JUDGMENT
P.K. Bahri, J.
(1) This appeal is brought by -the landlord against the order of the Rent Control Tribunal dated 21/2/1987 by which he had dismissed the appeal filed by the landlord and had affirmed the order of the Additional Rent Controller dated 11/2/1988 by which the application of the landlord for recovery of the possession of the premises in question filed under Section 21 of the Delhi Rent Control Act was dismissed.
(2) The case of the landlord in brief is that he is the owner-landlord of a double storied house bearing municipal No. 389-390, New Rajinder Nagar, New Delhi and he moved a petition under Section 21 of the Delhi Rent Control Act on October 12, 1978 mentioning that accommodation on the second floor of the said house of which plan was also filed was not required by the landlord for a period of five years and the respondent tenant Radhey Raman had agreed to take the said accommodation for residential purposes for the said period and the rent agreed upon was Rs.650.00 per month exclusive of water and electricity charges and the terms of the tenancy settled between the parties are recorded in the proposed lease-deed of which copy was attached with the application and thus permission was sought for creating limited tenancy under Section 21 of the Delhi Rent Control act.
(3) The petition was marked to Shri R.L. Chugh Additional Rent Controller by the Rent Controller and on October 13,1978 two affidavits one of the petitioner and the other of the tenant-Radhey Raman were filed before the Additional Rent Controller and on the basis of the said affidavits the Additional Rent Controller passed the order on the same date granting the permission for creating the limited tenancy for a period of five years. Unfortunately the Additional Rent Controller had not recorded any proceedings apart from the order granting the limited tenancy. The petition under Section 21 was signed by the landlord and not by the tenant. The proposed lease-deed filed Along with the petition was not signed by the parties. After the expiry of the period of five years the landlord filed the execution application on march 28, 1984 as the tenant had not vacated the premises after the expiry of the period of limited tenancy. A notice in the execution proceedings was sent to the tenant and thereafter the tenant filed the objections on August 17, 1984.
(4) The tenant pleaded that he is regular tenant in the said premises and that he had never consented to creation of any limited tenancy and the landlord had played a fraud on the court and also on him in obtaining the permission from the Additional Rent Controller for creating the limited tenancy and that he never appeared before the Additional Rent Controller nor he gave any statement to the Controller agreeing to creation of any limited tenancy. He also took the plea that the order of the Additional Rent Controller of creation of limited tenancy was mindless as the Additional Rent Controller did not investigate into the matter in order to find out whether landlord genuinely did not require the premises for a period of five years. He has also pleaded that neither in the application nor in the affidavit of the landlord any reasons have been given for creating the limited tenancy and the order of the Additional Rent Controller also does not disclose any such reasons and as such the order is void ab initio.
(5) It appears that in the execution application by typographical mistake the landlord mentioned that the first floor had been let out although in the map filed Along with the execution the premises let out to tenant on the second floor were duly indicated: rather in column No. 10 the landlord made it clear that it was second floor of which the possession is sought. Even in column No.2 the address of the tenant is given of second floor of the said house. So no one was misled by the typographical mistake made by the landlord in mentioning that the possession of first floor is sought. It is true that the landlord had moved an application seeking amendment of the execution application to correct this typographical mistake but later on had not pressed that application yet if we read the execution application as a whole it becomes very clear that possession of the second floor is sought and the words “first floor” appearing in the last column are only typographical mistake on the face of it of which no benefit can be taken by the tenant in resisting the said execution application.
(6) The tenant also mentioned that the landlord had concealed material facts from the Additional Rent Controller while obtaining the permission to create limited tenancy inasmuch as the said house of the landlord comprised of a basement, ground floor, first floor and second floor and he had been creating tenancies some of them under Section 21 in respect of the various floors frequently which facts were not disclosed to the Additional Rent Controller and thus the permission had been obtained by concealment of material facts which if disclosed would have perhaps persuaded the Additional Rent Controller not to grant permission for creating the limited tenancy. The tenant has given details of such tenancies created that at the time of the alleged creation of the limited tenancy of the second floor the landlord was in occupation of the first floor comprising of three bedrooms, drawing-cum-dining room which was more than sufficient for the needs of the landlord and there was no reason for his creating any limited tenancy for the second floor. A plea was also taken that even after the expiry of limited tenancy the tenant has been paying the rent regularly and thus there has taken place novation of the lease.
(7) The objection petition was contested by the landlord pleading that the same is abuse of the process of court and the tenant had appeared before the Additional Rent Controller and had made a statement on oath giving his consent for creation of limited tenancy for a period of five years. It was denied that the order of the Additional Rent Controller was mindless. It was denied that any regular tenancy was created in favor of the tenant at any time. It was pleaded that at the time the landlord created the limited tenancy, he had been elected a Member of the Rajya Sabha and had been allotted Govt. accommodation at 12 Pant Market, New Delhi and thus for that reason he created the limited tenancy in respect of the second floor for a period of five years. It is also pleaded that the objection petition was not maintainable as it has been filed after the expiry of the period of limited tenancy and after a notice had been issued in the execution proceedings. He denied that any novation of the lease had taken place on mere acceptance of rent after the expiry of the period of limited tenancy. It was pleaded that the Additional Rent Controller after making proper inquiries from the parties had passed the order sanctioning the limited tenancy and the same is not an invalid order. The landlord admitted that he had-been letting out ground floor to different tenants at different times as the said accommodation was not required by the landlord. He also admitted that first floor also had been let out to different tenants for different periods as the first floor was not needed by the landlord at that time. It was denied that any fraud has been practiced either on the Additional Rent Controller or on the tenant in any manner. He reiterated that after he was to cease to be a Member of the Parliament he was to vacate the Govt. accommodation and was to shift to the first floor and the second floor and thus the limited tenancy was created in respect of the second floor in favor of the tenant for a period of five years so that on the expiry of the period of five years accommodation may become available for residence to the appellant and his family members. No replication was filed by the tenant and the parties then led evidence.
(8) The Additional Rent Controller gave the findings that in fact regular tenancy was created in favor of the tenant and the tenant had never agreed to create any limited tenancy and he had not appeared before the Additional Rent Controller as the record of the proceedings before the Additional Rent Controller did not show that the tenant had appeared before him or he had recorded any statements of the parties before granting the permission.
(9) The Tribunal on the other hand on merits came to the conclusion that tenant had given his consent by filing an affidavit before the Additional Rent Controller for creation of the limited tenancy and the limited tenancy under Section 21 was created after sanction was given by the Additional Rent Controller. He disbelieved the tenant that he had no knowledge that any limited tenancy was to be created. The tenant had admitted that he had given the affidavit and the affidavit on the face of it showed that it was meant to be filed before the Additional Rent-Controller Shri Chugh in a case and the contents of the affidavit made it very clear that the limited tenancy was sought to be created in re spent of the premises to be let out to the tenant. However the Rent Control Tribunal came to the conclusion that the order made by the Additional Rent Controller sanctioning the limited tenancy was mindless and thus was void.
(10) The first question to be decided in this appeal is whether a limited tenancy under Section 21 was created or not in favor of the tenant?
(11) The petition under Section 21 was filed by the landlord on October 12, 1978. In case the tenant had not entered into any negotiation with the landlord for creation of limited tenancy there could be no earthly reason for the landlord to have filed a petition under Section 21 on October 12,1978. Mere fact that the Additional Rent controller Shri Chugh in his wisdom did not think it proper to record the presence of the parties or counsel for the parties anywhere in the proceedings would not mean that in fact the parties had not appeared before him. There could be no reason for the tenant to have signed the affidavit Ex. AW2/4 on October 13, 1978, if he was not willing for creation of limited tenancy. The tenant is not an illiterate person. He is employed as a sales representative in a reputed company M/s. Hindustan Lever Limited. So the finding of the Tribunal that the tenant had not spoken the truth regarding the creation of limited tenancy appears to be well-based. This affidavit and also the affidavit of the appellant are duly attested by the same Oath Commissioner Shri Zahir Mian who appeared in the witness-box and deposed that the deponents of the affidavits had appeared before him and they had also signed in his register. But he did not bring the register on the date of hearing. No request was made to the Controller by the tenant that the witness may be directed to bring the register. It is not possible to believe that the Oath Commissioner would have attested the affidavits without the deponents being present and signing in his register.
(12) Shri Ramesh Chand Advocate who had prepared the petition which was filed under Section 21 had identified the tenant before the Oath Commissioner. He appeared as AW4 and deposed that both the parties had come to him and he prepared their affidavits and got them attested from the Oa th Commissioner and both the parties appeared with him before the Additional Rent Controller and after the verbal inquiries the Additional Rent Controller passed the order granting the permission. Shri Ramesh Chand was frank enough to admit that he did not know Radhev Raman-tenant earlier. It is not possible to believe that any impersonation has taken place before Shri Ramesh Chand Advocate. After all the affidavit of the tenant fortunately was signed and attested on October 13.1978 the date the order sanctioning the limited tenancy was passed. The order of the Additional Rent Controller mak the Re Control Tribunal in this regard is based on evidence and is not liable to be varied by this Court even if this Court was to come to any other conclusion. But keeping in view the evidence led before the Additional Rent Controller which I have perused carefully. I have no hesitation in affirming the finding of the Rent Control Tribunal that the limited tenancy under Section 21 was created.
(13) The law does not require that the application under Section 21 should be signed by both the parties. The law also does not require that proposed lease-deed filed Along with the application should be signed. The proposed lease-deed is only a draft and thus it was not required to be signed.
(14) The next question to be decided is whether the objection petition filed by the tenant was at all maintainable when it was not filed during the currency of the limited tenancy?
(16) In Smt. Shrisht Dhawan Vs M/s. Shaw Brothers the Court has laid down the following procedural aspects pertaining to the cases under Section 21 of the Delhi Rent Control Act: ( 1 ) any objection to the validity of sanction should be raised prior to expiry of the lease: (2) the objection should be made immediately on becoming aware of fraud collusion etc: (3) a tenant may be permitted to raise objection after expiry of lease in exceptional circumstance only and (4) burden to prove fraud or collusion is on the person alleging it. On the substantive safeguards which have to be preserved by the authorities the following principles were laid down: ( I ) permission granted under Section 21 of the Act can be assailed by the tenant only if it can be established that it was vitiated by fraud or collusion or jurisdictional defect which in context of Section 21 is nothing else except fraud and collusion: (2) fraud or collusion must relate to the date when permission was granted: (3) permission carried a presumption of correctness which can be permitted to be challenged not only by raising objection but proving it prima facie to the satisfaction of Controller before landlord is called upon to file reply or enter into evidence: (4) no fishing or roving inquiry should be permitted at the stage of execution: (5) a permission does not suffer from any of these errors merely because no reason was disclosed in the application at the time of creation of short term tenancy: and (6) availability of sufficient accommodation either at the time of grant of permission or at the stage of execution is not a relevant factor for deciding validity of permission.
(17) In the preset case not a word has been mentioned in the whole of the objection petition or in the statement of the tenant before the Additional Rent Controller when appeared as OW1 that at what point of time he came to know about creation of other tenancies by the landlord on the ground floor and the first floor. The only plea taken by the tenant is that if the facts pertaining to creation of tenancies by the landlord in respect of the other floors at various times had been disclosed to the Controller the Controller might not have granted his permission to create the limited-tenancy in the present case. The objections of the tenant could have been entertained after the expiry of the period of lease if these material facts had come to the knowledge of the tenant after the limited tenancy had expired. The tenant has not pleaded such a case. Thus on the face of it the objection petition filed by him after the period of limited tenancy had expired was not maintainable.
(18) In case the tenant had succeeded in proving that no limited tenancy had been created then the question would have been different. But on merits the tenant has not succeeded in proving that no limited tenancy was created. Thus the tenant was legally bound to file the objection petition challenging the order of creation of tenancy soon after he came to know about the alleged fraud or collusion. Even otherwise ample reasons have been given by the landlord for creating different tenancies in respect of the basement and the ground floor. The landlord had created tenancies for the first floor only after he was to shift to his official bungalow on being elected as Rajya Sabha Member. It was really surprising that the Tribunal did not give any importance to these facts when he came to hold that the mindless order had been made by the Additional Rent Controller in granting permission for creating limited tenancy. After all when the landlord had become a Member of Rajya Sabha and was to get official accommodation he could not have kept the first floor and the second floor for use for himself and had to let out same after creating limited tenancies for the period for which he was to continue to be Rajya Sabha Member. That was a very sound reason for creating the limited tenancies in respect of the first floor and the second floor. It was not necessary in law that such reason should have been disclosed at the time of creation of the tenancy or should have found mention in the order of the Additional Rent Controller.
(19) The contention of the learned counsel for the tenant that the landlord has sufficient accommodation for residence for himself and for his limited family members comprising of his wife and two married daughters who are expected to visit the landlord off and on cannot be given any importance in view of the law laid down by the Supreme Court that availability of sufficient accommodation either at the time of grant of permission or at the stage of execution is not a relevant factor for deciding validity of the permission.
(20) The tenant moved C.M. 2042/88 in which he mentioned that after the filing of the second appeal the landlord had received vacant possession of the ground floor. So, in this way the landlord is in possession of the ground floor as well as the first floor and the accommodation available with the landlord is more than his requirements. This application is dismissed because as mentioned above the sufficiency of accommodation with the landlord is not a question to be gone into in these proceedings. He also moved application C.M.420/ 89 by which again he wanted to bring to the notice of the Court the subsequent events that the appellant had let out the ground floor to one tenant who had occupied the same on 22/1/1989. Again this fact is not relevant for deciding the appeal for the reasons already given above. Hence this application is also dismissed.
(21) The tenant again filed C.M. 107/93 under Order Xli Rule 27 of the Code of Civil Procedure in order to highlight the fact that the accommodation on the ground floor which was let out in 1989 had become vacant in October 1992 and again had been re-let on 7/1/1993. These facts are also not relevant for deciding the appeal and this application is also dismissed.
(22) From the facts it is quite clear that the landlord while he was residing on the first floor had all the times been letting out the ground floor and has never resided on the ground floor. So letting of the ground floor from time to time would not who that there was any concealment of facts which could be termed as jurisdictional facts when the permission was obtained under Section 21 for creating the limited tenancy. The landlord after being elected as Member of Rajya Sabha had being allotted Govt. accommodation had let out the second floor for creating limited tenancy and had also let out the first floor creating the limited tenancy. These facts would not show that any fraud was being practiced either on the respondent or on the Additional Rent Controller for creating the limited tenancy in favor of the tenant.
(23) The learned counsel for the tenant has then vehemently argued that second appeal was not competent inasmuch as by Delhi Rent Control (Amendment) Act, 1988. Section 39 of the Delhi Rent Control Act has been omitted meaning thereby that no second appeal is maintainable. The said Amending Act has not been made retrospective. The same point came up for consideration in Mohinder Nath & Others Vs Pankaj Bhargava & Others. 1990 (2) Rcj 690 in which it was held that right of appeal is a substantive right which accrues on the day the proceedings are instituted before the Controller and this vested right can be taken away only by a subsequent enactment with retrospective effect if it is so provided expressly or by necessary intendment. It was held that the amendment of the Act deleting the right of second appeal does not affect the pending appeal nor does it affect the right of a party to prefer an appeal under old Section 39 of the Act from such orders as may be made from time to time in any proceedings instituted prior to December 1, 1988 when the Amending Act came into force.
(24) Reliance is placed for the aforesaid view on the judgment of the Supreme Court in Garikapati Veeraya Vs. N. Subbiah Choudhry & Others besides other judgments of full bench of the Calcutta High Court and Madras High Court referred to in this judgment. The learned counsel for the tenant tried to argue that the right of appeal is a procedural and intention of the legislature was to take away the rights of appeal in order to cut down the litigation between the landlord and the tenant. Thus the Amending Act should be intended to have retrospective effect. There is no merit in this contention. The right of appeal is a substantive right and not a procedural matter. The substantive right can be taken away by the Parliament by any subsequent enactment by making its intention clear expressly or by necessary intendment. Nothing in the act gives any such indication. So it cannot be held that the vested right of appeal which has accrued to the parties was intended to be obliterated by the Amending Act. The tenant has filed C.M.I 89/89 in this regard but in view of the judgment given by a Bench of this Court in the case of Mohinder Nath (supra) it cannot be held that right of appeal in Delhi Rent Control Act.
(25) Counsel for the tenant made reference to P. L. Ct. Ramanathan Chettiar & Another Vs N.L.P. Lakshmanan Chettiar(deceased) & Others wherein it was held that even a vested right of appeal which becomes available on the commencement of the proceedings can be taken away by subsequent statute. There is no dispute about this principle of law but is of no help in supporting the contention of the learned counsel for the respondent that Delhi Rent Control (Amendment) Act 1988 had been given any retrospective effect. He also placed reliance on Syndicate Bank Vs M/s. Rallies India Ltd. wherein it was held by a Division Bench of this Court that the right to file a suit is a vested right which cannot be affected by subsequent legislation unless by express provision or necessary intendment that right is taken away. In this very judgment it was held that it was a fundamental rule of law that no statute can be construed to have retrospective operation unless such construction appears very clearly in the terms of the Act or arises by necessary and distinct implication. As already discussed above the Amending Act of 1988 has no such provision express or implied.
(26) He has also placed reliance on B. Prabhakar Rao & Others Vs State of Andhra Pradesh & Others .1 have gone through this judgment and find that it has no bearing on the point being urged by the learned counsel for the tenant. Counsel for the respondent also referred to Velayudhan Ramakrishnan & Others Vs Rajeev & Others. which discussed the provisions of Benami Transactions (Prohibition of the Right to Recover Property) Ordinance (1988). Construing the said provisions the Kerala High Court held that provisions of the said Ordinance also affect the past transactions as well. There is no parity between the provisions of the said Ordinance and the provisions of the Delhi Rent Control (Amendment) Act. So this judgment is of no help in support of the view that the Amending Act has retrospective effect.
(27) Some of the provisions of the Amending Act. 1988 came up for consideration before a Division Bench of this Court in Nirmaljit Arora Vs Bharat Steel Tubes Ltd. 43( 1991 ) Delhi Law Times 394. The amending provisions had made the Delhi Rent Control Act provisions inapplicable to the premises of which monthly rent exceeds Rs. 3500.00 . The question which arose for decision was whether the Amending Act would apply to pending proceedings or not? It was held that the Amending Act is not retrospective in nature and thus it was not applicable to pending proceedings.
(28) The learned counsel for the tenant has argued that the Delhi Rent Control Act is a local law and has restricted applicability and it is the general law of Transfer of Property Act which governs the relationship between the Lesser and the lessee and once a legal statute takes away the right of appeal it should be held that it intended to take away the restrictions imposed on the landlords and thus it should be held that the Amending Act is retrospective in effect. Firstly the Delhi Rent Control Act is passed by the Parliament so it cannot be said that it is a State Act although it applies only to the Union Territory of Delhi. It is true that the provisions of Delhi Rent Control Act create restrictions on the rights of the landlord which are available to the landlord under general law. But for construing the provisions of Amending Act 1988 to see whether it is retrospective in nature or not as far as the right of appeal is concerned the same cannot be interpreted in any different manner only on the ground that the Delhi Rent Control Act places restrictions on the rights of the landlord. In case the legislature intended that vested right of appeal is also liable to be taken away in respect of the pending proceedings the legislature would have spoken its mind clearly by incorporating some provision in the statute in this regard. There is no single provision in the Amending Act which expressly or by necessary implied intendment indicates the mind of the Parliament that it was to be applied retrospectively. I find no merit in this contention. The application given in this regard is dismissed.
(29) In view of the above discussion, I hold that the order of the Rent Control Tribunal as well as of the Additional Rent Controller are vitiated with illegalities.
(30) I allow the appeal and set aside the orders of the Tribunal and the Controller and dismiss the objections filed by the tenant and the execution application is restored in the file of the Additional Rent Controller who shall now proceed in the execution in accordance with law. The files be sent back to the Additional Rent Controller at the earliest.