C.M. Nayar, J. -
(1.)The present petition is directed against the order passed by the respondents on September 6, 1991 raising the demand for alleged misuser charges in respect of the premises situated on plot No.22, Block 127, known as 48, Hanuman Road, New Delhi. The said order is filed as Annexure 'L' to the writ petition.
(2.)The brief facts of the case are that perpetual lease-deed was executed in favour of one Dr.Jnanada Kanta Sen by Secretary of State in respect of the premises on March 1, 1923. The said Dr.Sen died on January 15, 1955 and in the year 1957 the premises were rented out to Dr.Ved Prakash for residential purposes. It is stated that there was no written agreement in respect of this tenancy. The notice was received from respondent No.2 to landlords of the premises for misuser and breach of clause 6 of the Lease Deed on January 19, 1971 and the landlords, as a consequence, wrote to the tenants on June 30, 1971 for removal of the breach. Similarly, notice was received from respondent No.2 to remove the breach within 15 days on July 30, 1971. Thereafter, the landlords took immediate steps to stop misuser and terminated the tenancy on the expiry of the month of February, 1973. On April 2, 1973, the landlords filed eviction petition before Additional Rent Controller under Section 14(l)(k) of the Delhi Rent Control Act (hereinafter referred to as 'the Act'). In May, 1973 writ petition No.711 of 1973 was also filed in this Court challenging the order/notice of re-entry dated February 12,1973 which was issued by respondent No.2 purporting to determine the perpetual lease for violation of the terms of the lease. The above said notice dated February 12, 1973 which is Annexure 'F' to the writ petition reads as follows: "To Sh. Sisir Sen, Dr. Santosh Kumar Sen, Dr. Ranjit Kumar Sen, Smt.Ila Sen, Dr.Satya Brata Sen, Smt.Amita Sen, and Smt.Amitabha Sen, Smt.Chittra Sen, Smt. Lila Sen, Sh.Devi Brata Sen, 48, Hanuman Road, 360 New Delhi. ' Sub : Premises situated on plot No.22 Block No.127 known as 48, Hanuman Road, New Delhi. Dear Sirs/Madam, The undermentioned breaches existing on the lease-hold premises, cited as subject, have neither so far been removed nor regularised by you despite a notice given to you in this behalf on behalf of the Lessor vide Land and Development Office letter Nos.LI- 9/127(22)/67 dated 19.1.71 and 30.7.71. Portion of Ground floor was being used as Doctor's clinic (x-ray Electro Medical and Skin Clinic) area 2843 sq.ft. Please take notice, therefore, that in consequence of your failure to remedy the aforesaid breach the lessor has been pleased to determine the lease and re- enter upon the premises with effect from 10.1.73 on and from which date, therefore, all your rights and title in the lease-hold property in question have ceased. 2. The entire plot of land forming the subject matter of the relevant lease deed and all the buildings standing thereupon including all structure, erections, and fittings vest now in the President of India. Shri R.S.Sibal, an assistant Engineer of the Land &: Development Office has been directed to take possession of the premises from you and he will call upon you for this purpose on 6.3.73 at 11 A.M. and 1, hereby call upon you to hand over peacefully the possession of the - premises including land, buildings, fittings, fixtures, etc. to him."
(3.)The Additional Rent Controller passed an eviction order against the tenants in favour of the petitioners/landlords on August 28, 1978. The Controller had earlier on April 29, 1978 had directed issuance of notice under Section 14(11) of the Act to L&DO to ascertain whether they were prepared to regularise the misuser of the premises permanently on payment of compensation and if so, for how much amount. L&DO stated that the breaches could not be regularised permanently, therefore, as a consequence, the eviction order was passed by the learned Controller. The Rent Control Tribunal, however, accepted the appeal filed by the tenant and directed him to deposit within three months from the date of the order misuse charges, as specified and in default the tenant was held liable to eviction. The Tribunal passed this order on March 23, 1981. Second Appeal No.l95 of 1981 against this order was filed in this Court and by a common order dated November 28, 1988 S.B.Wad.J. dismissed the Second Appeal and allowed the writ petition which was filed to impugn the notice of re-entry by L&DO. The operative part of this judgment reads as follows: "The misuser was brought to the notice of the tenants by the landlords a number of times, but the misuse was not stopped. The landlord then terminated the tenancy and filed a suit for eviction. Thus, 361 the landlord was not personally misusing the premises and took all the legal steps expeditiously for stopping the misuse by the tenants. The fact of misuser has been confirmed concurrently by the two courts below as the L&DO is not ready to condone the misuser and insist on stopping it and the tenant has inspite of the notice had not , stopped the misuse, he is liable to vacate the premises under clause (k) of the proviso to Section 14 of the Delhi Rent Control Act. The landlords/the petitioners cannot be legally held to be the defaulters and, therefore, the lease in their favour cannot be terminated by the L&DO. The impugned order in so far as it terminates the lease of the petitioner is illegal qua the petitioners and has to be quashed qua the petitioners. SAO 195/81 is dismissed. The tenants,, viz. the heirs of Dr.Ved Prakash should vacate the premises within six months from today. Writ petition 711/83 is allowed with costs. The rule is made absolute."