Sarbjit Singh v. Anil Kumar Dhupar and Ors.

1. The present revision petition is filed under section 25-B (8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as “the Act”) to challenge the impugned order dated 17.05.2023 passed by the Court of Ms. Niharika Kumar Sharma, ACJ-CCJ-ARC, North, RC.REV. 238/2023 Page 2 Rohini Courts, Delhi in eviction petition bearing RC ARC NO. 220/2016 titled as Anil Kumar Dhupar V Sarbjeet Singh and Ors.

2. The respondent no. 1/owner/landlord (hereinafter referred to as the “respondent no. 1”) claiming to be the sole and absolute owner/landlord of the suit property bearing Municipal no. A-11, Chief Commissioner Colony, Opp. Rana Pratap Bagh, Delhi-110007 (hereinafter referred to as the “tenanted premises”), let out one shop bearing private no. 2 situated on the ground floor of the abovementioned tenanted premises, to the petitioner for commercial purposes which is being used for running business of vending shoes and sandals under the name and style of Sartaj Shoes Shop. The respondent no. 1 filed a petition under section 14(1)(e) read with section 25B of the Act titled as Anil Kumar Dhupar V Sarabjeet Singh bearing RC ARC no. 220/2016 against the petitioner for eviction of the tenanted premises on the ground of bona fide requirement.

3. The petitioner after service of summons as per the Third Schedule, filed an application for grant of leave to defend as per section 25B of the Act and the trial court vide impugned order dated RC.REV. 238/2023 Page 3 17.05.2023, rejected the application for grant of leave to defend by the petitioner, as a consequence of which, the eviction order was passed in respect of the tenanted premises. The petitioner being aggrieved, filed the present petition.

4. The respondent no. 1 filed the application under section 151 CPC, which is under consideration for fixing the use and occupation charges to be paid by the petitioner to the respondent at market rate. It is stated in the application that the trial court vide impugned order dated 17.05.2023, granted time to the petitioner to vacate the tenanted premises as per section 14(7) of the Act for a period of 06 months, which expired on 16.11.2023. The petitioner was depositing Rs.357.50/- per month as rent in the court of Rent Controller as per section 27 of the Act since April, 2014. 4.[1] The tenanted premises is ad-measuring approximately 360.25 sq. feet and is located on the main GT Road, Delhi. The petitioner has also encroached additional space ad-measuring 272.48 sq. feet from the common area of the property of the respondent no.1. The encroached area has also become a part of the tenanted property. The petitioner has not paid the rent in respect of the tenanted premises RC.REV. 238/2023 Page 4 including encroached area since 2015. The petitioner is using and occupying the tenanted premises without paying any rent and is gaining undue advantage at the cost of the respondent no. 1, which has caused extreme financial loss to the respondent no. 1 for the last 10 years. The petitioner has also not paid the property tax and parking charges for the tenanted premises for which, notices have already been issued by the Municipal Corporation of Delhi to the petitioner. It is further stated that the rent of the similarly situated property in the area is approximately Rs.1,76,803.74/- per month or Rs.279.43/sq. feet per month. The respondent no.1 prayed that the use and occupation charges in respect of the tenanted premises are liable to be paid by the petitioner @ Rs.1,76,803.74/- per month since 01.08.2015 and the petitioner be further directed to pay all the pending arrears, property tax, conversion charges and parking charges.

5. The petitioner filed the reply to contest the application wherein he stated that the application under consideration is filed much prior to the expiry of statutory period of 06 months. The total area of the tenanted premises is about 200 sq. feet. The respondent no. 1 also RC.REV. 238/2023 Page 5 filed a revision petition bearing RC Rev no. 167/2016 in respect of adjacent shop, which is stated to be under the occupation of G.S. Khandpur, wherein by way of filing the application bearing CM no.39051/2016 under section 151 CPC, sought use and occupation charges. This Court vide order dated 08.11.2016, fixed the use and occupation charges at Rs.7,500/- per month, which is continuing till date. The area of adjacent shop is much more than the area of the shop of the petitioner i.e. the tenanted premises. The petitioner has not encroached any portion of the said property of the respondent no.1 as alleged by the respondent no.1 and has paid the property tax as well as the conversion charges. 5.[1] The petitioner has paid the contractual rent to the respondent no. 1 and on the refusal of the respondent no. 1 to accept the rent, the petitioner was constrained to the deposit the rent under section 27 of the Act. The market rent of the tenanted premises is about Rs.7,000/per month and not Rs.1,76,803/- per month as alleged by the respondent no. 1. The lease deeds annexed and relied upon by the respondent no. 1 do not have any relevance whatsoever with the area where the tenanted shop is situated. The tenanted premises is situated RC.REV. 238/2023 Page 6 at a place, which is not conducive for business and is far away from the main road. Hence, the application is liable to be dismissed.

6. The respondent no. 1 filed the rejoinder wherein he reascertained and re-confirmed the contents of the application and denied the plea taken by the petitioner in the reply.

7. The counsel for the respondent no.1 argued that the total area under use and occupation of the petitioner is admeasuring 632.73 sq. ft. The petitioner has defaulted in the payment of the property taxes, conversion charges as well as the parking charges to the MCD. The respondent is a stage IV cancer patient and is unemployed for years and is desirous of opening a retail/wholesale shop store but neither he is able to start his business nor is he able to enjoy the fruits of his property. The counsel for the respondent has placed reliance upon the following judgments, Syed Nazmuddin V NS Krishna Murthy [(1998) SCC Online Kar 7)], Sh. RK Kainth V Sh. Swadesh Kumar Bhagi & Ors [(2021) SCC OnLine Del 4386], Atma Ram Properties (P) Ltd. V Federal Motors Pvt. Ltd. [(2015) 1 SCC 705], Martin & Harris Private Limited & Anr. V Rajendra RC.REV. 238/2023 Page 7 Mehta & Ors. [(2022) 8 SCC 527], National Radio and Electronic Co. Ltd V Motion Pictures Association [122 (2005) DLT 629]

8. The counsel for the petitioner on the contrary argued that the total area of the tenanted shop is 200 sq. feet and the respondent no. 1 filed a revision bearing RC Rev no. 167/2016 in respect of the adjacent shop, which is in the occupation of G.S. Khandpur wherein the respondent no. 1 filed an application bearing CM no. 39051/2016 under section 151 CPC for fixing the use and occupation charges and this Court vide order dated 08.11.2016, allowed the application and fixed the use and occupation charges @Rs[7],500/- per month which is continuing till date. It is further argued that the area of the adjacent shop is much more than the area of the tenanted shop. 8.[1] The counsel for the petitioner further argued that the tenanted shop is situated in an old building, which was constructed more than 50 years ago. The petitioner has paid the conversion charges as well as the property tax in respect of the tenanted shop up-till-date. The tenanted shop is situated on the service lane inside the compound away from the main road as such, the tenanted shop cannot be compared with the property situated on the main road. The lease RC.REV. 238/2023 Page 8 deeds, which are relied upon by the petitioner, do not have any relevance whatsoever in respect of the tenanted premises, and are in respect of the properties which are situated in area of newly constructed buildings. It is further argued that the similar shop in the area where the tenanted shop is situated is fetching rent at about Rs.11,000/- per month excluding water and electricity charges.

9 The Supreme Court in Atma Ram Properties (P) Ltd V Federal Motors (P) Ltd., (2005) 1 SCC 705, observed as under 19(2) In case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (l) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminates with the passing of the decree for eviction. With effect from that date, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree.

10 The Supreme Court in a recent Judgment titled Martin and Harris Private Limited and Another V Rajendra Mehta and Others, (2022) 8 SCC 527, has upheld the law laid down in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd., and RC.REV. 238/2023 Page 9 observed that once an Eviction Order has been passed, the tenant is required to pay the use and occupation charges at market rate of like premises till the final disposal of the Petition. It has been held however that, the direction to pay mesne profits or compensation will depend on the facts and circumstances of each case, including on location of the property whether it is in a village, city, or metropolitan area as well as its nature whether it is a commercial or residential area and the standard rate of rent serving as guiding factors in the facts of each case.

11 The petitioner is stated to be a tenant in respect of one shop bearing private number 2 situated on the ground floor of property bearing Municipal no. A-11 Chief Commissioner Colony, Opposite Rana Pratap Bagh, Delhi-110007/tenanted premises measuring approximately 360.25 square feet at a monthly rent of Rs.357.50/- per month. The respondent no.1 also alleged that the petitioner has also encroached additional area measuring 272.48 square feet during the pendency of the eviction petition as well as during the present revision petition from the common area of the property of the respondent. The respondent no.1 as such claimed that the petitioner is RC.REV. 238/2023 Page 10 in possession and occupation of total area measuring 632.73 square feet. It is also alleged that the petitioner has not paid rent since 2015 to the respondents in respect of the tenanted premises. The respondent claimed that the similarly placed property can fetch a monthly rent at about Rs.1,76,803.74/- per month or @ Rs.279.43 per square feet per month. 11.[1] The respondent also placed reliance upon two lease deeds dated 30.09.2016 out of which one is executed by ICICI Bank in respect of property bearing no. 15, Veer Nagar Jain Colony, Rana Pratap Bagh, admeasuring 1400 square feet and another lease deed 31.08.2020 is in respect of shop bearing no. 1, Ground Floor, D-8, Rana Pratap Bagh admeasuring 272 square feet.

12 The respondent contended that this Court in the revision petition bearing RC REV. no. 167/2016 pertaining to the adjacent shop has granted use and occupation charges @Rs.7,500/- per month under the occupation of GS Khandpur vide order dated 08.09.2016. The petitioner also alleged that the tenanted shop was constructed about more than 50 years ago and is situated on the service lane away from the main road. It is further stated that the tenanted shop can RC.REV. 238/2023 Page 11 fetch rent at about Rs.11,000/- per month excluding water and electricity charges.

13 The tenanted premises is situated in the area of the ground floor of property bearing Municipal no. A-11 Chief Commissioner Colony, Opposite Rana Pratap Bagh, Delhi-110007, Municipal no. A-11 Chief Commissioner Colony opposite Rana Pratap Bagh, Delhi-110007 which is considered to be the affluent area of Delhi. The petitioner as a tenant is in occupation of about 632.73 sq. ft. The petitioner himself admitted that the similar shop can fetch rent of Rs.11,000/- per month although this court vide order dated 08.11.2016 has awarded Rs.7,500/- per month as use and occupation charges in respect of the adjacent shop which is under the occupation of GS Khandpur. The petitioner is using the tenanted premises for commercial purposes. The lease deed dated 31.08.2020 reflects that the rent in respect of the tenanted premises measuring 272 square feet is about Rs.40,000/- per month. The tenancy in respect of the tenanted shops subject matter of the present petition is an old tenancy. After considering all facts, the petitioner is directed to pay a sum of Rs.25,000/- per month as use and occupation charges to the RC.REV. 238/2023 Page 12 respondents from the date of expiry of 06 months from the date of passing of the eviction order dated 17.05.2023.

14 The petitioner shall pay use and occupational charges on or before 15th day of each succeeding English calendar month for the preceding month commencing from August, 2024. The petitioner is also directed to pay the arrears of use and occupation charges in three equal installments commencing from September, 2024 which shall be payable on or before 7th day of each English calendar month.

SUDHIR KUMAR JAIN (JUDGE) AUGUST 09, 2024 N/SK/ABK