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2009 DIGILAW 719 (DEL)

HIRO DEVI v. BALBIR SINGH

2009-07-09

VIPIN SANGHI

body2009
ORDER 1. The petitioner by way of this petition filed under Article 227 of the Constitution of India impugns: (i) the order dated 17.5.2008 passed by Sh. A.K. Shishodia, learned ARC, Delhi whereby the objections dated 26.4.2007 preferred by the petitioner tenant under Order 21 Rule 58 were dismissed, and (ii) the order dated 21.1.2009 passed by Sh. M.L. Mehta, learned District Judge, District Judge-II (North)-cum-Additional Rent Control Tribunal Delhi whereby the learned Tribunal dismissed the appeal preferred by the petitioner under Section 38 of the Delhi Rent Control Act against the former order. 2. The respondents had preferred an eviction petition against the petitioner under Section 14 (1) (e) read with Section 25 (b) of the Delhi Rent Control Act. 3. The petition had been preferred in respect of one room and Verandah in property bearing No. 4174, Sari Jatt, Cali Barna, Pahari Dhiraj, Delhi. In the site plan annexed, the tenanted portion was marked in red. The said petition was allowed and an the eviction order was passed by the Additional Rent Controller on 20.4.2006. A perusal of the eviction order shows that in the eviction proceedings the respondent landlord had mentioned that apart from the tenanted premises consisting of one room and Verandah, the petitioner tenant had created other accommodation by converting the Verandah into room which was objected to by the landlord. Complaints were also made against the said unauthorized construction to the MCD. Hiro Devi, P.W.-1 in her cross-examination admitted that at the time of inception of the tenancy only two rooms were in the possession of her family members and all the family members used to reside in these two rooms. In para 17 of the eviction order the submission of the petitioner tenant to the effect that the respondent landlord had claimed partial eviction was recorded in the following manner: "On the other hand learned Counsel for the respondent submitted that petitoners claim of eviction suffers from vice of partial eviction as he contended that only one room and Verandah was let out and thereafter the tenant raised unauthorized construction and converted into a three storeyed building but petitioner failed to satisfy when the alleged unauthorized construction was raised and what steps were taken by him to prevent the respondent from raising unauthorized construction." 4. The learned ARC returned a finding that only two rooms were in the possession of the petitioner tenant, as a tenant. The submissions of the petitioner-tenant were rejected, and eviction order passed. The eviction order, I am informed, has been affirmed right up to the Supreme Court and has attained finality. 5. The respondent landlord initiated execution proceedings before the learned ARC In these proceedings, the petitioner tenant preferred objections under Order 21 Rule 58, CPC The crux of these objections is that, in execution of the eviction order, the respondent landlord can only claim possession of the tenanted premises in respect of which the eviction order has been passed i.e. one room and Verandah and the other portions which are in occupation of the petitioner tenant cannot be got vacated by the respondent. 6. In spite of the fact that from the eviction order itself it is clear that the other portions in occupation of the petitioner tenant were unauthorized constructions and were unauthorizedly occupied by the petitioner, the learned ARC conducted an inquiry as to whether the other portions constituted unauthorizedly constructed portions by the petitioner tenant. The learned ARC in the impugned order dated 26.4.2009 came to the following conclusion: "The site plan Mark D shows that suit property i.e. 4174. This site plan shows the aerial view of entire suit property in the left side in red colour. On its right side, the DH has shown constructed portions on ground floor, first floor and second floor in the suit property. The portion let out has been shown in red colour on the ground floor and first floor and the portions wherein unauthorized constructions have been raised by the respondents/JD have been shown in green colour. These unauthorized constructions have been carried out in ground floor, first floor and second floor. Certified copy of this site plan has been filed by the DH along with the eviction petition. It may also be mentioned here that although the site plan has been marked as mark D, but in the affidavit by way of examination in chief filed by the petitioner this site plan has been marked as Ex. D. The cross-examination of the petitioner conducted on 11.9.2002 shows that although the Counsel for the respondent had objected to exhibiting the site plan Ex. B and the complaint Exs. E, F and G, pursuant to which Exs. D. The cross-examination of the petitioner conducted on 11.9.2002 shows that although the Counsel for the respondent had objected to exhibiting the site plan Ex. B and the complaint Exs. E, F and G, pursuant to which Exs. Band G were de-exhibited. However, Counsel for the respondent nowhere objected to the exhibition of site plan Ex. D, which it appears, has been inadvertently marked as Mark D. Hence, it cannot be said that no site plan has been proved by the DH in his evidence. Hence, the contention raised by the Counsel for JO that the petition is inexecutable for the want of duly proved site plan is without any merits and is accordingly rejected." 7. He further held as follows: "If during the term of tenancy, tenant raises unauthorized constructions or carries out any addition or alteration to change the structure of the present case, the petitioner has stated in his examination in chief as well as cross-examination that unauthorized constructions have been raised by the respondent/JD and he also proved the complaints made by him to the Municipal authorities. If no action has been taken by the Municipal authorities for demolition of the unauthorized construction by the respondents/JD, decree holder cannot be blamed for this situation. The respondents/JD cannot take benefits of their own wrong and deprive the DH from reaping the fruits of his decree." 8. The petitioner preferred the aforesaid appeal before the learned Rent Control Tribunal which has been dismissed. The findings recorded by the Tribunal are as follows: 14. Now from the evidence of the parties as discussed above, it comes out that according to petitioner/respondent it was one room and Verandah which was let out to appellants predecessor and that Verandah was subsequently converted into a room and also that the appellants in due course of time have raised unauthorised construction on the ground, first and second floor. On the other hand case of the appellants comes out to be that they were initially in possession of two small rooms, one on the ground and one on the first floor and now they are in possession of entire two storeyed building comprising much more accommodation than that was initially let out to the appellants predecessor. 15. On the other hand case of the appellants comes out to be that they were initially in possession of two small rooms, one on the ground and one on the first floor and now they are in possession of entire two storeyed building comprising much more accommodation than that was initially let out to the appellants predecessor. 15. Though there is no evidence led to corroborate appellant Hiro Devi that they were initially in possession of two rooms as stated, but taking the same as correct, it comes out to be the admitted case of the appellants that there existed much more construction in their possession than was initially with them. This all substantiates the plea of the petitioner that appellants have raised unauthorised construction of various portions on the ground, first and second floor of the premises. As noted above, this also stands established from the complaints made by the petitioner/respondent to the Municipal Authorities and also to police and also from, the notices got issued by him to the appellants. 16. It is seen that a contention was raised by learned Counsel for the appellants before the learned ARC Sh. B.S. Chumbak that the petition was for partial eviction as it was only for one room and Verandah and not for unauthorised construction convered into three storeyed building by the appellants. It was also contended there that the petitioner / respondent herein failed to satisfy when the alleged unauthorised construction was raised and what steps were taken by him to prevent the appellants from raising such constructions. From this also it comes to be that admittedly unauthorised construction were raised by the appellants. Now the question for consideration would be, as to whether the appellants were entitled to stay in the portions of the premises un-authorisedly constructed by them? The appellants have nowhere alleged or proved to be in possession of these unauthorisedly constructed portions of the premises in their independent capacity or right other than the one derived by them from the tenanted premises and thus outside the purview of execution petition. The plan marked D could not be seen in isolation and was to be read in conjunction with the entire material available on record. The plan marked D could not be seen in isolation and was to be read in conjunction with the entire material available on record. It is noted above that in para 17 of the petition itself the petitioner had alleged unauthorised construction raised by the appellants, though he had stated to take separate action in this regard against them. He had made various complaints to the police and Municipal Authorities, but no action was taken by them in this regard. In the plan, the portion which formed part of the tenanted premises shown in the red whereas those un-authorisedly constructed were shown in green colour. The portions shown in green were rightly not mentioned in para 8 of the petition, as there was no tenancy in respect of those portions. Admittedly the appellants never came into possession of these unauthorisdely constructed portions except through the tenanted premises nor it is their claim. In the absence of there being any independent right to occupy the unauthorisdely constructed portions, the Eviction Order could not be said only in respect of the portion as described in para 8 of the petition and not the portions un-authorisedly constructed by the appellants. No site plan was even filed by the appellants to clarify as to what portion was originally in their tenancy and what portions they were in possession in their independent right, if any. In the case of Silman Sodhi and Ors. (supra), it was held as under: "Merely because a tenant/sub-tenant or an unauthorized occupant, on his own, without the express consent and authority of the landlord/ owner raises construction in a portion of the tenanted premises, he cannot object to the delivery of possession of the same in the execution of the eviction order on the ground that the said unauthorized construction did not form part of the eviction order. If such an argument is accepted, it would be putting premium on an illegality. The tenant/ sub-tenant or other occupant cannot take advantage of his own wrong." 9. It is, therefore, clear that there are concurrent findings of fact against the petitioner with regard to the raising of unauthorized construction by the tenant, and the petitioner-tenant having no tenancy right in respect of such unauthorized construction, not only derived from the eviction order which has attained finality but also arrived at in the execution proceedings as aforesaid. It is, therefore, clear that there are concurrent findings of fact against the petitioner with regard to the raising of unauthorized construction by the tenant, and the petitioner-tenant having no tenancy right in respect of such unauthorized construction, not only derived from the eviction order which has attained finality but also arrived at in the execution proceedings as aforesaid. It is, therefore, not open to the petitioner tenant to now argue that there was some other fresh tenancy created in respect of the unauthorized constructions raised by him during the subsistence of his tenancy. 10. The above ratio squarely applies to the facts of the present case. I find no merit in this petition and in my view there is no jurisdictional error or any other irregularity committed either by the learned ARC or by the Rent Control Tribunal while passing the impugned order. Dismissed. Petition dismissed.