IN THE COURT OF MRS. [ENTITY]: RENT CONTROL TRIBUNAL: DELHI RCT appeal No. 95/11 Unique ID No. 0240IC0573662011 [ENTITY] S/o late [ENTITY], R/o 25/3873, Regar Pura, Karol Bagh, New Delhi-5. Appellant Versus State Govt. of NCT of New Delhi. Respondent. Date of institution of appeal : 09.12.2011 Date when final arguments were heard: 03.02.2012 Date of pronouncement of judgment :09.02.2012. JUDGMENT :
The short point for consideration in the present appeal is whether any notice is required to be served on the opposite party for initiating proceedings under [SECTION] of the [ACT] (for short, the [ACT]). 2- Briefly stated the facts giving rise to the filing of the present appeal are that an eviction petition under Section 14(1)
(a)(c) & (j) of the [ACT] (for short, the [ACT]) was filed by the respondent against the appellant. During the pendency of the petition, an application under [SECTION] read with [SECTION] of the [ACT] was moved for ([CASE NUMBER] (Page 1 of 5) initiating proceedings against the petitioner. Vide impugned order, the learned Addl. Rent Controller allowed the petitioner to file reply and to be heard before deciding the said application. Feeling aggrieved by this part of the order, present appeal has been filed.
3- I have heard Shri [ENTITY], learned Counsel for the appellant.
4- Learned Counsel for the Appellant relied upon [PRECEDENT] (through its Registrar), 2000 Crl.L.J.1512; [PRECEDENT]; [PRECEDENT]; and Notification dated 14.03.2011 issued by Hon'ble High Court of Delhi - for contending that it was not required to give notice to the opposite party before ordering his prosecution and, therefore, relying upon these authorities, it was submitted that impugned order is liable to be set-aside.
5- In [PRECEDENT] (supra), it was held by the Hon'ble Punjab & Haryana High Court that a reading of [SECTION] [ACT] shows that Court is empowered to make such preliminary inquiry as it thinks necessary. The very word used in [SECTION] [ACT], contemplates that it is always for the Court to hold a preliminary inquiry. The Section does not envisage hearing of the accused before filing a complaint. It is always open to the accused to raise all the defences that are open to him under law before the Magistrate in whose Court ([CASE NUMBER] (Page 2 of 5) the complaint has been filed. The principle of audi-alteram partem only means that no party should be condemned unheard. It does not postulate that before making complaint, a party should be heard.
6- In [PRECEDENT] (supra), it was observed by the Hon'ble Supreme Court that, the scheme underlying [SECTION], [SECTION], [SECTION], [SECTION] of [ACT], clearly shows there is no statutory requirement to afford an opportunity of hearing to the person against whom that court might file a complaint before the Magistrate for initiating prosecution proceedings. Once the prosecution proceedings commence the person against whom the accusation is made has a legal right to be heard. Such a legal protection is incorporated in the scheme of the Code. Principles of natural justice would not be hampered by not hearing the person concerned at the stage of deciding whether such person should be proceeded against or not. The Court at the stage envisaged in [SECTION] of the Code is not deciding the guilt of innocence of the party against whom proceedings are to be taken before the Magistrate. At that stage the Court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice.
7- Following this judgment, our own High Court in [PRECEDENT] (supra), took the same view that there is no statutory requirement to afford an opportunity of hearing to the person against whom the court might have a complaint ([CASE NUMBER] (Page 3 of 5) before the Magistrate for initiating prosecution proceedings. 8- Following the judgment in [PRECEDENT] (supra) and [PRECEDENT], following amendment was made by the Hon'ble High Court of Delhi in [SECTION] of [ACT], vide notification dated 14.03.2011:
"3. Expediency and interests of justice - the main consideration.- The main point which the Court has to consider in initiating proceedings under [SECTION] of the Code is whether it is expedient in the interests of justice that an enquiry should be made and a complaint filed. The mere fact that there is reason to believe that an offence has been committed is by itself not sufficient to justify a prosecution. The objective is to prevent abuse of process of Court by use of perjury. The Court is empowered to hold a preliminary inquiry but it is not peremptory. Even without a preliminary inquiry the Court can form an opinion when it appears that an offence has been committed in relation to a proceeding in that Court. [SECTION] does not contemplate that the Court should give a finding whether any particular person is guilty or not. In fact no expression on the guilt or innocence of person should be made by the Court while passing the order under [SECTION] of the Code. The purpose of inquiry, even if the Court ought to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. It is not mandatory that person concerned should be called upon to give any explanation before ordering his prosecution."
9- In view of the authoritative pronouncements referred above, coupled with the notification issued by the Hon'ble High Court of Delhi, there was no requirement of calling the ([CASE NUMBER] (Page 4 of 5) Petitioner to file reply even if he was appearing in the court. The requisite inquiry was required to be made by the learned Addl. Rent Controller and it was only for the learned Addl. Rent Controller to decide on the basis of averments made in the application and the other material available on record to decide whether it was expedient in the interest of justice to inquire into the offence which appears to have been committed. That being so, the impugned order cannot be sustained and the same is accordingly set-aside. The appeal is resultantly allowed. However, nothing stated herein shall tantamount to an expression of opinion on merits of the application.
A copy of this order be sent to the concerned court of learned Addl. Rent Controller. Appeal file be consigned to record room.
Announced in open Court on 09.02.2012 ([ENTITY] ) Rent Control Tribunal: Delhi. ([CASE NUMBER] (Page 5 of 5)