1 IN THE COURT OF Ms. [ENTITY]:ADDITIONAL RENT CONTROLLER, PATIALA HOUSE COURTS, NEW DELHI Eviction Petition No:18/08/2000 M/s [ENTITY], Block L23/1 to L23/6, Connaught Place, New Delhi110001 Through Sh. [ENTITY], Partner, R/o W111, Greater Kailash, New Delhi Petitioner Versus M/s [ENTITY] Flat No:L44, Connaught Place, New Delhi110001 Respondent APPLICATION FOR EVICTION OF TENANT UNDER SECTION 14(1) (i) & (k) OF DELHI RENT CONTROL ACT, 1958, AS AMENDED DATE OF INSTITUTION :09082000 DATE OF FINAL ARGUMENT :19082011 DATE OF FINAL JUDGMENT :20102011 JUDGMENT
1. Petitioner M/s [ENTITY] has filed the present eviction petition against the respondent M/s [ENTITY] for eviction of the respondent from the property bearing Flat No:L44, Connaught Place, New Delhi110001. The case of M/s [ENTITY] ( E18/08/00) the petitioner is that M/s [ENTITY] is the landlord of Flat No:L44, Connaught Place, New Delhi110001, as shown in red colour in the site plan, and said flat has been let out to the respondent on a monthly rent of Rs.396/ excluding electricity and water charges.
2. It is stated by the petitioner that the respondent has carried out illegal unauthorized addition/alteration and extensions in the said flat against the rules and bye law of the New Delhi Municipal Committee without taking any sanction o9r permission from the NDMC , L&D) or the petitioner. Petitioner averred that the defendant has constructed a wooden Mezzanine floor of about 148 sq. feets due to age and value of the building has been reduced. It is stated that due to aforementioned illegal construction by the respondent, the Land & Development Office has served a notice dt.791999 upon the petitioner imposing heavy damage for unauthorized and illegal construction raised by the respondent in the building and L&DO has also threatened to reenter into the entire property of the petitioner if the unauthorized addition, alteration and constructions in the property are not removed. Plaintiff averred that after receipt of notice from L&DO office he approached the respondent but despite his several requests the respondent did not remove the unauthorized addition and alteration in the suit property, therefore, the petitioner apprehends cancellation of the lease deed and reentry into the property by the office of the L&DO.
3. It is averred that petitioner has also filed a suit for Declaration and M/s [ENTITY] ( E18/08/00) Permanent Injunction in the Hon'ble High Court of Delhi against the Union of India and Land & Development officer and vide its order dt.2631994 , Hon'ble High Court restrained the Union of India and office of the L&DO from re entering the property of the petitioner subject to deposit of Rs.2,26,435 within three weeks from the date of the order which petitioner deposited, which amount is otherwise the liability of the respondent and other occupants in the building as per their respective illegal and unauthorized addition and alteration.
4. It is stated that in view of the illegal and unauthorized addition and alteration made by the respondent in the suit property, which hs resulted in to substantial damage to the building and is also contrary to the building bye laws of the NDMC and the terms and condition of the lease executed by the petitioner with the L&DO, therefore, the respondent has committed a default under [SECTION] of [ACT] and is thus liable to be evicted from the suit property.
5. It is averred by the petitioner that the defendant has made unauthorized construction and addition in the suit property and misusing the tenanted premises. Petitioner averred that flat No: L44, Connaught Place, New Delhi110001 is the part of the property No:LBlock, Plot No:1 & 2, Connaught Circus, New Delhi in respect of which a perpetual lease deed dt.411938 and supplementary Lease dt. 1171979 were executed between the petitioner and Government India and same were duly registered with the Government of India.
6. It is stated that respondent/tenant has been served with legal notice dt.
M/s [ENTITY] ( E18/08/00) 3091999 to remove the unauthorized addition and alteration in the tenanted premises but he has failed to do so. It is averred that respondent/tenant used and dealt with the tenanted premises contrary to the conditions of aforementioned Lease Deed, therefore, the respondent/tenant is liable to be evicted from the tenanted premises bearing Flat No:L44, Connaught Place, New Delhi11001.
7. Respondent filed written statement and raised preliminary objection that present petition has not been filed by the competent person and also the present petition has not been filed against all the tenants in the premises, therefore, same is not competent.
In their reply on merit it is stated that [ENTITY] is a partnership firm and each of the partner is a tenant in respect of the premises in question. Defendant stated that at the time of letting of the premises in the year 1985, it was confirmed by the petitioner that the respondents will extend the wooden mezzanine in the portion let out to the respondents and the petitioner shall afford all necessary cooperation to enable the respondents to extend a wooden mezzanine of not more than 160 sq. ft. It is stated by the respondent that wooden mezzanine was infact existing and it required redoing up which was done by the respondents, therefore, the permission to extend the mezzanine (Parchati) was already available with the respondents. Respondent stated that the terms of the lease deed executed by the Ministry of Rehabilitation, Office of L&DO were never brought to the notice of the respondents. It is submitted by the respondents M/s [ENTITY] ( E18/08/00) that wooden mezzanine within the entire area is not prohibited and can not amount to additions and alterations contrary to the bye laws of the [ACT]. Respondent stated that the notice of the Land and Development Office was inspired by the petitioner to bring the present petition against the respondents. It is denied by the respondents that they have carried out any extensions , additions or alterations in the tenanted premises. It is stated by the defendant that petitioner has permitted the construction of said Parchati and had charged rent for the same from the defendant, therefore, the petitioner is responsible for the consequences of any notice issued by the Land & Development Office. It is stated that wooden mezzanine (parchati) is not capable of creating any hazard to the building or to the structure Respondent denied that they have committed any default under [SECTION] or liable to be evicted from the premises.
8. Petitioner filed replication to the written statement of the defendant and reiterated the averments made in the main petition. It is stated by the petitioner that the preliminary objections raised by the defendant are misconceived and misleading hence denied. It is stated that present petition has been filed by one of the partner of the petitioner's firm who is fully authorized to file the present petition. It is further stated that petitioner never allowed the respondent to make additions and alterations in the tenanted premises in contravention of the Lease Deed executed in their favour by the Government of India, thereby making the M/s [ENTITY] ( E18/08/00) premises liable to be reentered by the office of L&DO. Petitioner denied that rate of rent was Rs.330/ per month. Petitioner further denied that they have been earning out of the said wooden mezzanine. It is denied by the petitioner that at the time of inducting of the respondent as a tenant in the tenanted premises, the said arrangement of the wooden mezzanine was allegedly duly provided for in the terms of letting or the alleged rent was also inclusive of the wooden mezzanine. Petitioner reiterated that despite several requests and legal notice dt.3091999 to the respondents, they have failed to remove the aforementioned unauthorized additions and alterations from the tenanted premises, hence the present petition.
9. In support of his case the petitioner has examined Sh. [ENTITY], Assistant, L&DO, Nirman Bhawan, New Delhi and Sh. [ENTITY] as PW2. PW1 and PW2 have been cross examined at length by the ld. Counsel for the respondent.
10. The respondent examined Sh. [ENTITY] , partner of [ENTITY] as RW1, who tendered his evidence by way of affidavit and reiterated the contents of written statement. RW1 has been cross examined at length by the ld. Counsel for the petitioner.
11. I have heard ld. Counsel for the parties and perused the record carefully and gone through the entire evidence led by both the parties. The court observations and findings are as under:
12. WHETHER THE PRESENT PETITION IS LIABLE TO BE M/s [ENTITY] ( E18/08/00) DISMISSED IN VIEW OF [SECTION] OF THE [ACT] ? (NO) The respondenttenants had raised an objection that the petitioner's firm was not registered at the time of the instituting of the present proceedings. It was also averred in the reply and also in the Written Arguments submitted by the respondents that an unregistered firm in incapable of suing in a court of law. The records i.e. Ex. PW2/3 would reflect that the petitioner's firm was registered on 5th Dec. 2001 and the present proceedings were instituted on 09.08.2000. The respondents have argued that the petitioners firm was not registered on the day when the present proceedings were registered, therefore the petition is liable to be dismissed in view of [SECTION] of the [ACT]. However, the PW2 was not crossexamined on the issue of the registration of the petitioner's firm. No suggestion was put to the said witness on the capability of the petitionerfirm vis vis the instituting of the present petition.
There is no dispute that both the parties are partnership firms. There is no record to suggest that the petitionerfirm was registered on the day when the present petition for the eviction was instituted i.e. 09.08.2000. The Ex.PW2/3 proves that the petitionerfirm was registered on 5th Dec. 2001 i.e. during the pendency of the present proceedings. Now the question arises whether the petition is hit by the provision of [SECTION] of the [ACT].
The provision of [SECTION] of the [ACT] deals with the Effect of nonregistration of the partnership firms. It says M/s [ENTITY] ( E18/08/00) (2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.
The question whether [SECTION] is a bar to a suit filed by an unregistered firm came up directly for consideration in M[PRECEDENT]. In that case, [ENTITY] J speaking for the Bench clearly expressed the view that [SECTION] cannot bar the enforcement by way of suit by an unregistered firm in respect of a statutory right or a common law right. On the facts of that case, it was held the right to evict a tenant upon expiry of the lease was not a right 'arising from a contract' but was a common law right or a statutory right under the [ACT]. The fact that the plaint in that case referred to a lease and to its expiry, made no difference. Hence, the said suit was held not barred. That case is therefore directly in point. In the present case the [ACT] happens to be a statute which was enacted to protect the tenant from eviction from the house where he is living except for defined reasons and on defined conditions; and to protect him from having to pay more than a fair/standard rent.
There is another way of looking at it. Question arises as to what is the scope of the words 'enforcing a right arising under the contract' used in the provision of [SECTION] of the [ACT]. The respondenttenant seems to bring M/s [ENTITY] ( E18/08/00) home a point that the tenancy agreement between the two firms is covered under [SECTION]. The said question was also directly under the consideration in "[PRECEDENT] wherein the Hon'ble Supreme Court held that there was considerable ambiguity in [SECTION] (unlike the [ACT]) as to what is meant by the words 'arising out of a contract' inasmuch as the provision did not say whether the contract in [SECTION] was a contract entered into with the defendant in business or unconnected with business. In order to resolve the ambiguity the Hon'ble Supreme Court look into the Report of the Special Committee on the basis of which the was the [ACT] was passed. The Committee consisted of Sir [ENTITY], Sir [ENTITY], Sir [ENTITY] and Mr. [ENTITY]. Para 16 of the Report states that the Bill seeks to overcome this class of difficulty by making registration optional and by creating inducements to register which will only bear upon firms in a substantial and fairly permanent way of business. It was in the said background that it was held that the purpose behind [SECTION] was to impose a disability on the unregistered firm or its partners to enforce rights arising out of contracts entered into by the plaintiff firm with third partydefendant in the course of the 'firm's business transactions'. In the present case the landlord and the tenants have no other business relation.
One more judgment that comes to the rescue of the petitionerfirm is M/s [ENTITY] ( E18/08/00) "[PRECEDENT] wherein it was held that even if the suit is filed by an unregistered partnership firm, against a third party and if pending the suit before a decree is obtained the plaintiff puts its house in order and gets itself registered the defect in the earlier filing which even though may result in treating the original suit as still born, would no longer survive if the suit is treated to be deemed to be instituted on the date on which registration is obtained. It was further held that if such an approach is adopted, no real harm would be caused to either side.
Following the abovesaid judgment, it must be held in the present case too that the present proceeding is not barred by [SECTION] of the [ACT].
13.Whether the plaint has been properly instituted by a validly constituted attorney YES.
In the present case the petitionerfirm is represented by Sh. [ENTITY] (PW2) who has exhibited his GPA dated 25.01.2001 which is Ex. PW2/1 (original seen and returned). The deliberations would have two aspects: first is whether the GPA was valid; and second whether the said GPA represented every partner of the petitionerfirm.
In [ENTITY]'s "Judicial Dictionary", power of attorney is described as "an authority whereby one is set in the tune, stead, or place of another to act for him". In Black's Law Dictionary it is described as the instrument by which a person is M/s [ENTITY] ( E18/08/00) authorized to act as an agent of the person granting it. [SECTION] of the [ACT] empowers the donee of a power of attorney to do anything "in and with his own name and signature" by the authority of the donor of the power. Once such authority is granted the said Act recognizes that everything done by the donee "shall be as effectual in law as if it had been done by the donee of the power in the name and with the signature of the donor thereof." Under the English Law, "every person who is sui juris has a right to appoint an agent for any purpose whatsoever, and he can do so when he is exercising statutory right no less than when he is exercising any other right", [vide Jackson and Co. v. Napper (1886) 35 Ch. D. 162 at page 172].
As far as the first aspect is concerned the witness PW2 was crossexamined during which he was suggested that the notarized GPA did not carry the Notary Register Entry No. The respondenttenant wanted to drive home the point that the procedure of the attestation was not followed by the notary. The witness PW2 has been crossexamined in detail visvis the capability of the said witness to represent the petitionerfirm. A suggestion was put to PW2 that the partners executing the GPA are residents of Mumbai and that they were not all present in Delhi before the Notary Public who had notarized the GPA. It has been held in "[PRECEDENT] that even if a power of attorney is not executed before a Notary Public and is not authenticated by a Notary Public, it can still be proved by establishing due execution. It can thus M/s [ENTITY] ( E18/08/00) be inferred that there is no stringent procedure visvis the authorization. In the case in hand there exists no negative evidence which points out towards the fact that the GPA was not at all authorized.
The PW2 was further suggested that there happens to only one witness to the execution of the GPA. In that regard it would be relevant to rely upon the judgment "[PRECEDENT] wherein it was held that nonattestation by witnesses will not be fatal to the power of attorney since it is not at all obligatory that a power of attorney should be attested by two witnesses. It was further held in the said judgment that what is necessary is only its authentication and even if the endorsement made by a Notary is unsatisfactory, it cannot be said that the document is not a document which purports to be a power of attorney executed before and authenticated by a Notary public. Significantly the document bears the seal of the Notary.
Now I come to the second aspect of deliberations which deals with the issue of all the partners not being represented by the PW2 (GPA). The said GPA has been signed by: Smt. [ENTITY]; Sh. [ENTITY]; Smt. [ENTITY]; Smt. [ENTITY]; Smt. [ENTITY]; and Sh. [ENTITY]. In that regard a suggestion was put to the PW2 that all the partners had not signed the GPA. It was further pointed out to the PW2 (during the crossexamination) that the LRs of one of the partners had later joined the petitioner's firm. The respondent M/s [ENTITY] ( E18/08/00) tenants want to drive home a point that the GPA ought have had the concurrence of all the partners: those who were the partners but could not sign the GPA and those LRs who later joined the firm after the death of a partner.
In order to deliberate on the said issue I need to revert to the provision of [SECTION] of the [ACT] which deals with the implied authority of the partners. There can be no doubt that each partner is the agent of the firm and can take certain decisions though not all. The Subsection 2 speaks of certain restrictions one of which is that a partner can not withdraw a suit or proceeding filed by the firm. The scheme of the act takes care of the situations where a single partner is not authorized to take decisions which might harm the interest of the firm. It is for this reason that an implied authority is not given to a partner to withdraw a suit or proceeding filed on behalf of the firm.
In the judgment of the Supreme Court in "[PRECEDENT] & Ors." Reported in [PRECEDENT] it has been held that one of the coowners can file a suit for eviction of the tenant in a property and the consent of the other coowners assumed as taken unless it is shown that the other coowners were not agreeable to eject the tenant. In the present case there is no evidence to show that the partners who had not signed the GPA were in any manner averse to the present proceedings. In the present case even if the GPA was not signed by a few partners it does not mean that the GPA had seized to have implied authority. M/s [ENTITY] ( E18/08/00) Moreover, the present eviction petition by no stretch of imagination be said to be detrimental to the interest of the firm.
Accordingly this issue of the validity of the GPA is decided in favour of the petitioner and against the respondenttenants.
14.WHETHER THE CASE IS MADE OUT UNDER [SECTION] OF THE [ACT] (YES) The petitionerlandlord has tried to establish a case under [SECTION] of the [ACT] by alleging that the tenantrespondent has built a mezzanine floor which was against the building bylaws. To appreciate the contention of the petitioner, it is desirable to refer to [SECTION] and [SECTION] of the Act, which read as under :
[SECTION] : 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 favor of the landlord against a tenant : Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely :
(k) that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the M/s [ENTITY] ( E18/08/00) [ACT] while giving him a lease of the land on which the premises are situated;
[SECTION] : No order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of the proviso to subsection (1), if the tenant, within such time' as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.
Under clause (k) if the tenant does not stop the user of the premises contrary to the conditions imposed on the landlord under the lease a right of action arises to the landlord to seek eviction of the tenant. The Subsection (II) is mandatory. It requires the Controller not to pass an order of eviction, if one of the alternatives is complied with by the tenant. The two alternatives are (1) to stop the misuse within the time to be specified by the Controller or (2) to pay to the concerned authorities by way of compensation such amount as may be determined by the Controller. This Subsection intends that the Controller should determine these questions because in a case where the default can be remedied by payment of compensation, the amount of compensation payable by the tenant is to be determined. The two questions under [SECTION] of the Act are in the alternative. If the tenant agrees to stop the misuse, further question of determining the compensation would not arise. But if the tenant wants to continue the use of M/s [ENTITY] ( E18/08/00) the premises contrary to the conditions imposed under the lease deed the Controller has to approach the authority concerned to find out if nonconforming use is to be permitted, if so on what terms. If the nonconforming user is not permitted by the authority the controller has no alternative but to pass the order of eviction. But if the authority is inclined to permit the nonconforming user, the Controller has to determine the compensation for nonconforming user. This determination shall be with respect to the past non conforming user as well as for the future. This question for determining the compensation or permission for non conforming user is to be decided by the Controller after notice to the authority concerned. Neither the landlord nor the tenant can be directed to approach the authority for regularization of the nonconforming user or for determination of the compensation.
In [PRECEDENT], it was held that where the premises are used in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or [ACT], then the landlord will be entitled to recovery of possession under [SECTION] of the Act and that [SECTION] of the Act enables the Controller to give another opportunity to the tenant to avoid an order of eviction. The first opportunity to the tenant is given when the notice is served on him by the landlord and the second opportunity is given when an conditional order under [SECTION] of the Act is passed M/s [ENTITY] ( E18/08/00) directing the tenant to pay the amount by way of compensation for regularization of user up to the date of stopping the misuse and further directing stoppage of unauthorized use. The continued unauthorized user would give the paramount lesser the right to re enter after the cancellation of the lease deed.
15.In the present case the perpetual lease deed dated 04.01.1938 has been exhibited as PW2/5. The witness PW2 (Sh. [ENTITY]) has deposed that the tenant respondent had carried out the construction in the premises thereby violating the terms & conditions of the lease deed dated 04.01.1938. The said witness PW2 has further stated that a notice by the NDMC was issued to the respondents and an inspection was carried out. In that regard Sh. [ENTITY] (Asst. Land & Development Office) was examined as PW1 who has deposed that the inspection report dated 25.02.1999 (Ex. PW1/1) was prepared by their office. Accordingly the notice dated 07.09.1999 (Ex. PW1/2) was issued to the petitioner's firm for notifying the breaches in the premises. Thereafter the inspections were also carried out on 25.01.2001 and 31.01.2001 which again depicted unauthorized additions. The said two inspection reports are exhibited as Ex. PW1/3. The said witness PW1 has also deposed that that the alterations and additions depicted by the said inspection reports are still existing as the same were not removed. The actions of the tenantrespondent were in the breach of the conditions 2(5) and 2(7) of the lease deed. The govt. authorities had threatened the petitionerlandlord that the lease deed would be cancelled. A notice dated 30.09.1999 (PW2/6) was M/s [ENTITY] ( E18/08/00) served by the petitionerlandlord in that regard. The witness PW2 has also exhibited the copy of the letter dated 18.11.1999 which was signed by the Sr. Supdt. Post Office. The said copy is Ex.PW2/8. The tenantrespondent had not complied with the request of the landlord despite the service of the notice upon them. The witness PW2 has also deposed that the govt. authorities cannot regularize the construction made by the tenantrespondents.
It has been argued on part of the respondenttenant that the petitioner landlord had not objected to the raising of the mezzanine floor therefore the same cannot be objected now. In that regard [PRECEDENT] would be relevant where a property had been given on lease by the Delhi Development Authority but the landlords had permitted tenants to use portion of the building for commercial purposes. In that case The Development Authority issued notice to the landlords calling upon them to discontinue the use of land for commercial purposes, failing which cause should be shown as to why the lease should not be determined and the property reentered. Thereupon the landlords sought eviction of the tenants under [SECTION] of the Act. One of the contentions which were raised to behalf of the tenants was that the landlords were estopped or otherwise prohibited from getting possession of the property because the landlords themselves had letout the property for commercial purposes. Dealing with the contention that the landlords were estopped from filing or getting any relief under [SECTION] was held that:
M/s [ENTITY] ( E18/08/00) "There is no estoppel here because both the landlord and the tenant knew that the tenancy was not one permitted under the terms of the lease of the land. In any case there can be no estoppel against the statute. It would not benefit the tenant even if it is held that the landlord cannot, under the circumstances, evict him. The landlord will lose his property and the tenant also will lose."
In the present case the perusal of the lease deed dated 04.01.1938 (PW2/5) would reveal that it was mandatory / obligatory / compulsory on part of the respondenttenant not to raise/erect any structure / building on the premises without the consent of the Chief Commissioner Delhi (para 2(5) of the lease deed). The witness PW1 has in specific pointed out that the said condition was breached. The construction of the mezzanine floor has not been denied by the respondenttenant. The witness PW2 has duly proved the service of the notice to the tenantrespondents. The ingredients under [SECTION] of the [ACT], stands satisfied and the petitionerlandlord has been able to establish its case under s.
[SECTION]. Accordingly the said issue is decided in favour of the landlordpetitioner and against the tenantrespondent.
Under [SECTION] [ACT], no order of recovery of possession of any premises can be made under [SECTION] of [ACT], if the tenant within such time as may be specified in this behalf by the Controller compliance with the condition imposed on the landlord by any of the authority referred to in that clause or pays to that authority such amount by way of compensation within the M/s [ENTITY] ( E18/08/00) controller may directed.
Accordingly, order u/[SECTION] [ACT] are hereby passed and notice be issued to the L&DO to file its reply by the next date to ascertain whether it is prepared to condone the violation and if so, on which terms. Ordered accordingly.
16.Whether the case is made out under [SECTION] of the [ACT] ?
The petitionerlandlord has tried to make out a case under [SECTION] of the [ACT] adducing evidence that the respondenttenant had raised the mezzanine floor thereby causing substantial damage to the premises. According to [SECTION]:
[SECTION] : 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 favor of the landlord against a tenant : Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely :
(j) that the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the pre mises.
S.14(10) No order for the recovery of possession of any premises shall be M/s [ENTITY] ( E18/08/00) made on the ground specified in clause (j) of the proviso to subsection (1), if the tenant, within such time as may be specified in this behalf by the Controller, carries out repairs to the damage caused to the satisfaction of the Controller or pays to the landlord such amount by way of compensation as the Controller may direct.
Short question which arises for consideration is as to what is the substantial damage and whether construction of mezzanine and opening of roof from inside the shop, constitutes substantial damage or not. The witness PW1 (Asst. L & D Office) had admitted that he was not an expert and that he had never visited the premises. It is to be appreciated that the said witness had proved the inspection report which clearly depicted the unauthorized construction. There was no need for PW1 to be an expert on the issue.
The question of causing substantial damage came in the judgments reported in [PRECEDENT] where the lowering of the floor of the house was held to be causing substantial damage within the meaning of [SECTION] of the [ACT]. Another relevant judgment is [PRECEDENT]. In this case one heavy big size cooler has been fixed on the ventilator on the East side door by cutting holes in the wall, One wash basin has been fixed by cutting holes in the southern wall. The wooden show almirahs have also been fixed on the walls by cutting holes in the walls. The previous Dochhati has now been extended to the whole of the shop by cutting further four holes in the 5" thick western partition wall and eastern wall by M/s [ENTITY] ( E18/08/00) fixing two more karries in the said holes. The stability of the partition wall had weakened. The court held that substantial damage has been caused."
In [PRECEDENT] 6 December, 2001 it was held that any construction by which the structure of the premises is altered amounts to substantial damage to the premises. Any structure which impairs the rights of the landlord amounts to substantial damage to the premises. Any structure which weakens the wall or puts additional load on the wall amounts to substantial damage to the premises. In that case too the mezzanine was constructed and it was held that the same amounted to the changing of the structure of the premises. Where structure of the premises are changed which are detrimental to the interests of landlord it amounts to substantial damage within the meaning of [SECTION] read with [SECTION] of the [ACT].
In the present case there is no doubt that the structure was changed by adding the mezzanine structure. In view of [SECTION] [ACT] and after relying on the judgments the petitionerlandlord has clearly made out a case under [SECTION].
[SECTION] [ACT] provides that
" The Controller shall not pass any order of eviction under [SECTION] if the tenant, within such time as may be specified in this behalf by the controller carries out repairs to the damage caused, to the satisfaction of the controller or pays to the landlord such amount by way of compensation as the M/s [ENTITY] ( E18/08/00) controller may direct."
[SECTION] of the Act is mandatory in nature. It gives a mandate to the Controller. He has no discretion in the matter and it bound to make an order directing the tenant to repair the damage caused or to pay compensation. In the absence of such an order and its non compliance by the tenant, the controller is not competent to pass an order of eviction. "
Accordingly , order u/[SECTION] of [ACT] are hereby passed directing the respondent to restore the suit property to its original condition as it existed at the time of letting within two months from the date of order. The respondent shall file his affidavit and photographs of the suit property to show that he has complied with the orders u/[SECTION] of [ACT].
17. WHETHER THE EVIDENCE ADDUCED BY PW1 (Asst. Land & Development Office) IS ADMIISIBLE: (YES) The respondenttenant has endeavored to impeach the capability of PW1 to adduce evidence and to exhibit inspection reports Ex.PW1, 2 & 3. During the crossexamination, PW1 admitted that the inspection record brought by him was maintained by other section of L & D Office. The said PW1 further admitted that he could not indentify the signatures on the Ex.PW1, 2 & 3 as he had never worked with them. The PW1 was appointed to vide an office order to look after the court cases but he had not brought the same when he was examined as PW1. The said witness PW1 had further deposed that he was not a technical person and M/s [ENTITY] ( E18/08/00) that only the technical staff could elaborate on the alternations etc. Now the question arises whether PW1 was capable of adducing the type of evidence that he did. What the respondenttenants want to establish is essentially derived from [SECTION] of the [ACT] which deals with the situation when the Court has to form an opinion as to the person by whom document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. The Explanation provides that a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received document purporting to be written by that person in answer to documents written by himself to under his authority and addressed to that person, or when in the ordinary course of business document purporting to be written by that person have been habitually submitted to him.
However, the provision of [SECTION] of the Evidence will not always apply where the document sought to be proved is a public document. A public document can be proved in terms of [SECTION] of the [ACT]. According to [SECTION] of the [ACT] the public documents are those documents which form the acts, or records of the acts of the Official bodies and the Tribunals, and of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country.
In the present case we are concerned with the public acts performed by the M/s [ENTITY] ( E18/08/00) NDMC officials who had conducted the inspection and had thus prepared the inspection reports. In that regard Sh. [ENTITY] (Asst. Land & Development Office) was examined as PW1 who has deposed that the inspection report dated 25.02.1999 (Ex. PW1/1) was prepared by their office. Accordingly the notice dated 07.09.1999 (Ex. PW1/2) was issued to the petitioner's firm for notifying the breaches in the premises. Thereafter the inspections were also carried out on 25.01.2001 and 31.01.2001 which again depicted unauthorized additions. The said two inspection reports are exhibited as Ex. PW1/3. There was no need of a formal proof as required under [SECTION] of the [ACT]. The adducing of the evidence by PW1 is admissible.
Ordered accordingly. No order as to cost. File be consigned to record room.
Announced in the open court on this 20th day of October, 2011. ([ENTITY]) ADDITIONAL RENT CONTROLLER:NEW DELHI M/s [ENTITY] ( E18/08/00)