Savitri Devi Gupta v. Dharam Pal Tanwar

INDERMEET KAUR, J. For orders see file of CM(M) No. 83/2012. INDERMEET KAUR, J FEBRUARY 01,2012 A CM (M) No92/2012' Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on : 30.01.2012 Judgment delivered on: 01.02.2012 + CM(M) No. 83/2012 & CM Nos.1229-1230/2012. CM (M) No. 92/2012 & CM Nos.1464-65/2012 and CM (M) No. 96/2012 & CM Nos.1513-14/2012 SAVITRI DEVI GUPTA Petitioner Through Mr. S.C. Singhal, Adv. Versus DHARAM PAL TANWAR Respondent Through Nemo CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

¶1The order impugned before this Court is the order dated

23.08.2011 vide which the Rent Control Tribunal

(RCT) had while disposed of three appeals i.e. (i) RCT No. 23/2010 passed in Eviction Petition No. 318/2008 titled Smt. Savitri Devi Gupta Vs. Shri Dharam Pal Tanwar, (ii) RCT No. 24/2010 passed in Eviction Petition No. 317/2008 & (iii) RCT No. 25/2010 passed in Eviction Petition No. S' 87/2008.These evictionpetitionshad been filed underSection14 (l)(b) of the Delhi Rent Control Act (DRCA) and had been decreed in favour of the landlord; premises in dispute relate to property bearing No. WZ-193 & WZ-194, Nangal Raya, Delhi. The ARC had decreed these evictionpetitionson 06.05.2009on the followingstatementmade by the counsel for the parties which reads herein as under:- ''Statement of Sh.Dharam Pal Tanwar S.o Late Sh. Ram Sharma Tanwar, aged about 60 years, R/o WZ-1535, negal Raya, Delhi-46. OnSA I am petitioner in the present petition. Today the matter has been amicably settled between the parties and as per this settlement, I state that I shall reconstruct the shop in question i.e. WZ-194 and WZ-193-B, Nangal Raya, Jail Road, N.Delhi within three months after the Respondent vacate the hand over the possession to me. I say that I will further let out the said shop to the respondent only after reconstruction. ROAC Navita Kumari ARC/West THC 06/05/09"" "Statement ofSh.Dhruv Pratap Singh, Counsel for the Respondent at Bar I am counsel for the Respondent in the present petition. On instruction from the Respondent today, the matter has been settled and as per the instructions of the Respondent, I state that the Respondent shall vacate and hand over the tenanted % shop to thepetitionerwithina weekfor reconstructionandpetitionerwillfurtherlet out thesaid shop to the Respondentonlyafter reconstruction. ROAC Navita Kumari ARC/WestTHC 06/05/09" These statementswere made by the parties when the trial was in progress i.e. at the stage of cross-examinationof PW-1. Thereafter on 11.05.2009, a review petition was filed by the tenant seeking review of the order dated 06.05.2009; contention being that his counsel had no authority to make a statement on her behalf; said statement was without her instructions; even otherwise, plans have not been got sanctioned by the landlord in the absence of which it is not possible to construct the suit property and as such the statements noted in the order of the ARC dated 06.05.2009 cannot fructify. This review petition was dismissed by the ARC on 23.03.2010. Against this order, an appeal had been filed before the RCT which was dismissed by the impugned order on 23.08.2011. The impugned order was of the view that the power of review is not available either with the Rent Controller or with the Rent Control Tribunal. Learnedcounselfor the petitioneris aggrievedby this finding.He has placedrelianceupon ajudgmentofthis Courtreportedas 22 (1982) DLT 230 As2arwal Hardware Works Private Limited Vs. C.V.S. Vasantha:submissionis that the judgmentrelieduponby the trial Court reportedas 2009 (1) RCR 296 Nand Kishore & Anr. Vs. Viiav Kumar Gupta is distinct on its facts; this judgment has even otherwise not considered the dictum of this court in the judgment of Assarwal Hardware Works Private Limited (Supra). Learned counsel for the petitionerhas also placed relianceupon the judgment of the Apex Court reportedin JT 2009 (14) SCALE 672 Prithipal Sinsh Vs. SatyalSinsh

(Dead) throush LRs\ contention being that Rule 23 of the Delhi Rent Control Rules, 1959 has been excluded in its application only for a special class of landlords and the present petition which has been filed by the landlord under Section 14 (l)(a) & (b) of the DRCA is not a special class of landlord; the impugned judgment dismissing his application for review only on the ground that powers of review are not available to the ARC and the RCT suffers from an infirmity. A Bench of this Court in the judgment of Nand Kishore (Supra) n was dealingwith apetitionfiledby the landlordunderSection14 (l)(b) of the DRCA and in this context had noted that no power of review is available either to the Rent Controller or to the Rent Control Tribunal. In this context, the followingextract quoted from the judgmentof the Apex Court reported in AIR 1970 SC 1 Shankar Ramchandra Abhvankar Vs. Krishnaii Dattatrava Bavat had been extracted which inter-alia reads as follows "5. Even otherwise, it is settled law that Additional Rent Controller is not a Civil Court and cannot exerciseinherentpower or powers which are not conferred on it by the statute.Powerofreviewis notan inherentpor and can be exercisedby an Additional Rent Controller or Additional Rent Control'Tribunal only if it is provided in the Rent ControlAct No power of review has been conferredon the Additional Rent Controller or on the Additional Rent Control Tribunal under Delhi Rent Control Act and Rent Controller or Rent Control Tribunal cannot exercise this power. In Jasdish Pars had Vs. Mehar Chand & Anr. 1993 (1) RCR (Rent) 459 (P&H)., Punjab and Haryana High Court had considered the similar issue and observed as under:-

¶5As the Rent Controller and the Appellate Authority are not Courts, therefore, the power to review exercised by Civil Court under the Code of Civil Procedure cannot be exercised by them. Learned counsel for the petitioner fairly concedes that the Act contains no provision as to review. In this view of the matter. Appellate Authority rightly dismissed the application for review ofthe order.

¶6Similarly is the view ofAndhra Pradesh High Court in A. Manmohan Shah Vs. Gopinath 1999 (1) RCT (Rent) 405.1 consider that thepower ofreview since not A" /(5 available under Rent Control Act cannot be exercised either by Rent Control Tribunal or by the Rent Controller. " Similar view was expressed by another Bench of this Court reportedin 1986 (2) AIRCJX ChainanLai Grover VS. BriiLaiDhamiia & another. In the present case, on the statement made by the parties on

06.05.2009,the petitionwas disposedof as compromised.The following order was passed by the ARC which reads as under "PW-1partly cross examined.At thisstageduringthecross-examinationthe parties have agreedfor amicablesettlement.Thepetitionerhas submittedthathe is ready to get the shop reconstructedif the Respondentvacates the same and after reconstructionof it, within three months of its vacation by the Respondent,he will again hand over thepossession of the same to the Respondentand the counselfor theRespondenthas agreedfor thesame who has submittedthat he was talkedto the Respondent and has.got instructionsfrom her to state that as per the settlement Respondent will vacate the shop in question within one weekfrom todayfor its reconstruction, as the petitioner has agreed to let out this shop to the respondent after reconstruction. The statement of theparties as well as counsel in this regard recorded separately. Parties shall be bound by their statement recorded today. So, in view of the statement recorded today, the resent petition is disposed off as compromised. File be consigned to the record room. The application for review filed against this order had been V.' A" dismissed by the ARC on 22.03.2010. This order of the ARC was assailedbefore the RCT which had been disposed of by the impugned order dated 23.08.2011. The order of the ARC has since merged with the impugnedorder passedby the RCT. The impugnedorder had held that not only are the powersofreviewnot availableto the Rent Control Tribunal but even on merits, the submission of the petitioner that his counsel was not authorized to make a statement on her behalf did not find favour with the RCT as the Court had noted that although this contention had been raised but yet for more than two years, it appears that no action has been taken against her erring counsel. This Court is bound by the judgment of the coordinate Bench of this Court i.e. Nand Kishore (Supra) which has categorically held that the powers of review are not available to the Rent Controller or to the Rent Control Tribunal; this order was pronounced while dealing with a class of landlords under Section 14 (l)(b) of the DRCA. The judgment of A22aiy^al Hardware Works Private Limited (Supra) is distinct on its own facts. This was a petition under Section 21 of the DRCA; the matter had been remanded back by the Tribunal to the ARC; in the review petition before the Tribunal it had been contended / that the sole groundfor remandwas to determinewhetherthe premises had been let out for a limited period or not; record had been requisitionedby the Tribunal and Tribunal had noted that this point alreadystood decidedby the ARC and because ofthis glaring factual mistakewhichwas apparenton the face of the record,the Tribunalhad noted the order of remand would be an exercise in futility; it was in this contextthat power of reviewwas exercised. The judgment of Prithival Sinsh (supra) was dealing with a specialclass of landlordsi.e. a class of landlordunder Section14 (l)(e) of the DRCA where it was noted that the procedure of Section 25-B of the DRCA being a complete Code in itself is applicable to such a category of landlords. This judgment does not in any manner advance or substantiate the submission of the petitioner. Powers of Rent Controller are contained in Section 36 of the Act and that of Tribunal in Section 38 of the DRCA. The power to correct an arithmetical mistake is given both to the Controller and to the Tribunal under Section 40 of the said Act. If the Legislature had intended to grant the powers of review to the Rent Controller or the RCT, the said powers would have been spelt out. Impugned judgment in no manner suffers from any infirmity. Dismissed. FEBRUARY 01,2012 A INDERMEET KAUR, J

IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgmentreserved on : 30,01.2012 Judgmentdeliveredon: 01.02.2012 + CM (M) No. 92/2012 & CM Nos.1464-65/2012 SAVITRI DEVI GUPTA Petitioner Through Mr. S.C. Singhal, Adv. Versus DHARAM PAL TANWAR Respondent Through Nemo CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR