Kamla Marwah v. M/s. Kapur Fabrics

Santosh Duggal, J.

1. The appellant, who is owner/landlady of the demised premises, comprising of drawing-cum-dining room, two bed rooms with attached toilets, kitchen, garage on the ground floor, bed room with attached toilet and servant room above garage on the first floor, built on plot No. D-29, Defence Colony, New Delhi, had sought eviction of the respondent No. 1/tenant by invoking the provisions of Clauses (c), (d), (h) and (k) of the proviso the Section 14 (1) of the Delhi Rent Control Act, 1958 (for short the). As per averments in the eviction petition, the tenancy premises formed part of a residential house, and had been let to the respondent for residential purposes, but no one was residing in the premises and further that the tenant had acquired vacant possession of a quarter for residence, and had converted the letting purpose of residential into commercial, by using the demised premises as a show-room of furnishing fabrics and boutique, without prior and written consent of the landlady, and that this user was otherwise detrimental to the interest of the landlady as she had received notices from D.D.A., threatening action under Section 29 of the Delhi Development Act and the Land and Development Office also threatened to levy penalty for converting the user, and the Municipal Corporation had threatened to levy additional house tax. Besides, it was alleged that the premises were let to the tenant for residence of one Ashok Kapur, but neither the tenant nor any member of his family was residing, and the tenant had otherwise also acquired vacant possession of another premises. On the basis of these allegations, the appellant sought eviction on the grounds covered by Clauses (c), (d), and (h) of the proviso to Section 14(1) of the. She further alleged that notwithstanding previous notice, the tenant had dealt with the premises in a manner contrary to the conditions imposed on the landlady by the Government of India, through Land and Development Office, (L and DO for short), who are the lessor, in respect of leasehold rights of the land, on which the house was built, and further that the user was in contravention of the provisions of the Delhi Development Act, thus rendering the tenant liable to eviction under Clause (k) of proviso to Section 14 (1) of the.

2. The stand taken by the respondent was of denial of the allegations that the premises were let out for residential purposes. It was asserted on the other hand that the letting was for commercial purposes, and the demised premises were being used from the inception of the tenancy as such, and in face of this the landlady could not seek eviction by invoking Clauses (c), (d) and (h), which postulate letting for residential purpose.

3. Insofar as the ground covered by Clause (k) was concerned, the plea was that of complete denial of receipt of any notice from the superior lessor of the landlady for stopping the misuser or conversion of the user; and consequently this ground also being not available.

4. The Addl. Rent Controller on a reading of the lease deed between the parties dated 1.8.1969 (Ex. AW5/2), came to the conclusion that by virtue of Clause 18 of the said lease deed, there was a permission from the landlady to the tenant to utilise the premises, in cases he so wanted, wholly or partially, for office purposes, and that the only stipulation was that the tenant shall have to get permission from the Government, and shall also be liable to pay any penalty that might be levied by local or governmental authorities. According to the Addl. Rent Controller this overrode the earlier Clause 9 which reads as under:

That the lessee use the premises for his residence only.

5. He, therefore, upheld the plea of the tenant that the ground covered by Clauses (c), (d) and (h) were not available.

6. Insofar as the ground covered by Clause (k) was concerned, the Addl. Rent Controller thought it fit to issue notice to the L and DO in view of the provisions of Section 14 (11) of theto ascertain as to whether the paramount land owner was ready to condone the conversion of user, and if so, on what terms. Pursuant to the statement given by an officer of the said office in Court, appearing as CW-1, on 3.4.1975, to the effect that temporary regularisation of the misuser could be condoned on payment of damages and that the department fixes rates of such damages from time-to-time, it was held that provisions of Section 14 (11) of thewould be attracted, so long the lessor was willing to condone the misuser by levy of damages, which should be borne by the tenant. Since however the official had added, in reply to a question from the appellants Counsel that the department was not willing to condone the misuser permanently, it was held that an order of eviction under Section 14 (1) (k) of thewas being passed, but if the respondent/tenant deposited the entire penalty amount levied by that date, which had already been paid by the appellant, within two months of the date of the order, and also kept on paying the penalty so long temporary conversion of the misuser was allowed by the concerned authority, the order of eviction, shall remain in abeyance, adding that as soon as the lessor of the landlady stopped accepting the penalty, the respondent must stop the misuser within two months of that date, and start using the property for residence only, failing which the order of eviction shall become executable.

7. On appeal by the landlady, the Rent Control Tribunal upheld the findings of the Addl. Rent Controller to the effect that on proper construction of the relevant clauses of the lease deed, the letting purpose could not be said to be solely for residential purposes, and as such, the Addl. Rent Controller had rightly held the grounds covered by Clauses (c) (d) and (h) to be not available. In view of the statement of the official of the Land and Development Office, the course adopted by the Addl. Rent Controller in passing the eviction order under Clause (k) was also endorsed, further adding that as and when a decision was taken, not to further regularise the breach of the terms of the lease, granted by that office, the tenant shall stop the misuser within one month of the service of notice by the landlord, bringing to his notice that the L and DO had refused to condone the misuser, and in case the tenant failed to stop the misuser within that period, the eviction order shall become executable forthwith.

8. In this second appeal, the first question raised on behalf of the appellant is as to the construction of the relevant clauses of the lease deed with a view to assail the findings of the two Courts below; to the effect that the letting purpose was not exclusively residential. At the outset, Mr. Jaitley appearing for the respondent raised an objection that the lease deed, (Ex. AW5/2), being for a period of three years required registration and not being so registered, could not be treated as a document of title, the contention being that construction of such a document could not be treated to be a question of law, much less a substantial question of law, that could be raised in second appeal, in face of concurrent finding of the two Courts below.

9. Mr. Kataria appearing for the appellant met this contention by arguing that the question of interpretation or true construction of a document, on which the parties base their claim, or from which the right of the parties flow also becomes a question of law. He placed reliance, in support of this contention, on a Supreme Court judgment, reported as (1964) 5 SCR 905 [LQ/SC/1963/290] , Bhusawal Borough Municipality v. Amalgamated Electricity Co. Ltd. where even interpretation of the term of letters of exchanged was held to be a question of law for the reason that one party thereto had based the entire claim on a reading of the communication on the subject, received from the government. According to the learned Counsel, this judgment applies on all fours to the present case because here also the respondent was relying on Clause 18 of the lease deed, Ex. AW5/2, but for reference to which and construction thereof, the respondent had no case to meet the grounds taken up by the appellant for seeking eviction under Clauses (c), (d) and (h).

10. I agree, for the reason that the appellant has been non-suited on these grounds only because Courts upheld the contention of the respondent that the tenancy was not solely for residential purposes, on a reading of Clause 18 of the lease deed, relied upon by him. That being so, it is apparently a case where rights of the parties rest on a correct reading of Clauses 9 and 18, which Mr. Jaitley did not dispute, could be read for collateral purposes.

11. In face of the enunciation of law by the Supreme Court, in the case of Bhulawal Borough Municipality (supra), I do not think that the objection raised by Mr. Jaitley is tenable. The facts of the case in the Supreme Court authority cited by him, namely, AIR 1963 SC 884 [LQ/SC/1962/171] , Nedunuri Kameswaramma v. Sampati Subba Rao, were entirely different, and even there it was held that:

A construction of documents (unless they are documents of title) produced by the parties to prove a question of fact does not involve an issue of law, but it can be so if it was shown that the material evidence contained in them was misunderstood by the Courts of fact. The legal inference from the proved facts will raise a question of law.

(emphasis added).

The decision of the Patna High Court in the case reported as AIR 1976 Patna 332, Chela Meri and Another v. Mohammad Abul Khair Khaj and Others merely reiterated the principle laid down by the Supreme Court in Nedunuri Kameswaramma s case (supra).

12. I find, however, the question to be wholly academic, in face of the view I propose to take on a cumulative reading of Clauses 9 and 18 of lease deed Ex. AW5/2. I have gone into this question, for the reason that I find substance in Mr. Katarias contention that construction of this document becomes a question of law for the reason that both the parties are basing their claim on these clauses, and that rights flow therefrom.

I have accordingly given my thought first to this question, and I am of my considered view that the concurrent findings of the Courts below on this count, cannot be faulted with.

13. It is true that normally in case of inconsistent clauses in a document, the latter may be in given cases, ignored, but in the present case, the question is not of inconsistency but that of harmonious construction or reconciliation. It is pertinent to note that the tenant in this case is not an individual but a firm or a company known as M/s. Kapur Fabrics. That being so, the contention of the landlady that the letting was only for residential purposes, could be upheld if there was no subsequent clause to mitigate the effect of earlier clause laying down that: the tenant use the premises for residence only. The implication of Clause 18 has been rightly construed by the lower authorities, because the effect is that insofar as the landlady was concerned, there was no objection if the tenant used the demised premises wholly or partly for office purposes, the only stipulation being that necessary permission from the Government was taken by the tenant, and that whatever penalties or additional liabilities by way of ground rent etc. were imposed, those shall be borne by the tenant. In face of this I am satisfied that there has been no misconstruction of the document. It has been rightly held that the letting purpose was not exclusively residential. That being so, the grounds covered by Clauses (c), (d) and (h) ceased to be available to the landlady.

14. Insofar as the ground covered by Clause (k) is concerned, there is admittedly conversion of user of the premises, because in the written statement, not only there is no denial that premises were being used for commercial purposes, but rather the assertion was that the letting purpose was commercial, and that the premises were being used as such from the inception of tenancy. It is thus a case of admitted user of the property for commercial purposes.

15. The question that arises is what course should be adopted in such an event. The lease by the paramount title holder, namely, the President of India, through L and DO specifically stipulates that the property built on the plot which was the subject matter of the lease, would be only a residential house. This is very clearly borne out from a reading of Clause 1 (vii) of the lease executed by the President of India in favour of Wg. Cdr. K.C. Ahuja, brought on record as Ex. A-2. There is no dispute about the fact that the appellant had purchased this property from the said lessee by means of a sale deed and there has been a mutation in favour of the appellant by letter dated 30.5.1970 (Ex. AW5/3). As such, she is bound by the terms and conditions of the lease deed including Clause 1 (vii) thereof, which reads as under:

(vii) not to use the said land and buildings that may be erected thereon during the said term for any purpose other than the purpose of constructing a house without the previous consent in writing of an officer appointed by the Lessor in this behalf. Provided that lease shall become void if the land is used for any purpose other than that for which the lease is granted not being a purpose subsequently approved by the said officer.

16. There is no denial of the fact, as already recorded, that the premises have been used for a purpose other than residential by the respondent. There is thus contravention of the provisions of the aforesaid conditions. The landlady except for the initial act of giving consent to the tenant for using the tenancy premises for office purposes also, wholly nor partly, is otherwise not responsible for conversion of this user, or for misuser. It is also on record that she has received notice not only from DDA under Section 29 of the Delhi Development Act, but also from the Land and Development office firstly in May, 1970 (A-3) and then again in February, 1971 (A-4) whereby the ground rent sent by her was returned on the ground that there was misuser in the premises, which was tantamount to contravention of Clause 1 (vii) of the lease deed, and that terms for proposed action were being drawn up and shall be communicated in due course. There is also a finding of fact which has not been controverted that the landlady served the respondent with a notice to stop the misuser, soon after receipt of the notice from DDA under Section 29 of the Delhi Development Act, as also from the Land Development Office, taking note of the misuser and declining to receive the ground rent, threatening further action. It is also on record that inspite of this, the tenant has not stopped the misuser.

17. It is thus a situation where the conditions of Clause (k) are satisfied became the tenant has, notwithstanding previous notice, used and has persisted in using the premises in a manner contrary to the conditions imposed on the landlady by the government, besides violation of the Master Plan/Zonal Plan formulated by the DDA. It would thus be a case where an eviction order could passed straightaway but for the provisions of Clause 11 of Section 14 of the Act, which need to be reconciled.

Mr. Kataria placed reliance on two judgments of this Court, one in the case reported as 1984 (1) Rent Control Reporter 671, [LQ/DelHC/1983/402] Dajlit Singh Madan v. Surinder Kumar and Others and the other in the case reported as 17 (1980) Delhi Law Times 552, [LQ/DelHC/1980/146] Prithvi Raj, Nirmal Multani, holding that there was no inflexible rule that the tenant must never be evicted in case of misuse of property simply because the landlord was to be blamed for improper induction of the tenant in the premises. The learned Judge expressed a very firm view that past breaches could be condoned on payment by the tenant of a sum equivalent to the damages or penalty imposed by the concerned authority, and to that extent, for past misuser the tenant may not be liable for eviction, but keeping in view the public purpose behind enactment of Clause (k) that there should not be any conversion or user of a property taken on lease by individuals from the government, in violation of terms of such leases, and that such unauthorised user must stop at some point of time, and that as soon as the superior lessor takes up the position that the conversion or misuser cannot be condoned permanently, and that what was being allowed was only temporary regularisation, the tenant must forthwith stop such misuser in future, and his act of continuing with the same, shall entail his eviction from the tenancy premises, under Clause (k) of the proviso to Section 14 (1).

18. Mr. Jaitley on the other hand placed reliance on a judgment of a learned Single Judge of this Court in the case reported as 31 (1987) Delhi law Times 261, [LQ/DelHC/1987/310] Behari Lal v. Dr. Kundan Lal, wherein it was held that so long as the Land and Development Office was prepared to condone the misuser on payment of charges or penalty, the eviction order could be held in abeyance, so long as the penalty was continued to be paid for deviation of user. It was, however, held that as soon as the L and DO was not prepared to condone the breaches or misuser, the tenant must stop the misuser finally, and suffer an eviction, order in the event of defiance.

19. The learned Counsel argued that in the present case also, the statement given by the official from the Land Development Office made it clear that they were willing to temporarily regularise the misuser, and that although it was stated that there could not be any permanent condonation, the only effect would be that as and when the authorities took a decision not to condone the misuser any further, the eviction order under Clause (k) could take effect, and that the view taken, and course adopted, by the two Courts below was appropriate one, and no case for interference was made out, as the facts are more akin to the facts of the case of Behari Lal (supra), where also the official from Land and Development office did not say firmly that the competent authority was not prepared to condone misuser permanently, and that it must stop forthwith, unlike the stand taken both in the case of Daljit Singh Madan and Prithvi Raj (supra), as all that was stated by the official of Land and Development Office in reply to a question from the landlady was that the condonation was not permanent but no more.

20. It is, however, pertinent to note that the conversion of user, in this case commenced from the inception of the tenancy which took place in 1969, and has continued upto the year 1992, that is for a long period of more than twenty years, and during all this period, no firm or final notice has been given by the L&DO requiring stoppage of the misuser or deviation in user. It is also to be borne in mind that the landlady built the house for residential purposes. To that extent there is no contravention by her of the terms of the lease, while constructing the property on the leasehold plot. As soon as she received notice from the L and DO, she called upon the tenant to stop the misuser, there by rectifying the initial lapse committed by her, in agreeing to the tenant using the property for office purposes also. The tenant has ignored such notices. It is a case of brazen misuser of the premises in violation of the terms of the lease deed of a property, built basically as a residential house. The question is can Clause (k) be allowed to be rendered nugatory or made a mockery of

21. This Court has to address itself to this question as there can be cases where tenant is able to wangle, as seems to have been done in the present case, and manipulate that the concerned authority does not take any final action, and continue with temporary regularistation. The landlady had at no stage applied to the L&DO for permission to convert the user which means that she has no intention, at all, to have any user of the property different than contemplated by Clause 1, (vii) of the lease deed. The question that arises is, can the landlord/ owner of the premises be deprived of the legitimate and permitted user of the premises, merely because at one point of time a tenant was inducted, and permission given, wittingly or unwittingly, of user for office purposes, and despite the fact that she now wants such misuser to be stopped. This she is entitled to enforce despite, her initial consent as there can be no estoppel against the Statute.

22. In my view, the continued benefit of the provisions of Section 14 (11) of the tenant would rather result in the Courts putting a premium on tenants continued recalcitrance, and may be tantamount to being privy to the misuser. The Court cannot be a mute spectator in such a situation, and bestow upon the tenant a status of tenancy in perpetuity, and convert his act of misfeasance into an advantage for him, by permitting him to continue with the misuser on payment of regularisation charges levied on temporary basis, for years without end. As present is a case where but for misuser on the part of the tenant, the landlady could have succeeded in getting vacant possession of premises on grounds covered by Clauses (c), (d) or (h), as the respondent has admitted that he was not residing in the premises, which could lead to the inference that he had acquired vacant possession of some other premises for his residence.

23. This has to be suitably examined in a proper case. So far as the present case is concerned, in view of the fact that so far L and DO has not given any firm notice for stoppage of misuser of threat or re-entry, as was the case in the cases of Daljit Singh Madan and Prithvi Raj (supra), the orders passed by the Addl. Rent Controller and confirmed by the Tribunal cannot be faulted with, but it is a fit case that while confirming the orders for the past misuser, the case is remitted to the Rent Control Tribunal for issue of a fresh notice to the L and DO to state the position clearly, as to whether the said office was contemplating any action of re-entry in face of continued misuser or whether they are willing to condone it for all time to come, rather than on year to year basis, as in the past. In the event of a firm stand conveyed by the L and DO no more benefit of Section 14 (11) of theshould be accorded to the respondent, and they should be called upon to stop forthwith the misuser or suffer ejectment, order of eviction becoming executable forthwith, after the expiry of a given time, on tenants failure to stop the misuser.

24. With these directions, the appeal is disposed of. The parties to appear before the concerned Rent Control Tribunal, personally or through Counsel, for further proceedings in terms of this order on 11th November, 1992 when notice shall be issued to the Land and Development Office to state the position firmly and finally, and appropriate orders shall be passed in the light of the directions given above.