MANOHAR LAL Vs. NARAIN DAS AND DDA

JUDGEMENT

(1.) Plot No. 12 Block No. 10, Dev Nagar, Karol Bagh, New Delhi was leased out to Ratan Lal in terms of a lease deed dated 24th July, 1953. Ratan Lal raised the structure. It was agreed that the lessee would not use the said land and buildings erected thereon for any other purpose than for the purpose of a residential house without the consent in writing of the lessor ; provided the lease would become void if the land was used for any purpose other than that for which the lease was granted not being a purpose subsequently approved by the lessor. Ratan Lal let out a portion of the said property to Narain Dass, respondent, on a monthly rent of Rs. 63.00 . The petitioner purchased the suit house bearing No 6778 on plot No. 12 Block No. 10 in 1961 and the respondent attorned to him as a tenant. The respondent has been carrying on the work of dairy in the premises in suit. The Delhi Development Author ity objected to the use of the premises for a dairy as it was a commercial use and contrary to the terms of the lease. The petitioner served a notice requiring the respondent to stop the misuser and filed an eviction petition under Section 14(1)(k) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act'), which was dismissed for want of proper notice. The petitioner served a fresh notice dated 26th May, 1977 requiring the respondent to stop the use of the premises contrary to the terms of the lease. Finding no response, the petitioner on 4 June, 1977 filed a petition for eviction under Section 14(1 )(k) of the Act. The Delhi Development Authority was also made a party. It filed a written statement requiring the misuser to be stopped otherwise the lease was liable to be cancelled. On 17th September 1979. the Controller held that the ground of eviction under Section 14(l)(k) of the Act stood proved. The Additional Controller therefore gave a notice under Section 14(11) of the Act to the Delhi Development Authority requiring it to explain whether the premises in dispute could be regularised temporarily or permanently and if so, on what terms and conditions. The Delhi Development Authority in its reply dated 6th October, 1980 stated that the question for permanent commercialisation of the premises in question did not arise till the zonal plan of the area was approved by the Central Government, that the premises in suit were residential as per terms of the lease deed and that if the same were used for any purpose other than the purpose of a residential house, the lease was liable to be cancelled. The Delhi Development Authority has stated that for use of the premises for commercial purposes, the application, if any, may be made by the landlord which would be considered under the rules. Such rules if any have not been brought to my notice by the counsel for the Delhi Development Authority. The respondent-tenant also raised various objections but by the impugned order dated 6th December, 1980 the Controller directed the respondent to deposit the estimated amount of Rs. 14,11 1.15 as compensation for past breaches within a month from the date of the order failing which an eviction order would be deemed to have been passed against him. As regards future breaches the Controller directed the petitioner-landlord to approach the Delhi Development Authority for regularisation of the misuser. It was further ordered that the petitioner-landlord may get the proceedings revived, if necessary. The petitioner has challenged this order on the ground that the same is without jurisdiction, contrary to provisions of Section 14(l)(k) and 14(11) of the Act and that question of permanent regularisation does not arise as the Delhi Development Authority in its reply has refused to do so. Learned counsel submits that the impugned order is in two portions (1) payment of compensation for past breaches and (2) direction to the landlord to approach the Delhi Development Authority for regularisation with liberty for revival of proceedings. He submits that both portions of the order are not final, and that the second portion is without jurisdiction. To appreciate the contention of the petitioner, it is desirable to refer to Section 14(l)(k) and Section 14(11) of the Act, which read as under :

(2.) Under clause (k) if the tenant does not stop the user of the premises contrary to the conditions imposed on the landlord under the lease a right of action arises to the landlord to seek eviction of the tenant. In the present case the Controller has already held that the ground of eviction under Section 14(l)(k) of the Act stood proved. The next state of the proceedings is under Section 14(11) of the Act. The Sub-section (II) is mandatory. It requires the Controller not to pass an order of eviction, if one of the alternatives is complied with by the tenant. The two alternatives are (1) to stop the misuser within the time to be specified by the Controller or (2) to pay to the concerned authorities by way of compensation such amount as may be determined by the Controller. This Sub-section intends that the Controller should determine these questions because in a case where the default can be remedied by payment of compensation, the amount of compensation payable by the tenant is to be determined. The direction of regularisation by the Delhi Development Authority at the instance of the landlord or the tenant is not authorised by Section 14(11) of the Act. Further compensation has to be determined for user of the premises contrary to the terms of the lease deed. The two questions under Section 14(11) of the Act are in the alternative. If the tenant agrees to stop the misuser, further question of determining the compensation would not arise. But if the tenant wants to continue the user of the premises contrary to the conditions imposed under the lease deed the Controller has to approach the authority concerned to find out if non-conforming user is to be permitted, if so on what terms. If the non-conforming user is not permitted by the authority the controller has no alternative but to pass the order of eviction. But if the authority is inclined to permit the non-conforming user, the Controller has to determine the compensation for non-conforming user. This determination shall be with respect to the past non conforming user as well as for the future. This question for determining the compensation or permission for non-conforming user is to be decided by the Controller after notice to the authority concerned. Neither the landlord nor the tenant can be directed to approach the authority for regularisation of the non-conforming user or for determination of the compensation. In the present case the Controller, instead of acting himself according to law as contained in Section 14(11) of the Act, has directed the petitioner-landlord io approach the Delhi Development Authority for regularisation. This is beyond the jurisdiction of the Controller. The order of the Controller directing the petitioner-landlord to approach the Delhi Development Authority for regularisation is, therefore, beyond the scope of Section 14(l)(k) read with Section 14(11) of the Act. In other words, the said portion of the impugned order is without jurisdiction.

(3.) Learned counsel submits that under Article 227 of the Constitution the said portion of the impugned order should be quashed. Counsel for the respondent on the other hand submits that this court should not exercise powers under Article 227 of the Constitution. His submission is that the impugned older is an order under the Delhi Rent Control Act, 1958 affecting the rights of the parties and as such appealable under Section 38 of the Act. Learned counsel for the petitioner-lardlord on the other hand submits that the order of the Controller directing the landlord to approach the Delhi Development Authority for future regularisation is not an order under the Act and is not appealable under Section 38 of the Act as it does not affect his right and that the second portion is only a procedural one.