Undoubtedly, the NDMC appears to have not taken any action against the SOS Children's Villages of India to take back the possession of 1, Doctor's Lane, Gole Market, New Delhi after closure of the project Udayan in 2003 after revocation of the agreement dated 23.03.1981 with the SOS Children's Villages of India on 30.10.1998 but the same does not detract from the factum that in terms of the said agreement dated 23.03.1981 between the NDMC and the SOS Children's Villages of India, there has been no subletting or parting with the possession of the tenanted premises as rightly held by the learned RCT, New Delhi vide the impugned judgment dated 23.08.2018.
29. The factum that the officers concerned of the NDMC had not acted with diligence to recover the possession from the SOS Children's Villages of India from the tenanted premises in question, does not render the contention raised by the NDMC frivolous that it had not sublet the tenanted premises to the NGO i.e. the SOS Children's Villages of India. The verdict of the Hon'ble Supreme Court in "S.F. Engineer Vs. Metal Box India Limited and Another" MANU/SC/0246/2014 : (2014) 6 SCC 780, makes it apparent that the said inaction by the officers of the NDMC concerned by itself does not suffice to lead this Court to the conclusion that the subletting by the NDMC to the SOS Children's Villages of India as alleged by the petitioner, - had been established.
IN THE HIGH COURT OF DELHI
CM (M) 1229/2018 and C.M. Appl 42051/2018
Decided On: 30.06.2020
Abhishek Buildcon Pvt. Ltd. Vs. New Delhi Municipal Council
Hon'ble Judges/Coram:
Anu Malhotra, J.
Citation: MANU/DE/1317/2020
1. The petitioner vide the present petition under Article 227 of the Constitution of India has assailed the impugned judgment dated 23.08.2018 of the learned Rent Control Tribunal (hereinafter referred to as RCT), New Delhi in RCT No. 1/11, vide which the judgment dated 20.11.2010 of the learned Appellate Rent Control Tribunal (hereinafter referred to as ARCT) in Eviction Petition No. 22/08 was set aside, with it having been submitted by the petitioner that grave miscarriage of justice has been caused to the petitioner by the impugned judgment of the learned RCT, New Delhi.
2. The petition under Article 227 of the Constitution of India is taken up for consideration in view of the verdict of this Court in "Nawal Kishore vs. Mohd. Yakub" in CM(M) 1256/2012 decided on 24.08.2017 to the extent of parameters as laid down in Jasbir Singh Vs. Manjit Kaur MANU/DE/4346/2013, wherein it has been held that though the right of second appeal in terms of the Delhi Rent Control Act, 1958 (hereinafter referred to as the DRC Act, 1958) with Section 39 of the said enactment having been deleted w.e.f. 01.12.1988, this Court nevertheless can consider in its supervisory jurisdiction as to whether the functionaries under the supervisory jurisdiction of this Court have acted within their bounds and where it results into manifest miscarriage of justice but not in all cases to correct mere errors and that where there are two views possible and the view adopted by the lower Court is reasonable and a plausible one, this Court would not be justified in interfering in such cases merely to arrive at different view in the matter.
3. The predecessor in interest of the petitioner i.e. M/s. Arya Dharam Seva Sangh filed an Eviction Petition No. 22/08 with previous No. E-992/2003 on 17.07.2003 against the respondent herein i.e. the North Delhi Municipal Council under Section 14(1)(b) of the DRC Act, 1958 contending to the effect that the premises 1, Doctor's Lane, Gole Market, New Delhi was let out by the said petitioner M/s. Arya Dharam Seva Sangh, a society registered under the Societies Registration Act, 1860 to the respondent on a monthly rent of Rs. 172/- exclusive of house tax, electricity, water and other charges had been sublet, assigned or otherwise parted with for the possession of the same by the respondent herein to the SOS Children's Villages of India, a non-Governmental organization vide an agreement dated 23.03.1981 without the consent of the petitioner/landlord and that the respondent had illegally and unauthorizedly been shifted in a portion of the said property. Inter alia the petitioner of the said Eviction Petition No. E-992/2003 filed on 17.07.2003 submitted that this fact of the subletting, assignment and otherwise parting with the possession of the suit premises to the SOS Children's Villages of India by the respondent came to the knowledge of the petitioner on 24.03.2003 and on 05.05.2003 when the respondent's advocate supplied a copy of the agreement dated 23.03.1981 to the petitioner. The petitioner submitted that it was earlier under the impression that the premises were being used as Udayan, a house for keeping orphan babies by the SOS Children's Villages of India, a Non Governmental Organisation by the respondent NDMC.
4. The respondent i.e. the New Delhi Municipal Council through its written statement submitted before the learned ARCT denied that it has sublet or assigned or otherwise parted with the possession of the premises in question to the SOS Children's Villages of India, a Non Governmental Organisation and that the respondent had undertaken to establish a centre namely Udayan for the children born in unwanted circumstances and also requiring convalescence at the premises in dispute and an agreement dated 23.03.1981 was executed between the respondent and the NGO and it was agreed that the respondent would bear all the expenses for running of Udayan at the premises in dispute. The respondent through its written statement has further submitted that vide the said agreement it was also agreed that Udayan would be run by an NGO and that the NGO would not charge any overhead expenditure for running of Udayan and it was also agreed that the respondent would make half yearly payment to the NGO in January and July each year for expenditure as per details in the agreement and as per the agreement between the respondent and the NGO, it was further agreed that the respondent would place the accommodation at the disposal of the NGO, free of any rent electricity charges and water charges and that the maintenance cost would be borne by the respondent i.e. New Delhi Municipal Council.
5. Inter alia it was submitted further through the said written statement of the respondent that it had been further agreed between the respondent and the NGO that in the event of a decision by the respondent to wind up Udayan, the possession of the tenanted premises would revert back to the respondent and the NGO would be bound to handover the possession without any demur and the assets created would be the property of the respondent. Inter alia the respondent has further submitted that Udayan is a joint venture of the NGO and the respondent and the children received at Udayan usually are in a deplorable state and after giving good care, they are safely placed in families. The respondent has further submitted that due to non settlement of outstanding advances by the NGO and in view of certain unreplied audit paras, the release of the grant to the NGO was stopped by the respondent and vide Resolution No. 3(XII) dated 30.10.1998 of the respondent and it was decided that the agreement may be revoked and the NGO be asked to get the audit objections settled. The respondent has further submitted that despite the issue of notices and even after the stoppage of grant, the NGO did not come forward to get the matter settled, as a consequence of which the respondent/NDMC issued a notice dated 19.08.2003 to the NGO vide which it was informed that the respondent had decided to wind up the project of Udayan being run with the infrastructure support of the respondent and to handover the peaceful possession within 15 days of the receipt of the notice. The respondent has further submitted that it was also informed vide the said letter that the respondent had decided to use the premises for other welfare activities namely shifting of Paawan School for hearing impaired managed by the respondent/NDMC which at present is facing severe shortage of space.
6. The respondent through its written statement before the learned ARC submitted that the facts averred in the eviction petition did not disclose whether the respondent had sublet or assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord. Inter alia the respondent has submitted that as long as the tenant retained the right to possession, there is no parting with the possession in terms of Section 14(1)(b) of the DRC Act, 1958 and that there was no subletting, as Clause 6 of the agreement dated 23.03.1981 categorically stated that the premises are free of any rent, electricity charges and water charges and that in fact the maintenance cost of the premises was to be borne by the respondent and the respondent had been from time to time giving grants to the NGO and even the salaries of the employees were being given by the respondent as per the agreement. It was further submitted by the respondent that the legal possession of the premises had always been retained by the respondent.
7. The respondent however admitted that the NGO was using the premises but denied that the legal possession of the premises had been parted with by the respondent. The respondent has further submitted that the respondent had desired to undertake the establishment of a centre namely Udayan for the children born in unwanted circumstances and also requiring convalescence at the premises in dispute and an agreement was executed on 23.03.1981 between the respondent and the NGO and it was agreed that the respondent would bear all the expenses for the running of Udayan at the premises in dispute and that Udayan would be run by the NGO on behalf of the respondent. It was further agreed that the NGO would not charge any overhead expenditure for the running of the Udayan and it was also agreed vide the said agreement that the respondent would make half yearly payment to the NGO in January and July each year for expenditure as per details in the agreement. It was further agreed between the respondent and the NGO that the respondent would place the accommodation at the disposal of the NGO free of rent, electricity charges and water charges and further the maintenance cost of the premises would also be borne by the respondent. It was also agreed that in the event of decision by the respondent to wind up the centre, the possession of the premises in dispute would revert back to the respondent and the NGO would be bound to handover the possession without any demur and the assets created would be the property of the respondent.
8. The respondent has thus reiterated that so long there has been no parting with the possession in terms of Section 14(1)(b) of the DRC Act, 1958 and that there was no subletting as Clause 6 of the agreement dated 23.03.1981 categorically stated that the premises were free of any rent, electricity charges and water charges and that in fact the maintenance cost of the premises was to be borne by the respondent and the respondent had been from time to time giving grants to the NGO and even the salaries of the employees were being given by the respondent as per the agreement. It has also been submitted by the respondent that the legal possession of the premises in question had always been retained by the respondent and the respondent had denied that the full control on the premises in question was with the SOS Children's Villages of India.
9. The learned ARC vide the judgment dated 20.11.2010 held to the effect that the evidence on record adduced by the parties to the proceedings made it clear that the premises in question was the tenanted premises with the respondent/NDMC of which the petitioner was the landlord and that the said premises had been given to the NGO SOS Children's Villages of India for running Udayan constituted for orphan children without obtaining the consent in writing of the petitioner/landlord and thus, the respondent/NDMC parted with the possession of the premises to the said NGO losing control over the same and till the date of the said impugned judgment had been unable to get the possession back.
10. Inter alia it was held by the learned ARC that RW1 Ravinder Kumar had even admitted in his deposition that the premises in dispute is in exclusive physical and legal possession and occupation of the SOS Children's Villages of India. The learned ARC further observed to the effect that despite the NDMC having revoked the licence of the NGO vide notice dated 19.08.2003 which had failed to get back the possession of the premises and that the NDMC had not taken any steps for vacation of the NGO from the tenanted premises to take back the possession. Inter alia the learned ARC held to the effect that from the evidence, it was brought forth that initially the said NGO functioned from the said premises in collaboration and arrangement with the NDMC but later on the NGO became a self proclaimed authoritative body and started running the centre in defiance to the terms and conditions as laid down in the said agreement and this defiance continued for a pretty long time and that the only witness of the NDMC/respondent who is RW1 Ravinder Kumar admitted it to be correct in cross-examination that the SOS Children's Villages of India was an NGO and was an independent body and was not under the control of the NDMC and also admitted it to be correct that the possession of the premises in dispute was with the SOS Children's Villages of India and the NDMC was not able to take back the possession and has further stated that he was not aware whether NDMC had taken any step for taking back the possession from the SOS Children's Villages of India after 1998 after the termination of the license. Thus, vide the said judgment, the learned ARC held to the effect that it stood proved on record that the present petition for eviction came to be filed by the original petitioner when the original petitioner learnt during the course of proceedings of another eviction petition earlier filed as E-129 of 1993 under Section 14(1)(a)(j)(k) of Delhi Rent Control Act which was pending before the Rent Controller, Delhi that the full control and possession of the premises is with the SOS Children's Village of India.
11. It was also observed vide paragraph 20 of the judgment of the learned ARC to the effect:-
"...It stands proved on record that the present petition for eviction came to be filed by the original petitioner when the original petitioner learnt during the course of proceedings of another eviction petition earlier filed as suit no. E-129 of 1993 U/s. 14(1)(a)(j)(k) of Delhi Rent Control Act pending before the Rent, Controller, Delhi that the full control and possession of the premises are with the SOS Children Village of India. This fact has figured in para 5 of affidavit Ex. AW1/A of Sh. Vinod Kumar Mishra who proved on record the certified copies of the statements of RW2 Ms. Shashi Bala, Nodal officer, Welfare Department of respondent and RW3 Sh. Vishv Bandhu Sharma, Junior Engineer (Unauthorised Cell) of the respondent recorded on 24.3.2003 in the said earlier suit no. E-129 of 1993 placed under exhibits AW1/7 &8. The said RW2 Ms. Shashi Bala stated in cross-examination while deposing in the earlier filed petition no. E-129 of 1993 that the entire control of the orphanage is with the SOS Children Village of India which is an NGO but initially the control was with the NDMC. This statement was given on 24.3.2003. Further the said RW-3 Sh. Vishv Bandhu Sharma while deposing in the earlier filed petition E-129 of 1993 In cross-examination stated that he could not tell If the premises in question is not under the control of the NDMC and he has no idea who is in occupation or possession of the tenanted premises."
12. Inter alia the learned ARC vide paragraph 21 of the said judgment held to the effect:-
"21) It is significant to record that, as stated by the respondent/NDMC that the said NGO failed to settle the audit objections, the copy of audit record with regard to the Udayan was sent to the said NGO vide a letter dated 22.2.1989 under the signatures of one Sh. Dr. S.B. Sharma, Education Officer and when the audit objections were not settled by the SOS Children Village of India - the said NGO, the notice for giving back possession of the premises was issued on 19.8.2003 - meaning thereby that even after the submission of the audit report in the year 1989, the NDMC remained lethargic in taking action against the said NGO for about 10-12 years. It is the original petitioner on coming to know that the exclusive physical and legal possession of the premises in question is with the said NGO, filed the eviction petitions.",
that the respondent had been wholly lethargic is seeking the possession of the premises from the SOS Children's Villages of India and the learned ARC observed thus vide paragraph 23 of its judgment to the effect:-
"23) The petitioner is seeking the return of possession of the demised premises on the ground that the tenant has otherwise parted with the possession of the premises without obtaining the consent in writing of the landlord. I have discussed above that the witness of the NDMC/respondent has admitted that the said NGO is in exclusive physical and legal possession of the premises in question. It also stands amply proved that the NDMC had for long before lost control over the functioning of the said NGO and NGO went on acting and functioning in defiance to the terms and conditions of the said agreement executed between NDMC and the said NGO and thus knowing well that the NGO has become hostile towards tenant NDMC, the respondent/NDMC remained lethargic and only took action of revoking the license after a pretty long time of about 12 years. It is also stand(s) proved that the respondent/NDMC has become unable to get the possession back from the said NGO."
13. The learned ARC also observed vide paragraphs 25 & 26 to the effect:-
"25. Seeing the facts and circumstances of the present case in the perspective of the above observations and the plain provisions of Section 14(1)(b) of the Delhi Rent Control Act as reproduced above, it can be safely held that the possession of the suit premises came to be parted with to the said NGO without obtaining the consent in writing of the landlord. The tenant even did not bother to send formal intimation of delivery of the possession of the premises to the said NGO in writing. Further, the said NGO continued functioning since the very beginning with the manpower of its own people and that no official of the NDMC was deputed to factually and actually keep control over the functioning of the said NGO. Moreover, the premises were let out to the NDMC/respondent for residence purpose for the NDMC/respondent but the respondent/NDMC parted with the possession of the premises in question to third party although for running a benevolent object in the public interest, yet in violation of the provisions of the law. The NDMC should have taken into confidence the landlord before entering into the said so called joint venture. When the respondent/NDMC stands deprived of the legal and physical possession of the premises in question by the said NGO so the respondent/NDMC has no legal right to stake claim over the premises in question. The respondent/NDMC deserves to be evicted from the premises in question.
26) Consequently, in the light of above discussion, the petition for eviction of the petitioner under Section 14(1)(b) of the Delhi Rent Control Act succeeds. The respondent/NDMC is ordered to be evicted from the suit premises i.e. shown red in the site plan Ex. AW1/6 portion of premises 1 Doctor's Lane, Gole Market, New Delhi. This order is passed accordingly in favour of the petitioner and against the respondent/NDMC with costs of the proceedings. Consequently, the respondent/NDMC is directed to deliver the possession of the premises in question to the petitioner. File be consigned to Record Room."
14. The said judgment of the learned ARC was assailed before the learned ARCT, New Delhi vide RCA No. 1-A/11 by the NDMC i.e. the respondent herein and vide judgment dated 02.03.2012, the learned ARCT upheld the verdict of the learned RCT observing vide para 8 of its verdict to the effect:-
"8. Section 14(1)(b) of the Act legalizes only those subtenancies in which the consent in writing is obtained by the tenant from the land lord. In the present case, admittedly no written consent had been obtained by the appellant from the respondent, in the cross examination of Ravinder Kumar (RW1) it was admitted by him that SOS Children's Villages of India is an NGO, an independent body and is not under the control of NDMC. It was also admitted by him that the possession of the premises in dispute was with SOS Children's Villages of India and the NDMC was not able to take the possession back. In view of this categorical admission of Sh. Ravinder Kumar (RW1) (a witness of the appellant) and the fact that no written consent had been obtained by the appellant from the respondent to sub let the premises, the findings arrived at by the Ld. Addl. Rent Controller cannot be faulted."
15. The said judgment dated 02.03.2012 of the learned ARCT in RCA No. 1-A/11 was assailed by the NDMC vide CM(M)37/13 before this Court and vide order dated 04.04.2018, the said petition was disposed of with the order of the learned ARCT having been set aside and remanded back for decision afresh after hearing the counsel with the learned ARCT being directed to render the judgment after hearing the parties within four months of the date of first appearance of the parties before it with the learned ARCT having further directed that till the decision, the respondent/landlord would keep the portion of the tenancy premises of which it claimed to have received possession, under its lock and key, as was stated to be the case till now and not to itself occupy or use or allow any other person to occupy or use the same. The learned ARCT has further stated that the eviction from the remaining portion of the tenancy premises would remain stayed till the decision of the Additional Rent Control Tribunal and that the Additional Rent Control Tribunal would be entitled to make appropriate orders with respect to the portion of which the respondent/landlord claimed to have received possession.
16. Vide order dated 11.05.2018 in CM(M)37/2013, it was observed that the senior counsel for the respondent/review petitioner stated that review was sought only to seek a clarification that the observations contained in the order dated 04.04.2018 would not influence the decision of the Additional Rent Control Tribunal and it was thus vide order dated 11.05.2018 in CM(M)37/2013 clarified that though the Additional Rent Control Tribunal would hear the matter in the light of the observations contained in the order dated 04.04.2018 but the decision would be taken without being influenced by any prima facie observations in favour of either party, expressed in the order.
17. The learned RCT, New Delhi vide its impugned judgment dated 23.08.2018 in RCT No. 1/11 on remand of the matter came to the conclusion that there has been no subletting or parting with the possession of the tenanted property by the respondent i.e. the NDMC to the SOS Children's Villages of India vide an agreement executed on 23.03.1981 which was clearly in the knowledge of the petitioner through the predecessor in interest of the petitioner. The impugned judgment dated 23.08.2018, of the learned RCT, New Delhi takes into account the agreement dated 23.03.1981 between the NDMC, Parliament Street, New Delhi and the SOS Children's Villages of India, the terms of which are reproduced hereinbelow:-
"AGREEMENT
This Agreement made on the 23rd day of March, 1981 between New Delhi Municipal Committee, Parliament Street, New Delhi (here-in-after called the first party or the Committee) and SOS Children's Villages of India, 506-507, Vishal Bhawan, 95, Nehru Place, New Delhi - 110019 (here-in-after called the agency or the second party).
Whereas the Committee desires to undertake the establishment of a centre (Udayan) for the Children born in unwanted circumstances and also needing convalescence at 1, Doctor Lane, New Delhi - 1.
An ad-hoc Committee headed by a Chairman will be appointed by the Committee/Administrator, as, the case may be, to keep liaison between the Agency and the Committee and will ensure smooth running of Udayan. Now, therefore, it is hereby agreed between the two parties as follows:-
1. New Delhi Municipal Committee will bear all expenses for the running of Udayan at 1, Doctor Lane, New Delhi.
2. Udayan will be run by the SOS Children's Villages of India on behalf of the Committee.
3. The SOS Children's Villages Authorities will not charge any overhead expenditure for the running of the Udayan.
4. Committee will make half yearly payment to the agency in January and July each year for expenditure, as per details below:
(i) Supervisor (1) on consolidated salary of Rs. 600.00 P.M.
(ii) Trained Nurse (1) ---- do---- of Rs. 500.00 P.M.
(iii) Nurses Aids maximum of (4) (each shift) Rs. 200.00 P.M. for two shifts.
(iv) Chowkidar (1) on consolidated salary Rs. 150.00 P.M.
(v) Sweeper (1) ---- do ----- of Rs. 150.00 P.M.
(vi) Maintenance Cost per child Rs. 80.00 P.M.,
The Sweeper and Chowkidar will, however, be paid on enhanced salary of Rs. 176.50 (consolidated) P.M. from the date of the agreement and not from any retrospective date.
The half yearly payment will be made in advance on the basis of the approved budget but after the first half yearly payment, every subsequent payment will be made after obtaining utilization certificate from the agency duly certified by a chartered accountant. The accounts, however, will remain open to audit by Internal Audit NDMC & C.A.P.
5. The allowance per child is subject to revision at the request of the agency on account of rising in prices.
6. The Committee will place the accommodation at the disposal of the SOS Children Villages of India for the centre free of any rent, electricity charges and water charges.
7. The maintenance cost of the building will be borne by NDMC.
8. The centre (Udayan) will be run by agency, and the Administrator/President or his nominee will co-ordinate with the agency on behalf of the Committee.
9. Any member or officer of NDMC duly authorized can visit the centre from time to time to see the manner in which it is being run by the agency.
10. The selection of the class IV staff would be left principally to the agency, and the recruitment of the other staff in future will be done by the ad-hoc Committee.
11. The selection of children referred by Police or hospital would be on the basis of the need of the child and will be done by the Agency, the children, the agency will take into consideration the recommendations made by the Committee.
12. Whereas, it is intended to run the centre on a permanent basis but in the event of NDMC deciding to wind up the centre the possession of the premises will revert back to the NDMC and agency will be bound to hand over the possession without any demur and in the same condition in which it was handed over to agency subject to normal wear and tear. The agency shall have no right to claim any damage in the event the possession is taken over from the agency.
13. The assets created will be the property of the NDMC.
14. No payment shall be made in the absence of proper record and voucher etc.
The witness where of the Agency and the Committee have executed this document the day 23rd March and the year 1981 first herein above witness."
ANALYSIS
18. A bare perusal of the said agreement dated 23.03.1981 between the NDMC and the SOS Children's Villages of India makes it apparent as rightly concluded by the learned RCT, New Delhi vide its impugned judgment that the contents of the said agreement made it apparent that the expenses of running of Udayan at 1, Doctor's Lane, Gole Market, New Delhi were all to be borne by the NDMC and that Udayan was to be run by the SOS Children's Village of India on behalf of the NDMC and the SOS Children's Villages of India's authorities would not charge any overhead expenditure for the running of the Udayan and the Committee would make half yearly payment to the said SOS Children's Villages of India in January and July each year for expenditure in terms of the said agreement inclusive of salaries paid to the Supervisor, Trained Nurse, Nurses, Chowkidar, Sweeper as well as the maintenance cost per child. Inter alia the accounts of the SOS Children's Villages of India for running Udayan on behalf of the NDMC were to be remain open to audit by Internal Audit NDMC & C.A.P.; the SOS Children's Villages of India was also given the accommodation at the disposal of the SOS Children's Villages of India for the centre,-free of any rent, electricity charges and water charges and the maintenance cost of the building would be borne by the NDMC; it was further agreed vide the said agreement dated 23.03.1981 that the centre (Udayan) would be run by agency, and the Administrator/President or his nominee will co-ordinate with the agency on behalf of the Committee and any member or officer of NDMC duly authorized could visit the centre from time to time to see the manner in which it was being run by the agency; that the selection of the class IV staff would be left principally to the agency, and the recruitment of the other staff in future would be done by the ad-hoc Committee; that the selection of children referred by Police or hospital would be on the basis of the need of the child and would be done by the Agency, the children, the agency would take into consideration the recommendations made by the Committee.
19. In terms of the Clause 12 of the said agreement between the respondent/NDMC and the SOS Children's Villages of India, it was specifically agreed that whereas it was intended to run the centre on a permanent basis but in the event of NDMC deciding to wind up the centre, the possession of the premises will revert back to the NDMC and the agency will be bound to hand over the possession without any demur and in the same condition in which it was handed over to the agency subject to normal wear and tear and the agency shall have no right to claim any damage in the event the possession was taken over from the agency and furthermore, the assets created, would be the property of the NDMC and that no payment shall be made in the absence of proper record and voucher etc.
20. Thus, the terms of the agreement dated 23.03.1981 between the NDMC and the SOS Children's Villages of India authorities made it clear that the NDMC had not let go of the control of the tenanted premises in any manner and that it had not sublet or parted with the possession of the tenanted premises to the SOS Children's Villages of India.
21. The testimony recorded of AW-1 Sh. Vinod Kumar Mishra i.e. the witness produced on behalf of the petitioner before the learned ARCT dated 14.05.2008 makes it clear that the said witness had joined the original petitioner Arya Dharama Sewa Sangh in the year 1990 and stated that the organization named as Udayan was functioning from the tenanted premises prior to his joining the original petitioner as a manager but he did not know whether the Udayan was functioning from the premises since 1981 and that this organization was looking after the unwanted children who had been left by their parents. He has further stated that he did not know whether the organization Udayan was being run by SOS Children's Villages of India a known NGO since 1981 and stated that he learnt of this fact only in the year 1993. He however, stated that he did not say why the present petition had been filed in 2003 after waiting for more than 10 years from the date of knowledge. He further stated that he did not know whether the SOS Children's Villages of India, the NGO was paying any rent to the NDMC and further stated that he also did not know whether the entire expenditure for running the organization Udayan was born by the NDMC for which the entire payment for running the said organization was being paid to the SOS Children's Villages of India, the NGO. He has further stated that he did not know whether all the expenses towards electricity, water charges and maintenance was also being borne by the NDMC and admitted that the rent was being paid by the NDMC. He has further stated that he did not know not know whether the NGO SOS Children's Villages of India, was working under the NDMC as a licencee under an agreement between the parties and he also did not know whether the Udayan was being run jointly by respondent and the NGO i.e. the SOS Children's Villages of India.
22. Inter alia he denied that the suit property was under the possession of the respondent and stated that the possession was with the SOS Children's Villages of India. This witness however, denied that the premises in question had not been sub-let or parted with possession to anybody. The testimony of this witness makes it apparent that the Udayan was being run for a very long time by the SOS Children's Villages of India and as claimed by the NDMC.
23. The petitioner through the witness produced as AW-1 was unable to dispel the contention of the NDMC that the NGO i.e. the SOS Children's Villages of India was running Udayan only as a tenant of the NDMC and not in its own capacity in terms of the agreement dated 23.03.1981.
24. The testimony of AW-2 Shri Banke Bihari Sonthalia, Senior Executive of the present petitioner was also unable to assist the petitioner in support of the contentions raised on behalf of the petitioner that the SOS Children's Villages of India was inducted as a tenant, in as much as, in his cross examination he has categorically stated that he was not aware of the situation in the suit property from 1950 onwards till the same was purchased by his company (i.e. M/s. Abhishek Buildcon Pvt. Ltd.) which was purchased vide a registered sale deed with the Sub-Registrar, Delhi on 18.08.2005. Inter alia, AW-2 has stated that he had no personal knowledge about the facts and circumstances of the case except the transfer of the property in favour of his company.
25. The testimony of RW-1 Shri Ravinder Kumar, Incharge in the Department of Social Education of NDMC recorded before the learned ARCT, brings forth categorically the denial on the part of the NDMC that the premises in dispute had been sublet since the year 1981. The testimony of RW-1 reads to the effect:-
"The SOS children's village of India is in possession of suit premises since 1981. It is correct that the SOS Children's village of India is an NGO, an independent body and is not under the control of NDMC. The premises in dispute is maintained by the NDMC. It is incorrect to suggest that the NDMC is not maintaining the premises in dispute, as the NDMC is paying the electricity bills, voluntarily not receiving any amount from the SOS children's village of India regarding maintenance. I cannot say that whether the electricity bills are paid by the NDMC which can only be replied after checking the records. Same is the reply to the water supply and the payments made in that respect. It is incorrect to suggest that all the bills pertaining to electricity and water are being paid by SOS children's village of India. It is correct that the premises in dispute is in exclusive, physical, legal possession and occupation of the SOS children's village of India. It is incorrect to suggest that the institution named as UDAYAN constituted for orphan is being run independently by SOS children's village of India without the control of NDMC. It is incorrect to suggest that the NDMC is not paying the day to day maintenance charges of the promises in dispute. Vol. The premises in dispute was maintained by NDMC till 1998 when the licence given to SOS children's village of India was terminated by the NDMC. It is correct that the possession of the premises in dispute is with SOS children's village of India and the NDMC is not able to take the possession back. I am not aware of the fact whether NDMC has taken any step for taking back the possession from SOS children's village of India after 1998 after the termination of licence issued in favour of SOS children's village of India and serving them a notice in 2003. It is incorrect to suggest that my statement on record on affidavit and statement given herein above are contradictory in nature. It is correct that two other eviction petition are filed by the predecessor in interest of the present petitioner out of which one petition has been decided partly. However both the petitions are still pending for disposal before this Hon'ble Court. It is incorrect to suggest that the premises in dispute has been sublet, assigned or parted with SOS children's village of India since 1981. It is incorrect to suggest that the NDMC does not have the electricity, water and maintenance bill. However, the same can be confirmed after seeing the relevant records. I am deposing on the basis of records maintained by the NDMC and I do not have personal knowledge. It is incorrect to suggest that I am deposing falsely."
26. On a consideration of the submissions that had been made before the learned ARCT, though undoubtedly, there is no document between the predecessor in interest of the present petitioner and the NDMC in relation to the agreement dated 23.03.1981 which was executed between the NDMC and the SOS Children's Villages of India for running the Udayan at the premises in question for the children born in unwanted circumstances and also requiring convalescence at the premises in dispute, as observed hereinabove, the agreement dated 23.03.1981 executed between the respondent/NDMC and the NGO/the SOS Children's Villages of India clearly makes it apparent that the said Udayan was to be run in the tenanted premises on behalf of the NDMC by the SOS Children's Villages of India and that there was no subletting or parting with the possession of the tenanted premises in question by the respondent i.e. the NDMC to the SOS Children's Villages of India.
27. In the circumstances, the observations in the impugned judgment dated 23.08.2018 cannot be faulted with.
28. Undoubtedly, the NDMC appears to have not taken any action against the SOS Children's Villages of India to take back the possession of 1, Doctor's Lane, Gole Market, New Delhi after closure of the project Udayan in 2003 after revocation of the agreement dated 23.03.1981 with the SOS Children's Villages of India on 30.10.1998 but the same does not detract from the factum that in terms of the said agreement dated 23.03.1981 between the NDMC and the SOS Children's Villages of India, there has been no subletting or parting with the possession of the tenanted premises as rightly held by the learned RCT, New Delhi vide the impugned judgment dated 23.08.2018.
29. The factum that the officers concerned of the NDMC had not acted with diligence to recover the possession from the SOS Children's Villages of India from the tenanted premises in question, does not render the contention raised by the NDMC frivolous that it had not sublet the tenanted premises to the NGO i.e. the SOS Children's Villages of India. The verdict of the Hon'ble Supreme Court in "S.F. Engineer Vs. Metal Box India Limited and Another" MANU/SC/0246/2014 : (2014) 6 SCC 780, makes it apparent that the said inaction by the officers of the NDMC concerned by itself does not suffice to lead this Court to the conclusion that the subletting by the NDMC to the SOS Children's Villages of India as alleged by the petitioner, - had been established.
30. In the circumstances, as it is apparent on a perusal of the impugned judgment that the view as taken by the learned ARCT is wholly plausible and as furthermore, it is essential to observe that the present petition that has been filed by the petitioner herein is under Article 227 of the Constitution of India and in view of the verdict of this Court in "Nawal Kishore vs. Mohd. Yakub" in CM(M) 1256/2012 decided on 24.08.2017 to the extent of parameters as laid down in Jasbir Singh Vs. Manjit Kaur MANU/DE/4346/2013, this Court would not be justified in interfering in the impugned judgment merely to arrive at different view in the matter, in as much as, there is neither any error nor any infirmity in the impugned judgment of the Ld. ARCT, New Delhi, dated 23.08.2018 whatsoever.
31. In the circumstances, the present petition and CM. APPL No. 42051/2018 are dismissed and the stay of the operation of the impugned judgment granted vide order dated 13.02.2019 is set aside.
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