constitutes a different dwelling. house than tenement No. 186, the petition of the landlord under section 14A(1) 19 likely to fail. This is a question of fact. As the order of the learned Rent Controller has been passed ignoring the proviso to Section 14A(1), the order is not in accordance with law and is liable to be revised under the proviso to sub-section (8) of Section 25B of the Act.

(21) For determination of the aforesaid questions which are disputed questions of fact and if established would defeat the petition filed by the landlord, it was necessary that leave to defend ought to have been granted to the petitioner.

(22) The revision petition is, thereforee, accepted to this extent that the order of the learned Rent Controller dated 8th July, 1976 dismissing the application for leave to defend and passing the consequent order for eviction against the petitioner is set aside and the petitioner is allowed leave to defend and contest the eviction petition filed against him.

(23) Parties are directed to appear before the learned Rent Controller on 22-2-1977 and the learned Rent Controller may, thereafter, proceed in accordance with law in the light of the observations contained above.

PARTIESto bear their own costs.


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