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PETITIONER: SHRI MUNSHI RAM & ANR.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       10/08/2000

BENCH: S.S.M.Quadri, Y.K.Sabharwal

JUDGMENT:

     Y.K.SABHARWAL,J.

     The appellants are tenants.  The tenanted premises are situate  in  Karol  Bagh  Area,   Delhi.   The  landlord  is respondent  no.3  whereas  Union  of  India  and  the  Delhi Development  Authority  (for short ‘DDA’) are respondents  1 and 2 respectively.

     The tenanted premises are part of building constructed on  the  land  leased  to   the  original  lessee  by  Delhi Improvement  Trust.  The DDA succeeded the said Trust.   The perpetual  lease, inter alia, provides that the lessee  will not  use  the land and building that may be erected  thereon during the terms of the lease for any other purpose than for the  purpose  of  residential house without the  consent  in writing  of  the lessor.  Admittedly the premises are  being used by the appellants for commercial purposes.

     By  notice  dated  4th January, 1982  issued  by  DDA, respondent  no.3  was informed that the premises were  being used  for the purpose of commercial-cum-residential which is contrary  to the terms of the lease and the lease has become void   and  the  lessor  has   right  to  re-  enter   after cancellation  of  lease.  It was further stated in the  said notice  that  the  lease has been cancelled by DDA  on  23rd December, 1981 for breach of Clause I(VI) and the possession of  the  plot  together with the building and  the  fixtures standing thereon will be taken over by DDA.  In a suit filed by  respondent  no.3  against  DDA for  grant  of  permanent injunction,  interim  injunction was granted by civil  court inter  alia  noticing  in  the  order  that  the  owner  had instituted  eviction  proceedings  as far back  as  in  1974 against the tenants who were running their shops even at the time  of  the purchase of premises in question by the  owner from its erstwhile owner.

     In 1974, respondent no.3 instituted eviction petitions against  the appellants seeking their eviction under  clause (k) of proviso to sub-section (1) of Section 14 of the Delhi Rent  Control  Act,  1958 (for short ‘the Act’).   The  said clause  stipulates an order of eviction being passed against the tenant who has, notwithstanding previous notice, used or

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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 situate.  The tenant cannot resist his eviction when  sought under Section 14(1)(k) of the Act merely on the ground  that  the landlord had himself let out the  premises for  commercial use (Faqir Chand v.  Shri Ram Rattan  Bhanot [1973]  1 SCC 572).  Under sub-section (11) of Section 14 of the  Act, before an order for recovery of possession of  any premises  on  the  grounds specified in clause  (k)  of  the proviso  to sub-section (1) of the said section is made, the Controller  is required to give to the tenant time to comply with  the  conditions imposed on the landlord by any of  the authorities  referred  to  in  clause (k) or  pays  to  that authority  such  amount  by  way   of  compensation  as  the Controller may direct.

     The  Additional  Rent  Controller by order  dated  6th September,  1988 after coming to the conclusion that the DDA is  not  interested in permitting the misuse permanently  or even   temporarily  and  has   threatened  to  re-enter  the premises,  directed the appellants to pay within two  months the  past  mis-user  charges to respondent  no.3  for  being deposited  with the DDA.  The appellants were also  directed to  pay  further compensation/charges as may be demanded  by DDA  in  this regard.  The appellants were directed to  stop mis-user  of the premises within two months from the date of the order and in the event of non-compliance of any of these conditions, it was directed that the order of eviction under Section  14(1)(k)  of the Act shall be deemed to  have  been passed  against  the appellants for their eviction from  the premises  in  question.  This conditional order of  eviction has  been  upheld by the Rent Control Tribunal in appeal  as also by the High Court.

     Challenging   the  aforesaid   orders,   Mr.D.D.Thakur submits  that since the appellants are prepared to pay  such amount  of  penalty as compensation as may be determined  by the  Controller  to  be payable to DDA till  the  matter  of regularisation  of  user  is  finally decided  by  the  said authority,  the case be remanded to the Rent Controller  for such  a  determination.   Learned   counsel  places   strong reliance  on  the  decision  in the case of  Narain  Das  v. Manohar  Lal & Anr.  (1988 Supp SCC 432).  In the said case, an  order of eviction passed under Section 14(1)(k) was  set aside  by  this  Court  and the case  was  remitted  to  the Controller  to  determine the quantum of penalty payable  to the  DDA  for  the  purpose of wrong  user  of  property  by changing  it  from  residential to  commercial  purpose  and directing that the tenant will bear the burden of penalty as may  be determined.  The said decision has no  applicability to  the facts of the present case since in that case the DDA did  not press the notice for cancellation of the lease  and for  this reason the case was remitted to the Controller for determining  the penalty.  In view of resolution of the DDA, a  statement  was made on its behalf in that case  that  the lease  would  not be cancelled pursuant to the notice  which had  been sent to the owner.  Under these circumstances,  in the relied upon decision there was no threat of cancellation of  the  lease  which  is a pre-condition for  an  order  of eviction  under clause (k) of proviso to sub-section (1)  of Section  14 of the Act.  The Court made it clear that in the event  of  fresh notice being issued by DDA to the  landlord for  cancellation  of the lease in his favour, the  landlord

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would  be  free  to  take   action  against  the  tenant  in accordance with law and the decision of this Court shall not operate  as a bar to such proceedings.  Unlike the facts  of the  relied upon case, in the present case the DDA has  been insisting  to  act upon the notice dated 4th  January,  1982 sent  to respondent no.3.  That has been the clear stand  of DDA  in  proceedings before the Additional Rent  Controller. The  Secretary  of the DDA to the same effect has  filed  an affidavit  in  this Court as well.  The stand of the DDA  is that after due payment for past misuser, the lessee is bound to  discontinue  the misuse in future.  A statement  showing action  taken  by  DDA against misuser of  premises  in  the vicinity  of  the premises in question has also been  filed. Mr.   Kirti Rawal, learned Addl.Solicitor General  appearing for  DDA  submits  that  the DDA  is  not  contemplating  to regularise  the  misuser  and  in case the  misuser  is  not stopped,  the DDA will act upon the notice and re-enter  the premises.   In this state of affairs, the decision in Narain Das case (supra) can be of no assistance to the appellants.

     Next,  Mr.Thakur  relies upon (i) the order dated  3rd January,  1983  passed  by Lt.Governor of Delhi  inter  alia stating  that the issue of notices and further action  under misuser  clause  in  the  various  areas  of  Delhi  may  be suspended  till the matter has been reviewed at a high level or  in  the next meeting of DDA;  (ii) the affidavit of  the Secretary  of Delhi Development Authority of February,  1983 filed in the High Court of Delhi in another case in a second appeal inter alia stating that the further show cause notice has  been  suspended  for  the   time  being  and  even  the prosecution  for the misuse has been suspended for the  time being  as  per  the order of the Lt.Governor as there  is  a likelihood of permission being granted for commercialisation of  the  area in accordance of the provisions of the  master plan/zonal  plan after charging certain dues, and (iii) to a somewhat  similar statement as in (ii) given in another case by  the  Commissioner  (Land), DDA.  Reliance on  the  these documents  is  wholly  misplaced for more than  one  reason. Firstly,  these  documents pertain to 1980s whereas  in  the present case the Commissioner (Land Disposal), DDA has filed an affidavit even in September, 1998 inter alia stating that though  a  scheme  dated  12/17  September,  1996  has  been forwarded  by  DDA  to  the Ministry of  Urban  Affairs  and Employment  for  approval  of the Government  of  India  for promotion  of  Karol  Bagh  area as  special  area  and  for promotion  of commercial use on ground floor on the basis of location  but the examination of the plan of the premises in question shows that the disputed area falls outside the area of  the scheme which is under consideration with DDA and the Union  of  India.   In nutshell, the affidavit  is  that  in respect  of the area in question there is no proposal  under consideration to allow commercial user.  Secondly, we do not have  the  facts of cases in which the abovenoted  affidavit was  filed by the Secretary of DDA or statement was given by Commissioner   (Land  Disposal),  DDA.    Thirdly,  we   are considering  not  a  violation of master or zonal  plan  but breach  of  a  term  of lease,  which  paramount  lessor  is unwilling  to  condone.   In  the present case,  it  is  not necessary to decide as to the effect of the proposal sent by DDA to Central Government to allow commercial user since the ground  of  eviction  is clause (k) as aforesaid  where  the question  is about breach of a term of lease and the  lessor has  declined to regularise the misuser for future.  Learned Additional  Solicitor  General submits that the DDA  is  not only  serious in pursuing the action taken by it on  account

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of misuser but it is duty bound to do so.

     Mr.Thakur also referred to the provisions of the Delhi Development  Act,  1957 (for short ‘the DD Act’) to  contend that  plans thereunder have not specified any particular use of  the area where the building is situate.  Chapter III  of the  DD  Act  deals with Master Plan and  Zonal  Development Plans.   Section 7 provides for the DDA to carry out a civic survey  and  prepare  a master plan for  Delhi.   Section  8 provides  for  preparation of a Zonal Development  Plan  for each  of the zones into which Delhi may be divided and  also refers as to what aspects may be contained in the said Plan. The  land use is one such aspect.  Mr.  Thakur contends that neither  the  master plan for the year 1990-2001 shows  that the  permissible  user  of  the area  in  question  is  only residential  nor  zonal development plan under Section 8  of the  DD  Act has been framed providing for only  residential use.   Reference has also be made to Section 14 which  inter alia provides that after the coming into operation of any of the  plans  in a zone, no person shall use or permit  to  be used  any  land or building in that zone otherwise  than  in conformity  with such plan.  The proviso to the said section stipulates  that it shall be lawful to continue to use  upon such   terms  and  conditions  as   may  be  prescribed   by regulations, any land or building for the purpose and to the extent  for  and  to which it is being used on the  date  on which   such  plan  comes   into  force.   Section  57(1)(f) stipulates  making  of regulations to provide for terms  and conditions  subject to which user of lands and buildings  in contravention  of  plans may be continued.  Learned  counsel contends that the impugned eviction orders deserve to be set aside  as  even regulations under Section 57(1)(f) have  not been  framed  by DDA providing for terms and  conditions  on which  continued  user  in  contravention of  plans  may  be permitted.   None  of  the  aforesaid  provisions  have  any applicability  to  the present case.  We are  not  concerned with the contravention as postulated by Section 14 of the DD Act.   The  question whether master plan and/or zonal  plans provide  or not for any use is not relevant for this matter. As  already  noted, we are concerned with the breach of  the terms  of  the  lease.   It  is  not  in  dispute  that  the commercial  use is contrary to the use permissible under the lease.   The paramount lessor has taken action to  terminate the lease for contravention of the terms thereof.  It cannot be  held  that  despite  contravention  of  the  lease,  the paramount lessor is debarred for exercising its rights under the terms of the lease for absence of providing a user under Section 7 in the master plan or under Section 8 in the Zonal Development Plan.

     In  Dr.   K.Madan  v.   Krishnawati  (Smt.)  and  Anr. [(1996)  6  SCC  707], this Court has held  that  where  the premises  are  used  in a manner contrary to  any  condition imposed  on  the  landlord by the Government  or  the  Delhi Development  Authority  or Municipal Corporation  of  Delhi, then the landlord will be entitled to recovery of possession under  Section 14(1)(k) of the Act and that sub-section (11) of  Section  14  of the Act enables the Controller  to  give another  opportunity  to  the tenant to avoid  an  order  of eviction.  The first opportunity to the tenant is given when the  notice is served on him by the landlord and the  second opportunity is given when an conditional order under Section 14(11)  of the Act is passed directing the tenant to pay the amount  by way of compensation for regularisation of user up to  the  date of stopping the misuser and further  directing

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stoppage  of unauthorised user.  The continued  unauthorised user  would give the paramount lessor the right to re- enter after  the  cancellation  of  the lease  deed.   As  already noticed,  the DDA is insisting on stoppage of misuser.   The misuser  is contrary to the terms of lease.  The DDA  cannot be  directed  to  permit continued misuser contrary  to  the terms of the lease on the ground that zonal development plan of the area has not been framed.

     For  the  aforesaid reasons, we find no merit  in  the appeal  and it is accordingly dismissed.  We, however, grant to  the appellants two months time to comply with the  order of the Additional Rent Controller dated 6th September, 1988. There will be no order as to the costs.