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CASE NO.:

Appeal (civil) 3644 of 2002

PETITIONER:

M/S. BHARAT SALES LTD. & ANR.

Vs.

RESPONDENT:

SMT.LAKSHMI DEVI & ORS.

DATE OF JUDGMENT: 08/07/2002

BENCH:

D.P.MOHAPATRA, BRIJESH KUMAR.

JUDGMENT:

D.P.Mohapatra, J.

Leave is granted.

This appeal, filed by the tenants, is directed against

the judgment of the High Court of Delhi dated 18th

September, 2000 in S.A.O. No.363 of 1985 dismissing the

appeal filed by the appellants herein with certain

observations. The operative portion of the judgment is

quoted hereunder :

"It was then urged that there is no

rationale for the misuser charges

demanded by the L&DO. This is really a

matter between the L&DO and its lessee.

Moreover, the quantification and

apportionment of misuser charges are

arithmetical matters of fact. I cannot go

into all this in a second appeal. Under the

circumstances, there is no option but to

dismiss the appeal. The parties will pay

the misuser charges in accordance with

the order dated 14th August, 1984 passed

by the learned Rent Controller.

Respondent No.12, that is, the Union of

India through the L&DO should quantify

the subsequent misuser charges within a

period of two months from today. The

appellants should cease and desist from

misusing the suit premises with effect

from 1st January, 2001, failing which an

order of eviction shall be deemed to have

been passed against them.

The appeal is dismissed. There will,

however, no order as to costs."

The appellants are the tenants on the first floor

and barsati (hereinafter referred as 'the suit property') of P-

2, Connaught Circus, previously known as 2/90,

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Connaught Circus, New Delhi. The suit property was

taken on rent from the predecessor in interest of

respondents no.1 to 11, namely Ram Singh, sometime in

1950. The predecessor in interest of respondents no.1 to

11 had taken the suit property on lease from the Governor

General in Council in 1938. The Governor General in

Council is now succeeded by the Union of India acting

through the Land and Development Officer (for short 'the

L&DO'). It was stipulated in the lease that the leasehold

property was to be used for commercial purpose. Despite

the stipulation in the lease the lessee i.e. the predecessor

in interest of respondents no.1 to 11 let out the suit

property to the appellants for office purpose. The L & DO

issued a notice dated 25.10.1968 to Ram Singh

enumerating certain breaches in use of the leasehold

premises, including misuse of first floor and barsati floors

as office and misuse of unauthorized shop measuring

21'x7' as a tailoring shop. It was specifically stated in the

notice that despite the previous notice issued under the

L&DO's letter No.90(2C.C.)/63-LI, dated 9.2.1965 to

stop/remove the misuser, the lessee had failed to comply

with the notice. Therefore, in consequence of the failure

on the part of the lessee to remedy the aforesaid breach

the lessor had decided to determine the lease. The

relevant portion of the letter dated 25th October, 1968 is

extracted as under :

"Please take notice, therefore, that in

consequence of your failure to remedy

the aforesaid breach the Lessor has

been pleased to determine the Lease

and re-enter upon the premises with

effect from 16.9.68 on & from which

date, therefore all your rights and title

in the leasehold property in question

have ceased.

The entire plot of land forming

the subject matter of the relevant Lease

Deed and all the buildings standing

thereupon including all structures,

erections and fittings vest now in the

President of India. Shri Bharat

Bhushan, an Assistant Engineer of the

Land and Development Office, has

been directed to take possession of the

premises from you and he will call

upon you for this purpose on

13/11/68 at 10.30 A.M., and I, hereby

call upon you to hand over peacefully

the possession of the premises

including land, buildings, fittings,

fixtures, etc. to him."

In the meantime, Ram Singh had filed a petition for

eviction of the petitioners under clauses (b), (c) and (k) of

the proviso to Section 14(1) of the Delhi Rent Control Act,

1958 (hereinafter referred as 'the Act'), alleging sub-letting

and misuser of suit property and breach of condition of the

lease by the tenant in favour of the landlord. The Rent

Controller dismissed the eviction petition vide order dated

18th August, 1981. The landlord filed an appeal, RCA

No.717 of 1981 before the Rent Control Tribunal, Delhi

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against the order of the Rent Controller. By the order

dated 30th August, 1982 the Rent Control Tribunal

affirmed the findings of the Rent Controller insofar as

dismissal of the eviction petition filed under clauses (b)

and (c) of proviso to Section 14(1) of the Act was

concerned. It was stated by the Tribunal as regards clause

(k) of proviso to Section 14(1) of the Act that "in view of the

decision in the case of Lilawati V/s. K.B.Union Club 1981

Rajdhani Law Report p.524, it is admitted that ground of

eviction is available and notice under Section 14 (11) be

directed to be issued." Accordingly, the Rent Controller

was directed to issue notice to the L & DO under Section

14(11) of the Act to determine the misuser charges. The

parties were directed to appear before the Rent Controller.

In compliance with the order of the Tribunal, the Rent

Controller by its order dated 14th August, 1984

apportioned the misuser charges between the parties and

directed the payment as apportioned and determined. It

was further directed that in case there is any violation of

the order by the tenants an order of eviction would be

deemed to have been passed against them. Against the

said order the appellants herein filed an appeal no.957 of

1985 before the Rent Control Tribunal. They also filed,

though belatedly a petition for review of the order dated

30th August, 1982 on the ground that the counsel

appearing for them (appellants) would not make a

concession in law that the ground for eviction under clause

(k) of proviso to Section 14(1) of the Act had been made

out. By the order dated 19th August, 1985 the learned

Tribunal dismissed the appeal as well as the review

petition filed by the appellants. Therefore, they filed the

second appeal before the High Court of Delhi which was

decided by the impugned judgment. In the impugned

judgment, as noted earlier, the High Court dismissed the

appeal.

At the outset, Dr.Rajeev Dhawan, learned senior

counsel appearing for the appellants, contended that the

appellants do not intend to contest the order of eviction

passed by the statutory authorities under clause (k) of

proviso to Section 14(1) of the Act and that they are ready

to handover vacant possession of the suit property to any

party as this Court may direct. Thereafter Dr.Dhawan

challenged the order passed by the Rent Controller

purportedly under Section 14(11) of the Act. He contended

that since the tenant is ready and willing to deliver

possession of the suit property to the lessor or the lessee

as the Court may direct, it cannot be made liable for

payment of any amount towards the misuser charges.

Dr.Dhawan further contended that since the owner

(Governor General in Council succeeded by the Union of

India) had decided to cancel the lease in favour of the

lessee (predecessor in interest of respondents no.1 to 11)

and to re-enter the property, the landlord or the petitioners

has no locus standi to claim apportionment of misuser

charges in the proceeding under the Act. Indeed,

according to Dr.Dhawan, the proceeding under the Act is

not maintainable and should be dismissed as infructuous.

Shri Jaspal Singh, learned senior counsel appearing

for the respondents no.1 to 11 and respondent no.14 who

had purchased the property during pendency of the

proceedings, strenuously urged that the appellants having

been responsible for misuser of the suit property cannot be

absolved of liability to pay misuser charges under Section

14(11) of the Act. The learned counsel further contended

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that the Tribunal rightly directed the Rent Controller to

proceed under Section 14(11) of the Act giving notice to the

L & DO and quantify the misuser charges and

apportionment of the same between the parties.

In the context of the facts and circumstances

discussed above, the question that arises for determination

is whether in this proceeding the appellants could be made

liable for payment of any amount towards the misuser

charges as determined under Section 14(11) of the Act?

The further question that arises in this connection is

whether after determination of the lease of the suit

property granted in favour of the predecessor in interest of

respondents no.1 to 11 and the decision of the lessor to re-

enter the property whether the proceeding under Section

14 of the Act should be proceeded with and any order

passed therein can be said to be valid and binding on the

parties?

At the beginning it would be convenient to

quote clauses (b), (c) and (k) of proviso to Section 14(1) and

Section 14(11) of the Act, which reads as follows:

"14. 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 favour 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:-

Xxx xxx xxx

(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;

(c) that the tenant has used the

premises for a purpose other

than that for which they were let-

(i) if the premises have been let

on or after the 9th day of June,

1952, without obtaining the

consent in writing of the

landlord; or

(ii) if the premises have been let

before the said date without

obtaining his consent;

xxx xxx xxx

(k) that the tenant has,

notwithstanding previous notice,

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used or dealt with the premises in a

manner contrary to any condition

imposed on the landlord by the

Government or the Delhi

Development Authority or the

Municipal Corporation of Delhi while

giving him a lease of the land on

which the premises are situate;

xxx xxx xxx

(11) No order for the recovery of

possession of any premises shall be

made on the ground specified in

clause (k) of the proviso to sub-

section (1), if the tenant, within

such time as may be specified in

this behalf by the Controller,

complies with the condition imposed

on the landlord by any of the

authorities referred to in that clause

or pays to that authority such

amount by way of compensation as

the Controller may direct."

Since the order of eviction of the tenant passed under

clause (k) of proviso to Section 14(1)is not being challenged

it is not necessary for us to enter into the correctness or

otherwise of the said order. Coming to the order of the

Rent Controller dated 14th August, 1984 passed under

Section 14(11) of the Act regarding the determination of

misuser charges in the context of the facts and

circumstances of the case, we are of the view that the

answer to the question depends on interpretation of clause

(k) of proviso to Section 14(1) and Section 14(11) of the Act.

From the statutory provisions quoted earlier it is manifest

that user of the premises by the tenant for a purpose other

than that for which it was let without obtaining the

consent of the landlord, is itself a ground for eviction

under clause (c) of proviso to Section 14(1) of the Act.

Under clause (k) of proviso to Section 14(1) of the Act an

independent ground of eviction is laid down in case of

properties obtained on lease by the landlord from the

Government or the Delhi Development Authority or the

Municipal Corporation of Delhi. It is provided in that

clause that if the tenant, notwithstanding the previous

notice, used or dealt with the premises in a manner

contrary to any condition imposed on the landlord by the

Government while giving him lease of the property the

tenants shall be liable for eviction. From this provision it

is clear that the tenant is given an opportunity to stop the

misuser or stop breach of condition of the lease and

discontinue the misuser by issuing a notice to him and

despite such notice he having failed to take the necessary

steps for stoppage of misuser, a right is vested in the

landlord to seek order of his eviction. Under sub-clause

(11) of Section 14 yet another opportunity is given to the

tenant to comply with the conditions imposed on the

landlord by any of the authorities referred to in clause (k)

of sub-section (1) of Section 14 of the Act and pay back the

authority such amount by way of compensation as the

Controller may direct before recovery of possession of the

premises. From the scheme of the statutory provisions

noted above, it is clear to us that the provisions are

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intended for protection of the tenant against eviction from

the premises. Then the question that arises is whether a

tenant who is not interested in seeking such protection

and wants to vacate the premises could be compelled to

pay misuser charges in the proceedings under the Act?

The answer to the question, in our considered opinion, is

in the negative. But that is not to say that the owner of the

property or landlord of the tenant is precluded from

realizing any compensation or damages for misuser or

unauthorized user of the suit property. The Rent Control

legislation, being intended for the benefit of a tenant and to

protect legitimate interests of a landlord does not

contemplate of a proceeding which in essence will be a

substitute for a suit or other proceedings under law for

realisation of damages or mesne profits.

In the case of Faqir Chand vs. Smt.Harbans

Kaur, AIR 1973 SC 921, this Court construing the

statutory provisions in Section 14(11) and clause (k) of

Section 14(1) proviso of the Act, observed :

".While the argument appears to be

plausible we are of opinion that there

is no substance in this argument. If it

is a case where the tenant has contrary

to the terms of his tenancy used the

building for a commercial purpose the

landlord could take action under

clause(c). He need not depend upon

clause (k) at all. These two clauses are

intended to meet different situations.

There was no need for an additional

provision in clause(k) to enable a

landlord to get possession where the

tenant has used the building for a

commercial purpose contrary to the

terms of the tenancy. An intention to

put in an useless provision in a statute

cannot be imputed to the Legislature.

Some meaning would have to be given

to that provision. The only situation in

which it can take effect is where the

lease is for a commercial purpose

agreed upon by both the landlord and

the tenant but that is contrary to the

terms of the lease of land in favour of

the landlord. That clause does not

come into operation where there is no

provision in the lease of the land in

favour of the landlord, prohibiting its

use for a commercial purpose.

.The policy of the

legislature seems to be to put an end to

unauthorized use of the leased lands

rather than merely to enable the

authorities of get back possession of

the leased lands. This conclusion is

further fortified by a reference to sub-

section (11) of Section 14. The lease is

not forfeited merely because the

building put upon the leased land is

put to an unauthorized use. The

tenant is given an opportunity to

comply with the conditions imposed on

the landlord by any of the authorities

referred to in Cl.(k) of the proviso to

sub-section (1). As long as the

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condition imposed is complied with

there is no forfeiture. It even enables

the controller to direct compensation to

be paid to the authority for a breach of

the conditions. Of course, the

Controller cannot award the payment

of compensation to the authority

except in the presence of the authority.

The authority may not be prepared to

accept compensation but might insist

upon cessation of the unauthorized

use. The sub-section does not also say

who is to pay the compensation,

whether it is the landlord or the

tenant. Apparently in awarding

compensation the Controller will have

to apportion the responsibility for the

breach between the lessor and the

tenant."

In the case of Dr.K.Madan vs. Krishnawati (Smt.) &

Anr., (1996) 6 SCC 707, this Court, construing Section

14(1)(k) and Section 14(11) of the Act held as follows:

"Section 14(1) of the Act gives

protection to the tenants from being

evicted from the premises let out to

them. Clauses (a) to (l) of the proviso to

Section 14(1) of the Act contain the

grounds on which recovery of

possession of the premises can be

ordered by the Controller. Where the

premises are used in a manner

contrary to any condition imposed on

the landlord by the Government or the

Delhi Development Authority or

Municipal Corporation of Delhi, then

the landlord would be entitled to

recovery of possession under Section

14(1)(k) of the Act. Sub-section (11) of

Section 14, however gives an option to

the Controller to pass an order under

sub-section (11) of Section 14 of the

Act whereby the tenant is directed to

comply with the conditions imposed on

the landlord by the authorities referred

to in clause(k) namely to stop the

misuser of the premises in question.

Sub-section (11) of Section 14 also

uses the words "pays to that authority

such amount by way of compensation

as the Controller may direct". Keeping

in view the fact that clause (k) of the

proviso to sub-section (1) has been

inserted in order that the unauthorized

use of the leased premises should

come to an end, and also bearing in

mind that the continued unauthorized

use would give the principal lessor the

right of re-entry after cancellation of

the deed, the aforesaid words occurring

in sub-section (11) of Section 14

cannot be regarded as giving an option

to the Controller to direct payment of

compensation and to permit the tenant

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to continue to use the premises in an

unauthorized manner. The principal

lessor may, in a given case, be

satisfied, in cases of breach of lease to

get compensation only and may waive

its right of re-entry or cancellation of

lease. In such a case the Controller

may, instead of ordering eviction under

Section 14(1)(k) of the Act, direct

payment of compensation as

demanded by the authorities

mentioned in clause (k). Where,

however, as in the present case

compensation is demanded in respect

of condoning/removal of the earlier

breach, but the authority insists that

the miuser must cease then the

Controller has no authority to pass an

order under Section 14(11) or Section

14(1)(k) of the Act giving a licence or

liberty of continued misuser. In other

words, sub-section (11) of Section 14

enables the Controller to give another

opportunity to the tenant to avoid an

order of eviction. Where the authority

concerned requires stoppage of

misuser then an order to that effect

has to be passed, but where the

authority merely demands

compensation for misuser and does not

require the stoppage of misuser then

only in such a case would the

Controller be justified in passing an

order for payment of compensation

alone.

The observations of this Court in

Punjab National Bank case (1986) 4

SCC 660, to the effect that as long as

the penalty continued to be paid,

deviation to user could be permitted,

do not appear to be in consonance with

the decision of the larger Bench in

Faqir Chand case. Continued wrongful

user cannot be permitted by levying

penalty but if the authorities do not

require the stoppage of misuser, but

merely ask for payment of penalty or

compensation, then in such a case, an

order of eviction or for stoppage of

premises need not be passed and it will

be sufficient if compensation is

required to be paid."

The principles laid down therein were reiterated in

the case of Munshi Ram & Anr. vs. Union of India & Ors.,

(2000) 7 SCC 22. In paragraph 9 of the judgment it was

observed, inter alia, that : "the first opportunity to the

tenant is given when the notice is served on him by the

landlord and second opportunity is given when a

conditional order under Section 14(11) of the Act is passed

directing the tenant to pay the amount by way of

compensation for regularization of user up to the date of

stopping the misuser and further directing stoppage of

unauthorized user". The Court has further observed : "The

continued unauthorized user would give the paramount

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lessor the right to re-enter after the cancellation of the

lease deed". Then the Court took note of the fact that the

Delhi Development Authority insisting on stoppage of

misuser which was contrary to the terms of the lease. This

Court also held that : "DDA cannot be directed to permit

continued misuser contrary to the terms of the lease on

the ground that zonal development plan of the area has

not been framed."

In the case in hand, the clear factual position that

emerges is that the appellants had used the suit property

in a manner contrary to the stipulations in the lease

granted by the paramount lessor in favour of their

landlord. The paramount lessor had given notice to the

lessee (landlord) to stop the misuser; despite such notice

the misuser had continued. Therefore, the paramount

lessor passed the order of termination of the lease and of

reentry; the possession of the suit property continued with

the tenants (appellants). In such circumstances the

landlords (respondents no.1 to 11) were entitled to seek

eviction of the tenants under clause (k) of proviso to

Section 14(1)of the Act. The Controller was within his

jurisdiction in passing the order of eviction under clause

(k) of proviso to Section 14(1) of the Act. Regarding the

order purportedly passed under Section 14(11) of the Act it

has to be kept in mind that the L & DO representing the

paramount lessor had not stated before the Controller its

intention to receive misuser charges or permit such misuer

despite the order of cancellation of the lease and reentry of

the property. As noted earlier, Dr.Dhawan, learned senior

counsel appearing for the appellants has, at the very

outset, conceded that the appellants are not challenging

the order of eviction passed against them and they are

ready and willing to deliver vacant possession to the

landlord or the paramount lessor as this Court may direct.

In such circumstances the question of Controller directing

the tenant to pay misuser charges does not arise. To

maintain such an order will mean that even if the tenant

has no intention to continue in possession of the premises

and even if he is not contesting the eviction order the

controller in exercise of his statutory power will compel

him to pay misuser charge and continue in possession of

the property. The Legislature could not have intended to

create such a situation while enacting the provision in

Section 14(11) of the Act. At the cost of repetition we

would like to state here that we do not intend to hold that

in such a situation the landlord or the paramount lessor

cannot realize compensation, damages or mesne profits for

wrongful user of the property from the tenant or erstwhile

tenant. However, this purpose cannot be achieved by an

order of the Controller under Section 14(11) of the Act in

the situation as discussed earlier. Therefore, the position

that emerges is that the order passed by the Controller for

eviction of the appellants under clause (k) of proviso to

Section 14(1) of the Act which was confirmed by the

appellate authority and the High Court has to be

maintained. The order passed by the Controller under

Section 14(11) of the Act determining the misuser charges

and apportioning the same between the parties which was

also confirmed by the appellate authority and the High

Court is unsustainable and has to be set aside.

Then the question arises to whom the tenants should

be directed to deliver possession of the premises ?

Ordinarily, in a case where the order of eviction passed by

the Controller is confirmed then the landlord is entitled to

recover possession of the premises from the tenant. But in

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the present case, as noted earlier, the order terminating

the lease granted by the Union of India in favour of the

landlord has been passed and re-entry upon the premises

has already been ordered; if possession of the premises

has not yet been taken over, it may be due to pendency of

the proceedings. In the particular facts and circumstances

of the case we are of the view that the tenant should

deliver possession of the premises to the Union of India

represented by L&DO.

The appeal is allowed in part and the order passed by

the Controller under Section 14(11) of the Act which was

confirmed by the appellate authority and the High Court is

set aside leaving it open to the respondents to proceed for

realisation of compensation, damages or mesne profits for

misuser of the property by the tenants in accordance with

law. The appellants are directed to deliver vacant

possession of the suit property to the Union of India

represented by the L & DO within one month. There will

be no order for costs.