Municipal Corporation of Delhi vs Sanjay Goel

Sanjay Kishan Kaul, J.—The respondent filed a petition u/s 14(1)(b) of the Delhi Rent Control Act, 1958 (hereinafter to be referred to as,

''the said Act'') against the petitioner Corporation on grounds of sub-letting. The respondent claimed to be the landlord of property bearing No.

XI-4579/15, Darya Ganj, New Delhi, which was stated to be let out to the petitioner by a registered Lease Deed dated 28.02.1940. The rate of

rent was stated to be Rs.196.44 besides electricity and water charges. The petitioner was alleged to have sub-let and parted with possession of

the premises after 09.06.1952 without prior consent of the respondent. Such sub-letting was alleged in favor of Rajinder Matka Store stated to be

run by S/Shri Rajinder Kumar and Om Parkash. The petition was resisted by the petitioner Corporation and various preliminary objections were

taken. The site-plan was also denied and it was alleged that the tenanted premises were situated in slum area and no permission had been obtained

under the Slum Areas (Improvement and Clearance) Act, 1956 ( for short, ''the Slum Areas Act'' ). The status of the petitioner as tenant was not

denied nor the rate of rent. The premises were being used for running a primary school from the inception of the tenancy and sub-tenancy or sub-

letting was denied.

The Additional Rent Controller (hereinafter referred to as ''ARC'') after recording evidence of the parties and hearing submissions found that the

parting of possession to third-parties was proved and the presence of such third-parties had not been explained by the petitioner Corporation. The

eviction petition was allowed. The petitioner Corporation thereafter preferred an appeal before the Rent Control Tribunal ( hereinafter to be

referred to as, ''The Tribunal'' ) u/s 38 of the said Act, which provides for an appeal only on a question of law. The appeal was dismissed by the

impugned order dated 04.09.2006. The petitioner Corporation has now filed the present petition under Article 227 of the Constitution of India.

In order to appreciate the contours of the controversy, the relevant provisions are being reproduced hereunder:

Protection of tenant against eviction'' 1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree

for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant:

Provided that the Controller may on an application made to him in the prescribed manner, make an order for the recovery of possession of the

premises on one or more of the following grounds only, namely:

...

(b) that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of

the premises without obtaining the consent in writing of the landlord;

Restrictions on sub letting

1) where at any time before the 9th day of June, 1952, a tenant has sublet the whole or any part of the premises and the sub tenant is, at the

commencement of this Act, in occupation of such premises, then notwithstanding that the consent of the landlord was not obtained for sub sub-

letting, the premises shall be deemed to have been lawfully sub let.

2) No premises which have been sub let either in whole or in part on or after the 9th day of June, 1952, without obtaining the consent in writing of

the landlord, shall be deemed to have been lawfully sub let.

3) After the commencement of this Act, no tenant shall, without the previous consent in writing of the landlord -

a) sub-let the whole or any part of the premises held by him as a tenant; or

b) transfer or assign his rights in the tenancy or in any part thereof.

4) No landlord shall claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever in cash or in

kind for giving his consent to the sub-letting of the whole or any part of the premises held by the tenant.

The petitioner Corporation sought to raise a dispute even about the respondent being a landlord or owner of the tenanted premises. Since the

relationship of landlord and tenant is a basic premise on which the petition has to be filed, the respondent served interrogatories on the petitioner

and at that stage the petitioner admitted making payment of rent to the respondent. It is in view thereof that the ARC came to the conclusion that

the relationship of landlord and tenant was established taking into consideration the definition of a landlord as provided in Section 2(e) of the said

Act, which reads as under:

Definitions

In this Act, unless the context otherwise requires:

...

(e) ""landlord"" means a person who, for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or

on account of or on behalf of or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so

receive the rent or be entitled to receive the rent, if the premises were let to a tenant;

The basic requirement of initiation of a proceeding u/s 14(1)(b) of the said Act was, thus, established as the petitioner need not be an owner as

long as he/she is the landlord. This relationship was also established by the evidence on record including letters of the petitioner issued to the

respondent including Exhibit PW ''1/37. The site-plan was also proved by PW'' 1 as Exhibit PW'' 1/35 and the testimony remained unrebutted.

The petitioner never filed any other site-plan or proved the same. The ARC has also rejected the plea of the petitioner Corporation that the area in

question was located in a slum in view of a letter dated 27.08.2003 issued by the Director (Town Planning) from the office of the competent

authority under the Slum Areas Act, which stood proved. The letter specifically records that the suit premises is not included in the slum area and

nothing came out of the cross-examination of the relevant witness in this behalf.

The principal question, which thus arose, is of parting with possession and the presence of S/Shri Rajinder Kumar and Om Parkash was

established in part of the suit premises with potteries which did not belong to the petitioner Corporation. The family of these two persons and one

Smt. Santro Devi was stated to be in possession of about 2-3 rooms with a courtyard, bathroom and latrine and were carrying on the business

under the name and style of Rajinder Matka Store. In this behalf, the inspection report of the petitioner Corporation, was proved as Exhibit

PW''1/40, which went unrebutted. Telephone connections of Smt. Santro Devi were also found in the suit property and there was no cross-

examination in that behalf.

Once the presence of third-parties is found in the tenanted premises, there can be no doubt that it is for the tenant to show in what capacity such

third- parties are in occupation of the premises and the onus, thus, shifted on the petitioner Corporation.

In Kailash Kumar and Others Vs. R.L. Kapur, , it has been held that the question of subletting or parting with possession would depend on the

peculiar facts of each case and the basic principle enunciated even by the Supreme Court is that once it is proved that a particular portion of the

demised premises has been given in exclusive possession to a stranger, then the onus shifts on the tenant to show in what capacity the stranger is in

exclusive possession of that portion and on the failure of the tenant to explain presence of such person in exclusive possession of that said portion

of the demised premises, presumption would arise that the portion was sublet or parted with possession in favor of the stranger by the tenant. The

observations in Hari Ram Vs. Rukmani Devi, are also relevant. On the plea of the tenant that the onus was on the landlord to prove subletting, it

was observed that the relationship of sub-lessees and lessee is a matter of knowledge, which is confined to the parties alone and thus all that the

landlord can do in such circumstances is to prove the circumstances which would reasonably lead to an inference of subletting or parting with

possession or assigning the premises or any part thereof. The aforesaid judgments have been discussed in recent judgments of this Court in

R.C.S.A No. 390 of 1980 titled ''Sh. Kishan Chand v. Sh. Sri Chand'' decided on 18.07.2006 and CM (M) No. 329 of 2004 titled ''Smt.

Shakuntla Gupta v. Sh. Mahendra Kumar and Ors.'' decided on 25.08.2006.

In view of the aforesaid settled legal principles, the ARC examined the evidence produced by the petitioner Corporation. The lack of any

material evidence on the part of the petitioner is quite apparent from para 29 of the impugned judgment of the ARC. Both RW-1 and RW-2

expressed lack of any knowledge about the suit premises. The position was no different for RW-3. The result is that the petitioner Corporation

produced witnesses, who had practically no real knowledge about the controversy in question. Thus, the findings arrived at by the ARC can hardly

be faulted. The ARC has also deemed it appropriate to impose exemplary costs on the petitioner Corporation in view of a false plea raised in the

pleadings denying the landlord-tenant relationship, which came out in the interrogatories. The salutary principle of parties being penalised for false

statements and deposition can hardly be doubted. The ARC, thus, exercised powers u/s 37(3) of the said Act to award costs in view of the

palpably false stand of the petitioner Corporation.

It has already been noticed above that jurisdiction of the Tribunal is restricted to a question of law and the impugned order of the Tribunal

begins by referring to the question raised in the appeal, ''whether the respondent had not been able to prove the sub-letting'' In my considered

view, really no question of law was even raised by the petitioner. The appellate court has, thus, rightly considered the appreciation of evidence by

the ARC as not something to be interfered with even though the same has been examined on merits. In order to succeed, it is not necessary for the

landlord to show that the tenant has parted with possession of the whole of the premises. Parting with even part of the premises would entitle the

landlord to succeed in the eviction proceedings. This factum of parting with possession of part of the premises was established by the respondent

by showing the presence of third-parties whose status has not been satisfactorily explained by the petitioner Corporation. It may also be noticed

that it is at the stage of hearing of the appeal that the petitioner Corporation faced with the absence of any cogent evidence even sought to lead

additional evidence to show that Shri Om Parkash was an employee which application was rightly rejected since this was not even a plea taken in

the written statement.

It may also be noticed that the jurisdiction of this Court under Article 227 of the Constitution is not as an appellate court or to re-appreciate

the evidence as held in Surya Dev Rai v. Ram Chander Rai and Ors. JT 2003 (6) SC 465. In fact, in the earlier judgment of the Apex Court in

Mohd. Yunus Vs. Mohd. Mustaqim and Others, , it has been held that a mere wrong decision without anything more is not enough to attract the

jurisdiction of the High Court under Article 227 of the Constitution of India. The supervisory jurisdiction conferred on the High Courts under the

said Article was held to be limited to seeing that an inferior court or tribunal functions within the limits of its authority and not to correct any error

apparent on the face of the record much less an error of law. If these parameters are applied to the present case, it can hardly be said that any of

the pleas of the petitioner fall within the said domain.

In the end, it must be observed that taking into consideration that a school was functioning from the premises, this Court was inclined to grant

time to the petitioner for the academic session in question in order to enable the petitioner Corporation to adjust the students in the nearby schools

subject to furnishing of usual undertaking. learned Counsel for the petitioner, however, states that she had obtained instructions and the petitioner

Corporation wanted to further contest the matter on merits.

The petition being without any merit is dismissed leaving the parties to bear their own costs.

CM No. 13866/2006

Dismissed.