LALITA GUPTA Vs. SURINDER KUMAR SHARMA

JUDGEMENT

(1.) The appellant filed the present eviction petition against respondent No. I on 29.3.1982 on the ground contained in Clause (k) to the proviso to Sub-Section (1) of Section 14 of the Delhi Rent Control Act (hereinafter referred to as Act). Respondent No. I is a tenant of the appellant with respect to Shop No. M-54, Connaught Circus, New Delhi. The property is on a perpetual lease with the appellant. The lease has been granted by the Govt. of India through the Land and Development Officer (hereinafter referred to as the L&DO) who manages the leasehold properties of the Govt., of India. The L&DO served a notice dated 30.3.76 on the appellant stating that there was some unauthorised construction in existence in the said shop in question. According to the notice there is mezzanine constructed in the said shop measuring 16 ft. X 9 ft. Out of this the Land and Development Officer objected to an area to the extent of 72 sq.ft. A notice to the same effect had also been issued by the L&DO on 17.8.94 and the said objection of the L&DO remained uncomplied with. The appellant served a notice dated 11.9.1981 on the respondent calling upon the respondent to comply with. the requirement of the L&DO as contained in its aforesaid notices. Ultimately the present eviction petition was filed. The consequences of non-compliance of the notice of the L&DO are that the L&DO levies damages on the lessee for the period the unauthorised construction continues in existence as also there is a threat of re-entry of the property after termination of the lease because the unauthorised construction is considered as a breach of conditions of the lease. The appellant landlady impleaded the L&DO also as respondent No. 2 in the eviction petition. Respondent No. I the tenant as well as respondent No. 2 the L&DO filed written statements in response to the summons issued to them. Though the tenant contested the eviction petition, yet on 24th July, 1985 when the matter came up before the Addl. Rent Controller, respondent No. 1 made a statement admitting the claim of the petitioner as mentioned in the eviction petition. He also admitted that a mezzanine existed in the premises in suit which had been constructed by him. He further admitted that he will pay the misuser charges or else remove the unauthorised portion of the mezzanine if the same was not regularised by the L&DO. The tenant further conceded that an order of recovery of possession being passed against him and he be allowed time to remove the breach or to compound the matter. In view of the said statement of the tenant, an eviction order in respect of premises in suit was passed by the Addl. Rent Controller and notice was ordered to be issued under Section 14(11) of the Act to the L&DO for purposes of ascertaining as to whether the misuser could be regularised on permanent basis or not and the next date of hearing was fixed as 16.9.85. As already noticed the L&DO had already filed a written statement dated 13.1.84. In response to the notice issued to the L&DO vide order dated 24.7.85 another written statement was filed on 11.11.85 by the L&DO. In both the written statements the L&DO has taken a stand that the breach of the condition of lease could not be regularised on temporary or permanent basis. In fact in the subsequent written statement it was stated by the L&DO that the unauthorised construction in the premises in suit was even violative of the Municipal Bye-laws. Thus the L&DO made its stand very clear. The same stand has been reiterated by the learned Counsel appearing for the L&DO in this Court. The L&DO is not willing to regularise the breaches on account of the unauthorised construction either temporarily or permanently. In view of this position a final eviction order was passed by the Addl. Rent Controller on 14.1.86 directing the respondent/tenant to remove the unauthorised construction within two months from the date of the order failing which eviction order in respect of shop in question would be deemed to have been passed. The Addl. Rent Controller further observed that the damages shall be paid by respondent No. 1.

(2.) On 2.1.87, the tenant made an application before the Addl. Rent Controller praying that the order dated 14.1.86 be set aside. The case of the tenant in the said application was that the order dated 14.1.86 was an ex-parte order because after 24.7.95 the tenant or his Counsel stopped appearing in the case and on 14.1.86 none of them was present in Court. It is stated in the application that the respondent did not know of any eviction order having been passed by the Court. However, it is stated in the application that no notice was required to be issued to the L&DO by the Court because the L&DO was already a party to the petition. The tenant, however, made a grievance that no notice was issued to him even after the eviction order was passed about the conditions imposed by the authorities concerned. The tenant further says that the landlord should have approached the L&DO because the L&DO does not directly deal with the tenants. The tenant also claimed a right to lead evidence in pursuance of the notice under Section 14(11) of the Act. The application of the tenant also contains a reference to a regular second appeal (R.S.A. 185/81) pending in this Court pertaining to the same mezzanine floor of the property in suit. The said application was allowed by the Addl. Rent Controller vide order dated 31.10.90 and thereby the eviction order dated 14.1.86 was set aside. The landlord filed an appeal against the said order of the Addl. Rent Controller which was also decided against the landlord .The appeal was dismissed by the Rent Control Tribunal vide judgment dated 12.4.1991. The present second appeal is directed against the said judgment of the Rent Control authorities.

(3.) It will be noticed from both the impugned orders of the Rent Control authorities, i.e. order dated 31.10.90 of the Addl. Rent Controller and the order dated 12/4/1991 of the Rent Control Tribunal that they have taken a view that the tenant was under a bona fide mistake about the proceedings which took place on 24.7.1985 and the proceedings subsequent thereto. It is on this basis that the final eviction order dated 14.1.86 was set aside. I am unable to accept the finding of the Rent Control authorities that it was a case of bona fide mistake on the part of the tenant, i.e. respondent No. 1. The order dated 24.7.85 was passed in the presence of the tenant. The said order was passed on the basis of tenant's own admission made before the Court and on the basis of the tenant agreeing to suffer the eviction decree and being able to settle the matter with the L&DO or to remove the breach if he failed to have the matter settled with the L&DO. Further while issuing the notice to the L&DO the Addl. Rent Controller fixed the next date of hearing as 16.9.1985 in the same order. Therefore, there was no scope for any mistake much less any bona fide mistake on the part of the respondent. The order was passed in his presence. The next date of hearing was fixed in his presence and there was no explanation for non-appearance by the tenant or his Counsel on the next date of hearing, i.e. 16th September 1985 or thereafter. Moreover the tenor of the application of the tenant dated 2.1.1987 whereby he prayed for setting aside of the eviction order does not suggest that the tenant had set up a case of bona fide mistake. On the contrary he tried to raise certain legal issues and on the basis thereof he sought to have the order set aside. The tenant says in his application that he was entitled to a notice from the Court. When the next date of hearing was fixed in his presence where was the occasion for the notice, I fail to understand. Further the tenant has taken upon himself to settle the matter with the L&DO or to remove the breach. Therefore, in normal course the tenant ought to have informed the Court about any steps that he took thereafter in this behalf and what was the resuit of his efforts, if any, with the L&DO. Thus the entire basis of the application is different from what the Courts below have found to give relief to the tenant. Learned Counsel for respondent No. 1 submitted that the impugned judgment contain concurrent findings by both the Courts below and, therefore, ought not to be interfered with by this Court. When the very basis of the finding is contrary to the case set up by the tenant, I feel it calls for interference. The findings are rendered perverse.