Ashok Mehta and Others vs Kanwal Nain Kaur and Others

P.K. Bahri, J.

(1) This appeal is directed against judgment dated 21/09/1992 of Rent Control Tribunal by which he had dismissed the appeal brought by the appellant against order dated 2/07/1992 of an Additional Rent Controller by which the objection petition filed by the appellant in proceedings u/s 21 of the Delhi Rent Control Act had been dismissed.

(2) Facts, in brief, are that Late Harminder Singh Anand had let out the premises in question to M/s. Hindustan Sugar Mills Limited vide a Lease Deed dated April 25, 1977. The premises were used by Sri Chand Mehta, predecessor in interest of the appellant. The said company is stated to have surrendered the tenancy to the landlord on 25/03/1978. However, Sri Chand Mehta continued in the premises and on 23/05/1978,Sri Chand Mehta and the landlord, Harminder Singh approached the Additional Controller for creating a limited tenancy u/s 21 with effect from 1/06/1978 for a period of five years. The Additional Controller granted the permission for creating such limited tenancy for a period of five years.

(3) On the expiry of the said period of five years, Harminder Singh, landlord had filed a petition for obtaining an order for being placed in possession of the premises in question u/s 21 of the Act. The objections were filed by Sri Chand Mehta on 8/03/1975. Various pleas were taken in resisting the said petition of the landlord but now two pleas leas have been raised before me in support of the said objections by learned Counsel for the appellant. Firstly, that the order granting the permission for creating the limited tenancy was vitiated because of jurisdictional error, inasmuch as Sri Chand Mehta. was already in possession of the premises as a tenant and thus the premises were not available for creating any limited tenancy u/s 21 of the Act. The other plea urged before me is that during the tendency of the proceedings u/s 21 of the Act, the respondents, the heirs of the original landlord, had instituted an eviction case against the appellants u/s 14-D which has the effect of wiping on the proceedings u/s 21 of the Act inasmuch as the landlord has now treated the appellants as ordinary tenants for getting their eviction our the ground of eviction, if any, available u/s 14of the Delhi Rent Control Act and thus, the proceedings u/s 21 of the Act should be deemed to be terminated.

(4) Both, the original landlord and the tenant, had died during the pendency of the proceedings.

(5) Now coming to the first point, it is evident that the objections had been filed in the proceedings u/s 21 of the Delhi Rent Control Act after the expiry of the period of limited tenancy created under the said Act. The learned Counsel for the appellant has placed reliance on the ratio laid down by the Supreme Court in the case of Smt. Shrisht Dhawan v. M/s. Shaw Brothers, 1992 Raj LR97. After making reference to various judgments earlier delivered by the Supreme Court with regard to the scope of the objections which could be raised in proceedings u/s 21 of the Delhi Rent Control Act, in the main judgment delivered by R.M. Sahai, J., the principles which had been culled out have been reproduced as follows :-

"(1)Permission granted u/Section 21 of the Act can be assailed by the tenant only if it can be established that it was vitiated by fraud 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 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."

(6) Learned Counsel for the appellant has also referred to certain observations made in this judgment in para 23 wherein it was highlighted that if there is a mistake of tact in relation to jurisdiction, the statutory authority or Tribunal cannot assume jurisdiction in respect of the subject-matter which the statute does not confer on it by deciding erroneously the fact on which jurisdiction depends. The order of Court or Tribunal which lacks the jurisdiction, the same is ultra virus and void. It was also observed that error in assumption of jurisdiction should not be confused with mistake, legal or factual, in exercise of jurisdiction and then it was observed that the jurisdictional fact can be said to be availability of vacant premises which are not required by landlord for the particular period and its letting out for residential purposes. It was held that permission obtained u/s 21 may be vitiated if the premises were not vacant on the date of application and similarly, if the permission is obtained in respect of non-residential premises. Drawing support from these observations, learned Counsel for the appellant has argued that in the present case, there was a jurisdictional error of fact in granting permission u/s 21 when infact the premises were not vacant and available for being let out for limited period u/s 21 of the Act.

(7) Learned Counsel for the respondent on the other hand, has argued that this particular fact that Sri Chand Mehta was already in possession of the premises at the time the limited tenancy was created is not a jurisdictional error as the parties could enter into a contract for creating limited tenancy and obtain necessary permission even though there was already existing a tenancy in favor of that tenant. He has argued that such an objection, even if is available to the particular tenant, could be raised only during the currency of the limited tenancy and he has placed reliance on Panjak Bhargava and another Vs. Mohinder Nath and another, . In the said case also, a similar objection was raised in proceedings u/s 21 by the tenant and it was held that such an objection could not be raised after the expiry of the limited tenancy. This judgment given by three Judges has been also referred to in the case of Smt. Shrisht Dhawan (supra). In this judgment, reliance was also placed on Smt. Dhanwanti Vs. D.D. Gupta, where it was held that permission u/s 21 for letting out the premises to the same tenant for limited period more than once successively would not by itself and without any thing more vitiate the said permission granted u/s 21. The judgment in Smt. Shrisht Dhawan''s case (supra) was given by two Hon''ble Judges. The views expressed in the two judgments are not, in my opinion, in any manner inconsistent. The jurisdictional error which is referred to in case of Smt. Shrisht Dhawan(supra) with regard to premises being not available for creating limited tenancy could only mean that premises are occupied by some other person than the person approaching the Court for creating the limited tenancy. It is to be emphasised that it was not a discovery of a new fact which could enable the tenant to file the objections even after the expiry of the limited tenancy which, according to him, may amount to obtaining permission from the Additional Controller by practicing any fraud.

(8) The judgment delivered in the case of Pankaj Bhargava, (supra)has been followed by this Court in the case of O. Bahree Vs. Rikhi Bros., and also in Oriental Express Co. Pvt. Ltd. v. Smt. Usha Pasricha, 1993 (1) DL 43. So, I hold that this plea does not raise such jurisdictional error which could enable the appellants to challenge the permission granted u/s 21 even after the expiry of the period of limited tenancy. So, I negative the first ground.

(9) The next point to be decided is whether with the filing of an eviction petition u/s 14 of the Delhi Rent Control Act by the respondents against the appellants, the proceedings u/s 21 come to an end or not. The learned Counsel for the appellant has argued that order granting permission u/s 21 creates a limited tenancy and same order has the effect of a decree of eviction, execution of which is postponed till the expiry of the limited tenancy and the status of a person who is inducted as a tenant for a limited period u/s 21, after obtaining necessary permission, remains as a tenant only till the expiry of the period of limited tenancy and thereafter the landlord has a choice either to treat sucha person as an ordinary tenant or to get him dispossessed by filing a petition u/s 21 before the Controller within six months of the expiry of the said period of the limited tenancy. He has argued that the landlord in the present case chose to file a petition within six months of the expiry of the limited tenancy by filing a petition u/s 21 but later on had chosen to treat the appellants as ordinary tenants when the petition was filed u/s 4 of the Delhi Rent Control Act and the earlier choice made by the landlord amounts to have been given up.

(10) The short question arises as to what is the status of a person who is inducted in the premises as a tenant on the basis of limited tenancy created u/s 21 of the Act. Whether he continues to be tenant for the purposes of Section 2(1) of Delhi Rent Control Act or not till any order of recovery of possession is passed against such a person. It is true that Section 21 is a special provision and can be termed as a Code by itself as this particular provision is introduced in the statute giving protection to the tenants to enable the landlord to obtain back the possession of the premises if he did not require a particular premises for some period and lets out the premises after obtaining permission from the Controller under the aforesaid section .It is argued that the status of a person inducted in the premises under the provisions of Section 21 is determined the moment the permission is granted and limited tenancy is created and such a person could not be deemed to be a ''tenant'' under the definition of ''tenant'' giver, u/s 2(1) after the expiry of the period of limited tenancy unless and until the landlord chooses to have him treated as an ordinary tenant and learned Counsel has further argued that by filing a petition u/s 14, the landlord in the present case has chosen to accept him as an ordinary tenant amenable to the jurisdiction of the Rent Controller u/s 14 of the Act and thereby he should be deemed to have abandoned his choice of getting recovery of possession u/s 21 of the Act.

(11) The learned Counsel for the respondent on the other hand, has contended that till the order of recovery of possession is passed, the status of a person whose limited tenancy expires is no different from the status of an ordinary tenant whose contractual tenancy had come to an end inasmuch as such a person would continue to be a tenant for the purposes of Section 2(1)of Delhi Rent Control Act and mere fact that landlord had also filed a petition for eviction against such a person on any of the grounds enumerated in Section 14 of the Delhi Rent Control Act would not lead to any inference that landlord had forsaken his right to get an order for recovery of possession against such a tenant u/s 21 of the Act as well. He has made reference to a few judgments in support of his contentions.

(12) In Sao 66/74, A. S. Sawhney v. Smt. Suhag Rani, decided in 7/03/1974 by a Single Judge of this Court, the question arose whether an order u/s 15(2) could be made against a person whose limited tenancy had expired and against whom proceedings for recovery of possession are instituted by landlord u/s 21 of the Act. It was held by the Court that on the expiry of the period of the tenancy fixed in the agreement, the relationship of landlord and tenant does not ipso facto come to an end and the tenant would continue to be a tenant within the meaning of the definition of ''tenant'' as given in Section 2(1) and an order u/s 15(2) can be made against such a person. This judgment was followed by another Single Judge of this Court in Atma Steels Pvt. Ltd. v. Harbir Singh,1987 (1) RCJ 28.

(13) The learned Counsel for the appellant has argued that the ratio laid down in these two judgments should not be made applicable to the facts of the present case inasmuch as in those two cases, the question was of passing an order for recovery of rent during the pendency of the objection petitions pending u/s 21 of the Delhi Rent Control Act and mere fact that for purposes of Section 15(2) such persons have been treated as tenants would not lead this Court to hold that even for purposes of Section 14 of Delhi Rent Control Act, such persons should be treated as tenants and if they are treated as tenants by the landlord, then the proceedings u/s 21 cannot be allowed to continue and it should be deemed that landlord had given up his right to get recovery of possession which was available to him u/s 21 of the Act. He has also argued that the law laid down in these two judgments is not correct inasmuch as the person who is inducted in the premises on a tenancy created u/s 21 remains a tenant only for the limited purpose for which the permission is obtained from the controller and by no process of reason, such a person can be deemed to be tenant covered by the definition of the tenant given in Section 2of Delhi Rent Control Act. I am afraid it is not possible to countenance this contention.

(14) Till an order is made by the Controller u/s 21 requiring the landlord to be placed in possession of the demised premises let out to the tenant, the said person will continue to be a tenant for the purposes of Delhi Rent Control Act. It is evident that even if a contractual tenancy comes to an end by any process of law or in the terms of the contract sucha tenant is given protection by virtue of Section 14 of Delhi Rent Control Act and such a person is covered by the definition of ''tenant'' given in Section 2(1). I do not understand why the position of a tenant whose tenancy is created only for a limited period should not be analogous to some extent to the position of a contractual tenant whose tenancy stands terminated under the provisions of the Transfer of Property Act or the Contract Act.

(15) Section 21 is a Code by itself but it has to take its hue from the definition of ''tenant'' given in Section 2(1) A person who is inducted in the premises as a tenant continues to remain liable to pay rent to the landlord till he surrenders the vacant possession of the premises to the landlord. In law, till the order for recovery of possession is passed against such a person, he would be deemed to be continuing in the premises as a tenant. The landlord cannot treat him as a trespasser and approach the Civil Court for getting any decree for possession against such person. He has to come to the Rent Controller u/s 21 for getting an order for recovery of possession against such a tenant and for the purpose of Section 21, till an order for recovery of possession is passed against such a tenant, such person who is a tenant, his status as a tenant would not terminate as far as provisions of Delhi Rent Control Act are concerned.

(16) In the eviction petition, copy of which has been placed in this file, which has been filed u/s 14 of the Delhi Rent Control Act, it has been mentioned by the landlord that proceedings u/s 21 have been instituted which are being resisted by the tenant. It is true that in somany words, the landlord had not mentioned that the eviction petition u/s 14 is being filed without prejudice to the right of the landlord to pursue the remedy u/s 21 of the Act but the whole tenor of the petition makes it clear that the landlord had no intention of giving up his remedy u/s 21 by pursuing the petition u/s 14 of the Delhi Rent Control Act.

(17) In Oriental Express Co. Pvt. Ltd. (supra), a similar question arose for decision. In that case also, while the proceedings u/s 21 were being continued by landlord, the landlord filed a petition u/s 14 of the Act and in that case, it was, of course indicated by the landlord in THE petition that the said petition u/s 14 was being filed without prejudice to the proceedings instituted by the landlord u/s 21 of the Act. It was held in this judgment that the proceedings u/s 21 would not stand terminated on the mere fact that eviction petition u/s 14 had been instituted inasmuch as the landlord had clearly reserved his right to pursue the proceedings u/s 21 as well.

(18) In Jitender Kumar v. Krishan Chopra, 1986 RLR 188, the facts were similar to the facts of the present case. still it was held by a Single Bench of this Court that the petition u/s 21 does not become infructuous by mere filing of a petition u/s 14 of the Act.

(19) In view of the above discussion, I bold that the landlord had not given up his right to pursue his remedy u/s 21 by mere filing another petition against the tenant u/s 14-D of the Delhi Rent Control Act. I, hence, negative this point as well.

(20) I dismiss the appeal but I leave the parties to bear their own costs. Two weeks time is granted to vacate the premises.