Delhi High Court
Justice Sisir Kumar Sen vs Union Of India on 30 September, 1996
Equivalent citations: 1996VAD(DELHI)231, 1996(39)DRJ358
JUDGMENT
C.M. Nayar, J.
(1) The present petition is directed against the order passed by the respondents on September 6, 1991 raising the demand for alleged misuser charges in respect of the premises situated on plot No.22, Block 127, known as 48, Hanuman Road, New Delhi. The said order is filed as Annexure ‘L’ to the writ petition.
(2) The brief facts of the case are that perpetual lease-deed was executed in favour of one Dr.Jnanada Kanta Sen by Secretary of State in respect of the premises on March 1, 1923. The said Dr.Sen died on January 15, 1955 and in the year 1957 the premises were rented out to Dr.Ved Prakash for residential purposes. It is stated that there was no written agreement in respect of this tenancy. The notice was received from respondent No.2 to landlords of the premises for misuser and breach of clause 6 of the Lease Deed on January 19, 1971 and the landlords, as a consequence, wrote to the tenants on June 30, 1971 for removal of the breach. Similarly, notice was received from respondent No.2 to remove the breach within 15 days on July 30, 1971. Thereafter, the landlords took immediate steps to stop misuser and terminated the tenancy on the expiry of the month of February, 1973. On April 2, 1973, the landlords filed eviction petition before Additional Rent Controller under Section 14(l)(k) of the Delhi Rent Control Act (hereinafter referred to as ‘the Act’). In May, 1973 writ petition No.711 of 1973 was also filed in this Court challenging the order/notice of re-entry dated February 12,1973 which was issued by respondent No.2 purporting to determine the perpetual lease for violation of the terms of the lease. The above said notice dated February 12, 1973 which is Annexure ‘F’ to the writ petition reads as follows: “To Sh. Sisir Sen, Dr. Santosh Kumar Sen, Dr. Ranjit Kumar Sen, Smt.Ila Sen, Dr.Satya Brata Sen, Smt.Amita Sen, and Smt.Amitabha Sen, Smt.Chittra Sen, Smt. Lila Sen, Sh.Devi Brata Sen, 48, Hanuman Road, 360 New Delhi. ‘ Sub : Premises situated on plot No.22 Block No.127 known as 48, Hanuman Road, New Delhi. Dear Sirs/Madam, The undermentioned breaches existing on the lease-hold premises, cited as subject, have neither so far been removed nor regularised by you despite a notice given to you in this behalf on behalf of the Lessor vide Land and Development Office letter Nos.LI- 9/127(22)/67 dated 19.1.71 and 30.7.71. Portion of Ground floor was being used as Doctor’s clinic (x-ray Electro Medical and Skin Clinic) area 2843 sq.ft. Please take notice, therefore, that in consequence of your failure to remedy the aforesaid breach the lessor has been pleased to determine the lease and re- enter upon the premises with effect from 10.1.73 on and from which date, therefore, all your rights and title in the lease-hold property in question have ceased. 2. The entire plot of land forming the subject matter of the relevant lease deed and all the buildings standing thereupon including all structure, erections, and fittings vest now in the President of India. Shri R.S.Sibal, an assistant Engineer of the Land &: Development Office has been directed to take possession of the premises from you and he will call upon you for this purpose on 6.3.73 at 11 A.M. and 1, hereby call upon you to hand over peacefully the possession of the – premises including land, buildings, fittings, fixtures, etc. to him.”
(3) The Additional Rent Controller passed an eviction order against the tenants in favour of the petitioners/landlords on August 28, 1978. The Controller had earlier on April 29, 1978 had directed issuance of notice under Section 14(11) of the Act to L&DO to ascertain whether they were prepared to regularise the misuser of the premises permanently on payment of compensation and if so, for how much amount. L&DO stated that the breaches could not be regularised permanently, therefore, as a consequence, the eviction order was passed by the learned Controller. The Rent Control Tribunal, however, accepted the appeal filed by the tenant and directed him to deposit within three months from the date of the order misuse charges, as specified and in default the tenant was held liable to eviction. The Tribunal passed this order on March 23, 1981. Second Appeal No.l95 of 1981 against this order was filed in this Court and by a common order dated November 28, 1988 S.B.Wad.J. dismissed the Second Appeal and allowed the writ petition which was filed to impugn the notice of re-entry by L&DO. The operative part of this judgment reads as follows: “The misuser was brought to the notice of the tenants by the landlords a number of times, but the misuse was not stopped. The landlord then terminated the tenancy and filed a suit for eviction. Thus, 361 the landlord was not personally misusing the premises and took all the legal steps expeditiously for stopping the misuse by the tenants. The fact of misuser has been confirmed concurrently by the two courts below as the L&DO is not ready to condone the misuser and insist on stopping it and the tenant has inspite of the notice had not , stopped the misuse, he is liable to vacate the premises under clause (k) of the proviso to Section 14 of the Delhi Rent Control Act. The landlords/the petitioners cannot be legally held to be the defaulters and, therefore, the lease in their favour cannot be terminated by the L&DO. The impugned order in so far as it terminates the lease of the petitioner is illegal qua the petitioners and has to be quashed qua the petitioners. Sao 195/81 is dismissed. The tenants,, viz. the heirs of Dr.Ved Prakash should vacate the premises within six months from today. Writ petition 711/83 is allowed with costs. The rule is made absolute.”
(4) The Special Leave petitions were filed by the tenants and the Supreme Court rejected the same with modification that the tenants will be bound to deliver vacant and physical possession of the premises on or before March 31, 1990 on filing of usual undertakings. These orders were passed by that Court on July 13, 19S9 and December 21, 1989 respectively.
(5) The petitioners thereafter on December 28, 1991 disposed of the premises by entering into the Deed of Assignment in favour of the Industrial Credit and Investment Corporation of India Ltd., petitioner No.2 herein. Meanwhile, on an earlier date the impugned order dated September 6, 1991 had already been passed by respondent No.2 which is presently impugned in this petition. The petitioners had been representing to the respondents on different dates i.e. February 3, 1993, March 15, 1993 and May 24, 1993 respectively. Respondent No.2 communicated to the petitioners on July 12, 1993 stating that the matter was under active consideration but as no decision was taken by the respondents, the petitioners were left with no option but to approach this Court by means of the present writ petition.
(6) The learned counsel for the petitioners contends that the order dated September 6, 1991 cannot be sustained in view of the settled position of law that where the landlord files a suit for eviction against the defaulting tenants on receipt of notice of misuse and becomes successful in evicting such tenants only one per cent of the charges will be recovered as token penalty. Similar question arose in this Court in Cwp No.l232 of 1981 entitled Birla institute of Scientific Research v. Union of India and others which was decided on July 12, 1993. That case dealt ‘with the question of imposition and recovery of misuse charges from the landlady who had made all efforts to evict the defaulting tenants by filing an appropriate suit before the Additional Rent Controller. Reference.was made to the handbook entitled “Information for the Guidance of Lease Holders” published by Government of India, Land and Development Office, Ministry of Urban Affairs which contains clause 1.7 for calculating misuse charges. The amounts claimed had to be calculated on the basis of the formula as stipulated by office order No-26/81 dated October 23, 1981. Thereafter, the learned Judge took into consideration the provisions of Clause 8 of the said Office Order on the basis of which it was argued that only one per cent of misuse charges could be levied. The said clause as reproduced in the judgment reads as under: “8.In case where the lessee/ex lessee files suit for eviction against defaulting tenants on receipt of our notice for misuse and are successful in evicting such tenants one per cent of the charges will be recovered as token penalty in consultation with the Ministry of Works and Housing and Finance.”
(7) The reading of the clause would indicate that the petitioners were liable to pay only one per cent of the misuse charges which could be validly recovered from them. It was held accordingly in the above said judgment.
(8) The learned counsel for the petitioners has further argued that the judgment as referred to above has since become final and the respondents in a way have accepted the same and it is reiterated that in similar circumstances the office of the respondents had examined few cases set out below where the violations were committed by the tenants and owners were exonerated of the penalty except to the limited extent as mentioned above: 1.44, Ring Road, Lajpat Nagar, New Delhi, 2. Bungalow Plot No.5, West Patel Nagar, New Delhi 3. Cottage plot No.36, West Patel Nagar, New Delhi.
(9) In the present case, the petitioners had immediately on issuance of notice of misuser approached the court of Additional Rent Controller and the tenants, as a consequence of these proceedings have already been evicted. Therefore, the petitioners arc also entitled to the benefit of the provision as contained in clause 8 of the office order No-23/76 and are only liable to pay one per cent of the charges for the period in question.
(10) The respondents have filed the counter affidavit wherein it is mentioned that the petitioners have sold the property to Industrial Credit and Investment Corporation of India Ltd. vide Sale Deed executed on December 26, 1991 and mutation has been carried out in the name of petitioner No.2 with a condition that they shall pay the Government dues for the past breaches in the premises vide letter dated September 6, 1991. The representation of the petitioners against the impugned order was replied to by communication dated December 12, 1995 which merely reiterated the demand made earlier and for remittance of the amount with 10 per cent interest up to the date of payment within 30 days from the receipt of that letter. The facts of the case are not in dispute. The respondents have clearly accepted the position that the tenants did not comply with the terms of the lease, therefore, the order for re-entry was passed and the charges for misuser were raised. The request of the petitioners was examined in consultation with the concerned Ministry /Department and it was decided that they were liable to pay the charges irrespective of the .fact that they have got the tenants evicted through Court. The only concession which was offered was for reduction of penalty charges from 10 per cent to only one per cent vide para 8 of the Office Order as earlier referred to. This is so stated in the counter affidavit. The plea was also raised that the implication and interpretation of the Office Order dated March 31, 1976 was not debated/argued during the hearing of the writ petition No-1232/1981 which was decided on July 12,1993. This, in my opinion, is not a cogent ground for denying the relief to the petitioners on the same basis which was granted by the judgment in Cwp No.l232/81. The petitioners are also entitled to the same benefit as have been granted to the landlady in the case of Birla Institute of Scientific Research v. Union of India & others and there is no justification to deny relief on the ground that the entire matter was not debated in the earlier judgment. Therefore, in view of the fact that the peptones have taken adequate steps to evict the defaulting tenants and have ultimately succeeded in the same, the respondents can only recover one per cent of the charges for the period in question. I order accordingly. The writ petition is allowed and rule is made absolute. The parties are left to bear their own costs.