We have already found that the expression 'statutory tenancy' has been coined by the Judges in England and, like many other concepts in English Law it has been imparted into the jurisprudence of this country and has become an expression of common use to denote a tenant whose contractual tenancy has been determined but who is continuing in possession of the premises by virtue of the protection against the eviction afforded to him by the rent control legislation. Though the expression 'statutory tenancy' is not an expression to be found in any provision of the Delhi Rent Control Act, 1958 or the rent control legislation of any other State, but it find recognition in almost every rent control legislation. The expression used in our country is a matter of evidence to distinguish it from the concept of statutory tenancy. Genetically the parentages of these two legal concepts namely contractual tenancy and statutory tenancy is different, one owning its origin to contract and the other to rent control legislation. The contractual tenancy which is brought into existence by virtue of contract entered into between the landlord and tenant in terms of section 105 of the Transfer of Property Act, 1882, becomes statutory tenancy the moment the lease between the parties is determined by any of the modes as mentioned in section 111. Such statutory tenancy, after determination of the lease, gets immunity from the eviction under the rent control legislation and as such becomes a statutory tenancy. There is no dispute that 'contractual tenancy is heritable', the contract being the essence of the whole concept. However, with regard to statutory tenancy, the dispute was resolved by a Constitution Bench of the Supreme Court in Gian Devi Anand v. Jeevan Kumar, MANU/SC/0381/1985: (1985) 2 SCC 683. In this case the question arose as to whether under the Delhi Rent Control Act, 1958, the statutory tenancy in respect of commercial premises is heritable or not. More precisely the question was whether the heirs of a deceased tenant whose statutory tenancy, in respect of commercial premises has been determined; are entitled to same protection against eviction afforded by the Act to the tenant.
Bhagwati J.: Two concurring judgments were delivered, one by Bhagwati, J. and second by Justice Amarendra Nath Sen. By Bhagwati J., held that the definition of 'tenant' in section 2(l) of the Delhi Rent Control Act, 1958 - reference was made to the provisions of the Delhi Rent Control Act, 1958 because that is the statute with which the Court was concerned in the present case - includes a statutory tenant. It says in clause (ii) that 'tenant' includes any person continuing in possession after the termination of his tenancy'. Such a person would not be a tenant under the ordinary law but he is recognized as a 'tenant' by the rent control legislation and is therefore described as a statutory tenant as contra-distinguished from contractual tenant. The statutory tenant is, by virtue of inclusion in the definition of 'tenant', placed on the same footing as contractual tenant so far as rent control legislation is concerned. The rent control legislation in fact, as pointed out by the Supreme Court in a seven-judge Bench decision in V. Dhanpal Chettiar v. Yesodai Ammal, MANU/SC/0505/1979: AIR 1979 SC 1745 does not make any distinction between contractual tenant and statutory tenant. "It does not permit the landlord to snap his relationship with the tenant merely by his act of serving a notice to quit on him. In spite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee and is at the same time deemed to be under all the liabilities such as payment of rent etc., in accordance with the law." The distinction between contractual tenancy and statutory tenancy is thus completely obliterated by the rent control legislation. Though genetically the parentage of these two legal concepts is different, one owing its origin to contract and the other to rent control legislation, they are equated with each other and their incidents are the same. If a contractual tenant has an estate or interest in the premises which is heritable, it is difficult to understand why a statutory tenant should be held not to have such heritable estate or interest. In one case, the estate or interest is the result of contract while in the other it is the result of statute. But the quality of the estate or interest is the same in both cases. The difficulty in recognizing that a statutory tenant can have estate or interest in the premises arises from the fact that throughout the last century and the first half of the present, almost until recent times, our thinking has been dominated by two major legal principles, namely, freedom of contract and sanctity of private property and therefore we are unable to readily accept that legal relationships can be created by statute despite want of contractual consensus and in derogation of property rights of the landlord. We are unfortunately not yet reconciled to the idea that the law is moving forward from contract to status. Why can estate or interest in property not be created by statute? When the rent control legislation places a statutory tenant on the same footing as a contractual tenant, wipes out the distinction between the two and invests a statutory tenant with the same right, obligations and incidents as a contractual tenant, why should it be difficult to hold that, just like a contractual tenant, a statutory tenant also has estate or interest in the premises which can be inherited. Of course, strong reliance was placed on behalf of the landlord on section 2(iii) of the Delhi Rent Control Act, 1958 to combat this conclusion but that provision merely limits or circumscribes the nature and extent of the protection that should be available on the death of a statutory tenant in respect of residential premises. It does not confer a new right of heritability which did not exist allude.
Justice Amarendra Nath Sen vide a detailed reasoning.
By Amarendra Nath Sen J, rejected the contention of the landlord/respondent that on the determination of the statutory tenancy the tenancy comes to an end and the tenant ceased to have any estate or interest in the premises.
First argument vis-a-vis loss of estate interest in the tenanted premises:-It was contended that on determination of tenancy the tenant becomes liable to be evicted under the general law of land; but the rent control legislation affords protection to the tenant against such eviction inasmuch as the Act provides that in respect of the termination of the tenancy, no order or decree for possession shall be passed against the tenant, unless any of the grounds mentioned in the Act, which entitles the landlord to recover possession of the premises from the tenant, is established. Thus, it was contended that protection afforded to the tenant under the Act is against eviction except on grounds recognized by the Act and therefore the protection is only in the nature of personal protection to the tenant who continues to remain in possession after the termination of the tenancy. In nutshell the contention was that the tenant loses the estate or interest in the tenanted premises after termination of the statutory tenancy and the tenant by virtue of the Act is afforded only a protection against eviction. Hence, the heirs of such tenants after his death acquire no interest or estate in the premises, because the deceased tenant had none and they can also claim no protection against eviction as the protection under the Act is personal to the tenant as long as the tenant continues to remain in possession of the premises after the determination of the tenancy. In other words, the protection against eviction after termination of tenancy afforded to the tenant by the Act creates a personal right in favour of the tenant, who continues to remain in possession after termination of his tenancy without any estate or interest in the premises; and therefore on the death of such a tenant, his heirs who have neither any estate nor interest in the tenanted premises, who did not have any protection under the Act against eviction, are liable to be evicted as a matter of course under the ordinary law of land. In this regard, landlord/respondent relied upon various decisions including those of High Courts, English Courts and also passages from Halsbury's Laws of England and other eminent English authors; Gian Devi Anand v. Jeevan Kumar, MANU/SC/0381/1985: (1985) 2 SCC 683 (688-715).
With regard to the English Law cited before the Court it was held that the same cannot be relied upon because the provisions of the English Rent Acts are not in pari materia with the provisions of the Act in question or the other Rent Acts prevailing in other States in India. The English Rent Acts which have come into existence from time to time were no doubt introduced for the benefit of the tenants. It may be noted that the term "statutory tenant" which is not to be found in the Act in question or in the other analogous Rent Acts in force in other States in India, is indeed a creature of the English Rent Act. English Rent Act, 1977 which was enacted to consolidate the Rent Act, 1968, parts III, IV and VIII of the Housing Finance Act, 1972, the Rent Act, 1974, sections 7 to 10 of the Housing Rents and Subsidies Act, 1975 and certain related enactments, with amendments to give effect to recommendation of the Law Commission, speaks of protected tenants and tenancies in section 1 and defines statutory tenant in section 2. English Rent Act, 1977 is in the nature of a complete Code governing the rights and obligations of the landlord and the tenant and their relationship in respect of tenancies covered by the Act. As the provisions of the English Act, are materially different from the provisions of the Act in question and other Rent Control Acts, in force in other States in India, the decisions of the English Courts and the passages from the various authoritative books including the passages from Halsbury which are all concerned with English Rent Acts are not of any particular assistance in deciding the question involved in this appeal. As already noticed, the term 'statutory tenant' is used in English Rent Act and though this term is not found in the Indian Acts, in the Judgments of this Court and also of the various High Courts in India, this term has often been used to denote a tenant whose contractual tenancy has been terminated but who has become entitled to continue to remain in possession by virtue of the protection afforded to him by the statutes in question, namely, the various Rent Control Acts, prevailing in different States of India.
During the Court of its decision three judgement were considered by the Supreme Court, (1) Damadi Lal v. Parashram, MANU/SC/0476/1976: (1976) 4 SCC 855; (2) Ganpat Ladha v. Sashikant Vishnu Shinde, MANU/SC/0378/1978: AIR 1978 SC 955; (3) V. Dhanpal Chettiar v. Yesodai Ammal.
Q.
Q.
The Court heavily relied upon its judgment cited in Damadi Lal v. Parashram, MANU/SC/0476/1976: 1976 (4) SCC 855, in which the question arose was whether the heirs of the statutory tenant had any heritable interest in the demised premises and had the right to prosecute the appeal in the High Court on the death of the statutory tenant. Dealing with this contention, the court in Damadi Lal's case held that:
"In support of his first contention Mr. Gupta relied on two decisions of this Court, Anand Nivas (Private) Ltd. v. Anandji Kalyanji Pedhi, [1973] 4 SCR 892 and Jagdish Chander Chatterjee v. Sri Kishan, MANU/SC/0616/1972: 1973 (1) SCR 850. The statute considered in Anand Nivas's case, [1973] 4 SCR 892 was the Bombay Rents, Hotel and Lodging Rates Control Act, 1947 as amended in 1959. The question there was, whether a tenant whose tenancy had been terminated had any right to sublet the premises. Of the three learned Judges composing the Bench that heard the appeal, Hidayatullah and Shah, JJ. held that a statutory tenant, meaning a tenant whose tenancy has determined but who continues in possession, has no power of subletting. Sarkar J., delivered a dissenting opinion. Shah J., who spoke for himself and Hidayatullah J., observed in the course of their judgment:
'A statutory tenant has no interest in the premises occupied by him, and he has no estate to assign or transfer. A statutory tenant is, as we have already observed, a person who on determination of his contractual right, is permitted to remain in occupation so long as he observes and performs the conditions of the tenancy and pays the standard rent and permitted increases. His personal right of occupation is incapable of being transferred or assigned, and he having no interest in the property there is no estate on which sub-letting may operate.'
It appears from the judgment of Shah J., that 'the Bombay Act merely grants conditional protection to a statutory tenant and does not invest him with the right to enforce the benefit of any of the terms and conditions of the original tenancy'. Sarkar J., dissenting held that word 'tenant' as defined in the Act included both a contractual tenant-a tenant whose lease is subsisting as also a statutory tenant and the latter has the same power to sublet as the former. According to Sarkar J., even if a statutory tenant had no estate or property in the demised premises, the Act had undoubtedly created a right in such a tenant in respect of the property which he could transfer. Jagdish Chander Chatterjee's case dealt with the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, and the question for decision was whether on the death of a statutory tenant his heirs succeed to the tenancy so as to claim protection of the Act. In this case it was held by Grover and Palekar JJ., relying on Anand Nivas's case, that after the termination of contractual tenancy, a statutory tenant enjoys only a personal right to continue in possession and on his death his heirs do not inherit any estate or interest in the original tenancy.
Both these cases, Anand Nivas and Jagdish Chander Chatterjee, proceed on the basis that a tenant whose tenancy has been terminated, described as statutory tenant, has no estate or interest in the premises but only a personal right to remain in occupation. It would seem as if there is a distinct category of tenants called statutory tenants having separate and fixed incidents of tenancy. The term 'statutory tenancy' is borrowed from the English Rent Acts. This may be a convenient expression for referring to a tenant whose tenancy has been terminated and who would be liable to be evicted but for the protecting statute, but courts in this country have sometimes borrowed along with the expression certain notions regarding such tenancy from the decisions of the English Courts. In our opinion it has to be ascertained how far these notions are reconcilable with the provisions of the statute under consideration in any particular case. The expression 'statutory tenancy' was used in England in several judgments under the Increase of Rent and Mortgage interest (War Restrictions) Act, 1915, to refer to a tenant protected under that Act, but the term got currency from the marginal note to section 15 of the Rent and Mortgage Interest (Restriction) Act, 1920. That section which provided inter alia that a tenant who by virtue of that Act retained possession of any dwelling house to which the Act applied, so long as he retained possession, must observe and would be entitled to the benefit of all the terms and conditions of the original contract of tenancy which were consistent with the provisions of the Act, carried the description in the margin 'conditions of statutory tenancy'. Since then the term has been used in England to describe a tenant protected under the subsequent statutes until section 49(1) of the Housing Repairs and Rent Act, 1954 for the first time define 'statutory tenant' and 'statutory tenancy'. 'Statutory tenant' was defined as a tenant 'who retains possession by virtue of the Rent Acts and not as being entitled to a tenancy' and it was added, 'statutory tenancy' shall be construed accordingly. This definition of 'statutory tenancy' has been incorporated in the Rent Acts of 1957 and 1965. In England 'statutory tenancy' does not appear to have had any clear and fixed incidents; the concept was developed over the years from the provisions of the successive Rent Restrictions Acts which did not contain a clear indication as to the character of such tenancy. That a statutory tenant is entitled to the benefit of the terms and conditions of the original contract of tenancy so far as they were consistent with the provisions of the statute did not as Scrutton L.J., observed in Roe v. Russell, [1928] 2 KB 117, 'help very much when one came to the practical facts of life', according to him 'citizens are entitled to complain that their legislators did not address their minds to the probable events that might happen in cases of statutory tenancy, and consider how the legal interest they were granting was affected by those probable events'. He added, ... 'it is pretty evident that the legislature never considered as a whole the effect on the statutory tenancy of such ordinary incidents as death, bankruptcy, voluntary assignment, either inter vivos or by will, a total or partial sub-letting; but from time to time put into one of the series of Acts, a provision as to one of the incidents without considering how it fitted in with the general nature of the tenancy which those incidents might affect.' On the provisions which gave no clear and comprehensive idea of the nature of statutory tenancy, the courts in England had been slowly trying to frame a consistent theory. Scrutton L.J. in Haskin v. Lewis, [1935] 2 KB 1 (9) making bricks with very insufficient statutory straw' Scrutton L.J. in Keeves v. Dean, [1923] LJ KB 203 (207) Evershed M.R. in Boyer v. Warbey, [1953] 2 KB 234 said: 'The character of the statutory tenancy, I have already said, is a very special one. It has earned many epithets, including 'monstrum horrendurm' and perhaps it has never been fully thought out by Parliament'. Courts in England have held that a statutory tenant has no estate or property in the premises he occupies because he retains possession by virtue of the Rent Acts and not as being entitled to a tenancy; it has been said that he has only a personal right to remain in occupation, the statutory right of 'irremovability', and nothing more.
We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute. Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy, and heritability is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation. It is not possible to claim that the 'sanctity' of contract cannot be touched by legislation, it is therefore necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act, 1961 to find out whether the respondents' predecessors-in-interest retained a heritable interest in the disputed premises even after the termination of their tenancy.
Section 2(i) of the Madhya Pradesh Accommodation Control Act, 1961 defines 'tenant' to mean, unless the context otherwise requires:
'a person by whom or on whose account or on whose behalf the rent of any accommodation is, or, but for a contract express or implied would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made.'
The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention. That under this Act such a tenant retains an interest in the premises, and not merely a personal right of occupation, will also appear from section 14 which contains provisions restricting the tenant's power of subletting. Section 14 is in these terms:
Section 14 Restriction on sub-letting.-
(1) No tenant shall without the previous consent in writing of the landlord.-
(a)sublet the whole or any part of the accommodation held by him as a tenant; or
(b)transfer or assign his rights in the tenancy or in any part thereof.
(2) No landlord shall claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever in cash or in kind for giving his consent to the sub-letting of the whole or any part of the accommodation held by the tenant.
There is nothing to suggest that this section does not apply to all tenants as defined in section 2(i). A contractual tenant has an estate or interest in premises from which he carves out what he gives to the sub-tenant. Section 14 read with section 2(i) makes it clear that the so-called statutory tenant has the right to sub-let in common with a contractual tenant and this is because he also has an interest in the premises occupied by him.; Gian Devi Anand v. Jeevan Kumar, MANU/SC/0381/1985: (1985) 2 SCC 683 (688-715).
Ganpat Ladha's case.-
In order to appreciate the question, the Court thought it necessary to understand the kind of protection that is sought to be afforded to a tenant under the Rent Acts and his status after the termination of the contractual tenancy under the Rent Acts. It is not in dispute that so long as the contractual tenancy remains subsisting, the contractual tenancy creates heritable rights; and, on the death of a contractual tenant, the heirs and legal representatives step into the position of the contractual tenant; and, in the same way on the death of a landlord the heirs and legal representatives of a landlord become entitled to all the rights and privileges of the contractual tenancy and also come under all the obligations under the contractual tenancy. A valid termination of the contractual tenancy puts an end to the contractual relationship. On the determination of the contractual tenancy, the landlord becomes entitled under the law of the land to recover possession of the premises from the tenant in due process of law and the tenant under the general law of the land is hardly in a position to resist eviction, once the contractual tenancy has been duly determined. Because of scarcity of accommodation and gradual high rise in the rents due to various factors, the landlords were in a position to exploit the situation for unjustified personal gains to the serious detriment of the helpless tenants. Under those circumstances it became imperative for the legislature to intervene to protect the tenants against harassment and exploitation by avaricious landlords and appropriate legislation came to be passed in all the States and Union Territories where the situation required an interference by the legislature in this regard. It is no doubt true that the Rent Acts are essentially meant for the benefit of the tenants. It is, however, to be noticed that the Rent Acts at the same time also seek to safeguard legitimate interests of the landlords. The Rent Acts which are indeed in the nature of social welfare legislation are intended to protect tenants against harassment and exploitation by landlords, safeguarding at the same time the legitimate interests of the landlords. The Rent Acts seek to preserve social harmony and promote social justice by safeguarding the interests of the tenants mainly and at the same time protecting the legitimate interests of the landlords. Though the purpose of the various Rent Acts appear to be the same, namely, to promote social justice by affording protection to tenants against undue harassment and exploitation by landlords, providing at the same time for adequate safeguards of the legitimate interests of the landlords, the Rent Acts undoubtedly lean more in favour of the tenants for whose benefit the Rent Acts are essentially passed. It may also be noted that various amendments have been introduced to the various Rent Acts from time to time as and when situation so required for the purpose of mitigating the hardship of tenants; Gian Devi Anand v. Jeevan Kumar, MANU/SC/0381/1985: (1985) 2 SCC 683 (688-715).
Keeping in view the main object of rent control legislation, the position of a tenant whose contractual tenancy has been determined has to be understood in the light of the provisions of the Rent Acts. Though provisions of all the Rent Control Acts, are not uniform, the common feature of all the rent control legislation is that a contractual tenant on the termination of the contractual tenancy is by virtue of the provisions of the Rent Acts not liable to be evicted as a matter of course under the ordinary law of the land and he is entitled to remain in possession even after determination of the contractual tenancy and no order or decree for eviction will be passed against a tenant unless any ground which entitles the landlord to get an order or decree for possession specified in the Act is established. In other words, the common feature of every Rent Control Act, is that it affords protection to every tenant against eviction despite termination of tenancy except on grounds recognized by the Act and no order or decree for eviction shall be passed against the tenant unless any such ground is established to the satisfaction of the Court; Gian Devi Anand v. Jeevan Kumar, MANU/SC/0381/1985: (1985) 2 SCC 683 (688-715).
The Court also held that it cannot be assumed that with the determination of the tenancy, the estate must necessarily disappear and the statute can only preserve the status of irremovability and not the estate he has in the premises in his occupation; and it is not possible to claim that the sanctity of contract cannot be touched by legislation. As already noticed, this Court in Damadilal's case (supra) after referring mainly to the definition of tenant in section 2(i) of the Madhya Pradesh Accommodation Control Act, 1961 came to the conclusion that the so-called statutory tenant had an interest in the premises occupied by him and the heirs of the statutory tenant "had a heritable interest in the premises"; Gian Devi Anand v. Jeevan Kumar, MANU/SC/0381/1985: (1985) 2 SCC 683 (688-715).
Thereafter the Court analysed the provision of the Delhi Act to decide whether there is anything in the other provisions to indicate that the tenant as defined in section 2(1)(ii) will stand on any different footing from a contractual tenant in the matter of enjoyment of protection and benefits sought to be afforded on a tenant by the Act. It was observed:
Analysis of various provisions of Delhi Act.-"Section 2(e) defines landlord and clearly indicates that the landlord continues to be the landlord for the purpose of the Act even after termination of the contractual tenancy. Section 2(l) which defines 'tenant' has been set out earlier in its entirety. We shall consider the true effect of section 2(l)(iii) on which as earlier noted, reliance has been placed by the learned Counsel of the landlords, when we deal with the argument which has been advanced on the basis of this sub-section. Section 3 mentions premises which are outside the purview of this Act and has no bearing on the question involved. Chapter II of the Act consists of sections 4 to 13 and makes provision regarding rent. These sections indicate that they are applicable to tenants as defined in section 2(l) including 2(l)(iii). Chapter III consists of sections 14 to 25 of the Act and deals with eviction and control of eviction of tenants. Section 14 starts as follows:-
"Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant;"
Thereafter various provisions are made as to grounds and under what circumstances a decree for eviction may be passed. This section, therefore, clearly postulates that despite the termination of the tenancy and notwithstanding the provisions of any other law which might have been applicable on the termination of the contractual tenancy, protection against eviction is applicable to every tenant as defined in section 2(l) of the Act. This section clearly establishes that determination of a contractual tenancy does not disqualify him from continuing to be a tenant within the meaning of this Act and the tenant whose contractual tenancy has been determined enjoys the same position and is entitled to protection against eviction. The other sections in this chapter also indicates that the tenant whose tenancy has been terminated enjoys the same status and benefit as a tenant whose tenancy has not been terminated, and a tenant after termination of his tenancy stands on the same footing as the tenant before such termination. Chapter IIIA which provides for summary trial for certain applications also does not make any distinction between a tenant whose tenancy has been determined and a tenant whose tenancy had not been terminated. Chapter IV which deals with deposit of rent consists of sections 26 to 29 and these sections make it clear that the tenant after determination of a tenancy is treated under the Act on the same footing as a tenant whose tenancy has not been determined. Chapter V which consists of sections 30 to 34 deals with hotels and lodging houses and does not have any relevance to the question involved. Chapter VI which consists of sections 35 to 43 provides for appointment of Controllers and their powers and functions and also makes provisions with regard to appeals. This Chapter though not very material for the purpose of adjudication of the point involved indicates that no discrimination is made in the matter of proceedings for eviction between the so called 'statutory tenant' and a 'contractual tenant'. Chapter VII which consists of sections 44 to 49 makes provisions regarding obligations of landlords and also provides for penalties in appropriate cases. The sections make it clear that the duties and obligations cast upon the landlord apply equally whether the tenant is a so called 'statutory tenant' or the tenant is a 'contractual tenant'. Chapter VIII which makes various miscellaneous provisions does not have any bearing on the question involved. It may, however, be noted that section 50 which bars the jurisdiction of Civil Courts in respect of certain matters does not in any way discriminate between a 'so-called statutory tenant' and a contractual tenant. The provisions of the Act, therefore, make it abundantly clear that the Act does not make any distinction between a 'so-called statutory tenant' and a contractual tenant and the Act proceeds to treat both alike and to preserve and protect the status and rights of a tenant after determination of the contractual tenancy in the same way as the status and rights of a contractual tenant are protected and preserved."
V. Dhanpal Chettiar's cases.-
While on this question it was tound to be appropriate to quote the following observations of the Court in the case of V. Dhanpal Chettiar v. Yesodai Ammal, MANU/SC/0505/1979: (1979) 4 SCC 214:
"Once the liability to be evicted is incurred by the tenant, he cannot turn round and say that the contractual lease has not been determined. The action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will be tantamount to an expression of his intention that he does not want the tenant to continue as his lessee and the jural relationship of lessor and lessee will come to an end on the passing of an order or a decree for eviction. Until then, under the extended definition of the word 'tenant' under the various State Rent Acts, the tenant continues to be a tenant even though the contractual tenancy has been determined by giving a valid notice under section 106 of the Transfer of Property Act. In many cases, the distinction between a contractual tenant and a statutory tenant was alluded to for the purpose of elucidating some particular aspects which cropped up in a particular case. That led to the criticism of that expression in some of the decisions. Without detaining ourselves on this aspect of the matter by any elaborate discussion, in our opinion, it will suffice to say that the various State Rent Control Acts, make a serious encroachment in the field of freedom of contract. It does not permit the landlord to snap his relationship with the tenant merely by his Act of serving a notice to quit on him. Inspite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee and is at the same time deemed to be under all the liabilities such as payment of rent etc. in accordance with the law."
These observations were made by a seven-Judge Bench of this Court. It is no doubt true that these observations were made while considering the question of requirement of a notice under section 106 of the Transfer of Property Act, 1882 before the institution of suit for recovery of possession of premises to which the Rent Act applies. These observations, however, clearly go to establish that mere determination of the contractual tenancy does not in any way bring about any change in the status of a tenant. As aptly observed in this decision, "it will suffice to say that the various State Rent Control Acts, make a serious encroachment in the field of freedom of contract. It does not permit the landlord to snap his relationship with the tenant merely by his act of serving a notice to quit on him. In spite of the notice, the law says that he continues to be a tenant and he does so, enjoying all the rights of a lessee and is at the same time deemed to be under all the liabilities such as payment of rent etc. in accordance with the law"; Gian Devi Anand v. Jeevan Kumar, MANU/SC/0381/1985: (1985) 2 SCC 683 (688-715).
Further argument of Amendment of 1976 with retrospective effect in Delhi Act.-Thereafter, the Court dealt with the further argument advanced on behalf of the landlord that the amendments to the definition of the tenant with retrospective effect introduced by the Delhi Rent Control Act (Amendment Act) (Act 18 of 1976) to give personal protection and personal right of continuing in possession to the heirs of the deceased statutory tenant in respect of residential premises only and not with regard to the heirs of the 'so-called statutory tenant' in respect of commercial premises, indicates that the heirs 'so-called statutory tenant' therefore, do not enjoy any protection under the Act. It was observed that this argument proceeds on the basis that in the absence of any specific right created in favour of the 'so-called statutory tenant' in respect of first tenancy, the heirs of statutory tenant who do not acquire any interest or estate in the tenanted premises, become liable to be evicted as a matter of course. The Court held that the very premise on the basis of which the argument is advanced is unsound. The termination of the contractual tenancy in view of the definition of the 'tenant' in the Act does not bring out any change in the status and legal position of the tenant, unless there are contrary provisions in the Act and the tenant notwithstanding termination of the tenancy does enjoy an estate or interest in the tenanted premises. This interest or estate which the tenant under the Act despite termination of the contractual tenancy continues to enjoy creates a heritable interest in the absence of any provision to the contrary. Supreme Court observed that this view has been taken in Damadilal's case and this decision represents the correct position in law. The observations of Supreme Court in the decision of the Seven-Judge Bench in the case of V. Dhanpal Chettiar v. Yesodai Ammal (supra), appears to have concluded the question. The amendment of the definition of tenant by the Act 18 of 1976 introducing particularly 2(l)(iii) does not in any way mitigate against this view. The said sub-section (iii) with all the three Explanations thereto is not in any way inconsistent with or contrary to sub-section (ii) of section 2(l) which unequivocally states that tenant includes any person continuing in possession after the termination of his tenancy. In the absence of the provision contained in sub-section 2(l)(iii) the heritable interest of the heirs of the statutory tenant would devolve on all the heirs of the 'so-called statutory tenant' on his death and the heirs of such tenant would in law step into his position. This sub-section (iii) of section 2(l) seeks to restrict this right insofar as the residential premises are concerned. The heritability of the statutory tenancy which otherwise flows from the Act is restricted in case of residential premises only to the heirs mentioned in section 2(l)(iii) and the heirs therein are entitled to remain in possession and to enjoy the protection under the Act in the manner and to the extent indicated in sub-section 2(l). The legislature, which under the Rent Act affords protection against eviction to tenants whose tenancies have been terminated and who continue to remain in possession and who are generally termed as statutory tenants, is perfectly competent to lay down the manner and extent of the protection and the rights and obligations of such tenants and their heirs. Section 2(l)(iii) of the Act does not create any additional or special right in favour of the heirs of the 'so-called statutory tenant' on his death, but seeks to restrict the right of the heirs of such tenant in respect of residential premises. As the status and rights of contractual tenant even after determination of his tenancy when the tenant is at times described as the statutory tenant, are fully protected by the Act and the heirs of such tenants become entitled by virtue of the provisions of the Act to inherit the status and position of the statutory tenant on his death, the legislature which has created this right has thought it fit in the case of residential premises to limit the rights of the heirs in the manner and to the extent provided in section 2(l). It appears that the legislature has not thought it fit to put any such restrictions with regard to tenants in respect of commercial premises in this Act.
Distinction between commercial and residential premises:-The Court also noted that for certain purposes the legislature in the Delhi Act in question and also in various other Rent Acts has treated commercial premises differently from residential premises. Section 14(1)(d) provides that it will be a good ground for eviction of a tenant from residential premises, if the premises let out for use as residence is not so used for a period of six months immediately before the filing of the application for the recovery of possession of the premises. Similarly, section 14(1)(e) makes bona fide requirement of the landlord of the premises let out to the tenant for residential purposes a good ground for eviction of the tenant from such premises. These grounds, however, are not made available in respect of commercial premises. Though recently the Apex Court by way of Indicial acticism made the ground of bona fide requirement available even in cases of commercial premises also.
Intention of legislature:-A tenant of any commercial premises has necessarily to use the premises for business purposes. Business carried on by a tenant of any commercial premises may be and often is, his only occupation and the source of livelihood of the tenant and his Intention of legizlature family. Out of the income earned by the tenant from his business in the commercial premises, the tenant maintains himself and his family; and the tenant, if he is residing in a tenanted house, may also be paying his rent out of the said income. Even if tenant is evicted from his residential premises, he may with the earnings out of the business be in a position to arrange for some other accommodation for his residence with his family. When, however, a tenant is thrown out of the commercial premises, his business which enables him to maintain himself and his family comes to a stand-still. It is common knowledge that it is much more difficult to find suitable business premises than to find suitable premises for residence. It is no secret that for securing commercial accommodation, large sums of money by way of salami, even though not legally payable, may have to be paid and rents of commercial premises are usually very high. Besides, a business which has been carried on for years at a particular place has its own goodwill and other distinct advantages. The death of the person who happens to be the tenant of the commercial premises and who was running the business out of the income of which the family used to be maintained, is itself a great loss to the members of the family to whom the death, naturally, comes as a great blow. Usually, on the death of the person who runs the business and maintains his family out of the income of the business, the other members of the family who suffer the bereavement have necessarily to carry on the business for the maintenance and support of the family. A running business is indeed a very valuable asset and often a great source of comfort to the family as the business keeps the family going. So long as the contractual tenancy of a tenant who carries on the business continues, there can be no question of the heirs of the deceased tenant not only inheriting the tenancy but also inheriting the business and they are entitled to run and enjoy the same. As already noted, mere termination of the contractual tenancy does not bring about any change in the status of the tenant and the tenant by virtue of the definition of the 'tenant' in the Act and the other Rent Acts continues to enjoy the same status and position unless there be any provisions in the Rent Acts which indicate to the contrary. The mere fact that in the Act no provision has been made with regard to the heirs of tenants in respect of commercial tenancies on the death of the tenant after termination of the tenancy, as has been done in the case of heirs of the tenants of residential premises, does not indicate that the legislature intended that the heirs of the tenants of commercial premises will cease to enjoy the protection afforded to the tenant under the Act. The legislature could never have possibly intended that with the death of a tenant of the commercial premises, the business carried on by the tenant, however flourishing it may be and even if the same constituted the source of livelihood of the members of the family, must necessarily come to an end on the death of the tenant, only because the tenant died after the contractual tenancy had been terminated. It could never have been the intention of the legislature that the entire family of a tenant depending upon the business carried on by the tenant will be completely stranded and the business carried on for years in the premises which had been let out to the tenant must stop functioning at the premises which the heirs of the deceased tenant must necessarily vacate, as they are afforded no protection under the Act. The Apex Court opined that in case of commercial premises governed by the Delhi Act, the legislature has not thought it fit in the light of the situation at Delhi to place any kind of restriction on the ordinary law of inheritance with regard to succession. It may also be borne in mind that in case of commercial premises the heirs of the deceased tenant not only succeed to the tenancy rights in the premises but they succeed to the business as a whole. It might have been open to the legislature to limit or restrict the right of inheritance with regard to the tenancy as the legislature had done in the case of the tenancies with regard to the residential houses but it would not have been open to the legislature to alter under the Rent Act, the Law of Succession regarding the business which is a valuable heritable right and which must necessarily devolve on all the heirs in accordance with law. The absence of any provision restricting the heritability of the tenancy in respect of the commercial premises only establishes that commercial tenancies notwithstanding the determination of the contractual tenancies will devolve on the heirs in accordance with law and the heirs who step into the position of the deceased tenant will continue to enjoy the protection afforded by the Act and they can only be evicted in accordance with the provisions of the Act.
Another significant consideration.-There is another significant consideration, which lends support to this view that commercial premises are let out not only to individuals but also to Companies, Corporations and other statutory bodies having a juristic personality. In fact, tenancies in respect of commercial premises are usually taken by Companies and Corporations. When the tenant is a Company or a Corporation or anybody with juristic personality, question of the death of the tenant will not arise. Despite the termination of the tenancy, the Company or the Corporation or such juristic personalities, however, will go on enjoying the protection afforded to the tenant under the Act. It can hardly be conceived that the legislature would intend to deny to one class of tenants, namely, individuals the protection which will be enjoyed by the other class' namely, the Corporations and Companies and other bodies with juristic personality under the Act. If it be held that commercial tenancies after the termination of the contractual tenancy of the tenant are not heritable on the death of the tenant and the heirs of the tenant are not entitled to enjoy the protection under the Act, an irreparable mischief which the legislature could never have intended is likely to be caused. Any time after the creation of the contractual tenancy, the landlord may determine the contractual tenancy, allowing the tenant to continue to remain in possession of the premises, hoping for an early death of the tenant, so that on the death of a tenant he can immediately proceed to institute the proceeding for recovery and recover possession of the premises as a matter of course, because the heirs would not have any right to remain in occupation and would not enjoy the protection of the Act. This could never have been intended by the legislature while framing the Rent Acts for affording protection to the tenant against eviction that the landlord would be entitled to recover possession, even no grounds for eviction as prescribed in the Rent Acts are made out.
Final obervations.-Consequently the Court held that if the Rent Act in question defines a tenant in substance to mean a tenant who continues to remain in possession even after the termination of the contractual tenancy till a decree for eviction against him is passed. The tenant even after the determination of the tenancy continues to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. As the protection afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenants, it is open to the legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be enjoyed and the manner in which the same is to be enjoyed. If the legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfilment of the condition in the manner and to the extent stipulated in the Act. The legislature which by the Rent Act seeks to confer the benefit on the tenants and to afford protection against eviction, is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenancy rights after the termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant. Such appropriate provision may be made by the legislature both with regard to the residential tenancy and commercial tenancy. It is, however, entirely for the legislature to decide whether the legislature will make such provision or not. In the absence of any provision regulating the right of inheritance, and the manner and extent thereof and in the absence of any condition being stipulated with regard to the devolution of tenancy rights on the heirs on the death of the tenant, the devolution of tenancy rights must necessarily be in accordance with the ordinary law of succession.
Further, before concluding the judgment, the Court made the following mentioned observation for the suitable amendment in the rent control legislation:
"Before concluding, there is one aspect on which we consider it desirable to make certain observations. The owner of any premises, whether residential or commercial, let out to any tenant, is permitted by the Rent Control Acts, to seek eviction of the tenant only on the ground specified in the Act, entitling the landlord to evict the tenant from the premises. The restrictions on the power of the landlords in the matter of recovery of possession of the premises let out by him to a tenant have been imposed for the benefit of the tenants. In spite of various restrictions put on the landlord's right to recover possession of the premises from a tenant, the right of the landlord to recover possession of the premises from the tenant for the bona fide need of the premises by the landlord is recognized by the Act, in case of residential premises. A landlord may let out the premises under various circumstances. Usually a landlord lets out the premises when he does not need it for own use. Circumstances may change and a situation may arise when the landlord may require the premises let out by him for his own use. It is just and proper that when the landlord requires the premises bona fide for his own use and occupation, the landlord should be entitled to recover the possession of the premises which continues to be his property in spite of his letting out the same to a tenant. The legislature in its wisdom did recognize this fact and the legislature has provided that bona fide requirement of the landlord for his own use will be a legitimate ground under the Act, for the eviction of his tenant from any residential premises. This ground is, however, confined to residential premises and is not made available in case of commercial premises. A landlord who lets out commercial premises to a tenant under certain circumstances may need bona fide the premises for his own use under changed conditions in some future date should not in fairness be deprived of his right to recover the commercial premises. Bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial. We therefore, suggest that legislature may consider the advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well; Gian Devi Anand v. Jeevan Kumar, MANU/SC/0381/1985: (1985) 2 SCC 683 (688-715)."
It is pertinent to mension here that the Supreme Court subsequent in Satyawati Sharma v. UOI, 2008 (6) SCALE 325, has extended the ground of bona fide requirement for eviction of the tenant even to business premises also after relying upon Gian Devi's judgment.
Q.
1.A seven Judges Bench decision on V. Dhanpal Chettiar v. Yesodai Desi' Judgement Ammal, has completely obliterated the distinction between the contractual tenancy and statutory tenancy therefore if a contractual tenant has an estate or interest in the premises which is heritable, it is difficult to understand why a statutory tenant should be held not to have such heritable estate or interest. In one case, the estate and interest is the result of contract while in the other result of statute.
2.The English law, which has been relied upon to distinguish between the statutory tenancy and the contractual tenancy in India, cannot be made applicable to our country, since English Rent Acts are not in pari materia with the provision of the rent control legislation prevailing in different States of our country.
3.Even rent control legislation places a statutory tenant on the same footing as the contractual tenant with the same rights and obligations. It does not make any distinction between the statutory tenant and a contractual tenant which is apparent from bare perusal of various provisions of the rent control legislation including the definition of the tenant, grounds of eviction, provisions relating to fixation of standard rents etc. None of these provisions use either of the terms namely statutory or contractual. Rather, it makes reference to only 'tenant' and not to statutory or contractual tenant.
4.Tenancy has its origin in contract. There is no dispute that contractual tenant has estate or interest in the subject-matter of the tenancy. If a contractual tenant has an estate or interest in the premises which is heritable, it is difficult to understand why a statutory tenant should be held not to have such heritable estate or interest. In one case, the estate or interest is the result of contract while in the other it is the result of statute. But the quality of the estate or interest is the same in both cases.
5.By making amendment in the year 1976 in the definition of 'tenant', legislature has put certain restrictions with regard to the heritability of statutory tenancy in respect of residential premises. In view of these amendments only those legal representatives as mentioned in the amended provisions and subject to the contentions mentioned therein, can inherit the same. However, in respect of commercial premises no such restriction has been put with regard to its heritability.
6.The legislature could never have possibly intended that with the death of a tenant of the commercial premises, the business carried on by the tenant, however flourishing it may be and even if the same constituted the source of livelihood of the members of the family, must necessarily come to an end on the death of the tenant, only because the tenant died after the contractual tenancy had been terminated. It could never have been the intention of the legislature that the entire family of a tenant depending upon the business carried on by the tenant will be completely stranded and the business carried on for years in the premises which had been let out to the tenant must stop functioning at the premises which the heirs of the deceased tenant must necessarily vacate, as they are afforded no protection under the Act.
7.It might have been open to the legislature to limit or restrict right of inheritance with regard to the tenancy as the legislature had done in case of tenancy with regard to the residential houses. But it would not have been open to the legislature to alter under the Rent Act, the law of succession regarding the business which is the valuable right and which must necessarily devolve upon all the heirs in accordance with the law.
8.Commercial premises are let out not only to individuals but also to Companies, Corporations and other statutory bodies having a juristic personality. In fact, tenancies in respect of commercial premises are usually taken by Companies and Corporations. When the tenant is a Company or a Corporation or anybody with juristic personality, question of the death of the tenant will not arise. Despite the termination of the tenancy, the Company or the Corporation or such juristic personalities, however, will go on enjoying the protection afforded to the tenant under the Act. It can hardly be conceived that the legislature would intend to deny to one class of tenants, namely, individuals the protection which will be enjoyed by the other class namely, the Corporations and Companies and other bodies with juristic personality under the Act. If it be held that commercial tenancies after the termination of the contractual tenancy of the tenant are not heritable on the death of the tenant and the heirs of the tenant are not entitled to enjoy the protection under the Act, an irreparable mischief which the legislature could never have intended is likely to be caused.
9.Thus law laid down in Damadi Lal case was affirmed while over-ruling Ganpat Ladha's judgment.
1.
This case has already been discussed in detail above.
2.
Question of law decided: A decree for ejectment passed by a Civil Court qua a commercial tenancy in the State of Delhi before the declaration of law by the Supreme Court in Gian Devi Anand v. Jeevan Kumar, that such a tenancy is heritable, is not executable in view of the said judgment and therefore the judgment-debtors can successfully object to the execution of the decree on the ground that same was passed by a court lacking inherent jurisdiction and therefore inexecutable.
Facts of the case: A property, which was owned by the Respondent-landlord was let out at a monthly rent of Rs. 75 for commercial purposes to the predecessor-in-interest of the appellants. A notice to quit under section 106 of the Transfer of Property Act, was served on the tenant in response to which it was stated that the tenant in the tenanted premises was not in his personal capacity but it was the partnership firm Pelican Paper and Stationary Mart in which he was one of the partner. A suit for possession and mesne profits was filed against the tenant in the Court of District Judge, Delhi stating therein that the tenant was occupying the premises in his personal capacity. Service upon the tenant was effected through publication in newspaper and not personally. An ex parte decree of possession/recovery of mesne profits was passed against the tenant. The Civil Court also recorded a finding that after the termination of the tenancy, the tenant became the statutory tenant and on his death, the tenancy came to an end and accordingly a decree for possession of suit premises along with the arrears of rent/damages was passed. The Decree Holder filed the execution application in which the Judgment-Debtors filed an application on 21-8-1986 under Order 9, rule 13, CPC for setting aside the ex parte decree which was dismissed by the Trial Court on 25-1-1993. The Regular First Appeal in the High Court against the order of the Trial Court was dismissed on 7-9-1998. The Judgment-Debtors thereafter filed Special Leave Petition (C) No. 20667/1998, which was dismissed leaving it open to the Judgment-Debtors to raise the question regarding the executibility of decree before the appropriate forum. Soon after the dismissal of the Special Leave Petition, the Judgment-Debtor filed RFA in the High Court against the original decree dated 2nd April, 1985 passed by the Civil Court alongwith an application for condonation of delay of about 15 years in filing the appeal. This application for condonation of delay was rejected and consequently the said RFA was dismissed on 24-1-2000 being barred by time. After dismissal of the said Special Leave Petition by Supreme Court the execution proceedings revived. The Judgment-Debtors filed objection under section 47 of the CPC objecting to the execution of the decree, inter alia, on the ground that commercial tenancy in the State of Delhi was heritable in view of the Gian Devi's case and therefore, Civil Court lacked the inherent jurisdiction to pass such a decree. After the death of the statutory tenant the possession of the Judgment-Debtors did not become unlawful or illegal. They continued to have estate in the tenanted premises which was heritable and the jurisdiction of the Civil Court to pass the order of ejectment was barred under section 50 of the Delhi Rent Control Act, 1958. These objections were overruled by the executing Court holding that the executing court could not go beyond the decree which had obtained finality. It was also held that the executing court could not refuse to execute the decree passed by the Civil Court only because subsequently Supreme Court in Gian Devi's case held that the commercial tenancy was heritable. The petition filed under article 227 of the Constitution of India against the dismissal of their objections by the appellants was also dismissed, since the High Court took the same view regarding the applicability of law declared by this court in Gian Devi's case.
Findings of the court: Under these circumstances, the question of applicability of doctrine of prospective/retrospective overruling arose in the present case. The counsel for the appellant while relying upon the decision of Supreme Court in Dr. Suresh Chandra Verma v. Chancellor, Nagpur University, MANU/SC/0351/1990: AIR 1990 SC 2023 and Lily Thomas v. Union of India, AIR 2000 SC 1650 contended that Supreme Court does not legislate and only interprets the law and when a particular provisions is interpreted then in effect declares the law as it is stood from the beginning as per its decision and it would be deemed as if that was the law. It is open to the Court to protect the earlier decision to make the rule applicable prospectively and save the decisions which have already become final or have been given effect to. In the absence of any specific observations to the effect that the law declared in Gian Devi Anand's case (supra) would be prospective in operation and would not apply to the decrees already passed by the civil courts, it cannot be held that the rule laid down in Gian Devi Anand's case (supra) would not apply to the decrees which had been passed by the Civil Court having no jurisdiction to do so. In Dr. Suresh Chandra Verma (supra) this Court held:
"The second contention need not detain us long. It is based primarily on the provisions of section 57(5) of the Act. The contention is that since the provisions of that section give power to the Chancellor to terminate the services of a teacher only if he is satisfied that the appointment "was not in accordance with the law at that time in force" and since the law at that time in force, viz. on March 30, 1985 when the appellants were appointed, was the law as laid down in Bhakre's case which was decided on December 7, 1984, the termination of the appellants is beyond the powers of the Chancellor. The argument can only be described as native. It is unnecessary to point out that when the Court decides that the interpretation of a particular provision as given earlier was not legal, it infact declares that the law as it stood from the beginning was as per its decision, and that it was never the law otherwise. This being the case, since the Full Bench and now this Court has taken the view that the interpretation placed on the provisions of law by the Division Bench in Bhakre's case was erroneous, it will have to be held that the appointments made by the University on March 30, 1985 pursuant to the law laid down in Bhakre's case were not according to law. Hence, the termination of the services of the appellants were in compliance with the provisions of section 57(5) of the Act."
The court also observed that for the first time in Golakh Nath v. State of Punjab, MANU/SC/0029/1967: AIR 1967 SC 1643 the doctrine of prospective overruling was accepted and was held as under:
"As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances, we would like to move warily in the beginning. We would lay down the following propositions: (1) the doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by the highest court of the country, i.e., the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India; (3) the scope of the retroactive operation of the law declared by the Supreme Court superseding its "earlier decisions" is left to its discretion to be moulded in accordance with the justice of the cause or matter before it."
Therefore it was held: The doctrine of "prospective overruling" was initially made applicable to the matters arising under the Constitution but we understand the same has since been made applicable to the matters arising under the statutes as well. Under the doctrine of "prospective overruling" the law declared by the Court applies to the cases arising in future only and its applicability to the cases which have attained finality is saved because the repeal would otherwise work hardship to those who had trusted to its existence. Invocation of doctrine of "prospective overruling" is left to the discretion of the court to mould with the justice of the cause or the matter before the court. This Court while deciding the Gian Devi Anand's case (supra) did not hold that the law declared by it would be prospective in operation. It was not for the High Court to say that the law laid down by this Court in Gian Devi Anand's case (supra) would be prospective in operation. If this is to be accepted then conflicting rules can supposedly be laid down by different High Courts regarding the applicability of the law laid down by this Court in Gian Devi Anand's case (supra) or any other case. Such a situation cannot be permitted to arise. In the absence of any direction by this Court that the rule laid down by this Court would be prospective in operation the finding recorded by the High Court that the rule laid down in Gian Devi Anand's case (supra) by this Court would be applicable to the cases arising from the date of the judgment of this Court cannot be accepted being erroneous.
In the present case because of the operation of section 14 of the Act, the only authority to pass a decree for ejectment of the tenanted premises is the Rent Controller appointed under the Act and section 50 of the Act specifically bars the jurisdiction of the Civil Court to entertain any suit or proceeding insofar as it relates to the eviction of any tenant from the premises which were covered by the Delhi Rent Control Act, 1958. The Civil Court lacked the inherent jurisdiction to take cognizance of the cause and to pass a decree. Challenge to such a decree on the ground of nullity could be raised at any later stage including the execution proceedings. Tenancy of the building was governed by a special Act and therefore the decree passed by the Civil Court was a nullity and therefore inexecutable. Judgment-Debtors had not filed their written statement in the Civil Court and no issue regarding the jurisdiction of the Civil Court to try the suit was framed. Tenant in the special leave petition in this Court raised the contention that the eviction decree passed by the Civil Court could not be executed against them. This Court refused to go into that question as it was not the subject-matter of the order under appeal. It was left open to the judgment-debtors to raise this ground before the appropriate forum, if available to them under law. The only forum where the Judgment-Debtors could raise the objection regarding the executability of the decree was in the execution proceedings which they did. Since the jurisdiction of the Civil Court was barred, the decree passed by it was a nullity and the Judgment-Debtors could successfully raise objection regarding the executability of such a decree. The executing Court erred in holding that Judgment-Debtors could not raise the objection to the executability of the decree being nullity having been passed by a court lacking inherent jurisdiction to do so. This Court in Gian Devi Anand's case (supra) did not lay down any new law but only interpreted the existing law which was in force. As was observed by this Court in Lily Thomas's case (supra) the interpretation of a provision relates back to the date of the law itself and cannot be prospective of the judgment. When the court decides that the interpretation given to a particular provision earlier was not legal, it declares the law as it stood right from the beginning as per its decision. In Gian Devi Anand's case (supra) the interpretation given by the Delhi High Court that commercial tenancies were not heritable was overruled being erroneous. Interpretation given by the Delhi High Court was not legal. The interpretation given by this Court declaring that the commercial tenancies are heritable would be the law as it stood from the beginning as per the interpretation put by this Court. It would be deemed that the law was never otherwise. Jurisdiction of the Civil Court has not been taken away by the interpretation given by this Court. This Court declared that the Civil Court had no jurisdiction to pass such a decree. It was not a question of taking away the jurisdiction it was the declaration of law by this Court to that effect. The Civil Court assumed the jurisdiction on the basis of the interpretation given by the High Court in Gian Devi Anand's case, which was set aside by this Court."
For the reasons stated above, the appeal was accepted and the order passed by the High Court as well as the Executing Court regarding executibility of the decree passed by the Civil Court was set aside. It was held that the jurisdiction of the Civil Court to pass the decree for ejectment was barred. It was also held that the decree passed by a court having no jurisdiction over the subject-matter would be a nullity and the Judgment-Debtor can object to the execution of such decree being nullity and non-est. Its invalidity can be set up whenever it is sought to be enforced including the stage of execution of the decree or any other collateral proceedings.
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