ANIL KUMAR JAIN & ANR. vs NIKESH KUMAR JAIN (NOW DECEASED) THR LRS

2023-10-17 Information

$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: 17.10.2023
+ RC.REV. 52/2022
ANIL KUMAR JAIN & ANR. ….. Petitioners
Through: Mr. Ashish Kapur, Advocate

versus

NIKESH KUMAR JAIN (NOW DECEASED)
THR LRS ….. Respondent
Through: Mr. Sunil Dutt Dixit and Mr. Sajal Dutt dixit, Advocates

CORAM:
HON’BLE MS. JUSTICE TARA VITASTA GANJU
[Physical Hearing/Hybrid Hearing (as per request)]
TARA VITASTA GANJU, J.: (ORAL)
CM Appl.26051/2022 [Application seeking to pay use and occupation charges]
1. This is an Application filed by Respondent/landlord seeking directions to the Petitioners/tenants to pay the use and occupation charges for the premises i.e. five rooms together with kitchen, W.C. and bath on the First Floor of Property No. 4315, Main Road, Pahari Dheeraj, Sadar Bazar, Ward No. XIV, Delhi – 110006 and three rooms on the Ground Floor of the Property No. 4315, Main Road, Pahari Dhiraj, Sadar Bazar, Ward No. XIV, Delhi – 110006 [hereinafter referred to as “demised premises”].
2. Learned Counsel for the Respondent/landlord submits that the Petitioners/tenants is using the demised premises, albeit no use and occupation charges are being paid.
2.1. Therefore, learned Counsel for the Respondent/landlord submits that in terms of the judgment of the Supreme Court in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. reported as (2005) 1 SCC 705, once the Eviction Order has been passed, the tenant is required to pay the use and occupation charges at market rent till the final disposal of the Revision Petition.
2.2 Learned Counsel for the Respondent/landlord, submits that the Eviction Order was passed on 20.11.2021 qua the demised premises, and that no use and occupation charges are being paid by the Petitioners/tenants for the demised premises thereafter.
3. On the last date of hearing i.e. 12.10.2023, this Court had passed the following Order:
1. This is an application seeking directions for affixation of use and occupation charges.
2. Learned Counsel appearing on behalf of the Respondent/landlord submits that the Eviction Order was passed on 20.11.2021 and thereafter interim protection was granted to the Petitioner/tenant by this Court by Order dated 04.04.2022.
2.1 Learned Counsel appearing on behalf of the Respondent/landlord submits that no use and occupation charges are being paid by the Petitioner/tenant since April 2011.
3. The premises in issue are described as follows:
(i) Five rooms together with kitchen, W.C and bath on the First Floor of the property no. 4315, Main Rod, Pahari Dhiraj, Sadar Bazar, Ward No.XIV, Delhi-110006 as shown in red colour in the site plan.
(ii) Three rooms on the ground floor of property no. 4315, Main Road, Pahari Dhiraj, Sadar Bazar, Ward No. XIV, Delhi-110006. [hereinafter collectively referred to as the demised premises]
4. Learned Counsel appearing on behalf of the Respondent/landlord has filed a short note as well as some documents and the site plan of the demised premises.
4.1 It is contended by the learned Counsel for the Respondent/landlord based on the documents and the site plan filed, that the area under occupation of the Petitioner/tenant is approximately 200 sq. yards.
4.2 It is further contended that the demised premises is in the main commercial area of the Sadar Bazar Market. The Petitioner/tenant is using the land for continuing his business as is evident from the photographs filed by the Respondent/landlord.
4.3 It is the contention of the Learned Counsel for the Respondent/landlord that the use and occupation charges should be Rs. 75,000/- for the ground floor and Rs 50,000/- for the first floor totalling to Rs. 1.25 lakhs per month for the demised premises.
5. Learned Counsel appearing on behalf of the Petitioner/tenant has submitted that the use and occupation charges for the demised premises should not be more than Rs. 25,000/- per month. He has further contented that the building is about 100 years old and not all the rooms of the premises in the accommodation of the ground floor are facing main road.
5.1 Learned Counsel for the Petitioner/tenant further submits that the calculation made by the Respondent/landlord includes an open courtyard and passage.

4. Learned Counsel for the Petitioners/tenants submits that the demised premises are not 200 sq. yds. but less. Reliance is placed on the measurement which is annexed alongwith the documents filed, which states that it is 120 sq. yds. on the ground floor and first floor.
4.1 It is further contended that the Petitioners/tenants runs a business of supplying of stainless steel utensils to banquet halls from the demised premises from the ground floor and is living on the first floor alongwith his family members. It is, therefore, contended that the rental for the ground floor should be Rs.10,000/- per month and for the first floor should be Rs.9,000/- per month.
5. Learned Counsel appearing on behalf of the Petitioners/tenants contends that the calculation made by the Respondent/landlord is incorrect. He relies on the calculation, which is reproduced as part of his written submissions in paragraph no. 6, which reads as follows:
6. The suit property is 100 years old and is in dilapidated condition. The total area of the property is 550 sq. yds (as per the sale deed filed by the Respondents in the trial court). The suit property is not on main road.

6. In these circumstances, without prejudice to the rights and contentions of the parties, the directions as set forth below are passed.
6.1 The Petitioners/tenants 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 15.02.2022 to 30.09.2023 shall be paid by the Petitioners/tenants at the rate of Rs.30,000/- per month for the ground floor and Rs.20,000/- per month for the first floor, totalling to Rs.50,000/- per month for both floors;
(ii) The use and occupation charges for the period from 01.10.2023 onwards, shall be paid by the Petitioners/tenants at the rate of Rs.40,000/- per month for the ground floor and Rs.25,000/- per month for the first floor, totalling to Rs.65,000/- per month for both floors; on or before 7th day of each calendar month. The payment for October, 2023 shall be made by 24.10.2023; and
(iii) The payment of arrears of user and occupation charges as fixed in (i) above, shall be paid by the Petitioners/tenants in two equal instalments, i.e., on 30.11.2023 and 15.01.2024.
7. 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 Petitioners/tenants on his email address within one week.
8. It is clarified that the use and occupation charges as affixed hereinabove are tentative and subject to the final outcome of the present Petition.
9. In the event that there is any default in the payment of use and occupation charges on behalf of the Petitioners/tenants, interim protection as granted by this Court on 04.04.2022 shall automatically stand dissolved.
10. The Application is accordingly closed.
11. Parties will act based on the digitally signed copy of the order.
RC.REV. 52/2022 & CM Appl.16522/2022[Application for stay]
12. List the matter for hearing on 24.01.2024.

TARA VITASTA GANJU, J
OCTOBER 17, 2023/yg
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RC.REV. 52/2022 Page 2 of 2