* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: November 19, 2008
+ RFA 576/2007
MODEL PRESS PVT. LTD. ....Appellant
Through: Mr.Rajiv Behl, Advocate
versus
MOHD. SAIED ....Respondent
Through: Mr.Rajinder Dutt, Advocate and
Mr.M.Salim, Advocate
+ RFA 11 - 13/2006
JOGINDER LAL KUTHIALAL & ORS. ... Appellants
Through: Mr.Ravi Nath, Advocate
versus
RAJESH KUMAR MEATLE ....Respondent
Through: Mr.B.B.Gupta, Advocate
Coram:
* Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
PRADEEP NANDRAJOG, J.
1. Parties in RFA No.576/2007 were granted liberty to
file written submissions within a week when arguments were
concluded. More than a week has gone by. No written
submissions have been filed.
RFA 576/2007 & RFA 11-13/2006 Page 1 of 8
2. The plaintiffs of the two suits, out of which the
present appeals have arisen, are the landlords and have
suffered a rejection of the plaint as the finding returned by the
learned Trial Judge is that even as per the case pleaded in the
plaint Civil Courts have no jurisdiction to entertain the claim
for ejectment of the tenant of the respective suits.
3. The tenant of RFA No.576/2007 is enjoying the
tenanted premises since 1.11.1972 and is paying a rent of
Rs.1,285/- per month.
4. The tenant of the subject premises relatable to RFA
No.11-13/2006 is occupying the tenanted premises since
around the year 1932 and is paying a monthly rent of
Rs.89.60.
5. The two landlords tried their luck by seeking
ejectment of the respective tenant alleging that a Division
Bench of this Court, in the decision reported as 95 (2002) DLT
508 Raghunandan Saran Ashok Saran (HUF) vs. Union of India,
had quashed Sections 4,6 and 9 of the Delhi Rent Control Act
1958 being offensive to Article 14, 19(1)g and 21 of the
Constitution of India and that as a consequence the landlords
became entitled to receive rent at the market rate and since
market rate of rent when suits were filed was above Rs.3,500/-
per month, the tenants were liable to be ejected by the civil
courts because the tenancies were determined by issuing
requisite notice under the Transfer of Property Act calling upon
the tenants to surrender possession.
RFA 576/2007 & RFA 11-13/2006 Page 2 of 8
6. In Delhi, a tenant paying rent of less than Rs.3,500/-
per month is protected by the Delhi Rent Control Act 1958 and
can be ejected only by the Rent Controller on one or more of
the grounds enumerated under Section 14 of the Delhi Rent
Control Act 1958. It may be noted that prior to the
amendment incorporated in the Delhi Rent Control Act 1958 by
Act No.37 of 1988 with effect from 1.12.1988 all tenancies in
Delhi, irrespective of the rent payable, were covered by the
provisions of the Delhi Rent Control Act 1958. By Act No.37 of
1988 clause „c‟ was inserted in Section 3 of the Delhi Rent
Control Act 1958, the effect whereof is to exclude premises
whose monthly rent exceeded Rs.3,500/- per month from the
rigors of the Act.
7. It may be noted at the outset that the vires of Act
No.37/1988 and of clause „c‟ of Section 3 of the Delhi Rent
Control Act 1958 was upheld by the Supreme Court in the
decision reported as 1995 (1) SCC 104 D.C.Bhatia & Ors. Vs.
UOI & Ors.
8. The appellants suffered rejection of their plaints
because the admitted agreed rent of the two premises, as
noted herein above was far below Rs.3,500/- per month and
thus the bar created by Section 14 of the said Act to the
jurisdiction of the Civil Court has been held fatal to the suits.
9. The only contention urged at the hearing of the
appeals by learned counsel for the appellants was that since
Section 4, 6 and 9 of the Delhi Rent Control Act 1958 have
RFA 576/2007 & RFA 11-13/2006 Page 3 of 8
been struck down by this Court in Raghunandan Saran’s case
(supra), there was no embargo on the landlords to recover the
standard rent as determined by said provisions and hence the
rates at which rent could be realized by them as on date when
the suits were filed would determine the question whether the
Civil Court had jurisdiction and since it was pleaded in the
plaints that the market rate of rent was much more than
Rs.3,500/- per month, the plaints could not be rejected at the
thresh-hold.
10. Unfortunately for the appellants, the contention
afore-noted by their counsel holds no substance, though it is a
very emotive plea.
11. The Division Bench of this Court in Raghunandan
Saran’s case (supra) has very pithly summed up the ambit of
Section 4, Section 6 and Section 9 of the Delhi Rent Control
Act 1958 and since the vires of these Sections has been tested
and held to be offending Article 14, 19(1)(g) and 21 of the
Constitution of India, we need not note down the said
provisions as also the ambit thereof and the reasons for the
said Sections to be struck down, save and except to briefly
note that the legal position which emerged from the aforesaid
provisions is that once the standard rent was fixed as per
Section 6 of the Act, no rent in excess thereof could be
recovered by the landlord from the tenant and while
determining the standard rent under Section 9 of the Act, the
Rent Controller was obliged to determine the same as per the
RFA 576/2007 & RFA 11-13/2006 Page 4 of 8
formula prescribed under Section 6 of the Act. Thus, even the
agreed rent was susceptible, to be recovered by the landlord.
Not only that the standard rent became meaningless when
viewed in the light of inflation i.e. in terms of the actual money
value which the landlord got.
12. But, with respect to the agreed rent, wherever the
same is less than Rs.3,500/- per month and the tenant willingly
paid the same, the question of fixation of standard rent does
not arise. In such scenario, the issue of Section 4, 6 and 9
becomes irrelevant. The only issue which can be urged by the
landlord is that the agreed rent was limited to the duration of
the lease and after the same was over, the landlord would be
entitled to increase the rent.
13. But, unfortunately, for the landlords who are
receiving a rent of less than Rs.3,500/- per month, there is no
provision available for them to unilaterally increase the rent.
14. It would not be out of place to note that in para 28
of its decision in Raghunandan Saran’s case (supra), after
giving reasons as to why Section 4, 6 and 9 of the Delhi Rent
Control Act 1958 were ultra vires the Constitution, the Division
Bench held:-
“The provisions are archic. They contain no mechanism to
compensate the landlords to offset inflation. There ought to
be a mechanism to increase the agreed rents keeping in view
the price index.”
15. Thus, even the Division Bench which penned the
decision in Raghunandan Saran’s case (supra) made it clear
RFA 576/2007 & RFA 11-13/2006 Page 5 of 8
that a mechanism has to be put in place for the landlords to
increase the agreed rent keeping in view the price index.
16. The reason is obvious. Section 105 of the Transfer
of Property Act 1882 defines a lease of an immovable property
as a transfer of a right to enjoy immovable property for a
certain time, or in perpetuity, in consideration of a price paid
or promised, or of money, a share of crops, service or any
other thing of value, to be rendered periodically or on specified
occasions to the transferor by the transferee who accepts the
transfer on such terms. Thus, a lease is a contract, which
means, that all terms thereof have to be by a bilateral
consensus between the lessor and the lessee. Neither a
landlord can unilaterally increase the rent nor can the tenant
unilaterally decrease the same.
17. Section 14 of the Delhi Rent Control Act 1958 gives
as many as thirteen grounds on which a tenant can be ejected.
The Section starts with a non-obstante clause by clearly
recording that notwithstanding anything to the contrary
contained in any other law or contract, no order or decree for
the recovery of possession of any premises shall be made by
any Court or Controller in favour of the landlord against the
tenant. Thereafter, a proviso is inserted as per which on any
one or more of the thirteen grounds listed under the proviso
the landlord can recover possession from the tenant by
preferring an application before the Rent Controller.
RFA 576/2007 & RFA 11-13/2006 Page 6 of 8
18. The embargo created by Section 14 hits the instant
plaints. The vires of Section 14 of the Delhi Rent Control Act
1958 has not been challenged by the appellants.
19. It would also be not out of place to note that in
D.C.Bhatia’s case (supra) the Hon‟ble Supreme Court had to
say as under, in paras 57, 58 and 61 of the decision:-
“57. In view of the aforesaid, we are unable to uphold
the contention that the tenants had acquired a vested
right in the properties occupied by them under the
statute. We are of the view that the provisions of
Section 3(c) will also apply to the premises which had
already been let out at the monthly rent in excess of
Rs.3500/- when the amendment made in 1988 came
into force.
58. The last contention was as to whether the
term „rent‟ is to be construed as “standard rent” and
not as the rent which is actually being paid. This
argument is also not acceptable for a number of
reasons. Firstly, the legislature has not used the
expression „standard rent‟ in clause (c) of Section 3.
Words normally should be understood in the ordinary
dictionary meaning.
59. xxxx
60. xxxx
61. Moreover, the scheme and the purpose of
the Act are clear. Tenants who could afford to pay
more than Rs.3500/- per month by way of rent, were
being removed from the protective umbrella of the
Rent Act. Only thing that has to be seen for the
purpose of deciding the class of tenants, who were
being excluded from the ambit of the Rent Act, was
the exact amount of monthly rent that was being paid
on the relevant date i.e. 1-12-1988. There is no
precondition of fixation of standard rent before
application of the provisions of Section 3(c) of the
Act.”
20. It is unfortunate that after the decision in
Raghunandan Saran’s case, the legislature has not filled up
RFA 576/2007 & RFA 11-13/2006 Page 7 of 8
the vacuum created in the law with Sections 4, 6 and 9 of the
Delhi Rent Control Act 1958 being held ultra vires the
Constitution. The mechanism required to be put in place, as
observed by the Division Bench in para 28, has yet to find its
place. But, since under the garb of interpretation, this Court
cannot legislate, the inevitable consequence has to be that the
appellants can claim no more rent from their tenants other
than the agreed rent which the tenants are happily paying.
Since the agreed rent in both cases is far below Rs.3,500/- per
month, we hold that the learned Trial Judges were correct in
rejecting the plaints as indeed the claim for recovery of
possession against the respondents was not maintainable
before a Civil Court.
21. No costs.
PRADEEP NANDRAJOG, J.
J.R. MIDHA, J.
November 19, 2008
dk
RFA 576/2007 & RFA 11-13/2006 Page 8 of 8