A tenant cannot object to the delivery of possession of unauthorized construction in the execution of the eviction order.

1. The petitioner by way of this petition filed under Article 227 of the Constitution of India impugns: (i) the order dated 17.5.2008 passed by Sh. A.K. Shishodia, learned ARC, Delhi whereby the objections dated 26.4.2007 preferred by the petitioner tenant under Order 21 Rule 58 were dismissed, and (ii) the order dated 21.1.2009 passed by Sh. M.L. Mehta, learned District Judge, District Judge-II (North)-cum-Additional Rent Control Tribunal Delhi whereby the learned Tribunal dismissed the appeal preferred by the petitioner under Section 38 of the Delhi Rent Control Act against the former order.

2. The respondents had preferred an eviction petition against the petitioner under Section 14 (1) (e) read with Section 25 (b) of the Delhi Rent Control Act.

3. The petition had been preferred in respect of one room and Verandah in property bearing No. 4174, Sari Jatt, Cali Barna, Pahari Dhiraj, Delhi. In the site plan annexed, the tenanted portion was marked in red. The said petition was allowed and an the eviction order was passed by the Additional Rent Controller on 20.4.2006. A perusal of the eviction order shows that in the eviction proceedings the respondent landlord had mentioned that apart from the tenanted premises consisting of one room and Verandah, the petitioner tenant had created other accommodation by converting the Verandah into room which was objected to by the landlord. Complaints were also made against the said unauthorized construction to the MCD. Hiro Devi, P.W.-1 in her cross-examination admitted that at the time of inception of the tenancy only two rooms were in the possession of her family members and all the family members used to reside in these two rooms. In para 17 of the eviction order the submission of the petitioner tenant to the effect that the respondent landlord had claimed partial eviction was recorded in the following manner:

"On the other hand learned Counsel for the respondent submitted that petitoners claim of eviction suffers from vice of partial eviction as he contended that only one room and Verandah was let out and thereafter the tenant raised unauthorized construction and converted into a three storeyed building but petitioner failed to satisfy when the alleged unauthorized construction was raised and what steps were taken by him to prevent the respondent from raising unauthorized construction."

4. The learned ARC returned a finding that only two rooms were in the possession of the petitioner tenant, as a tenant. The submissions of the petitioner-tenant were rejected, and eviction order passed. The eviction order, I am informed, has been affirmed right up to the Supreme Court and has attained finality.

5. The respondent landlord initiated execution proceedings before the learned ARC In these proceedings, the petitioner tenant preferred objections under Order 21 Rule 58, CPC The crux of these objections is that, in execution of the eviction order, the respondent landlord can only claim possession of the tenanted premises in respect of which the eviction order has been passed i.e. one room and Verandah and the other portions which are in occupation of the petitioner tenant cannot be got vacated by the respondent.

6. In spite of the fact that from the eviction order itself it is clear that the other portions in occupation of the petitioner tenant were unauthorized constructions and were unauthorizedly occupied by the petitioner, the learned ARC conducted an inquiry as to whether the other portions constituted unauthorizedly constructed portions by the petitioner tenant. The learned ARC in the impugned order dated 26.4.2009 came to the following conclusion:

"The site plan Mark D shows that suit property i.e. 4174. This site plan shows the aerial view of entire suit property in the left side in red colour. On its right side, the DH has shown constructed portions on ground floor, first floor and second floor in the suit property. The portion let out has been shown in red colour on the ground floor and