SH Rajiv Puri v. SH Amit Sharma and Ors.

1. This is an Application filed on behalf of the Petitioner/tenant seeking a review of the judgment/order dated 11.10.2023 [hereinafter referred to as “said order”] passed by this Court.

2. Although, termed as an Application for modification of order dated 11.10.2023, learned Counsel for the Petitioner/tenant fairly concedes that what in fact is being asked, is for a review of the said order.

3. Learned Counsel who appears on behalf of the Petitioner/tenant submits that the grievance of the Petitioner/tenant is that the area of the premises in occupation of the tenant was not as was set forth in the site plan. It is contended that area under use by the Petitioner/tenant as per the site plan is not more than 652.16 sq. ft. comprising of 452 sq. ft. of shop and approx. 199 sq. ft. for store and tin shed. 3.[1] Learned Counsel for the Petitioner/tenant further contends that the total area as per the site plan filed by the Respondents/landlords, [which is annexed at pdf page 905 of the case file] illustrates that the area under occupation is 885.41 sq. ft. and not 1000 sq. ft. 3.[2] Thus, learned Counsel for the Petitioner/tenant submits that the area of the demised premises was not admitted by the Petitioner/tenant and hence the fixation of user and occupation charges are not correct.

4. Learned Counsel for the Respondent/landlord submits that the Respondent/landlord does not wish to file any reply to the present application. 4.[1] It is further contended that what was given on rent to the Petitioner/tenant in the year 1964 was the entire shop bearing No.G- 18A South Extension Market, Part-I, New Delhi [hereinafter referred to as the „shop‟] 4.[2] The difference, if any, is on the basis of calculation of covered area vis-a-vis carpet area, of the premises.

5. The record shows that the matter had been fixed for fixation of user and occupation charges on multiple occasions. Subsequently, arguments were addressed on 18.08.2023 by both parties. 5.[1] The Petitioner/tenant has relied on the site plan initially filed by the Respondent/landlord with the Eviction Petition, which was later placed on record by the Petitioner/tenant [at pdf page 905 of the case file].

6. Since the dimensions in this site plan were not very clear, a revised site plan with dimensions was handed across by the Respondent/landlord and thereafter filed along with a short note on the calculations by the Respondent/landlord after the judgment was reserved. 6.[1] A note for calculation of user and occupation charges was also filed by the Petitioner/tenant on 21.08.2023.

7. For the purposes of calculating user and occupation charges, the applicable law has been laid down in the judgment of Supreme Court in the case of Martin & Harris (P) Ltd. v. Rajendra Mehta, (2022) 8 SCC 527. 7.[1] This Court in the case of Murari Chauhan v. Kailash Narain Malhotra, 2023 SCC OnLine Del 3644 has held that what is required to be seen, is the area of the premises, the locality, the rental of the like premises as well as the condition of the premises as follows:-

8. This Court has relied upon the averments made by both the parties in the Application for user and occupation charges i.e., CM Appl. 46165/2022 and its Replies.

8.1. Paragraph 13 of the Reply filed on behalf of the Petitioner/tenant specifies a different calculation of the area previously under tenancy of the Petitioner/tenant as follows:

8.[2] While the site plan's filed may set out certain dimensions, admittedly, the entire demised premises is in use and occupation of the Petitioner/tenant since the year 1964 itself.

9. For the purpose of ascertaining the rental, both parties have filed lease deeds of neighbouring shops in the area. The user and occupation charges have been fixed after comparison of these deeds and the other documents filed by the parties.

10. In its judgment dated 11.10.2023, the Court while accounting for the area, locality and the factum of the rental in similar premises in that area, has affixed user and occupation charges. The size of the shop is only one of the factors considered. The location and use of the premises by the Petitioner/tenant has also been considered.

11. In view of the aforegoing, there is no error apparent on the record which merits interference by this Court.