PRITHVI RAJ v. NIRMAL MULTANI — 1980 DIGILAW 95 (DEL)

A. B. Rohatgi, J. ( 1 ) THIS is an appeal from the order of the rentcontrol tribunal dated 2/11/1979. ( 2 ). The appellant Prithvi Raj is a tenant on the ground floor ofhouse No. 66 Babar Road, New Delhi. He carries on business of sale ofbooks under the name and style of Hind Book House. On 15/04/1968 hetook the premises on rent from the landlady, Nirmal Multani, the respondent. A lease deed was executed. The rate of rent was agreed atrs. 750. 00per month. The tenant paid advance rent of 6 months. In terms of thelease deed the premises let to the tenant consisted of the ground floor hall. In additional to this he was given the right to keep a shop window 6 x 9 feetin the front verandah for display of books. He was also allowed to put asign board on the common wall. But it was expressly provided in the leasethat front room, verandah, bath room and front court yard shall not formpart of the demised premises. The tenant however was given the right ofpassage from the front and use of the verandah for the limited purpose ofkeeping a show window of 6x9 feet. ( 3 ). Though the lease was for a period of 11 months with an option tothe tenant to extend it for a further period of three years very soon disputesarose between the landlady and the tenant. She served three notices on thetenant requiring him to stop the misuser of the premises. The tenant wasselling books in the premises. He is a bookseller by profession. The land onwhich the house stands was taken by the landlady from the Governor-General-in-Council in 1939 for the purpose of residence. The perpetual leasedated 1/07/1939 stipulates that "the lessee will not without such consent (of the lessor) as aforesaid use the said premises or permit the same to be usedfor any purpose other than that of a residence. . . . . . . . . . . . . . . . . . " ( 4 ). In her letters dated 13/10/1968, 7/04/1969 and 23rdmay, 1969 the landlady asked the tenant to stop the misuse of the premises. The tenant did not. On 24/07/1969, the landlady brought an ejectmentpetition against the tenant. She pleaded three grounds of ejectment. . . . . . . . . . . . . . . . " ( 4 ). In her letters dated 13/10/1968, 7/04/1969 and 23rdmay, 1969 the landlady asked the tenant to stop the misuse of the premises. The tenant did not. On 24/07/1969, the landlady brought an ejectmentpetition against the tenant. She pleaded three grounds of ejectment. Onewas non-payment of rent under clause (a) of the proviso to S. 14 (1) of thedelhi Rent Control Act, 1958 (the Act ). The second was under clause (c),namely, that the tenant was using the premises for a purpose other than thatfor which they were let without obtaining the consent of the landlady. Thethird was the ground under clause (k), namely : "that the tenant has, notwithstanding previous notice, used ordealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Developmentauthority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situated. " ( 5 ). The additional rent controller by judgment dated 30th October1976 ordered the eviction of the tenant both under Section 14 (1) (a) and (k)of the Act. Claim made under clause (c) he dismissed. ( 6 ). From the decision of the controller the tenant appealed to the renttribunal. The tribunal by order dated 2/11/1979 dismissed theappeal. He affirmed the order of eviction on the grounds of clause (a) andclause (k ). Though he too ordered eviction he however) imposed certainconditions on which it was possible for the tenant to continue to remain inthe premises. I shall return to these conditions a little later. ( 7 ). It will be convenient here to refer to another proceedings betweenthe parties. The tenant in his own turn made an application to the controller for determination of the standard rent. The controller dismissed hisapplication on 30/10/1976. On appeal the tribunal by order dated 2/11/1979, fixed the standard rent at Rs. 532. 30 with effect from May 1, 1973. Accepting that the premises were let for a commercial purposethe rent was reduced from the agreed rent of Rs. 750. 00 to Rs. 532-30. Thiswas the outcome of these proceedings. ( 8 ). Counsel for the parties agree that in view of the determination ofthe standard rent at the figure of Rs. 532. 30 with effect from May 1, 1973. Accepting that the premises were let for a commercial purposethe rent was reduced from the agreed rent of Rs. 750. 00 to Rs. 532-30. Thiswas the outcome of these proceedings. ( 8 ). Counsel for the parties agree that in view of the determination ofthe standard rent at the figure of Rs. 532. 30 the ground of non-payment ofrent under clause (a) of the proviso to S. 14 no longer survives. It is also notin dispute that the tenant cannot be evicted on the ground covered by clause (c ). There is a concurrent finding that the premises were let to the tenantfor sale of books. This being so, the landlady cannot complain that thetenant is using the premises for a purpose other than that for which theywere let. ( 9 ). On appeal counsel for the tenant has raised two points. First is thequestion of abatement of rent. Second is the liability of the tenant regarding ejectment on the ground of clause (k), namely, that the admitted user of the premises is contrray to conditions imposed on the landlady by the Government of India while giving her a lease of the land on which the premises aresituated. ( 10 ). On the question of abatement of rent the controversy centresround the right given to the tenant under the lease to fix a show window of6 x 9 feet in the verandah. The case of the tenant is that he was deprived ofthis facility because the landlady soon after the commencement of thetenancy glazed the verandah and thereby prevented him from using theverandah for the purpose of show window. The controller found as a factthat the verandah had been closed. On this ground he allowed the tenantabatement in rent to the extent of Rs. 100. 00 per month. He held that thetenant had no right to suspend the payment of the entire rent. But he allowedhim an adjustment of Rs. 100. 00 per month because the tenant could notdisplay his books in the verandah. ( 11 ). On appeal the tribunal reversed this finding of the controller. Onevidence he came to the conclusion that the landlady did not prevent thetenant from fixing the show case or from displaying the books outside thefront verandah. But he allowedhim an adjustment of Rs. 100. 00 per month because the tenant could notdisplay his books in the verandah. ( 11 ). On appeal the tribunal reversed this finding of the controller. Onevidence he came to the conclusion that the landlady did not prevent thetenant from fixing the show case or from displaying the books outside thefront verandah. He found as a fact that there was enough space for thetenant to fix the show window even though the verandah had been glazed. ( 12 ). Counsel for the tenant has challenged this finding of the tribunal. He has referred me to my decision in Ved Rattan Brothers v. Janak Raj, 1979rent Law Reporter vol. 1, 401. In my opinion, it is not open to the tenantto raise the question of abatement of rent. There are three reasons for thisview. Firstly, the standard rent of the premises has now been fixed. Thiswas done after the Controller s order of abatement. After the decision of thecontroller the tribunal fixed the standard rent at Rs. 532-30 on 2/11/1979. Under S. 9 of the Act the controller while fixing the standard rent hasto have "regard to the provisions of S. 6 and S. 7 and the circumstances of thecase. At the time of the fixation of the standard rent it was for the tenantto raise the question that he was entitled to a further reduction of rentbecause he had been deprived of the right or privilege of fixing the show window in the verandah. If the controller or tribunal has to have regard to "thecircumstances of the case", he has to see the accommodation, amenities,rights, privileges of the tenant to which he is entitled and then fix the standardrent keeping everything in mind. This fixation of standard rent it appears tome is a complete answer to the plea of the abatement of rent. It was arguedthat standard rent is fixed with regard to the premises only and the questionof or right to have the show window in the verandah cannot be gone into bythe controller under Ss. 6, 7 or 9 of the Act. I do not agree. Once thestandard rent has been determined it is no longer open to the tenant to saythat he is entitled to a still further reduction in rent. 6, 7 or 9 of the Act. I do not agree. Once thestandard rent has been determined it is no longer open to the tenant to saythat he is entitled to a still further reduction in rent. These were independentproceedings launched by the tenant and it was his duty to agitate this questionin those proceedings as it has a direct bearing on the question of rent. ( 13 ). In the second place, whatever may be the other rights of thetenant he is not entitled to abatement of rent because the verandah was not apart of his tenancy. It is expressly provided in the lease deed. The questionof abatement of rent ariseswhere a tenant is tortiously deprived of a portionof the demised premises. That the verandah is not a part of the demisedpremises cannot be disputed. ( 14 ). Thirdly there is a finding of fact by the tribunal that the landladydid not prevent the tenant from placing the show window in the verandah. In this second appeal this finding of fact cannot be disturbed. So I hold thatthe tenant is not entitled to abatement of rent. ( 15 ). The second question is: Whether an order for the eviction of thetenant can be made under clause (k) of the Act. Clause (k) I have alreadyset out in an earlier part of this judgment. With the main clause it is necessaryto read Sub-section (11) of Section 14. Sub-section (II) reads: "no order for the recovery of possession of any premises shallbe made on the ground specified in clause (k) of the proviso to Subsection (1), if the tenant, within such time as may be specified in thisbehalf by the controller, complies with the condition imposed on thelandlord by any of the authorities REFERRED TO in that clause or pays tothat authority such amount by way of compensation as the Controllermay direct. " ( 16 ). On clause (k) the controller and the tribunal are unanimous inholding that the tenant is liable to ejectment. The question remains whetherhe should be ordered to vacate forthwith or he can be allowed to continue toremain in the premises on terms and conditions, and if so what ought to bethose terms and conditions. The controller adopted a straight forwardapproach. On clause (k) the controller and the tribunal are unanimous inholding that the tenant is liable to ejectment. The question remains whetherhe should be ordered to vacate forthwith or he can be allowed to continue toremain in the premises on terms and conditions, and if so what ought to bethose terms and conditions. The controller adopted a straight forwardapproach. He found that the land and development officer who was summoned by him and who had filed his written statement on 15/09/1976, was not willing to regularise the breach of the lease permanently. Thatthe admitted user of the premises for the sale of books is a breach of the termsof the lease no one will deny. The perpetual lease is expressly for the purposeof "a residence" and for no other purpose. Sale of books is a commercialpurpose. On this ground the land and development officer submitted in thewritten statement that there was "misuser" of the property. The user of theproperty being in violation of the terms of the perpetual lease the landladywas asked to remove the breach failing which she was told that the right ofre-entry will be exercised. In paragraph 3 the land and development officerstated: "the question of regularising the breach permanently does notarise. However the Lessor may consider, if proper application is madeby the lessee with an undertaking to remove the breaches and to paythe additional charges leviable for such a misuser that may be fixedfor the period of breach, to postpone the right of re-entry till such timethe breaches are finally removed. " ( 17 ). This was the stand of the land and development officer before thecontroller. The controller therefore posed the question : Can the breach beremedied permanently ? He answered it in the nagative. He hold, to use hisown words: "the Land and Development Office is not willing to condone themisuser on payment of any compensation. Therefore there is no otheroption except the removal of misuser. " ( 18 ). He therefore ordered the eviction of the tenant on the ground ofclause (k ). He directed the tenant to stop the misuser within a period of sixmonths and in case of his failure to do so to vacate the premises. This wasthe decision of the controller. ( 19 ). In appeal before the tribunal notice was again sent to the Landand Development Officer. He directed the tenant to stop the misuser within a period of sixmonths and in case of his failure to do so to vacate the premises. This wasthe decision of the controller. ( 19 ). In appeal before the tribunal notice was again sent to the Landand Development Officer. He was asked to state if he was willing to condonethe breaches in the house and if so on what terms. The Land and Development Office sent a letter dated 6/02/1979. In this letter the Landand Development Officer, Government of India, stated that the "lessor willbe pleased to regularise the breaches temporarily upto 14/07/1979 in thepremises mentioned above provided you comply with the following terms andconditions in full in advance. " Thereafter he detailed the charges runninginto several thousands of rupees which he required the landlady to pay with interest if she was willing to the proposal made by the lessor. He alsorequired the landlady to furnish "an undertaking to remove the breach by14. 7. 1979 or beyond 14. 7. 1979". The letter added "that if these conditionsare not acceptable and the landlady is not prepared to give the undertakingand the amount demanded from her the lessor will take further action to reenter the premises under Clause (3) of the lease without any furtherreference. " It is made clear in this letter that the offer was not to amount to"a. waiver for the recovery of the said damages which may in the discretion ofthe lessor be found payable by you beyond the dates mentioned by you forbreaches existing hereinafter at site. " ( 20 ). The matter did not rest here. Another letter was addressed bythe tribunal to the land and development officer. He was asked to state thecharges only in respect of the portion of the Hind Book House and not withregard to the whole house. The land and development officer filed the replyon 4/05/1979 stating the charges of misuser. This amount runs intors. 48)360. 23 paise. Out of this amount the misuser charges are aboutrs. 19,000. 00 or so upto 14/07/1979. The rest are charges for unauthorisedcoverage and construction. At the end of the letter this is what is said : "the terms and conditions for temporary regularisation ofbreaches and misuser were previsously issued to the lessee through thecourt vide this office letter No. LIV/9/205-C/103/66/130 dated 6. 2. 19,000. 00 or so upto 14/07/1979. The rest are charges for unauthorisedcoverage and construction. At the end of the letter this is what is said : "the terms and conditions for temporary regularisation ofbreaches and misuser were previsously issued to the lessee through thecourt vide this office letter No. LIV/9/205-C/103/66/130 dated 6. 2. 1979and this break up of the terms of the portion of the tenant is in continuation to the above referred letter. The breaches of unauthorisedconstruction and misuse cannot be regularised permenantly. " ( 21 ). With these two letters before him the tribunal modified the orderor eviction on clause (k) and imposed terms on the parties. He divided hisorder in three parts. The first part is about the past. The second about thefurture. The third is about the last stage, namely, eviction of the tenant. That is the dead end. As for the past the tribunal said : "i hence, dismiss the appeal and I hold that the ground ofeviction covered by clause (k) shall be satisfied if the tenant pays to thelandlady or deposits in court a sum of Rs. 20,578. 65 p. as misusecharges for the period 15/04/196 8/07/1979; within onemonth from today and also to the landlady or deposit in the court asum of Rs. 27,781. 58 as charges of the unauthorised constructions forthe period 15/04/196 8/07/1979 within one month fromtoday or remove the misuser and construction within one monthbut in case of the failure of the tenant either to do so, then evictionorder on the ground covered by clause (k) shall be deemed to havepassed against the appellant. " ( 22 ). As regards the future he said : "in case the Land and Development Officer imposes any futurepenalties for condoning the breaches in future and also for the unauthorised constructions, then the landlady shall inform the tenantabout such amount of mischarges and demages charges for unauthorisedconstructions and the tenant in that case shall pay to the landlady suchamounts as informed to the tenant by the landlady within one monthfrom the date of such communication but in case of his failure eitherto pay such amount of penalties or to remove the unauthorised constructions or stop using the premises for commercial purposes withinone month from the date of such communication then -eviction orderon the ground covered by clause (k) shall be deemed to have been. passed against the tenant. " ( 23 ). passed against the tenant. " ( 23 ). Then he addressed himself to another contingency. He said : "however, in case the L. and D. 0. decides not to condone thebreaches with respect to misuse charges and also with respect to theunauthorised constructions in future then the landlady shall inform thetenant about such decision of the L. and D. O. and the tenant in that caseshall stop misusing the premises and shall also remove the unauthorisedconstructions but in case of his failure to do so, then eviction orderon the ground of eviction covered by clauses (k) shall be deemed tohave been passed against the tenant. But in case the I ndlady fails toapply to the L. and D. O. to get the breaches regularised after receivingthe amounts from the tenant, then eviction petition on the groundcovered by clause (k) shall be deemed to have been dismissed. ( 24 ). This is a journey in stages. This formula was devised by thetribunal apparently with the object to protect the tenant and to allow him toremain in the premises as long as the L. and D. O. was willing to acceptmisuse charges and charges for unauthorised construction. The tenant wasto pay what was demanded from the landlady up to 14/07/1979. He wasalso to pay in future such amount as was demanded from her. In case thel. and D. O. decided not to condone the breaches then the tenant was tovacate. This is the sum and substance of the tribunal s order. ( 25 ). Counsel for the tenant has attacked this part of the order requiring the tenant to pay Rs. 20,578. 65 and Rs. 27,781. 58 as misuse charges forunauthorised construction from 16/04/196 8/07/1979. The tenant scomplaint is that he has been asked to bear too heavy a burden. He saidthat he was willing to bear the charges for misuse. But he should not becalled upon to pay charges for unauthorised coverage as he had not coveredor constructed any part of the demised premises. Counsel submitted that thecase should be remitted to the controller to find out two things : (1) What isthe amount of misuse charges which the tenant should be properly asked topay after excluding the charges of unauthorised coverage? and (2) What arethe terms on which the L. and D. O. was prepared to allow him to use thepremises for commercial purpose in future ? and (2) What arethe terms on which the L. and D. O. was prepared to allow him to use thepremises for commercial purpose in future ? It was said that the question ofapportionment of compensation be remitted for an inquiry and the tenantshould be allowed to have his say on this matter. It is not disputed by thelandlady s counsel that after the receipt of the second letter which was filedin the tribunal on 4/05/1979 the tribunal did not ask the parties to filetheir objections to the demand of the L. andd. O. On this ground it is saidthat the question of compensation and its apportionment should be decidedafresh and the controller should be asked to apportion the responsibility for. the breach between the lessor and the tenant and this should be done in the presence of the L. and D. 0. Elaborating his argument further counsel saidthat such charges of misuse as have been levied ought to be shared fifty fiftyby the landlady and the tenant. If these charges are revised and an excessamount is demanded then the excess should be borne by the tenant. Heconceded that if the L. and D. O. was not willing to condone the breachesthen the tenant ought to be evicted. ( 26 ). The real question in this appeal is about the application of Sub-sec. (11 ). How should this proviso begiven effect to ? The Act is silent. Itdoes not give us any guidance. How best to work out the policy of thelegislature as embodied in clause (k) read with Sub-sec. (11) is entirely leftto the tribunals. Clause (k) as has been held in Fakir Chand v. Ram Rattan,a. I. R. 1973" S. C. 921 is based on the principle of public policy. The policyof the legislature seems to be to put an end to unauthorised use of the leasedlands. . . . . . . . . . . . ". For past breaches or such breaches as can be remediedpermanently it will of course be unjust to evict the tenant. In that case thecontroller can award compensation to the three authorities named in the clause. Of course this has to be done in the presence of the authority sothat the authority may be bound by the decision of the controller. Now the "sub-SECTION does not say who is to pay compensation, whether it is thelandlord or the tenant. In that case thecontroller can award compensation to the three authorities named in the clause. Of course this has to be done in the presence of the authority sothat the authority may be bound by the decision of the controller. Now the "sub-SECTION does not say who is to pay compensation, whether it is thelandlord or the tenant. Apparently in awarding compensation the controllerwill have to apportion the responsibility for the breach between the lessorand the tenant. " (Fakir Chand v. Ram Rattan, p 924 ). Counsel for thetenant relies on these observations of the Supreme Court and says that thecase should be remitted to the controller to find out the terms and conditionsof the L. and D. O. and to apportion the blame of misuse between the tenantand the landlady. ( 27 ). In my opinion, this course will not be advisable in this case. There is no inflexible rule that the tenant must never be evicted in case ofmisuse of property if the landlord is to be blamed for the improper inductionof the tenant in the premises. Nor do I read the Supreme Court decision aslaying down such a proposition. "it is always a little dangerous" as Greerl. J. said in Monk v. Warbey (19s5) I. K. B. 75 "to pick out one or twoobservations from long judgment and treat them as if they necessarilyafforded the ratio decidendi of the case. " ( 28 ). One thing is clear. Forfeiture of the lease has to be avoided at allevents. If misuse is persisted in, the head lessor can re-enter upon thepremises and determine the head lease. This will be detrimental to theinterests of both the landlady and the tenant. Now it appears from theletters of the L. and D. O. that he is not prepared to condone the breachespermanently. On terms of temporary regularisation he is willing to allow themisuse and the unauthorised coverage. But this too is subject to one important condition, namely, that the landlady furnishes an undertaking for theremoval of misuse. If she does not give such an undertaking the head lessorthreatens to re-enter upon the premises. Now it is not in her power to givesuch an undertaking as is demanded from her. The reason is that the premises are in the possession of the tenant. And the tenant is not willing to vacate. If she does not give such an undertaking the head lessorthreatens to re-enter upon the premises. Now it is not in her power to givesuch an undertaking as is demanded from her. The reason is that the premises are in the possession of the tenant. And the tenant is not willing to vacate. He wants to continue on terms of payment of compensation to the L. and. D. O. For past misuser it is possible to apportion the responsibility for the breachbetween the lessor and the tenant. But for future it is not possible to do so. ( 29 ). Counsel for the landlady criticised the order of. the tribunal onseveral grounds. He said that the order is not workable. It is whollyambulatory. It is not final in form. It is productive of further litigation. Every time a demand is made by the L. and D. O. or conditions imposed thelandlady must got in touch with the tenant. The tenant may pay. Thetenant may not pay. Disputes are bound to arise. Whether such a form ofthe order is within the contemplation of the statute I need not decide. Thereare many cases which were never contemplated by the draftsman and anyattempt to give an interpretation which will be generally applicable is sureto prove an obstacle in the way of doing justice in some unforseen case. Itwill be undesirable to give to the Rent Act any general construction whichmay give rise to many unforeseen complications. The. Act leaves much to beworked out by the courts and tribunals. The tribunal in a desire to producea workable and just solution devised a formula. It is certainly a make-shiftarrangement. A patchwork produced with the best of intentions. Therules of formal logic were not applied with too great strictness. Apparentlyout of sympathy for the tenant the tribunal was willing to allow him tocontinue if he was prepared to pay the charges. Now the tenant is willingto continue. But he is not prepared to pay the charges demanded by theland and Development Officer. He wants an inquiry into the whole matterin the presence of the authority both for the past as well as the future. Thiswill mean a retrial of the whole case. ( 30 ). There is another reason why the exercise is not necessary in the circumstances of the case. He wants an inquiry into the whole matterin the presence of the authority both for the past as well as the future. Thiswill mean a retrial of the whole case. ( 30 ). There is another reason why the exercise is not necessary in the circumstances of the case. The landlady has made an affidavit today thatif the tenant vacates the premises within a reasonable time allowed by thecourt she will not claim from him any charges which may be payable to theland and development officer for the entire period from the commencementof the tenancy upto the time he vacates the premises. This is course, shesays, is "without prejudice to my rights to deal or settle with the Land anddevelopment Officer regarding regularisation of the breaches of the lease ofthe land. . . . . . whether on payment of charges, if any, or otherwise to the saidoffice. " This means that the tenant is not asked to share the responsibilityfor breach or misuse of the premises for the past. Nor for such period tillhe is allowed to vacate. This appears to me to be a just course. This wasadopted by the Controller. ( 31 ). From the letters of the L. and D. O. one thing is quite certain. That authority wants the misuser to stop. If that is so there is no point inallowing the tenant to continue. There is no purpose in asking the landladyto stand and wait till the last word comes from L. and D. O. He has alreadyindicated his terms. His terms do not confer on the tenant the much wishedfor status of irremovability. As the Supreme Court says : "the authority may be prepared to accept conditions but mightinsist upon the cessation of the unauthorised use. " ( 32 ). In this case the authority, namely, the Government is not willingfor a permanent condonation of misuse or to a change of user. In the endthey insist upon the cessation of the unauthorised use. There is no option insuch a case except to order eviction of the tenant. This was the decision ofthe controller. I too am of the same view. ( 33 ). There is no question of complying with the condition imposed on the landlord in this case. The premises were let for commercial use. The tenant cannot change the user from commercial to residential. This was the decision ofthe controller. I too am of the same view. ( 33 ). There is no question of complying with the condition imposed on the landlord in this case. The premises were let for commercial use. The tenant cannot change the user from commercial to residential. Such are not the terms of his tenancy. Not is he willing to take up residence as the premises were given to him for commercial use. He himself got the standard rent fixed as of a commercial premises. Regarding the amount of compensation the landlady is willing that if the tenant vacates the premises within a reasonable time he need not pay part of the compensation claimed by the land officer from her. ( 34 ). For these reasons the appeal is dismissed. The tenant is allowed six months time to vacate the premises. The tenant will not pay the charges imposed on the landlady if he vacates within the period of six months allowed by me. He will of course go on depositing the standard rent with the additional controller every month in accordance with law. The parties are left to bear their own costs.