MOHD SHOAIB & ORS. vs ABDUL QADEER & ORS.

2023-11-20 Information

$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: 20.11.2023
+ RC.REV. 51/2022, CM APPLs. 16343/2022, 33335/2022
MOHD SHOAIB & ORS. ….. Petitioners
Through: Mr Pramod Gupta, Advocate.
versus
ABDUL QADEER & ORS. ….. Respondents
Through: Ms Shalini Kapoort, Ms Promil Seth Mago, Ms Sukriti Singh, Ms Divaanshi Saxena, Mr Udit and Ms Celina, Advocates
CORAM:
HON’BLE MS. JUSTICE TARA VITASTA GANJU
[Physical Hearing/Hybrid Hearing (as per request)]
TARA VITASTA GANJU, J.: (ORAL)
CM APPL. 33335/2022[Application for fixation of user and occupation charges]

1. This is an Application on behalf of the Respondent/landlord seeking directions to the Petitioners/tenant to pay arrears of rental and user charges to the Respondent/landlord for the premises bearing shop No. 4337, Kucha Pandit, Lal Kuan, Delhi [hereinafter referred to as demised premises].
2. This Application was initially taken up on 29.07.2022 when Notice was issued in the matter. Reply to the Application was filed by the Petitioner on 12.10.2022.
3. The Application was then taken up for hearing on 12.10.2023 when both the parties were directed to file their respective documents in support of their contentions qua use and occupation charges.
4. Learned Counsel for the Respondent seeks to rely upon a lease agreement of a property at Sitaram Bazar bearing Municipal number 1188 which is for an area of approximately 35 sq. mts. admeasuring 368 sq ft. which is at a rental of Rs. 30,000/- per month.
5. A hard copy of the same has been handed over to the Court. One hard copy is handed over to the learned Counsel for the Petitioner as well.
6. Registry to scan and upload the same so that it remains embedded in the case file.
7. Learned Counsel for the Respondent/landlord fairly submits that since the premises in issue are 60 sq. ft., the rental would be approximately Rs. 5,000/- per month.
8. Learned Counsel for the Petitioner submits that this lease deed relied upon by the Respondent/landlord is a premises at a distance of approximately 2 kms away from the demised premises. Learned Counsel for the Petitioner/tenant seeks to rely upon rent receipts of the same area as the demised premises which show a rental of Rs. 3,500/- for a shop admeasuring approximately 40 sq. ft.
9. Learned Counsel for the Petitioner/tenant further submits that he is not liable to pay any user charges as he has purchased a 1/9th undivided share in the demised premises in the year 2013 by virtue of an Agreement to Sell. Reliance is placed on the judgment of the Supreme Court in Jagdish Dutt Vs Dharam Pal & Ors., AIR 1999 Supreme Court 1694.
10. Learned Counsel for the Respondent/landlord refutes this contention submitting that judgment in the Jagdish Dutt case is not applicable in the facts of the present case. Reliance is placed on the judgment of the Supreme Court in the case of India Umbrella Mfg Co. and Ors. Vs. Bhagabandei Agarwalla (2004) 3 SCC 178 to contend that in order to bring a tenancy to an end, the interest of a landlord in its entirety must come to vest and merge into the interest of the tenant. Since only 1/9th share has been purchased, the Petitioner/tenant is liable to pay use and occupation charges.
11. Given the fact that the Order dated 01.12.2021 [the Impugned Order] has been stayed by this Court by its Order dated 17.05.2022, in view of the judgment of the Supreme Court in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. reported as (2005) 1 SCC 705 and Martin & Harris (P) Ltd. v. Rajendra Mehta, (2022) 8 SCC 527, this Court deems it expedient to affix user charges.
12. Admittedly, the receipts relied upon by the Petitioner/tenant are for the premises which is admeasuring 40 sq. ft. @ Rs. 3,500/- per month whereas the demised premises admeasures 6.2 X 9.5 or 60 sq. ft. (approx.). The documents of both parties show market rental of around Rs.5,000/- p.m.
13. Accordingly, without prejudice to the rights and contentions of the parties and with the consent of parties, the directions as set forth below are passed.
13.1 The Petitioner/tenant shall pay to the Respondent/landlord use and occupation charges in the following manner during the pendency of the Revision Petition:
(i) The use and occupation charges for the period from 01.06.2022 to 30.11.2023 shall be paid by the Petitioner/tenant at the rate of Rs.4,500/- per month;
(ii) The use and occupation charges from 01.12.2023 onwards, shall be paid by the Petitioner/tenant at the rate of Rs.5,000/- per month, on or before 7th day of each calendar month;
(iii) The use and occupation charges as set forth in paragraph (i) shall be paid by the Petitioner/tenant to the Respondent/landlord in three equal instalments, i.e., 15.12.2023, 31.01.2024 and 28.02.2024.
14. All payments shall be made into the bank account of the Respondent/landlord. The details of the bank account shall be provided by the learned Counsel for the Respondent/landlord to the learned Counsel for the Petitioner/tenant on his email address within three days.
15. It is clarified that the use and occupation charges as affixed hereinabove are tentative and subject to the final outcome of the present Petition.
16. Subject to the Petitioner complying with the directions as set forth hereinabove, the execution of the Impugned order dated 17.05.2022 shall remain stayed during the pendency of the present Petition.
17. The Application is accordingly closed.
18. Parties will act based on the digitally signed copy of the order.
RC.REV. 51/2022, CM APPL. 16343/2022[Stay]
19. Learned Counsel for the parties submit that they have filed their respective written submissions and the judgments sought to be relied upon.
20. List the matter for hearing on 06.05.2024 at 3:30 PM.

TARA VITASTA GANJU, J
NOVEMBER 20, 2023
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