A D KHANNA Vs. H K ABROL

JUDGEMENT

(1.) A limited tenancy for a period of two years under Section 21 of the Delhi Rent Control Act (in short the Act) of the second floor of house No D-403, Defence Colony was created by the present appellant in favour of the respondent. Permission for creation of this limited tenancy under Section 21 of the Act was granted on 16th May,1979. The second floor was thus let out to the respondent for a period of two years. The permission to creat limited tenancy was granted because two of the appellant's married daughters with their husbands at that time were residing at Bombay. Their husbands were posted at Bombay. The appellant was expecting that his son-in-law would retire in a period of one or two years and thereafter would settle in Delhi. They would be needing the premises in question. In view of this averment, the Controller after satisfying himself granted the permission for a period of two years. The appellant was not requiring the premises. After the expiry of the period of two years when the respondent did not vacate the premises faced with this situation, the appellant/landlord filed an execution application. The respondent filed objections. He objected to the execution on the ground that permission under Section 21 of the Act was obtained by the appellant by playing fraud upon the Court. The fraud alleged was that neither son-in-laws of the appellant had retired within a period of two years nor shifted to Delhi. That the appellant was living in a palacious house bearing No.C-80 Greater Kailash, New Delhi. He being the owner of that house, his daughters and sons-in-law who were quite well today could not be expected to live in a Barsati floor. Moreover, her sons-in-law were not dependent on him for the purpose of residence nor could be desiring to settle in such a small portion of the house. The Additional Rent Controller upheld the objections vide order dated 28th November,1993. He dismissed the execution application holding that the same was not maintainable and that the permission under Section 21 of the Act was obtained by committing fraud by concealing the facts of appellant having a big house bearing No.C-80, Greater Kailash-I, New Delhi nor his sons-in-law by then had shifted to Delhi.

(2.) Aggrieved by that order this appellant filed an appeal. The Rent Control Tribunal (in short the Tribunal) dismissed the appeal. He, however, accepted the contention of the appellant that in the absence of any evidence presumption of facts could not be drawn against the appellant. Tribunal held that since none of the sons-in-law of the appellant had shifted to Delhi hence the grant of permission by the Controller under Section 21 of the Act was without application of mind.

(3.) Aggrieved by the order of the Tribunal present appeal has been preferred. At the outset, it must be mentioned that from the time decision in S.B.Naronah Vs. Pren Kumari, AIR 1980 SC page 193 was delivered and now, the interpretation of Section 21 of the Act has undergone sea change. Admittedly in S.B.Naronah's case (supra) challenge to the validity of the grant of permission of limited tenancy was allowed by the Supreme Court even after the expiry of a period of limited tenancy. It is now settled law that the order under Section 21 of the Act can be challenged on the ground of fraud. This can be urged in defence against execution, but the ground of fraud must be taken up immediately and before the expiry of the period of tenancy. Supreme Court in the case of Smt.Shrisht Dhawan Vs. M/s Shaw Brothers, AIR 1992 SC page 1555 while interpreting the scope of Section 21 of the Act observed that the law on procedural aspect under Section 21 should be taken as settled. (1) Any objection to the validity of sanction should be raised prior to expiry of the lease (2) The objection should be made immediately on becoming aware of fraud or collusion etc. (3) A tenant may be permitted to raise objection after expiry of lease in exceptional circumstances only and finally (4) burden to prove fraud or collusion is on the person alleging it. Similarly on the substantive safeguards, the law is settled and should be followed by the authorities as stated thus - (1) permission granted under Section 21 of the Act can be assailed by the tenant only if it can be established that it was vitiated by fraud or collusion or jurisdictional error which in context of Section 21 is nothing else except fraud and collusion, (2) Fraud or collusion must relate to the date when permission was granted, (3) Permission carries a presumption of correctness which can be permitted to be challenged not only by raising objection but proving it prima facie to the satisfaction of Controller before landlord is called upon to file reply or enter into evidence, (4) No fishing or roving inquiry should be permitted at the stage of execution, (5) A permission does not suffer from any of these errors merely because no reason was disclosed in the application at the time of creation of short term tenancy, (6) Availability of sufficient accommodation either at the time of grant of permission or at the stage of execution is not a relevant factor for deciding validity of permission. In view of these guidelines laid down by the Supreme Court, we have to see whether any fraud in this case was committed by the appellant at the time he sought the permission. Whether the respondent could file the objection on the ground of fraud even after having taken full advantage of limited tenancy and at the stage of execution.