SHRI MUNSHI RAM AND ANR.versusUNION OF INDIA AND ORS.

                      SHRI MUNSHI RAM AND ANR.                                     A
                                  v.
                       UNION OF INDIA AND ORS.

                              AUGUST 10, 2000

   [SYED SHAH MOHAMMED QUADRI AND Y.K. SABHARWAL, JJ.]                             B

      Delhi Rent Control Act, 1958 :

       S.14( l)(k)-Misuser of premises by tenant-Eviction of-Land leased
out on condition that land and building constructed on it should not be used for
other than residential purpose-Tenant running a shop in the premises-
                                                                                   c
Petition by landlord for eviction of tenant-Notice by Delhi Development
Authority to landlord stating that premises being used for commercial purpose
contrary to terms of lease, the lease deed has become void and lessor got rig hr
to re-enter-Additional Rent Controller directing tenants to pay misuser charges,
and to stop .further misuser failing which order of eviction would be deemed to    D
h~ve been passed against them-Held, in view of misuser ofpremises and DDA
insisting to act upon the notice, DDA cannot be directed to permit continued
misuser contrary to tem1s of lease-Delhi Development Act, 1957-Ss. 7 and 8.

      Respondent no. 3 purchased the suit premises which form part of a
building constructed on the land given on perpetual lease by the Delhi             E
Improvement Trust, the predecessor of the Delhi Development Authority,
respondent no.2, to the original lessor with the condition that the lessee
should. not use the said land and building that might be erected thereon
during the term of the lease for any other purpose than for the purpose of
residential house without the consent of the lessor.                               F
      In 1974, respomlent no. 3 filed a petition under s.14(1) (k) of the
Delhi Rent Control Act, 1958 seeking eviction of the appellants, who were
tenants in suit premises and were running a shop therein. On 4.1.1982, the
DDA issued a notice to respondent no. 3 stating that the said premises were
being used for commercial-cum-residential purposes, which was contrary             G
to the terms of the lease and, therefore, the lease became void and the
lessor got the right to re-enter after cancellation of lease. The notice
further stated that the lease had been cancelled by the DDA on 23.12.1981
for breach of clause l(VI) and it would take possession of the land and the
building. Ultimately the Additional Rent Controller passed an order on             H
                                      377
    378                  SUPREME COURT REPORTS             [2000] SUPP. 2 S.C.R.

A   6.9.1988 directing the appellants to pay within two months the past mis-
    user charges to respondent no. 3 for being deposited with the DDA, to pay
    further compensation/charges to DDA as may be demanded by it and to
    stop misuser of the premises. The order further stated that in the event of
    non-compliance with the directions, the order of eviction under s.14(1)(k)
    of the Act would be deemed to have been passed against the appellants.
B
    The order was upheld by the Rent Control Tribunal as also by the High
    Court. Aggrieved, the tenants filed the present appeal.

            Dismissing the appeal, this Court

           HELD : There has been misuser of the premises in breach of Clause
c   l(VI) of the terms of the lease. The ground of eviction is Clause (k) of
    s.14(1) of the Delhi Rent Control Act, 1958. The unauthorised user would
    give the paramount lessor the right to re-enter after cancellation of the
    lease deed. The Delhi Development Authority has been insisting to act
    upon the notice dated 4.1.1982 issued to respondent no. 3. The stand of the
D   DDA is that after due payment for past misuser, the lessee is bound to
    discontinue the misuse in future. It cannot be said that despite contraven-
    tion of the lease, the paramount lessor is debarred from exercising its
    rights under the terms of the lease for absence of providing a user under
    s.7 of the Delhi Development Act, 1957 in the master plan or under s.8 in
E   the zonal development plan. The DDA cannot be directed to permit contin-
    ued misuser contrary to the terms of the lease on the ground that zonal
    development plan of the area has not been framed. However, the appel-
    lants are granted two months time to comply with the order of the Addi-
    tional Rent Controller. [381-B-C; 383-C; F; G]

F           Dr. K. Madan v. Krishnawati (Smt.) and Anr., [1996] 6 SCC 707, relied
    on.

            Narain Das v. Manohar Lal & Anr., [1988] Sup. SCC 432, held inappli-
    cable

G           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3095 of 1990.

          From the Judgment and Order dated 9.2.90 of the Delhi High Court in
    C.W.P. No. 3260 of 1989.

          K.N. Rawal, Additional Solicitor General, D.D. Thakur, A.B. Rohatgi,
H   Vijay Prakash, Siddharth Choudhary, Rajeev Sharma, T.N. Bhat, B.K. Punj,
                MUNSHI RAM'" U.O.L [YK. SABHARWAL, J.]                       379
B.K. Sharma, S.B. Kumar, J.M. Khanna, V.B. Saharya, S.W.A. Qadri, S.N.               A
Terdol and Ms. Sushma Suri for the appearing parties.

      The judgment of the Court was delivered by

      Y.K. SABHARWAL, J. The appellants are tenants. The tenanted premises
are situate in Karol Bagh Area, Delhi. The landlord is respondent no.3 whereas       B
Union of India and the Delhi Development Authority (for short 'DDA') are
respondents 1 and 2 respectively.

       The tenanted premises are part of building constructed on the land leased
to the original lessee by Delhi Improvement Trust. The DDA succeeded the
said Trust. The perpetual lease, inter alia, provides that the lessee will not use   C
the land and building that may be erected thereon during the terms of the lease
for any other purpose than for the purpose of residential house without the
consent in writing of the lessor. Admittedly the premises are being used by the
appellants for commercial purposes.

       By notice dated 4th January, 1982 issued by DDA, respondent no.3 was          D
informed that the premises were being used for the purpose of commercial-
cum-residential which is contrary to the terms of the lease and the lease has
become void and the lessor has right to re-enter after cancellation of lease. It
was further stated in the said notice that the lease has been cancelled by DDA
on 23rd December, 198 l for breach of Clause I(VI) and the possession of the         E
plot together with the building and the fixtures standing thereon will be taken
over by DDA. In a suit filed by respondent no.3 against DDA for grant of
permanent injunction, interim injunction was granted by civil court inter alia
noticing in the order that the owner had instituted eviction proceedings as far
back as in 1974 against the tenants who were running their shops even at the
time of the purchase of premises in question by the owner from its erstwhile         F
owner.

       In 1974, respondent no.3 instituted eviction petitions against the appel-
lants seeking their eviction under clause (k) of proviso to sub-section (1) of
Section 14 of the Delhi Rent Control Act, 1958 (for short 'the Act'). The said
clause stipulates an order of eviction being passed against the tenant who has,
                                                                                     G
notwithstanding previous notice, 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. The tenant
cannot resist his eviction when sought under Section 14(1 )(k) of the Act merely     H
    380                  SUPREME COURT REPORTS                (2000] SUPP. 2 S.C.R.

A   on the ground that the landlord had himself let out the premises for commercial
    use (Faqir Chand v. Shri Ram Rattan Bhanot, [ 1973] 1 SCC 572). Under sub-
    section (11) of Section 14 of the Act, before an order for recovery of possession
    of any premises on the grounds specified in clause (k) of the proviso to sub-
    section (1) of the said section is made, the Controller is required to give to the
    tenant time to comply with the conditions imposed on the landlord by any of
B
    the authorities referred to in clause (k) or pays to that authority such amount
    by way of compensation as the Controller may direct.

          The Additional Rent Controller by order dated 6th September, 1988 after
    coming to the conclusion that the ODA is not interested in permitting the
c   misuse permanently or even temporarily and has threatened to re-enter the
    premises, directed the appellants to pay within two months the past mis-user
    charges to respondent no.3 for being deposited with the ODA. The appellants
    were also directed to pay further compensation/charges as may be demanded
    by DOA in this regard. The appellants were directed to stop mis-user of the
    premises within two months from the date of the order and in the event of non-
D   compliance of any of these conditions, it was directed that the order of eviction
    under Section 14(l)(k) of the Act shall be deemed to have been passed against
    the appellants for their eviction from the premises in question. This conditional
    order of eviction has been upheld by the Rent Control Tribunal in appeal as
    also by the High Court.
E
           Challenging the aforesaid orders, Mr.D.D.Thakur submits that since the
    appellants are prepared to pay such amount of penalty as compensation as may
    be determined by the Controller to be payable to DOA till the matter of
    regularisation of user is finally decided by the said authority, the case be
    remanded to the Rent Controller for such a determination. Learned counsel
F   places strong reliance on the decision in the case of Narain Das v. Manohar
    Lal & Am:, [ 1988] Supp. SCC 432. In the said case, an order of eviction passed
    under Section 14( I )(k) was set aside by this Court and the case was remitted
    to the Controller to determine the quantum of penalty payable to the ODA for
    the purpose of wrong user of property by changing it from residential to
G   commercial purpose and directing that the tenant will bear the burden of
    penalty as may be determined. The said decision has no applicability to the          ·-
    facts of the present case since in that case the DOA did not press the notice
    for cancellation of the lease and for this reason the case was remitted to the
    Controller for determining the penalty. In view of resolution of the DOA, a
    statement was made on its behalf in that case that the lease would not be
H   cancelled pursuant to the notice which had been sent to the owner. Under these
                MUNSHI RAM v. U.0.1. [Y.K. SABHARWAL, J.]                    381
circumstances, in the relied upon decision there was no threat of cancellation       A
of the lease which is a pre-condition for an order of eviction under clau>c (k)
of proviso to sub-section (I) of Section 14 of the Act. The Court made it clear
that in the event of fresh notice being issued by DOA to the landlord for
cancellation of the lease in his favour, the landlord would be free to take action
against the tenant in accordance with law and the decision of this Court shall
                                                                                     B
not operate as a bar to such proceedings. Unlike the facts of the relied upon
case, in the present case the DOA has been insisting to act upon the notice dated
4th January, 1982 sent to respondent no.3. That has been the clear stand of
ODA in proceedin6S before the Additional Rent Controller. The Secretary of
the ODA to the same effect has filed an affidavit in this Court as well. The stand
of the ODA is that after due payment for past misuser, the lessee is bound to        c
discontinue the misuse in future. A statement showing action taken by DOA
against misuser of premises in the vicinity of the premises in question has also
been filed. Mr. Kirti Rawal, learned Addi.Solicitor General appearing for DOA
submits that the DOA is not contemplating to regularise the misuser and in case
the misuser is not stopped, the ODA will act upon the notice and re-enter the        D
premises. In this state of affairs, the decision in Narain Das case (supra) can
be of no assistance to the appellants.

        Next, Mr.Thakur relies upon (i) the order dated 3rd January, 1983 passed
by Lt.Governor of Delhi inter alia stating that the issue of notices and further
action under misuser clause in the various areas of Delhi may be suspended till      E
the matter has been reviewed at a high level or in the next meeting of ODA;
(ii) the affidavit of the Secretary of Delhi Development Authority of February,
1 983 filed in the High Court of Delhi in another case in a second appeal inter

alia stating that the further show cause notice has been suspended for the time
being and even the prosecution for the misuse has been suspended for the time
being as per the order of the Lt.Governor as there is a likelihood of permission
                                                                                     F
being granted for commercialisation of the area in accordance of the provisions
of the master plan/zonal plan after charging certain dues, and (iii) to a some-
what similar statement as in (ii) given in another case by the Commissioner
(Land), ODA. Reliance on these documents is wholly misplaced for more than
one reason. Firstly, these documents pertain to 1980s whereas in the present         G
case the Commissioner (Land Disposal), DOA has filed an affidavit even in
September, 1998 inter alia stating that though a scheme dated 12/17 Septem-
ber, 1996 has been forwarded by DOA to the Ministry of Urban Affairs and
Employment for approval of the Government of India for promotion of Karol
Bagh area as special area and for promotion of commercial use on ground floor
                                                                                     H
    382                  SUPRE.\1E COURT REPORTS              [2000] SUPP. 2 S.C.R.

A   on the basis of location but the examination of the plan of the premises in
    question shows that the disputed area falls outside the area of the scheme which
    is under consideration with DOA and the Union of India. In nutshell, the
    affidavit is that in respect of the area in question there is no proposal under
    consideration lo allow commercial user. Secondly, we do not have the facts of
    cases in which the abovenoted affidavit was filed by the Secretary of ODA or
B
    statement was given by Commissioner (Land Disposal), ODA. Thirdly, we are
    considering not a violation of master or zonal plan but breach of a term of lease,
    which paramount lessor is unwilling to condone. In the present case, it is not
    necessary to decide as to the effect of the proposal sent by DOA to Central
    Government to allow commercial user since the ground of eviction is clause
C   (k) as aforesaid where the question is about breach of a term of lease and the
    lessor has declined to regularise the misuser for future. Learned Additional
    Solicitor General submits that the DOA is not only serious in pursuing the
    action taken by it on account of misuser but it is duty bound to do so.

           Mr. Thakur also referred to the provisions of the Delhi Development Act,
D   1957 (for short 'the DD Act') to contend that plans thereunder have not
    specified any particular use of the area where the building is situate. Chapter
    III of the DD Act deals with Master Plan and Zonal Development Plans.
    Section 7 provides for the DDA to carry out a civic survey and prepare a master
    plan for Delhi. Section 8 provides for preparation of a Zonal Development Plan
E   for each of the zones into which Delhi may be divided and also refers as to
    what aspects may be contained in the said Plan. The land use is one such aspect.
    Mr. Thakur contends that neither the master plan for the year 1990-2001 shows
    that the permissible user of the area in question is only residential nor zonal
    development plan under Section 8 of the DD Act has been framed providing
    for only residential use. Reference has also been made to Section 14 which
F
    inter a/ia provides that after the coming into operation of any of the plans in      <
    a zone, no person shall use or permit to be used any land or building in that
    zone otherwise than in conformity with such plan. The proviso to the said
    section stipulates that it shall be lawful to continue to use upon such terms and
    conditions as may be prescribed by regulations, any land or building for the
G   purpose and to the extent for and to which it is being used on the date on which
    such plan comes into force. Section 57(1)(!) stipulates making of regulations
    to provide for terms and conditions subject to which user of lands and buildings
    in contravention of plans may be continued. Learned counsel contends that the
    impugned eviction orders deserve to be set aside as even regulations under
H   Section 57(1)(!) have not been framed by DDA providing for terms and
                MUNSHI RAM v. U.0.1. [Y.K. SABHARWAL, J.]                    383
conditions on which continued user in contravention of plans may be permit-          A
ted. None of the aforesaid provisions have any applicability to the present case.
We are not concerned with the contravention as postulated by Section 14 of
th~ DD Act. The question whether master plan and/or zonal plans provide or
not for any use is not relevant for this matter. As already noted, we are
concerned with the breach of the terms of the lease. It is not in dispute that the
                                                                                     B
commercial use is contrary to the use permissible under the lease. The para-
mount lessor has taken action to terminate the lease for contravention of the
terms thereof. It cannot be held that despite contravention of the lease, the
paramount lessor is debarred for exercising its rights under the terms of the
lease for absence of providing a user under Section 7 in the master plan or
under Secti11n 8 in the Zonal Development Plan.                                      c
       In Dr. K. Madan v. Krishnawati (Smt.) and Anr., [1996] 6 SCC 707, this
Court has held that where the premises are used in a manner contrary to any
condition imposed on the landlord by the Government or the Delhi Develop-
ment Authority or Municipal Corporation of Delhi, then the landlord will be
entitled to recovery of possession under Section 14(l)(k) of the Act and that        D
sub-section (11) of Section 14 of the Act enables the Controller to give another
opportunity to the tenant to avoid an order of eviction. The first opportunity
to the tenant is given when the notice is served on him by the landlord and the
second opportunity is given when an conditional order under Section 14(11)
of the Act is passed directing the tenant to pay the amount by way of compen-        E
sation for regularisation of user up to the date of stopping the misuser and
further directing stoppage of unauthorised user. The continued unauthorised
user would give the paramount lessor the right to re- enter after the cancellation
of the lease deed. As already noticed, the DOA is insisting on stoppage of
misuser. The misuser is contrary to the terms of lease. The DOA cannot be
                                                                                     F
directed to permit continued misuser contrary to the t'erms of the lease on the
ground that zonal development plan of the area has not been framed.

      For the aforesaid reasons, we find no merit in the appeal and It IS
accordingly dismissed. We, however, grant to the appellants two months time
to comply with the order of the Additional Rent Controller dated 6th Septem-         G
ber, 1988. There will be no order as to the costs.

R.P.                                                          Appeal dismissed.