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Prithvi Raj Vs. Nirmal Multani - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 391A of 1979
Judge
Reported in17(1980)DLT552; 1980RLR343
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantPrithvi Raj
RespondentNirmal Multani
Advocates: S.N. Chopra,; Raj Kishan and; K.R. Gupta, Advs
Cases ReferredMonk v. Warbey
Excerpt:
.....for which they were let without obtaining consent of landlady - tenant defaulted in payment of rent - tenant cannot change use from commercial to residential - order of eviction passed by court below confirmed - appeal liable to be dismissed. - - this being so, the landlady cannot complain that the tenant is using the premises for a purpose other than that for which they were let. ' (18) he thereforee ordered the eviction of the tenant on the ground of clause (k). he directed the tenant to stop the misuse within a period of six months and in case of his failure to do so to vacate the premises. as for the past the tribunal said :i hence, dismiss the appeal and i hold that the ground of eviction covered by clause (k) shall be satisfied if the tenant pays to the landlady or..........delhi while giving him a lease of the land on which the premises are situated.' (5) the additional rent controller by judgment dated 30th october1976 ordered the eviction of the tenant both under section 14(l) (a) and (k)of the act. claim made under clause (c) he dismissed. (6) from the decision of the controller the tenant appealed to the rent tribunal. the tribunal by order dated 2/11/1979 dismissed the appeal. he affirmed the order of eviction on the grounds of clause (a) and clause (k). though he too ordered eviction he however) imposed certain conditions on which it was possible for the tenant to continue to remain in the premises. i shall return to these conditions a little later. (7) it will be convenient here to refer to another proceedings between the parties. the tenant in his.....
Judgment:

A.B. Rohatgi, J.

(1) This is an appeal from the order of the rent control tribunal dated 2/11/1979.

(2) The appellant Prithvi Raj is a tenant on the ground floor of house No. 66 Babar Road, New Delhi. He carries on business of sale of books under the name and style of Hind Book House. On 15/04/1968 he took the premises on rent from the landlady, Nirmal Multani, the respondent. A lease deed was executed. The rate of rent was agreed atRs.750.00per month. The tenant paid advance rent of 6' months. In terms of the lease deed the premises let to the tenant consisted of the ground floor hall. In additional to this he was given the right to keep a shop window 6 x 9 feet in the front verandah for display of books. He was also allowed to put a sign board on the common wall. But it was expressly provided in the lease that front room, verandah, bath room and front court yard shall not form part of the demised premises. The tenant however was given the right of passage from the front and use of the verandah for the limited purpose of keeping a show window of 6x9 feet.

(3) Though the lease was for a period of 11 months with an option to the tenant to extend it for a further period of three years very soon disputes arose between the landlady and the tenant. She served three notices on the tenant requiring him to stop the misuse of the premises. The tenant was selling books in the premises. He is a bookseller by profession. The land on which the house stands was taken by the landlady from the Governor-General-in-Council in 1939 for the purpose of residence. The perpetual lease dated 1/07/1939 stipulates that 'the lessee will not without such consent(of the Lesser) as aforesaid use the said premises or permit the same to be used for any purpose other than that of a residence..................'

(4) In her letters dated 13/10/1968, 7/04/1969 and 23rdMay, 1969 the landlady asked the tenant to stop the misuse of the premises. The tenant did not. On 24/07/1969, the landlady brought an ejectment petition against the tenant. She pleaded three grounds of ejectment. One was non-payment of rent under clause (a) of the proviso to S. 14(l) of the Delhi Rent Control Act, 1958 (the Act). The second was under clause (c),namely, that the tenant was using the premises for a purpose other than that for which they were let without obtaining the consent of the landlady. The third was the ground under clause (k), namely :

'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 situated.'

(5) The additional rent controller by judgment dated 30th October1976 ordered the eviction of the tenant both under Section 14(l) (a) and (k)of the Act. Claim made under clause (c) he dismissed.

(6) From the decision of the controller the tenant appealed to the rent tribunal. The tribunal by order dated 2/11/1979 dismissed the appeal. He affirmed the order of eviction on the grounds of clause (a) and clause (k). Though he too ordered eviction he however) imposed certain conditions on which it was possible for the tenant to continue to remain in the premises. I shall return to these conditions a little later.

(7) It will be convenient here to refer to another proceedings between the parties. The tenant in his own turn made an application to the controller for determination of the standard rent. The controller dismissed his application on 30/10/1976. On appeal the tribunal by order dated 2/11/1979, fixed the standard rent at Rs. 532.30 with effect from May 1, 1973. Accepting that the premises were let for a commercial purpose the rent was reduced from the agreed rent of Rs. 750.00 to Rs. 532-30. This was the outcome of these proceedings.

(8) Counsel for the parties agree that in view of the determination of the standard rent at the figure of Rs. 532.30 the ground of non-payment of rent under clause (a) of the proviso to S. 14 no longer survives. It is also not in dispute that the tenant cannot be evicted on the ground covered by clause(c). There is a concurrent finding that the premises were let to the tenant for sale of books. This being so, the landlady cannot complain that the tenant is using the premises for a purpose other than that for which they were let.

(9) On appeal counsel for the tenant has raised two points. First is the question of abatement of rent. Second is the liability of the tenant regarding ejectment on the ground of clause (k), namely, that the admitted user of the premises is contrary to conditions imposed on the landlady by the Government of India while giving her a lease of the land on which the premises are situated.

(10) On the question of abatement of rent the controversy centers round the right given to the tenant under the lease to fix a show window of6 x 9 feet in the verandah. The case of the tenant is that he was deprived of this facility because the landlady soon after the commencement of the tenancy glazed the verandah and thereby prevented him from using the verandah for the purpose of show window. The controller found as a fact that the verandah had been closed. On this ground he allowed the tenant abatement in rent to the extent of Rs. 100.00 per month. He held that the tenant had no right to suspend the payment of the entire rent. But he allowed him an adjustment of Rs. 100.00 per month because the tenant could not display his books in the verandah.

(11) On appeal the tribunal reversed this finding of the controller. On evidence he came to the conclusion that the landlady did not prevent the tenant from fixing the show case or from displaying the books outside the front verandah. He found as a fact that there was enough space for the tenant to fix the show window even though the verandah had been glazed.

(12) Counsel for the tenant has challenged this finding of the tribunal. He has referred me to my decision in Ved Rattan Brothers v. Janak Raj, 1979Rent Law Reporter vol. 1, 401. In my opinion, it is not open to the tenant to raise the question of abatement of rent. There are three reasons for this view. Firstly, the standard rent of the premises has now been fixed. This was done after the Controller's order of abatement. After the decision of the controller the tribunal fixed the standard rent at Rs. 532-30 on 2/11/1979. Under S. 9 of the Act the controller while fixing the standard rent has to have 'regard to the provisions of S. 6 and S. 7 and the circumstances of the case.'' At the time of the fixation of the standard rent it was for the tenant to raise the question that he was entitled to a further reduction of rent because he had been deprived of the right or privilege of fixing the show window in the verandah. If the controller or tribunal has to have regard to 'the circumstances of the case', he has to see the accommodation, amenities, rights, privileges of the tenant to which he is entitled and then fix the standard rent keeping everything in mind. This fixation of standard rent it appears tome is a complete answer to the plea of the abatement of rent. It was argued that standard rent is fixed with regard to the premises only and the question of or right to have the show window in the verandah cannot be gone into by the controller under Ss. 6, 7 or 9 of the Act. I do not agree. Once the standard rent has been determined it is no longer open to the tenant to say that he is entitled to a still further reduction in rent. These were independent proceedings launched by the tenant and it was his duty to agitate this question in those proceedings as it has a direct bearing on the question of rent.

(13) In the second place, whatever may be the other rights of the tenant he is not entitled to abatement of rent because the verandah was not apart of his tenancy. It is expressly provided in the lease deed. The question of abatement of rent arises where a tenant is tortiously deprived of a portion of the demised premises. That the verandah is not a part of the demised premises cannot be disputed.

(14) Thirdly there is a finding of fact by the tribunal that the landlady did not prevent the tenant from placing the show window in the verandah. In this second appeal this finding of fact cannot be disturbed. So I hold that the tenant is not entitled to abatement of rent.

(15) The second question is: Whether an order for the eviction of the tenant can be made under clause (k) of the Act. Clause (k) I have already set out in an earlier part of this judgment. With the main clause it is necessary to read Sub-section (11) of Section 14. Sub-section (II) reads:

'NO order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of the proviso to Subsection (1), if the tenant, within such time as may be specified in this behalf by the controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.'

(16) On clause (k) the controller and the tribunal are unanimous in holding that the tenant is liable to ejectment. The question remains whether he should be ordered to vacate forthwith or he can be allowed to continue to remain in the premises on terms and conditions, and if so what ought to be those terms and conditions. The controller adopted a straight forward approach. He found that the land and development officer who was summoned by him and who had filed his written statement on 15/09/1976, was not willing to regularise the breach of the lease permanently. That the admitted user of the premises for the sale of books is a breach of the terms of the lease no one will deny. The perpetual lease is expressly for the purpose of 'a residence' and for no other purpose. Sale of books is a commercial purpose. On this ground the land and development officer submitted in the written statement that there was 'misuser' of the property. The user of the property being in violation of the terms of the perpetual lease the landlady was asked to remove the breach failing which she was told that the right ofre-entry will be exercised. In paragraph 3 the land and development officer stated:

'THE question of regularising the breach permanently does not arise. However the Lesser may consider, if proper application is made by the lessee with an undertaking to remove the breaches and to pay the additional charges livable for such a misuse that may be fixed for the period of breach, to postpone the right of re-entry till such time the breaches are finally removed.'

(17) This was the stand of the land and development officer before the controller. The controller thereforee posed the question : Can the breach be remedied permanently He answered it in the negative. He hold, to use his own words:

'THE Land and Development Office is not willing to condone the misuse on payment of any compensation. thereforee there is no other option except the removal of misuser.'

(18) He thereforee ordered the eviction of the tenant on the ground of clause (k). He directed the tenant to stop the misuse within a period of six months and in case of his failure to do so to vacate the premises. This was the decision of the controller.

(19) In appeal before the tribunal notice was again sent to the Land and Development Officer. He was asked to state if he was willing to condone the breaches in the house and if so on what terms. The Land and Development Office sent a letter dated 6/02/1979. In this letter the Land and Development Officer, Government of India, stated that the 'Lesser will be pleased to regularise the breaches temporarily up to 14/07/1979 in the premises mentioned above provided you comply with the following terms and conditions in full in advance.' Thereafter he detailed the charges running into several thousands of rupees which he required the landlady to pay with interest if she was willing to the proposal made by the Lesser. He also required the landlady to furnish 'an undertaking to remove the breach by14.7.1979 or beyond 14.7.1979'. The letter added 'that if these conditions are not acceptable and the landlady is not prepared to give the undertaking and the amount demanded from her the Lesser will take further action to reenter the premises under Clause (3) of the lease without any further reference.' It is made clear in this letter that the offer was not to amount to 'a. waiver for the recovery of the said damages which may in the discretion of the Lesser be found payable by you beyond the dates mentioned by you for breaches existing hereinafter at site.'

(20) The matter did not rest here. Another letter was addressed by the tribunal to the land and development officer. He was asked to state the charges only in respect of the portion of the Hind Book House and not with regard to the whole house. The land and development officer filed the reply on 4/05/1979 stating the charges of misuser. This amount runs into Rs. 48)360.23 paise. Out of this amount the misuse charges are about Rs. 19,000.00 or so up to 14/07/1979. The rest are charges for unauthorized coverage and construction. At the end of the letter this is what is said :

'THE terms and conditions for temporary regularisation of breaches and misuse were previously issued to the lessee through the court vide this office letter No. LIV/9/205-C/103/66/130 dated 6.2.1979and this break up of the terms of the portion of the tenant is in continuation to the above referred letter. The breaches of unauthorized construction and misuse cannot be regularised permanently.'

(21) With these two letters before him the tribunal modified the orderor eviction on clause (k) and imposed terms on the parties. He divided his order in three parts. The first part is about the past. The second about the future. The third is about the last stage, namely, eviction of the tenant. That is the dead end. As for the past the tribunal said :

'I hence, dismiss the appeal and I hold that the ground of eviction covered by clause (k) shall be satisfied if the tenant pays to the landlady or deposits in court a sum of Rs. 20,578.65 p. as misuse charges for the period 15/04/196 8/07/1979; within one month from today and also to the landlady or deposit in the court a sum of Rs. 27,781.58 as charges of the unauthorised constructions for the period 15/04/196 8/07/1979 within one month from today or remove the misuse and construction within one month but in case of the failure of the tenant either to do so, then eviction order on the ground covered by clause (k) shall be deemed to have passed against the appellant.'

(22) As regards the future he said :

'IN case the Land & Development Officer imposes any future penalties for condoning the breaches in future and also for the unauthorised constructions, then the landlady shall inform the tenant about such amount of mischarges and damages charges for unauthorized constructions and the tenant in that case shall pay to the landlady such amounts as informed to the tenant by the landlady within one month from the date of such communication but in case of his failure either to pay such amount of penalties or to remove the unauthorised constructions or stop using the premises for commercial purposes within one month from the date of such communication then -eviction order on the ground covered by clause (k) shall be deemed to have been passed against the tenant.'

(23) Then he addressed himself to another contingency. He said :

'HOWEVER, in case the L. & D. 0. decides not to condone the breaches with respect to misuse charges and also with respect to the unauthorised constructions in future then the landlady shall inform the tenant about such decision of the L. & D.O. and the tenant in that caseshall stop misusing the premises and shall also remove the unauthorized constructions but in case of his failure to do so, then eviction order on the ground of eviction covered by clauses (k) shall be deemed to have been passed against the tenant. But in case the Iandlady fails to apply to the L. & D.O. to get the breaches regularised after receiving the amounts from the tenant, then eviction petition on the ground covered by clause (k) shall be deemed to have been dismissed.

(24) This is a journey in stages. This formula was devised by the tribunal apparently with the object to protect the tenant and to allow him to remain in the premises as long as the L. & D. O. was willing to acceptmisuse charges and charges for unauthorised construction. The tenant was to pay what was demanded from the landlady up to 14/07/1979. He was also to pay in future such amount as was demanded from her. In case the L. & D. O. decided not to condone the breaches then the tenant was to vacate. This is the sum and substance of the tribunal's order.

(25) Counsel for the tenant has attacked this part of the order requiring the tenant to pay Rs. 20,578.65 and Rs. 27,781.58 as misuse charges for unauthorised construction from 16/04/196 8/07/1979. The tenant's complaint is that he has been asked to bear too heavy a burden. He said that he was willing to bear the charges for misuse. But he should not be called upon to pay charges for unauthorised coverage as he had not covered or constructed any part of the demised premises. Counsel submitted that the case should be remitted to the controller to find out two things : (1) What is the amount of misuse charges which the tenant should be properly asked to pay after excluding the charges of unauthorised coverage? and (2) What are the terms on which the L. & D. O. was prepared to allow him to use the premises for commercial purpose in future It was said that the question of apportionment of compensation be remitted for an inquiry and the tenant should be allowed to have his say on this matter. It is not disputed by the landlady's counsel that after the receipt of the second letter which was filed in the tribunal on 4/05/1979 the tribunal did not ask the parties to file their objections to the demand of the L. &D.O.; On this ground it is said that the question of compensation and its apportionment should be decided afresh and the controller should be asked to apportion the responsibility for the breach between the Lesser and the tenant and this should be done in the presence of the L. & D. 0. Elaborating his argument further counsel said that such charges of misuse as have been levied ought to be shared fifty fifty by the landlady and the tenant. If these charges are revised and an excess amount is demanded then the excess should be borne by the tenant. He conceded that if the L. & D. O. was not willing to condone the breaches then the tenant ought to be evicted.

(26) The real question in this appeal is about the application of Sub-section (11). How should this proviso be given effect to The Act is silent. It does not give us any guidance. How best to work out the policy of the legislature as embodied in clause (k) read with Sub-section (11) is entirely left to the tribunals. Clause (k) as has been held in Fakir Chand v. Ram Rattan : [1973]3SCR454 is based on the principle of public policy. The policy of the legislature seems to be to put an end to unauthorised use of the leased lands............'. For past breaches or such breaches as can be remedied permanently it will of course be unjust to evict the tenant. In that case the controller can award compensation to the three authorities named in the clause. Of course this has to be done in the presence of the authority so that the authority may be bound by the decision of the controller. Now the

'SUB-SECTION does not say who is to pay compensation, whether it is the landlord or the tenant. Apparently in awarding compensation the controller will have to apportion the responsibility for the breach between the Lesser and the tenant.' (Fakir Chand v. Ram Rattan, p 924). Counsel for the tenant relies on these observations of the Supreme Court and says that the case should be remitted to the controller to find out the terms and conditions of the L. & D. O. and to apportion the blame of misuse between the tenant and the landlady.

(27) In my opinion, this course will not be advisable in this case. There is no inflexible rule that the tenant must never be evicted in case of misuse of property if the landlord is to be blamed for the improper induction of the tenant in the premises. Nor do I read the Supreme Court decision a slaying down such a proposition. 'It is always a little dangerous' as Greer L.J. said in Monk v. Warbey (19S5) I. K. B. 75 'to pick out one or two observations from long judgment and treat them as if they necessarily afforded the ratio decidend of the case.'

(28) One thing is clear. Forfeiture of the lease has to be avoided at all events. If misuse is persisted in, the head Lesser can re-enter upon the premises and determine the head lease. This will be detrimental to the interests of both the landlady and the tenant. Now it appears from the letters of the L. & D. O. that he is not prepared to condone the breaches permanently. On terms of temporary regularisation he is willing to allow the misuse and the unauthorised coverage. But this too is subject to one important condition, namely, that the landlady furnishes an undertaking for the removal of misuse. If she does not give such an undertaking the head Lesser threatens to re-enter upon the premises. Now it is not in her power to give such an undertaking as is demanded from her. The reason is that the premises are in the possession of the tenant. And the tenant is not willing to vacate. He wants to continue on terms of payment of compensation to the L. &. D.O. For past misuse it is possible to apportion the responsibility for the breach between the Lesser and the tenant. But for future it is not possible to do so.

(29) Counsel for the landlady criticised the order of. the tribunal onseveral grounds. He said that the order is not workable. It is wholly ambulatory. It is not final in form. It is productive of further litigation. Every time a demand is made by the L. & D. O. or conditions imposed the landlady must got in touch with the tenant. The tenant may pay. The tenant may not pay. Disputes are bound to arise. Whether such a form of the order is within the contemplation of the statute I need not decide. There are many cases which were never contemplated by the draftsman and any attempt to give an interpretation which will be generally applicable is sure to prove an obstacle in the way of doing justice in some unforseen case. It will be undesirable to give to the Rent Act any general construction which may give rise to many unforeseen complications. The. Act leaves much to be worked out by the courts and tribunals. The tribunal in a desire to produce a workable and just solution devised a formula. It is certainly a make-shift arrangement. A patchwork produced with the best of intentions. The rules of formal logic were not applied with too great strictness. Apparently out of sympathy for the tenant the tribunal was willing to allow him to continue if he was prepared to pay the charges. Now the tenant is willing to continue. But he is not prepared to pay the charges demanded by the Land and Development Officer. He wants an inquiry into the whole matter in the presence of the authority both for the past as well as the future. This will mean a retrial of the whole case.

(30) There is another reason why the exercise is not necessary in the circumstances of the case. The landlady has made an affidavit today that if the tenant vacates the premises within a reasonable time allowed by the court she will not claim from him any charges which may be payable to the land and development officer for the entire period from the commencement of the tenancy up to the time he vacates the premises. This is course, she says, is 'without prejudice to my rights to deal or settle with the Land and Development Officer regarding regularisation of the breaches of the lease of the land......whether on payment of charges, if any, or otherwise to the said office.' This means that the tenant is not asked to share the responsibility for breach or misuse of the premises for the past. Nor for such period till he is allowed to vacate. This appears to me to be a just course. This was adopted by the Controller.

(31) From the letters of the L. & D. O. one thing is quite certain. That authority wants the misuse to stop. If that is so there is no point in allowing the tenant to continue. There is no purpose in asking the landlady to stand and wait till the last word comes from L. & D. O. He has already indicated his terms. His terms do not confer on the tenant the much wished for status of irremovability. As the Supreme Court says :

'THE authority may be prepared to accept conditions but might insist upon the cessation of the unauthorised use.'

(32) In this case the authority, namely, the Government is not willing for a permanent condensation of misuse or to a change of user. In the end they insist upon the cessation of the unauthorised use. There is no option in such a case except to order eviction of the tenant. This was the decision of the controller. I too am of the same view.

(33) There is no question of complying with the condition imposed on the landlord in this case. The premises were let for commercial use. The tenant cannot change the user from commercial to residential. Such are not the terms of his tenancy. Not is he willing to take up residence as the premises were given to him for commercial use. He himself got the standard rent fixed as of a commercial premises. Regarding the amount of compensation the landlady is willing that if the tenant vacates the premises within a reasonable time he need not pay part of the compensation claimed by the land officer from her.

(34) For these reasons the appeal is dismissed. The tenant is allowed six months time to vacate the premises. The tenant will not pay the charges imposed on the landlady if he vacates within the period of six months allowed by me. He will of course go on depositing the standard rent with the additional controller every' month in accordance with law. The parties are left to bear their own costs.


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