Nawal Kishore v. Mohd. Yakub

RAJIV SAHAI ENDLAW, J. AUGUST 24, 2017 "BS/R" (Corrected & released on 3rd October, 2017)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 24th August, 2017 + CM(M) 1256/2012 NAWAL KISHORE ..... Petitioner Through: Mr. Rajat Aneja, Ms. Nisha Sharma and Ms. Chandrika Gupta, Advs. with petitioner in person. Versus MOHD. YAKUB ..... Respondent Through: Mr. Rajeet Saxena, Ms. Sophiya Salim and Mr. Manish Khurana, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This petition under Article 227 of the Constitution of India impugns; (i) the order dated 13th January, 2011 in E No.159/2007 of the Court of Additional Rent Controller (ARC) (Central), Tis Hazari Courts, Delhi; and, (ii) the order dated 9th August, 2012 in RCT Appeal No.10/2011 (UID No.0240IC0048672011) and RCT Appeal No.13/2011 (UID No.0240IC0056402011) of the Court of Rent Control Tribunal (RCT), Delhi of dismissal of the appeal preferred by the petitioner and allowing the appeal preferred by the respondent, against the order dated 13th January, 2011 supra 2. The petition was entertained and notice thereof ordered to be issued and the Trial Court record requisitioned. 3. The counsels have been heard. 4. The petitioner instituted a petition for eviction of the respondent from a shop in property No.3743-44, Gali No.19, Ragharpura, Karol Bagh, New Delhi-110005 on the grounds provided under Section 14(1)(a),(b) & (j) of the Delhi Rent Control Act, 1958. 5. The learned ARC (Central), Tis Hazari Courts, Delhi vide order dated 13th January, 2011 in the said petition pending as E No.159/2007, while allowed the petition for eviction under Section 14(1)(a) of the Act, dismissed the petition for eviction in so far as under Section 14(1)(b) & (j) of the Act. 6. On appeals preferred to the RCT, by the petitioner as well as the respondent, the RCT had vide the impugned order dismissed the appeal of the petitioner thereby confirming the order of the ARC of dismissal of the petition for eviction under Section 14(1)(b)&(j) of the Act and allowed the appeal of the respondent, thereby reversing the order of the ARC allowing the petition for eviction under Section 14(1)(a) of the Act. 7. The counsel for the petitioner, on enquiry, states that this was a case of first default in payment of rent within the meaning of Section 14(2) of the Act. 8. I have at the outset enquired from the counsel for the petitioner as to the scope of the petition under Article 227 of the Constitution of India; though the Act as it was in existence prior to the amendment with effect from 1st December, 1988, besides providing for first appeal under Section 38 of the Act against the order of the Rent Controller to the RCT, also provided for a second appeal under Section 39 thereof to the High Court albeit on a question of law only, by amendment of the Rent Act with effect from 1st December, 1988, Section 39 has been deleted and the appeal to the RCT under Section 38 has been made only on a question of law. It has thus been enquired that once the legislative intent is to do away with a second appeal, to what extent in exercise of jurisdiction under Article 227 of the Constitution of India, this Court can continue to interfere. It cannot certainly be within the same parameters as was permitted under Section 39 of the Act which has been deleted and if it were to be held so, it would amount to rendering nugatory the deletion of Section 39. 9. The counsel for the petitioner agrees that the scope of challenge under Article 227 of the Constitution thus has to be narrower than the scope under the erstwhile Section 39 of the Rent Act. However, the counsel for the petitioner, on enquiry, states that to his knowledge, there is no judgment of this Court considering the said aspect or laying down the parameters of the jurisdiction under Article 227 of the Constitution against the orders of the RCT. The counsel for the respondent also has not cited any judgment in this respect. 10. I however find the High Court of Andhra Pradesh in Shaik Abdul Haq Vs. Aiswarya Nilaya Chit Fund Pvt. Ltd. and Ors. Manu