Mohd Zakir & Ors. v. Chandu Lal

1. Notice in this Application was issued by this Court on 05.12.2024 when the Petitioner was directed to file Reply within three weeks. No Reply has been filed by the Petitioners/tenants till today.

2. Learned Counsel appearing on behalf of the Petitioners/tenants requests for some additional time to file the Reply.

3. Learned Counsel appearing on behalf of the Respondent/landlord objects to the grant of additional time. He submits that after an interim protection was granted to the Petitioners/tenants on 01.04.2016 and thereafter was confirmed till the disposal of the present Petition by a Coordinate Bench of this Court on 20.04.2017, no user and occupation charges are being paid by the Petitioners/tenants.

4. Learned Counsel appearing on behalf of the Respondent/landlord submits that the premises is one shop on the ground floor in property no. D- 137, Gulmohar Park Road, Gautam Nagar, New Delhi [hereinafter referred to as “subject premises”] having an area of 9 ft x 18 ft [162 sq. ft.]. He, while relying on the photographs of the subject premises, submits that the subject premises are being used as a butcher shop called as “Bhai Sahab Halal Meat Shop”. He further submits that the subject premises is located within a commercial market. 4.[1] Learned Counsel appearing on behalf of the Respondent/landlord further seeks to rely upon a lease deed dated 01.12.2022, which is a lease deed for another shop in the same set of shops i.e., Property No. D-137, Ground Floor, Gautam Nagar, New Delhi, to submit that the rental for the said shop is Rs. 30,000/- per month. He submits that, in his Application, the Respondent/landlord has stated on Affidavit [paragraph 3 of the Application], that the area of the said shop is 19 ft x 11 ft which is approximately 209 sq. ft. Thus, relying on the lease deed dated 01.12.2022, it is the contention of the learned Counsel for the Respondent/landlord that the pro rata rent for the subject premises would come to approximately Rs. 23,247/- per month. It is further contended that the wide road in front of the subject premises makes it easily accessible, which is an added advantage for a trader.

5. Learned Counsel for the Respondent/landlord, on instructions, affirms that the subject premises is a shop on the ground floor and is being run by the Petitioner/tenant called Bhai Sahab Halal Meat Shop. It is also not disputed that the subject premises is located in a commercial market of Gautam Nagar which is adjacent to affluent South Delhi colonies of Niti Bagh and Gulmohar Park.

6. The only contention raised by the learned Counsel for the Petitioner/tenant is that the Petitioner/tenant has filed an SLP against an order previously passed by this Court and that the matter should be adjourned awaiting the outcome of the SLP. Concededly, however the SLP has yet not been listed before the Court.

7. In matters wherein a tenant endeavours to seek a stay on an eviction order, it is deemed equitable, and reasonable that said tenant be directed by the High Court to provide compensation to the landlord. This compensation serves to counter potential adverse effects suffered by the landlord due to the delay or suspension of the eviction order. This view is articulated by Supreme Court in Martin & Harris Private Limited and Another v. Rajendra Mehta and Others[1] while relying on the Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd.[2] case and reads as follows:

7.[1] The Supreme Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd.3, has laid down that once an order for eviction has been passed against a tenant and the tenant continues in possession of the tenanted premises, such tenant is required to pay use and occupation charges to the landlord at the market rate applicable to “like” premises situated in the vicinity, until the disposal of the Petition impugning such order of eviction. 7.[2] It has further been held in the Atma Ram case that this interim compensation is granted based on the discretion of Court in its judicial wisdom, to offset the detrimental effects of prolonged litigation on landlord. The relevant extract reads as follows:

7.[3] A similar view has been taken by the Supreme Court in the cases of State of Maharashtra and Anr. v. Super Max International Private Limited and Ors.4; Sumer Corp. v. Vijay Anant Gagan & Ors.[5] and Heera Traders v. Kamla Jain[6]. It has also been held that in fixing the interim compensation/use and occupation charges, the Court would exercise restraint and not fix excessive, fanciful or punitive amount. However, the Appellate/Revisional Court while staying an eviction decree can direct payment of such compensation for continued use of the premises and the compensation would be at the same rate of rental at which the landlord would have been able to get if he had let out such premises after they were vacated by the tenant. It has been held that the direction to pay mesne profits or use and occupation charges, will depend on the facts and circumstances of each case including the location of the property as well as its nature whether it is a commercial or residential area. 7.[4] The Supreme Court has also held that to ascertain user and occupation charges and damages, what is required to be looked into is the size, the area, the location as well as the use that the property is being put for by the tenant. 7.[5] In the present case, concededly, the Respondent/landlord has an eviction decree in its favour that has been stayed by this Court. For this delay, the Respondent/landlord is entitled to receive use and occupation charges.

8. It is not disputed that the subject premises are being used for commercial purposes and are of the same area and size as the shop in the lease deed filed by the Respondent/landlord. It is also not disputed the interim protection was granted to the Petitioners/tenants on 01.04.2016 and that he is enjoying the subject premises without paying any user and occupation charges despite the passing of the Eviction Order. Given the location of the subject premises and based on the lease deed placed, this Court deems it apposite to fix user and occupation charges at Rs. 18,000/per month for the present.

9. Accordingly, without prejudice to the rights and contentions of the parties, the following directions are passed:

(i) The user and occupation charges for the period commencing from

(ii) The user and occupation charges for the period commencing from