T.N. Rai Vs. Rent Control Tribunal - Court Judgment

Excerpt:
delhi rent control act 1958 - section 3(2)--interpretation of--application of--exemption of--provisions of--appellants/petitioner sought protection under the act--eviction granted by trial court/tribunal under section 14(1)(h)--consideration of acquisition of suitable accommodation--pleaded not suitable for living--revision against-petition dismissed. section 14(1)(h)--eviction--ground : acquisition of property by tenant--eviction granted by tribunal--pleaded not suitable--sought protection from eviction--suitability need not be considered--dismissed. - - ' (underlining is mine) (5) the observation of the apex court as quoted above clearly show that the exemption is granted to the landlord of the new building from the operation of the act for a limited period as an incentive. supreme court in the case of ganpat ram (supra) clearly spell out that if once the condition stipulated in clause (h) is fulfillled by the tenant, he will be disentitled to protection under the act nor could claim thereafter that he should be protected.usha mehra, j. (1) the impugned order dated 9th january,1997 passed by the rent control tribunal (in short the tribunal) thereby dismissing the appeal of the petitioner has been assailed primarily on the grounds, namely, (i) that the petitioner was entitled to the protection of ten years under section 3(d) of delhi rent control act (in short the act); and (ii) that the court below has given very restricted meaning to section 14(1)(h) & (hh) of the act thereby making the provision redundant and meaningless; and finally (iii) while granting eviction under section 14(1)(h) of the act the tribunal did not consider the question of suitability of the accommodation allotted to the petitioner by delhi development authority which the tribunal was bound to do under the law.(2) to appreciate the challenge raised by the petitioner we may have a quick glance to the relevant facts. mrs.sudesh kapoor filed an eviction petition under clause (h) of the provision to sub section (1) of section 14 of the act seeking eviction of the petitioner/ tenant shri t.n.rai with the averments and allegation that the premises consisting of two bed rooms with attached bath, a drawing room, a dinning room, kitchen front of a-263, defense colony, new delhi were let out to him in the year 1979 on a monthly rent of rs.1,100.00 for residential purpose only. it was alleged that in the month of november,1989 the above named tenant was allotted a residential flat no.441, 3rd floor, pocket-b, sector-i, sarita vihar, new delhi in the allotment category ii flat and the possession of the said flat was taken by the petitioner on 12th january,1990 and, thereforee, he made himself liable for eviction from the suit premises on the ground of having acquired a vacant residence. the petitioner contested the eviction petition and filed the written statement not disputing the relationship of landlord and tenant between the parties, the rate of rent, the purpose of letting as also about the allotment of the above referred flat to him by the d.d.a. but he came forward with a plea that the said flat being situated on the third floor and their being no facility of lift was not suitable for him in as much as it was very difficult rather impossible for him to climb up the stairs every day and so he had made a written request to the d.d.a. for change of the flat from sarita vihar to vasant kunj on compassionate ground which request was, however, turned down but the petitioner still approached the higher authorities in that behalf. he further took the plea that the said flat was not suitable because it was situated at a very far of from his existing place of work and very inconvenient to his school going daughter. sarita vihar being 20 km, where as vasant kunj was only 5 km. he requested the d.d.a. that in case of non-availability of category ii type flat in vasant kunj he was prepared to accept type-ii flat with down payment by giving difference of cost of type-ii flat along with interest due on it. he also requested for change of flat from third floor to first floor. this request of the petitioner was turned down by the authorities first in 1988 and again in 1990. he further pleaded that the landlady was not the owner of the suit premises as the same was earlier owned by one shri pishori lal kapoor, and after his death the property has not been mutated in the name of the landlady. the landlady denied and controverter the pleas raised by him. however, before the parties were called upon to lead evidence in support of their respective pleas, the landlady moved an application under section 12 rule 6 cpc. praying for an order of eviction in her favor based on the admissions made by the tenant in the written statement. the said application was opposed, inter alia, on the grounds that the petition could not be disposed of unless he was afforded an opportunity to prove his pleas. after considering the respective pleas and the material available on record, the court below held that in view of the admitted position no evidence was required nor it would serve any other purpose except to prolong the disposal of the petition and accordingly allowed the application under order 12 rule 6 of civil procedure code and passed the eviction order. appeal preferred against that order was also dismissed by the rent control tribunal.(3) before this court order of the tribunal as already pointed out above has been assailed on three grounds. taking the first ground of challenge i.e. protection granted under clause (d) of section 3 of the act at the outset it must be said that the petitioner is labouring under mis- conception of law. he is wrongly interpreting the provisions of clause (d) of section 3 of the act. section 3 and clause (d) are reproduced as under : section 3 : nothing in this act shall apply - clause(d) - to any premises constructed on or after the commencement of the delhi rent control (amendment) act,1988, for a period of ten years from the date of completion of such construction.' (4) bare reading of this clause show that the statute has granted expressly ten years exemption from the operation of this act to those landlords who have constructed their house on or after the commencement of the act,1988. this exemption is not available to the tenant who has acquired his own accommodation or vacant possession or allotted the accommodation. supreme court in the case of punjab tin supply co., chandigarh vs . central government & ors., : [1984]1scr428 while considering the virus of the provisions of section 3(d) observed that - @subpara = 'the policy and object of the act generally is mitigation of the hardship of tenants. such mitigation can be attained by several measures, one of them being creation of incentive to persons with capital who are otherwise reluctant to invest in the construction of new buildings in view of the chilling effect of the rent control laws. as a part of the said scheme in order to persuade them to invest in the construction of new buildings exemption is granted to them from the operation of the act for a limited period so that whatever be the hardship for the time being to the tenants of the new buildings, the new buildings so constructed may after the expiry of the period of exemption be available for the pool of housing accommodation controller by the act.' (underlining is mine)(5) the observation of the apex court as quoted above clearly show that the exemption is granted to the landlord of the new building from the operation of the act for a limited period as an incentive. it would not be right on the part of mr.k.k.rai to contend that the exemption granted under section 3(d) equally apply when a tenant acquire possession of new building as is the case of the present petitioner who has been allotted a house by the d.d.a. hence for a period of ten years this petitioner is exempted from the provision of the act. this line of petitioner's arguments are against the express provision of clause (d) of section 3 of the act. the fact that this petitioner was allotted a flat by the d.d.a. in 1986 and vacant possession, as per his own admission, was taken by him on 12th january,1990. the acquisition of d.d.a. flat by the petitioner did not provide him the protection of clause (d). the eviction petition was filed on 6th february,1990 i.e. after the petitioner got the vacant possession of a residence on which he has a right to occupy immediately. thereforee, the provision of clause (d) of section 3 of the act has no relevance so far as the facts of this case are concerned nor petitioner can ask for the exemption under the said provision. this petitioner cannot take any benefit under clause (d) as that clause provide exemption to landlords of newly constructed buildings.(6) so far as the second limb of his argument regarding giving of restricted meaning to the provisions of section 14(1)(h), to my mind, reasoning given by the tribunal does not require any interference. so far as the question of suitability of the flat allotted to him by d.d.a. it must be made clear that the legislature had not laid down any condition of suitability under the provisions of clause (h) of section 14. this court in the case of subhash manchanda v. smt.maya devi, 1992(3) d l 81 held that suitability need not be considered as a ground after the amended act of 1988. so far as ganpat ram sharma & ors. vs . smt.gayatri devi, : [1987]3scr539 is concerned, there the tenant acquired the vacant possession in 1952. though the petition was filed subsequently, thereforee, taking these facts in view the apex court observed that the question of suitability may be taken note of. the high court while dealing with the plea raised by ganpat ram held that if one of the ingredients of clause (h) stood fulfillled by the tenant, he was disentitled to protection under the act and that he could not thereafter claim that he should be protected. supreme court confirmed this finding of the high court in ganpat ram's case (supra). what is 'suitable' will depend upon the facts of each case. the petitioner in this case has been allotted a d.d.a. flat. as per his own admission, the flat has been allotted in sarita vihar colony. vacant possession of the same was taken by him on 12th january,1990, though flat was allotted in the end of 1985 or january,1986. after allotment of the flat petitioner on 20th january,1986 requested for change of the flat from sarita vihar to vasant kunj. the extract of his letter dated 20th january,1986 are reproduced as under : (1)i have been allocated a category ii type sfs flat under scheme on third floor in sarita vihar. i have already deposited all the first four periodical installments for the said flat as directed by dda. mayi request you to grant me change from sarita vihar to vasant kunj as the former being very far off from existing work place and equally inconvenient to my school going daughter (20 kms.) against 5 kms. from vasant kunj). in case of non-availability of category ii type flat in vasant kunj, i am ready to acquire a category ii type flat with down payment of the difference of cost of the two types along with due interest on it. being a heart patient, i will be ever grateful if i may please be allocated first floor flat at (a medical recommendation to this effect is attached for your kind consideration).(7) this request was turned down on 11th may,1988 by the d.d.a. on the ground that policy of the change of colony was not permissible. he reiterated the request on 24th june,1988 in the following words : 'it may be noted that my request for the change of allocation was made on compassionate grounds and was duly approved by vice chairman - dda on 23.1.86. i would, as such, once again request you to kindly reconsider my case and arrange to change the allocation from sarita vihar to vasant kunj at your earliest. as stated earlier, i am prepared to accept category iii or ii type of dda flats.'(8) this request was again turned down on 13th october,1988 by the d.d.a. on the ground that neither the flat can be changed nor the colony nor pocket could be changed. reading of these letters written by petitioner show he was more interested in change of colony from sarita vihar to vasant kunj. his preference of vasant kunj was because it was convenient to him and his school going children. the convenience cannot be equated with suitability nor the question of suitability depend on a whim, desire or intention of the tenant. his desire for change of locality of sarita vihar to vasant kunj as given out in his letters dated 20th january,1986 and followed by 24th june,1988 show he preferred and desired to be in vasant kunj. it cannot be said that the accommodation is unsuitable because it is not to his liking. moreover, possession has already been taken by him on 12th january,1990 and till date possession is with him though almost 8th year is going. he has not surrendered the possession back to d.d.a. hence even if we take the question of suitability still in the facts of this case petitioner has no case.(9) these facts have been taken note of because these have been urged by the counsel in this revision petition. had the flat not been suitable, he would not have taken possession in january,1990 or would have surrendered it back to d.d.a.(10) thus suitability does not depend on his whim, wish or desire to have a house in vasant kunj. having applied for a self-financing house of the d.d.a. where houses are allotted on the basis of draw of lots. petitioner cannot as of right ask for a particular floor or the locality. thereforee, the fact that he has asked for change of locality and floor cannot be ground to not to pass an order of eviction. supreme court in the case of ganpat ram (supra) clearly spell out that if once the condition stipulated in clause (h) is fulfillled by the tenant, he will be disentitled to protection under the act nor could claim thereafter that he should be protected. in the case in hand petitioner having got possession of a vacant premises, it has disentitled him to the protection of the act. it makes no difference whether he has or has not in fact shifted to that flat. in the case of india cable co.ltd. v. prem chandra 1989(2) rcr page 127 court opined that it does not matter whether the premises are used by the tenant as actual residence or does not at all use either or both of them. to my mind, acquiring of vacant possession of d.d.a. flat was a sufficient ground to pass a decree of eviction against him under section 14(1)(h) of the act. i find no infirmity in the impugned order nor any ground made out to interfere with the same. the petition is accordingly dismissed.