SH RAJIV PURI vs SH AMIT SHARMA AND ORS

2023-10-20 Information

$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Order: 20.10.2023
+ RC.REV. 123/2022 & CM Appl.25482/2022
SH RAJIV PURI ….. Petitioner
Through: Mr. Amit Sanduja, Mr. Sheetesh Khanna, Ms. Sushma Khanna, Mr. Tushar Batra and Ms. Sakshi Singh, Advs. with Petitioner in person.
versus

SH AMIT SHARMA AND ORS ….. Respondents
Through: Mr. Ajay Digpaul and Mr. Kamal R. Digpaul, Advs. for R-1 to 3, 5 and 7.
CORAM:
HON’BLE MS. JUSTICE TARA VITASTA GANJU
[Physical Hearing/Hybrid Hearing (as per request)]
TARA VITASTA GANJU, J.: (ORAL)
CM Appl.55351/2023[Application for modification of order dated 11.10.2023]
1. This is an Application filed on behalf of the Petitioner/tenant seeking a review of the judgment/order dated 11.10.2023 [hereinafter referred to as said order] passed by this Court.
2. Although, termed as an Application for modification of order dated 11.10.2023, learned Counsel for the Petitioner/tenant fairly concedes that what in fact is being asked, is for a review of the said order.
3. Learned Counsel who appears on behalf of the Petitioner/tenant submits that the grievance of the Petitioner/tenant is that the area of the premises in occupation of the tenant was not as was set forth in the site plan. It is contended that area under use by the Petitioner/tenant as per the site plan is not more than 652.16 sq. ft. comprising of 452 sq. ft. of shop and approx. 199 sq. ft. for store and tin shed.
3.1 Learned Counsel for the Petitioner/tenant further contends that the total area as per the site plan filed by the Respondents/landlords, [which is annexed at pdf page 905 of the case file] illustrates that the area under occupation is 885.41 sq. ft. and not 1000 sq. ft.
3.2 Thus, learned Counsel for the Petitioner/tenant submits that the area of the demised premises was not admitted by the Petitioner/tenant and hence the fixation of user and occupation charges are not correct.
4. Learned Counsel for the Respondent/landlord submits that the Respondent/landlord does not wish to file any reply to the present application.
4.1 It is further contended that what was given on rent to the Petitioner/tenant in the year 1964 was the entire shop bearing No.G-18A South Extension Market, Part-I, New Delhi [hereinafter referred to as the shop]
4.2 The difference, if any, is on the basis of calculation of covered area vis-a-vis carpet area, of the premises.
5. The record shows that the matter had been fixed for fixation of user and occupation charges on multiple occasions. Subsequently, arguments were addressed on 18.08.2023 by both parties.
5.1 The Petitioner/tenant has relied on the site plan initially filed by the Respondent/landlord with the Eviction Petition, which was later placed on record by the Petitioner/tenant [at pdf page 905 of the case file].
6. Since the dimensions in this site plan were not very clear, a revised site plan with dimensions was handed across by the Respondent/landlord and thereafter filed along with a short note on the calculations by the Respondent/landlord after the judgment was reserved.
6.1 A note for calculation of user and occupation charges was also filed by the Petitioner/tenant on 21.08.2023.
7. For the purposes of calculating user and occupation charges, the applicable law has been laid down in the judgment of Supreme Court in the case of Martin & Harris (P) Ltd. v. Rajendra Mehta, (2022) 8 SCC 527.
7.1 This Court in the case of Murari Chauhan v. Kailash Narain Malhotra, 2023 SCC OnLine Del 3644 has held that what is required to be seen, is the area of the premises, the locality, the rental of the like premises as well as the condition of the premises as follows :-
7. The Supreme Court in a recent Judgment titled Martin and Harris Private Limited v. Rajendra Mehta1, has upheld the law laid down in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd.2 case that once an Eviction Order has been passed, the tenant is required to pay the use and occupation charges at market rate of like premises till the final disposal of the Petition. It has been held however that, the direction to pay mesne profits or compensation will depend on the facts and circumstances of each case including on location of the property whether it is in a village, city, or metropolitan area as well as its nature whether it is a commercial or residential area and the standard rate of rent serving as guiding factors in the facts of each case.
[Emphasis supplied]

8. This Court has relied upon the averments made by both the parties in the Application for user and occupation charges i.e., CM Appl. 46165/2022 and its Replies.
8.1. Paragraph 13 of the Reply filed on behalf of the Petitioner/tenant specifies a different calculation of the area previously under tenancy of the Petitioner/tenant as follows:
13. It is submitted that the lease deed dated 2.03.2022 and 3.02.2022 relied upon by Applicant is completely misconceived and misplaced as the area under use by the Petitioner only admeasures 448 sq. ft. the condition of the said premises is extremely poor and in no possibility would fetch returns even close to what have been applied by the Applicant. Thus, the present Application ought to be rejected.
[Emphasis supplied]

8.2 While the site plan’s filed may set out certain dimensions, admittedly, the entire demised premises is in use and occupation of the Petitioner/tenant since the year 1964 itself.
9. For the purpose of ascertaining the rental, both parties have filed lease deeds of neighbouring shops in the area. The user and occupation charges have been fixed after comparison of these deeds and the other documents filed by the parties.
10. In its judgment dated 11.10.2023, the Court while accounting for the area, locality and the factum of the rental in similar premises in that area, has affixed user and occupation charges. The size of the shop is only one of the factors considered. The location and use of the premises by the Petitioner/tenant has also been considered.
11. In view of the aforegoing, there is no error apparent on the record which merits interference by this Court.
12. The Application is accordingly dismissed.
13. Parties will act based on the digitally signed copy of the order.

TARA VITASTA GANJU, J
OCTOBER 20, 2023/r
Click here to check corrigendum, if any
1 (2022) 8 SCC 527
2 (2005) 1 SCC 705
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RC.REV. 123/2022 Page 5 of 5