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Ramesh Khanna Vs. Inder Mohan Lal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 374 of 1980
Judge
Reported in28(1985)DLT408; 1985(9)DRJ195; 1985RLR492
ActsDelhi Rent Control Act, 1958 - Sections 21
AppellantRamesh Khanna
Respondentinder Mohan Lal
Advocates: K.B. Rohtagi,; D. Latifi and; Swaran Mahajan, Advs
Cases ReferredN.S. Parthsarthy and Others v. Padmini Devi and Another
Excerpt:
delhi rent control act, 1958 - section 21--in the application for permission for limited tenancy. the landlord did not state that the premises were not available for being let for an indefinite period. he merely stated that he does not require the premises for a period of two years. the tenant did not vacate the premises and opposed execution.; that the order of the rent controller granted permission for creating limited tenancy was a mindless order. execution dismissed. - - 2. from the perusal of the statements of the parties, i am satisfied that at present the petitioner does not require the premises. thereforee limited tenancy allowed to be created, for a period of two years from 15th july, 1976.'after the expiry of the period of two years it appears that the appellant did not..........of the delhi rent control act, 1958 (here-in-after called ''the act') for permission to create a limited tenancy in favor of the appellant for a period of two years w.e.f.l5thjuly,1976. in the application it was stated that the respondent has agreed to let out to the appellant, for the first time, on terms and conditions set out in proposed lease deed for two years subject to the grant of permission by the court. the proposed agreement of lease and copy of plan of the premises was filed along with the application. he also made a statement before the additional rent controller to the following effect :-- 'i do not require the premises for a period of two years from 15th july, 1976. the purpose of letting shall be residential only and the premises are shown in ex. a. a limited tenancy.....
Judgment:

N.N. Goswamy, J.

(1) This second appeal by the tenant is directed against the order dt. 28th August, 1980 passed by the Rent Control Tribunal, Delhi whereby his appeal against the dismissal of his objections, was also dismissed.

(2) The respondent Shri Inder Mohan lal is the owner-landlord of the premises in dispute. He filed an application under section 21 of the Delhi Rent Control Act, 1958 (here-in-after called ''the Act') for permission to create a limited tenancy in favor of the appellant for a period of two years w.e.f.l5thJuly,1976. In the application it was stated that the respondent has agreed to let out to the appellant, for the first time, on terms and conditions set out in proposed lease deed for two years subject to the grant of permission by the Court. The proposed agreement of lease and copy of plan of the premises was filed along with the application. He also made a statement before the Additional Rent Controller to the following effect :--

'I do not require the premises for a period of two years from 15th July, 1976. The purpose of letting shall be residential only and the premises are shown in Ex. A. A limited tenancy under section 21 of the Act may be allowed to be created for the said period.'

The appellant also made a statement whereby he accepted the statement of The respondent and stated that he had no objection if the limited tenancy for a period of two years was created.

(3) On the basis of the application and the statements made by the parties, the Additional Rent Controller passed the following order :-

'THIS is an application filed under section 21 of the Act for permission to create a limited tenancy for a period of two years from 15th July, 1976. The purpose of letting shall be residential only and the premises is shown in the site plan Ex. A.I. The proposed agreement is Ex. A. 2. From the perusal of the statements of the parties, I am satisfied that at present the petitioner does not require the premises. thereforee limited tenancy allowed to be created, for a period of two years from 15th July, 1976.'

After the expiry of the period of two years it appears that the appellant did not vacate the premises and the respondent filed an application under section 21 of the Act alleging that the appellant had failed to deliver vacant possession of the premises after the expiry of the limited period of tenancy of two years and he needs the premises bona fide for himself and members of his family. It was prayed that the respondent should be put in possession of the property. The appellant filed his objections to the application for possession. It was stated in the objection petition that the tenancy under section 21 of the Act was invalid inasmuch as no writing was executing after the permission had been granted. It was further stated that the order passed under section 21 was a mindless order in as much as the respondent did not disclose as to how the demised premises were being dealt with before creating the said alleged tenancy and why the respondent did not require the demised premises for the alleged period of two years and as to why the same? would be required by him after the period of two years.

(4) virus of Section 21 of the Act were also challenged. It was further pleaded that by a subsequent oral agreement the respondent had agreed to continue the tenancy in favor of the appellant on the same terms and conditions.

(5) The learned Additional Rent Controller dismissed the objections and came to the conclusion that Section 21 was d self contained provision and no separate writing was required and the oral agreement as alleged, was not substantiated. He further held that the tenancy having been created under Section 21 of the Act and the same having been accepted by the appellant there was no further requirement to prove as to why the premises were not required by the respondent for a limited period. The view of the Additional Rent Controller was obviously in accordance with the view taken by this Court in its earlier judgments.

(6) The appellant, being dissatisfied with the order passed by the Addl Rent Controller, preferred the appeal before the Rent Control Tribunal. The Tribunal also relying on the judgments of this Court in S.A.O. 18 of 1975 and Asa Nand v. Gulab Rai, 1975 R.L.R. 175 held that there was no requirement of any writing to be executed after the lease had been created under Section 21 of the Act. Before the Tribunal reliance was placed by the appellant on S.B. Noronah v. Prem Kumari Khanna, : [1980]1SCR281 for the proposition that the limited tenancy had not been created in accordance with the requirement of Section 21 of the Act and the order being mindless was liable to be revoked. The learned Tribunal, however, held that Naronah's case had been decided on its peculiar facts and was not applicable to the facts of the present case. The appeal was consequently dismissed.

(7) The appellant has come up to this Court in Second appeal. The Supreme Court had the opportunity to deal with the interpretation and requirements of Section 21 of the Act in three cases. The first case on the subject is S.B. Noronah v. Prem Kumari Khanna, : [1980]1SCR281 . In paragraphs 17 and 18 of the Report it was observed :-

'PARA17. It is easy to envisage the terrible blow to the rent control law if Section 21 were freely permitted to subvert the Scheme of Section 14. Every landlord will insist on a tenant going through the formal exercise of Section 21, making ideal averments in terms of that Section. The consequence will be that both the Civil Procedure Code which prescribes suits for recovery of possession and the Delhi Rent Control Act which prescribes grounds for eviction will be eclipsed by the pervasive operation of Section 21. Neither grounds for eviction nor suits for eviction will thereafter be needed, and if the landlord moves the court for a mere warrant to place the landlord, through the court process, in vacant possession of the premises, he gets it. No Court-fee, no decree) no execution petition, no termination of tenancy-wish for possession and the court is at your command. Such a horrendous situation will be the negation of the rule of law in this area. So it is that we deem it necessary to lay down the law as implied in Section 21. Para 18. When an application under Section 21 is filed by the landlord and/or tenant, the Controller must satisfy himself by such inquiry as he may make about the compulsive requirements of that provision. If he makes a mindless order, the Court, when challenged at the time of execution, will go into the question as to whether the twin conditions for sanction have really been fulfillled. Of Course, there will be a presumption in favor of the sanction being regular, but it will still be open to a party to make out his case that in fact and in truth the conditions which make for a valid sanction were not present. We do not agree with the statement of the law by the Delhi High Court striking a contrary note. In this context, we may make special reference to Kasturi lal's case, a decision of the Delhi High Court reported in 1976 Ren Cj 582 It is true as Misra. J. in that case following earlier decisions has observed that the provisions of Section 21 are designed to meet the problem of shortage of housing in Delhi. If the landlord does not need the premises for a limited period, Section 21 permits him to lease it out during that period. Without the facility of Section 21 the landlord might have preferred to keep the premises vacant, but that does not mean that the law surrenders itself to this landlord and releases him from all conditions. This is why the need for sanction and the mandatory conditions for such sanction are specified in the Section. It is altogether wrong to import the idea that the tenant having taken advantage of induction into the premises pursuant to the permission, he cannot challenge the legality of the permission. As between unequals the law steps in and as against statutes there is no estoppel, especially where collusion and fraud are made out and high purpose is involved.'

It is true that the aforesaid Noronah's case was peculiar case on its own facts but all the same after analysing the section the following conditions were spelled out:-

(1)The landlord does not require the demised premises for a particular period only. This means that he must indicate to the Authority before which sanction is sought for letting what is the particular period for which he can spare the accommodation; (2) The controller must be satisfied that the landlord means, what he says and it is not a case of his not requiring the property indefinitely as distinguished from a specific or a particular limited period of say one year, two year or five years; (3) if a man has a house available for letting for an indefinite period and he so lets it even if he specifies as a pretence a period or term in the lease, Section 21 cannot be attracted. On the other hand, if he gives a special reason why he can let out only for a limited period and requires the building at the end of that period such as he expects to retire by then or that he is going on a short assignment or on deputation and needs the house when he returns home it is a good compliance ; (4) The letting must be made for residential purpose as Section 21 will not apply where the letting is for commercial purpose. (5) The Controller exercises an important regularity function on behalf of the community. The fact that a landlord and a potential tenant together apply, setting out the formal ingredients of Section 21, does not relieve the Controller from being vigilant to inquire and satisfy himself about the requisites of the landlord's non requirement 'for a particular period' and the letting itself being as a residence. (6) Even in a case where the tenant is a party to the permission under Section 21 of the Act the doctrine of estoppel cannot be invoked to render valid a proceeding which the Legislature has no grounds of public policy subjected to mandatory conditions which are shown to be absent.

(8) The second case on the subject is V.S.Rahi and another v. Rani Chameli : [1984]2SCR290 . In this case the case of Noronah was cited with complete approval. In addition it was held that it was obligatory for the executing court to go into the merits of the case and if the order granting permission under Section 21 was not in accordance with the requirements as laid down in Naronah's case the application for execution was liable to be dismissed. The third case is J.R.Vohra v. India Export House Pvt. Ltd. : [1985]2SCR899 . In this case the Supreme Court was only concerned with one question and i.e. whether there was any requirement for issue of a notice to the tenant before issuing the warrants of possession when an application for execution is filed by the landlord under Section 21 of the Act. The answer was in the negative. The case of Naronah was specifically noticed and was not dissented to. On the other hand, it was specifically held that even if the objections have been filed by the tenant after the period of tenancy and before he has been dispossessed, the Rent Controller has to decide the objection petition in accordance with law.

(9) I have been taken through the entire record starting from the application filed by the respondent for permission to create a limited tenancy ending with the order granting the said permission. Besides the statements and order reproduced above, there is nothing else on record. From this record, it is not possible to conclude that the Additional Rent Controller had applied his mind while granting permission to the effect whether the premises were available for being let only for a limited periods The appellant has raised a specific objection in his petition to the effect that there was nothing to indicate that the premises were not available for being let for an indefinite period. In spite of that in the reply to the objection petition the respondent tailed to state any reason as to why the premises were not available for being let for an indefinite period. On the contrary it is stated in the reply that the court cannot go into that question. This plea has obviously no merit in view of the decisions referred to above. It is obligatory for the Controller to come to the conclusion on the basis of the material that the precise for which the permission is sought for creating a limited tenancy are in fact available for being let for a limited period. In absence of that obviously the permission if granted would be regarded as mindless. The mindless order passed by the Controller cannot be sustained in view of the observations of their lordships of the Supreme Court in the aforesaid cases. Strong reliance was placed by the learned counsel for the respondent on N.S. Parthsarthy and Others v. Padmini Devi and Another, 22 (1982) Delhi Law Times 48. A careful reading of the said decision of this Court would show that the same is of no help to the respondent. In that case the landlord had specifically stated in his statement that the petitioners no. 2 and 3 will be married after two years and then the premises will be required. Again at the time of execution in was stated that petitioner no. 3 had in fact got married and the premises were required. Thus the conditions of section 21 were complied with inasmuch as the case of the landlords was that the premises would be required after the limited period because two of the petitioners were of marriageable age and were likely to get married.

(10) In fact one of them had got married within that period. In the circumstances, it was held by this Court that requirements of section 21 of the Act were duly complied with and the order as passed was valid.

(11) For the reasons recorded above, this appeal is allowed and the application filed by the respondent under Section 21 of the Act for execution stands dismissed. In the circumstances, I leave the parties to bear their own costs.


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