(1) The facts giving rise to this second appeal are that on 14.1,1985, permission to create fixed term tenancy for a period of two years with respect to premises No.61-D. Block-H, Dda Flats, Saket, New Delhi under Section 21 of the Delhi Rent Control Act was granted by the Addl. Rent Controller, Delhi. The tenant Parveen Agnihotri, appellant herein, did not vacate the premises after the expiry of the fixed term tenancy and so the decree- holder respondent herein. filed an application seeking possession on 15.4.87. During the pendency of that application, the appellant filed objection dated 26.11.87 challenging the validity of the permission on various grounds. One of the objections taken by the appellant was that the premises in dispute is situated in village Sajdla Jat and the provisions of the Delhi Rent Control Act are not applicable to the premises in that village and the permission granted by the Addl Rent Controller under Section 21 of the Delhi Rent Control Act was without jurisdiction. That permission was obtained by concealment of material facts and by playing fraud upon the Court and that permission was granted mechanically without application of mind. The other objection taken was that earlier these premises were under the tenancy of Usha International Ltd. and these premises were vacated a few days before the permission under Section 21 was granted. The reasons mentioned for taking the permission were false as her husband had not gone abroad for a limited period and that the premises were available for Indefinite letting.
(2) This Addl. Rent Controller by his detailed judgment dated 23.7.88 dismissed the objections so raised by the tenant, appellant herein holding that the tenant was not able to explain as to why he moved the objections after the expiry of the tenancy period and why he did not come to the Court during the continuance of the tenancy when the facts now disclosed were within his knowledge. The appeal before the Rent Control Tribunal was also dismissed vide detailed judgment dated 7.9.88.
(3) The main thrust of the argument of the Counsel for the petitioner before me is that the Addl. Rent Controller granted permission under Section 21 with respect to the suit premises without having any jurisdiction. Accord- ing to him, the provisions of the Delhi Rent Control Act have not been extended to village Saidla Jat and therefore the Addl Rent Controller had no jurisdiction to entertain the application under Section 21 and to pass an order there under. The decree passed without jurisdiction is nullity. The other ground pressed before me is that the respondent landlady played fraud upon the Court by not disclosing the fact that the premises were In the tenancy of Usha International Ltd. earlier. On both these grounds the appellant submitted that the permission granted under Section 21 is invalid.
(4) The Supreme Court in its latest decision in' Smt. Shrist Dhawan v. Shaw Bros , settled the law regarding limited tenancy under Section 21. According to their Lordships : "(1)Permission granted under Section 21 of the Act can be assailed by the tenant only if it can be established that it was vitiated by fraud or collusion or Jurisdictional error which in context of Section 21 is nothing else except fraud and collusion. (2) Fraud or collusion must relate to the date when permission was granted. (3) Permission carries a presumption of correctness which can be permitted to be challenged not only by raising objection but proving it prima facie to the satisfaction of Controller before landlord is called upon to file reply or enter into evidence. (4) No fishing or roving inquiry should he permitted at the stage of execution, (5) A permission does not suffer from any of these errors merely because no reason was disclosed in the application at the time of creation of short term tenancy. (6) Availability of sufficient accommodation either at the time of grant of permission or at the stage of execution is not a relevant factor for deciding validity of permission.
(5) Turning now to the facts, is the permission granted under Section 21 of the Delhi Rent Control Act vitiated because the landlord respondent herein in committed fraud in obtaining the permission? Section 21 of the Delhi Rent Control Act does not place any comprehensive duty on the landlord to disclose any fact except that he does not need the premises for the specified time. Fraud is a question of fact. Burden of proof lies on the person who alleges it. At the time of granting permission under Section 21 of the Delhi Rent Control Act, the Addl. Rent Controller was satisfied that the premises in dispute were available for occupation by the tenant and the same were not required by the landlord for a particular period of two years and the tenancy was created only for residential purpose. The reasons have also been mentioned, though not necessary, that the landlady was not requiring the premises for two years. The appellant cannot be allowed now to say that he had no opportunity to know this fact earlier. He has not mentioned as to when he came to know about this fact that earlier these premises were in the tenancy of Usha International Ltd.
(6) As per the case of the appellant himself, before creating the limited tenancy under Section 21, these premises were available with the respondent for letting out to the appellant. This objection taken by the appellant after the expiry of the period of limited tenancy does not stand and it does not amount to fraud as alleged by the appellant. The second objection of the appellant regarding lack of inherent Jurisdiction while granting permission under Section 21 of the Act the appellant has not mentioned as to when he came to know about this fact. He took this objection in November, 1987 i.e after the expiry of the period of limited period of tenancy without disclosing the date when he came to know about this fact. The permission under Section 21 carries a presumption of correctness which can be permitted to be challenged if the challenge is not only by raising objections but by proving it prima facie to the satisfaction of the Controller before the landlord is called upon to file reply and enter into evidence. No fishing or roving enquiry is permitted at the time of execution. There is nothing on record to show or prove that the provisions of the Delhi Rent Control Act were not applicable to the area where the premises in dispute are situated. On the other hand, the respondent has placed on record by way of additional evidence a certificate issued from Tehsildar on 1.12,1988 that the premises Dda flat No. 61-D, Block-H. Saket, New Delhi was earlier within the jurisdiction of village Hauz Rani which has already been urbanised. The village Hauz Rani has been shown in the notification issued by Delhi Administration to be an urbanised area where the provisions of the Delhi Rent Control Act are applicable. Though the Counsel for the appellant objected to the production of this certificate from the Tehsildar at the appellate stage but the fact remains that there Is nothing on record to substantiate the allegations of the objector appellant herein that the provisions of the Delhi Rent Control Act are not applicable to the premises in dispute. Both the Courts below have concurrently held that on this ground the permission granted under Section 21 of the Delhi Rent Control Act cannot be said to be invalid. I find no ground to interfere In the concurrent finding of both the Courts below on this point.
(7) For the purpose of granting the permission under Section 21 only two things are to be seen I.e. the availability of vacant premises for occupation by the tenant which are not required by the landlord for a particular period and the letting is residential purpose. Both these things were available at the time of creation of this short term tenancy. Now at this stage it does not lie In the mouth of the appellant to say that the premises were available for indefinite letting as the husband of the landlady did not return to India after the expiry of the limited period of tenancy. This case does not come within the purview of fraud or collusion. No misrepresentation was made by the landlady respondent herein while seeking permission under Section 21 of the Delhi Rent Control Act. Relying upon various decisions of Supreme Court in Yamuna Maloo v. Anand Swarup , Pankaj Bhargava v Mohinder Nath , Shivcharan Kapoor v. Amar Bose 1990 (1) Sc 234 and Smt. Shrist Dhawan v. Shaw Bros and the concurrent finding of facts of both the Courts below I find no ground In allowing this second appeal and the same is dismissed. The objector-appellant herein has already succeeded in depriving the decree holder, respondent herein from reaping the fruits of the decree for a considerable period of about five years. Appeal dismissed.