The Rent Control Legislation puts a complete bar on the eviction of the tenants. In this regard, specific reference is made to section 14 of the Delhi Rent Control Act, 1958, which is in part material with other similar kind of provisions as contained in other State Rent Control Legislations. Section 14 of the Delhi Rent Control Act, 1958 (in short 'Rent Control Act') starts with a non-obstantic clause and states that notwithstanding anything to the contrary contain 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. However, this bar of eviction of a tenant at the instance of the landlord is lifted by proviso to section 14(1), according to which, on an application made to the Controller in the prescribed manner, an order for recovery of possession of the premises could be made on one or more of the grounds mentioned therein. Therefore, a tenant can be evicted from the premises only on those grounds as mentioned in the proviso to section 14(1) of the Rent Control. Though it is pertinent to mention here that by way of amendment in the year 1976, some more grounds of eviction were made available to the landlord in the form of sections 14A1, 14B2, 14C3and 14D4.
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1. Right to recover immediate possession of premises to accrue to a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required, by, or in pursuance of, any general or special order made by that Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations, on the ground that he owns, in the Union territory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child.
2. Right to recover immediate possession of premises to accrue to members of the armed forces, etc.—(1) Where the landlord—(a) is a released or retired person from any armed forces and the premises let out by him are required for his own residence; or (b) is a dependent of a member of any armed forces who had been killed in action and the premises let out by such member are required for the residence of the family of such member.
3. Right to recover immediate possession of premises to accrue to Central Government and Delhi Administration employees.—(1) Where the landlord is a retired employee of the Central Government or of the Delhi Administration, and the premises let out by him are required for his own residence, such employee may, within one year from the date of his retirement or within a period of one year from the date of commencement of the Delhi Rent Control (Amendment) Act, 1988, whichever is later, apply to the Controller for recovering the immediate possession of such premises. (2) Where the landlord is an employee of the Central Government or of the Delhi Administration and has a period of less than one year preceding the date of his retirement and the premises let out by him are required by him for his own residence after his retirement, he may, at any time within a period of one year before the date of his retirement, apply to the Controller for recovering the immediate possession of such premises.
4. Right to recover immediate possession of premises to accrue to a widow.—(1) Where the landlord is a widow and the premises let out by her, or by her husband, are required by her for her own residence, she may apply to the Controller for recovering the immediate possession of such premises
If none of these grounds exist tenant can not be evicted from the premises and no application in this regard would lie before the Rent Controller. Further, the burden to prove these grounds is on the landlord. Some of the 'grounds of eviction' are discussed hereunder.
1.
Clause (a) of the proviso to sub-section (1) of section 14 of the Rent Control Act, deals with this ground of eviction. According to this ground, if the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of the rent has been served on him by the landlord in the manner provided in section 106 of the Transfer of Property Act, 1882 cause of action would arise in favour of landlord to approach the Controller for eviction of the tenant. But sub-section 2 of section 14 of the Delhi Rent Control Act, 1958 provides that no order for recovery of possession shall be made on this ground if the tenant makes payment or deposit as required by section 15 of the Rent Control Act. Section 15 provides that in such a case, even if the landlord has been able to prove the allegation of non payment of arrears of rent, the Rent Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate.1
It is worthwhile to mention here that an application seeking an order on the tenant to pay to the landlord the amount of rent legally recoverable from the tenant can also be made even in any other proceedings for the recovery of the possession of any premises on any other ground under the Rent Control Act and in such a situation, Controller may, after giving the parties an opportunity of being heard, make an order in accordance with the provisions of sub-section (1).2
However, if in any proceedings qua non payment of rent by the tenant to the landlord, there is any dispute as to the amount of rent payable by the tenant, the controller shall within 15 days of the date of first hearing of such proceedings fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of the sub-section (1) or sub-section (2) of section 15, as the case may be, until the standard rent in relation thereto is fixed having regard to the provisions of the Rent Control Act and the amount of arrears, if any, calculated on the basis of standard rent shall be paid or deposited by the tenant within one month of the date on which the
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1. Section 15(1) of the Delhi Rent Control Act, 1958.
2. Section 15(2) of the Delhi Rent Control Act, 1958.
standard rent is fixed or such further time as the Controller may allow in this behalf.1
It is further provided that if there is any dispute as to the person or persons to whom rent is payable, the controller may direct the tenant to deposit with the Controller, the amount payable by him under sub-section (1), sub-section (2) or sub-section (3) as the case may be and in such a case, no person shall be entitled to withdraw the amount in deposit until the Controller decides the dispute and makes an order for payment of the same2. However, if the Controller is satisfied that such a dispute as to the identity of the landlord has been raised by the tenant for reasons, which are false or frivolous, Controller may order the defence against eviction to be struck out and proceed with the hearing of the application.2
Supreme Court observed that non-payment of rent is not a ground for eviction of the tenant straightaway, since he has been granted an opportunity statutorily to make such payment within two months from the date of receipt of the notice sent by the landlord to the tenant in this regard. Second opportunity is granted by the Rent Controller under the Rent Control Legislation when he is directed to make payment within one month from the date of such an order.3If the tenant complies with such a direction/order of the Controller, no order shall be made for recovery of possession against the tenant in favour of the landlord on the ground of default in the payment of rent by the tenant, though the Controller may allow such costs as he may deem fit to the landlord.4
However, if the tenant fails to make payment or deposit as required by section 15(1) of the Rent Control Act, Controller may order the defence against eviction to be struck out and proceed with the hearing of the application.5But the question arises whether the Rent Controller, in view of section 15(7) of the Rent Control Act, has power or jurisdiction to condone the delay or to extend the time for depositing the rent and whether the order passed under section 15(1) had to be strictly complied with. The Supreme Court has laid down that the word 'may' used in section 15(7) clearly shows that it is not obligatory on the Controller to strike down the defence if the tenant fails to comply with the order, as passed under section 15(1) of the Rent Control Act. Hence, the Controller has discretionary power, keeping in view the facts and circumstances of the case, to condone the delay and secondly to extend the time for depositing the rent: Santosh Mehta v. Om Prakash, MANU/SC/0476/1980: (1980) 3 SCC 610; Ram Murti v. Bhola Nath, MANU/SC/0324/1984: AIR 1984 SC 1392; Jagan Nath v. Ram Kishan Dass, MANU/SC/0311/1984: AIR 1985 SC 265; Kamla Devi v. Vasdev, MANU/SC/0192/1995: AIR 1995 SC 985; Jain Motor Car Co., Delhi v. Swayam Prabha Jain, MANU/SC/0767/1996: AIR 1996 SC 2951.
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1. Section 15(3) of the Delhi Rent Control Act, 1958.
2. Section 15(4) of the Delhi Rent Control Act, 1958.
3. Section 15(1) of the Delhi Rent Control Act, 1958.
4. Section 15(6) of the Delhi Rent Control Act, 1958.
5. Section 15(7) of the Delhi Rent Control Act, 1958.
It is also pertinent to mention here that tenant cannot avail such a benefit if having obtained benefit once in respect of any premises; he again makes a default in the payment of rent of those premises for three consecutive months1.
1.
Q.
Question of law decided: The provision contained in section 15(7) of the Act are directory and not mandatory.
Facts of the case: In the words of the Supreme Court it would be very appropriate to state the facts of the case as under:
"The facts in this case cry for intervention, if one may say so. The appellant is a working woman who has to get to office and be there between 9.00 a.m. to 5.00 p.m. Naturally, she has a difficulty in appearing in Court for every hearing and so she prudently engaged an advocate to appear on her behalf and take proper steps to protect her interests. It is common ground that all the arrears of rent had been paid by her by cheque or in cash to her advocate. It also transpires that the amounts received by cheque or in cash by the advocate were not deposited in Court or paid to the landlord. It is further seen that when the tenant found that the amounts were not paid to the landlord by her advocate, she made a complaint to the Bar Council of Delhi and the matter is pending inquiry. From these circumstances, we are inclined to conclude-indeed - that is the only reasonable conclusion in the circumstances-that the tenant has not failed to pay and, in any case, the exercise of judicial discretion must persuade the Court not to strike out the defence of the tenant but give her fresh opportunity to make deposit of the entire arrears due. In the present case the deposit has eventually been made in this Court when it directed such deposit to be made."
Findings of the Court: The Supreme Court in view of these hard facts observed that-
"There is no indication whatsoever in the Act to show that the exercise of the power of striking out of the defence under section 15(7) was imperative whenever the tenant failed to deposit or pay any amount as required by section 15. The provisions contained in section 15(7) of the Act are directory and not mandatory. It cannot be disputed that section 15(7) is a penal provision and gives to the Controller discretionary power in the matter of striking out of the defence, and that in appropriate cases, the Controller may refuse to visit upon the tenant the penalty of non-payment or non-deposit. The effect of striking out of the defence under section 15(7) is that the tenant is deprived of the protection given by
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1. 14(2) No order for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1) if the tenant makes payment or deposit as required by section 15: Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months.
section 14 and, therefore, the powers under section 15(7) of the Act must be exercised with due circumspection."
In the present case, the Supreme Court took note of the fact that-
"The tenant did all she could by paying to the advocate the sums regularly but the latter betrayed her and perhaps helped himself. To trust one's advocate is not to sin deliberately. She was innocent but her advocate was not. No party can be punished because her advocate behaved unprofessionally. The Rent Controller should have controlled himself by a plain look at the eloquent facts and not let down the helpless woman who in good faith believed in the basic ethic of a noble profession. She did not fail to pay or deposit and, in any view, no case for punitive exercise of discretion has been made out. The conclusion necessarily follows that the striking out of the defence was not legal and the appellant should have been given an opportunity to contest the claim of the landlord for her eviction. A sensitized judicial appreciation was missing and, unfortunately, the High Court did not closely look at this facet of the issue. On the other hand, the appeal was dismissed as not maintainable in view of section 25B."
In view of this the appeal was allowed in exercise of jurisdiction under article 136 of the Contitution & the matter was remanded to Rent Controller for expedicious disposal.
2.
Question of law decided: The provision contained in section 15(7) of the Act are directory and not mandatory.
Facts of the case: This was an appeal by Special Leave by the appellant Ram Murthi against the judgment of the Delhi High Court dismissing his second appeal under section 39 of the Rent Control Act and upholding the judgment and order of the Rent Control Tribunal confirming an appeal against the order of the Second Additional Rent Controller and directing his eviction from the suit accommodation under section 14(1)(a) of the Rent Control Act. Respondent No. 1 Bhola Nath, the landlord in the matter made an application claiming eviction of the appellant and respondent No. 2 on the grounds mentioned in section 14(1)(a) (non-payment of rent) and (b) (sub-letting). On an application made by respondent No. 1, the Additional Rent Controller passed order dated 14-2-1969 under section 15(1) of the Rent Control Act, directed the appellant to deposit rent @ 18 p.m. with effect from December 1, 1965 and to deposit the future rent at the same rate on 15th day of each succeeding month. High Court declined to interfere with the order of eviction passed under section 14(1)(a) of the Act while relying upon the case of Hem Chand v. Delhi and General Mills Co. Ltd., MANU/SC/0347/1977: AIR 1977 SC 1986, and held that the Rent Controller had no power to extend the time prescribed by the order under section 15(1) which requires the tenant to deposit the arrears of rent within one month from the date of the order and future rents by the 15th day of each succeeding months. While placing reliance on later decision of Supreme Court in Shyamcharan Sharma v. Dharam Das, MANU/SC/0504/1979: AIR 1980 SC 587 counsel for appellant contended that inasmuch as the Rent Controller has a discretion under section 15(7) of the Act not to strikeout the defence of a tenant for committing default in making payment or deposit of the rent as required by section 15(1), he has by necessary implication the power to condone the default in making payment or deposit of future rent falling due after the institution of the proceedings as required under section 15(1) and also to extend the time for such payment or deposit. Supreme Court after setting out the relevant statutory provisions observed that the various sub-sections of sections 14 and 15 form an integrated process seeking to strike a balance between the conflicting rights of the landlord to secure eviction of the tenant on any one or more of the grounds specified in the proviso to sub-section (1) of section 14 and that of the tenant for protection against such eviction except under certain circumstances. The predominant object and purpose of the legislation, as a matter of social control, is to prevent eviction of tenants and to provide for control of rents etc. One must therefore give a meaningful interpretation to the various sub-sections of section 14 and 15 in furtherance of the purpose and object of the legislation.
The right of the landlord to claim eviction of the tenant on the ground that he has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him under section 14(1)(a) is made subject to the provisions of section 14(2). The opening words of section 14(2) 'No order for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1) clearly subordinate the landlord's claim for eviction on the ground of default in payment of rent to the statutory protection given to the tenant under section 14(2) against eviction on that ground on condition that he makes payment or deposit as required under section 15. When a tenant can get the benefit of the protection under section 14(2) is provided for in section 15(1). Section 15(1) of the Act is in two parts. The first part requires the tenant to pay or deposit within one month of the order of the Rent Controller passed under section 15(1) directing him to pay the arrears of rent legally recoverable from him including the period subsequent thereto upto the end of the month previous to that in which such payment or deposit is to be made. The second part is meant to secure payment of future rent by a defaulting tenant and casts a duty on such tenant to continue to pay or deposit, month by month, by the 15th day of each succeeding month, a sum equivalent to the rent at that rate. It is obvious that a tenant who seeks protection against eviction on the ground mentioned in section 14(1)(a) must comply with the requirements of section 15(1). It must also be observed that section 15(1) of the Act does not contain the words "or such further time as the Controller may allow in that behalf" as they appear in section 15(3) and this necessarily gives rise to the vexed question whether the Rent Controller has any power to condone the default by the tenant in making payment or deposit as required by section 15(1) or to extend the time for such payment or deposit.
The Supreme Court rejected the narrow construction placed by the Delhi High Court in Delhi Cloth and General Mills Company Ltd. v. Hem Chand, AIR 1972 Del 225, on the powers of the Controller contained in section 15(1) in the context of section 14(2).
It further held that it is not inconceivable that the tenant might fail to comply with the requirements of section 15(1) by the dead line due to circumstances beyond his control. For instance, it might not be possible for the tenant to attend the Court to make the deposit on the last day if it is suddenly declared a holiday or on account of a serious accident to himself or his employee, or while going to the treasury he is waylaid, or is stricken with sudden illness, or held up on account of riots or civil commotion, or for that matter a clerk of his lawyer entrusted with the money, instead of punctually making the deposit commits breach of trust and disappears, or some other circumstances intervene which make it impossible for him for reasons beyond his control to physically make the deposit by the due date. There is no reason why the refusal of the Rent Controller to strike out the defence of the tenant under section 15(7) in such circumstances should not ensure to the benefit of the tenant for purposes of section 14(2).
While affirming the law laid down in Santosh Mehta v. Om Prakash, AIR 1980 SC 1644 case, it was pointed out that the provision contained in section 15(7) was a penal provision and in terms of section 15(7) by the use of the word "may" gave to the Controller a discretionary power in the matter of striking out of the defence and that, in appropriate cases, the Controller may use it to visit upon the tenant the penalty of eviction, for failure to pay or deposit the future rent. In that case, the tenant paid the amount to the Advocate appearing for her but he betrayed her trust. In those circumstances, it was held that the Rent Controller could not have visited upon her the penal consequences of section 15(7) and should not have struck out the defence as this drastic power was meant for use only where a recalcitrant tenant was guilty of wilful or deliberate default in payment of future rent. It logically follows that if the Rent Controller has the power not to strike out the defence of the tenant under section 15(7) of the Act, he necessarily has by legal implication the power to condone the default on the part of the tenant in making payment of deposit or the future rents.
It was further observed that in Hem Chand's case, Supreme Court partly reversed the decision of the Delhi High Court in Delhi Cloth and General Mills Company. Ltd. v. Hem Chand, AIR 1972 Del 225 holding that the default on the part of the tenant to comply with the requirements of section 15(1) vests an indefeasible right in the landlord and is not merely procedural right and therefore the Rent Controller was bound to pass order for eviction under section 14(1)(a) of the Act and the Rent Controller had no power to condone the default by the tenant in making payment or deposit of arrears of rent within one month of the date of the order of the Rent Controller or of future rent month by month, by the 15th of each succeeding month. The underlying fallacy lay in the wrongful assumption by the Full Bench that section 14(2) was meant for the protection of the landlord. This Court while reversing the judgment of the Full Bench observed:
"While we agree with the view of the Full Bench that the Controller has no power to condone the failure of the tenant to pay arrears of rent as required under section 15(1), we are satisfied that the Full Bench fell into an error in holding that the right to obtain an order for recovery of possession accrued to the landlord. As we have set out earlier in the event of the tenant failing to comply with the order under section 15(1) the application will have to be heard giving an opportunity to the tenant if his defence is struck out. The Full Bench is therefore in error in allowing the application of the landlord on the basis of the failure of the tenant to comply with an order under section 15(1)."
In the concluding part of the judgment, there is an observation to the effect:
"The Rent Control Act, protects the tenant from such eviction and gives him an opportunity to pay the arrears of rent within two months from the date of notice of demand as provided in section 14(1)(a).... Even if he fails to pay, a further opportunity is given to the tenant to pay by deposit the arrears within one month under section 15(1). Such payment or deposit in compliance with the order under section 15(1) takes away the right of the landlord to claim recovery of possession on the ground of default in payment of rent. The legislature has given statutory protection to the tenant by affording him an opportunity to pay the arrears of rent within one month from the date of the order. This statutory provision cannot be modified as rights of parties depend on the compliance with an order under section 15(1). In the circumstances, we agree with the Full Bench that the Rent Controller has no discretion to extend the time prescribed under section 15(1)"
It was laid down that the observations in Hem Chand's case expressing the view that the Rent Controller has no power to extend the time prescribed in section 15(1) cannot be construed to mean that he is under a statutory obligation to pass an order for eviction of the tenant under section 14(1)(a) without anything more due to the failure on his part to comply with the requirements of section 15(1). The question would still remain open as to the course to be adopted by the Rent Controller in such a situation in the context of section 15(7) which confers on the Rent Controller a discretion not to strike out the defence of the tenant in the event of the contingency occurring, namely, failure on the part of the tenant to meet with the requirements of section 15(1).
Consequently, while reversing the view expressed by the High Court that the Rent Controller has no power to condone the default on the part of the tenant in making payment or deposit of future rent or to extend time for such payment or deposit, it finally laid down that:
"as required by section 15(1)", these provisions must be construed in a reasonable manner. If the Rent Controller has the discretion under section 15(7) not to strike out the defence of the tenant, he necessarily has the power to extend the time for payment of future rent under section 15(1) where the failure of the tenant to make such payment or deposit was due to circumstances beyond his control. The previous decision in Hem Chand's case interpreting section 15(7) and section 14(2) in the context of section 15(1) of the Delhi Rent Control Act, 1958, although not expressly overruled, cannot stand with the subsequent decision in Shyamcharan's case interpreting the analogous provisions of the Madhya Pradesh Accommodation Control Act, 1961 as it is of a larger Bench."
Hence appeal was allowed and orders of lower Courts were set aside.
3.
Question of law decided: The provision contained in section 15(7) of the Act are directory and not mandatory.
Facts of the case: Prem Chand Jain, who is since dead and is now represented by respondent No. 1, filed petition before Rent Controller, Delhi for eviction of the appellant from the suit premises on the ground of default in payment of rent and sub-letting. The Additional Rent Controller, who tried the matter, passed an order dated 24-3-1971 under section 15(1) of the Rent Control Act, requiring the appellant to deposit all arrears of rent due from the period 1-6-1970 within one month from the date of the order and also to deposit future rent @ Rs. 200 per month every month by 15th of each succeeding month after adjusting an amount of Rs. 800 which, admittedly, was received by Prem Chand Jain as part of the arrears of rent. During the pendency of proceedings before the Additional Rent Controller, Prem Chand Jain made application dated 22-3-1972 under section 15(2) of the Act for striking out the defence of the appellant on the ground that the appellant had not deposited the rent for the month of February 1972, by 15-3-1972 and had instead deposited it on 23-3-1972. This application was rejected on 24-4-1972 and consequently even appeal filed by Prem Chand Jain was dismissed by Rent Control Tribunal against that order. Consequently appeal was preferred before the High Court. In the meantime, Additional Rent Controller ordered for eviction of the appellant/tenant from the premises on the ground that he had committed default in depositing the rent for the month of February 1972 by 15-3-1972 and thus the order dated 24-3-1971 for regularly depositing the future rent by the 15th of each succeeding month was not complied with. The finding of the Rent Controller was that he had no power to condone the delay or to extend the time for depositing the rent. Consequently the appellant was held not entitled to protection under section 14(2) of the Act and was directed to be evicted from the premises. This order on challenge before the Rent Control Tribunal was upheld and the findings recorded by the Rent Controller that power or jurisdiction to condone the delay or to extend the time for depositing the rent were reiterated. It was also reiterated that the order passed under section 15(1) had to be strictly complied with. The second appeal filed against order of eviction before the Delhi High Court was taken up along with the landlord's above mentioned second appeal. The High Court by its impugned judgment dismissed the appellant's second appeal while landlord's second appeal was allowed with the finding that the appellant had committed default in depositing the rent for the month of February 1972 by 15-3-1972 and was therefore liable to be evicted from the premises in question. The High Court was of the opinion that the Rent Controller as also Tribunal were not justified in refusing to strike off the defence of the appellant tenant, which was consequently struck off by it. In this scenario again, the question before the Supreme Court was whether time under section 15(1) for depositing the rent could be extended and consequently whether striking of the defence under section 15(7) of the Rent Control Act, is in the discretion of the Rent Controller after the tenant has failed to comply with the order passed by the Rent Controller under section 15(1).
Findings of the Court: The Supreme Court observed that a perusal of the above provisions will indicate that the Act provides two opportunities to the tenant to avoid eviction. The first is contemplated by the proviso to sub-section (1) of section 14 under which if the tenant pays to the landlord the entire amount of arrears of rent demanded from him by the landlord within two months from the date on which a notice of demand is served upon him, it would not be possible for the landlord to institute the proceedings for his eviction on the ground under section 14 of the Act. The second opportunity is provided to him after the institution of the proceedings, by section 14(2) which provides that no order for the recovery of possession on the ground of default in payment of rent shall be made if the tenant has deposited or made payment of the rent in accordance with the provisions of section 15 under which the Rent Controller can call upon the tenant to pay to the landlord or to deposit in the Court, within one month from the date of the order, the arrears of rent calculated at the rate at which it was last paid for the whole of the period for which the arrears were legally recoverable from him including the period subsequent thereto and further to pay or deposit continuously, month by month, by the 15th of each succeeding month, a sum equivalent to the rent at that rate.
After considering the previous judgments on the question involved in the matter; Delhi Cloth & General Mills & Co. Ltd. v. Hem Chand, AIR 1972 Del 225; Hem Chand v. Delhi Cloth & General Mills Co. Ltd., MANU/SC/0347/1977: AIR 1977 SC 1986; Shyamcharan Sharma v. Dharamdas, MANU/SC/0504/1979: AIR 1980 SC 587; Ram Murti v. Bhola Nath, MANU/SC/0324/1984: AIR 1984 SC 1392; Kamla Devi v. Vasdev, MANU/SC/0192/1995: (1995) 1 SCC 356, it was observed that:
"In other appeal S.A.O. No. 193 of 1973 of the landlord challenging the Judgment and order of the Tribunal dismissing his application under section 15(7) of the Act, the defence of the appellant-tenant was not struck off by the Controller. In other words the tenant was allowed to defend the eviction case. He was allowed to lead evidence and take part during the trial of the eviction proceedings. The appellant had claimed condonation for the purpose of section 15(7) of the Act on the ground that the attorney of the appellant had fallen ill and the partner of the firm Ajit Prasad had forgotten the date of deposit on account of being busy in connection with the election in which his brother was also a candidate. These facts are not sufficient to condone the delay in deposit of rent. These acts amount to negligence on the part of the appellant which is a partnership firm. The attorney had fallen ill and one partner had forgotten the date of deposit, there were other partners and other officials of the firm who ought to have taken steps to deposit within time. I am, therefore, of the view that it was not a fit case for refusing to strike off the defence of the appellant tenant under section 15(7) of the Act. I, therefore, set aside the Judgment and order of the Tribunal and the Controller and strike off the defence of the appellant."
Further, on the facts of the case Supreme Court took the view that the High Court appears to be justified in coming to the conclusion that the appellant tenant was negligent and careless as the rent could be deposited by any other manner, if the attorney had fallen ill or one partner had forgotten the date of deposit. Any other explanation offered by the appellant, it was held, would be obviously an after thought and therefore, it was pointed out that it will not serve any purpose to remand the case back to the Rent Controller. Hence while upholding the earlier view as laid down by the Supreme Court in above mentioned cases, on facts the appeal was dismissed.
4.
Question of law decided: The provision contained in section 15(7) of the Act are directory and not mandatory.
Facts of the case: The appellant was the owner of a shop in Masjid Moth, New Delhi, which was let out to the respondent-tenant, who defaulted in payment of rent. Even after demand notice, the respondent neither paid nor tendered arrears of rent within the period of two months after its receipt. Consequently an eviction petition was filed under clause (a) of the proviso to sub-section 1 of section 14 of the Rent Control Act. It was admitted in the written statement that the rent was due from 1-1-1980. On 27-1-1984 the Additional Rent Controller passed an order directing the respondent to pay or deposit the entire arrears of rent @ Rs. 50 per month with effect from 1-1-1980 within one month of the passing of the said order and continue to pay or deposit the subsequent rent month by month the 15th of each succeeding month. After making a payment of Rs. 500 to the appellant, the respondent did not pay the arrears as promised. On 11-4-1984, the appellant filed an application under section 15(7) of the Rent Control Act for striking out the defence and to proceed with the hearing of the application on the ground that the tenant had failed to make payment or make deposit of the arrears of rent. Additional Rent Controller passed the following order:-
"Since the respondent failed to comply with the order dated 27-1-1984 under section 15(1), he was not entitled to benefit under section 14(2) of the Act and as such he was liable to suffer straight eviction order. Accordingly, an eviction order is passed in favour of the petitioner and against the respondent in respect of shop bearing No. 408, situated at Lila Ram Market, Masjid Moth, New Delhi, as shown red in the site plan, Ex. RW 1/2."
On appeal, the Tribunal remanded the case back to Rent Controller to consider whether the deposit in arrears of rent is liable to be condoned or not before deciding whether the appellant deserves to get the benefit of section 14(2) or has rendered himself liable to be evicted. On remand, the Additional Rent Controller held that there was compromise between the parties and in any case the aforesaid delay in depositing the rent was not willful, deliberate and contumacious non-compliance of order under section 15(1) passed on 7-1-1984. It was held that landlord was entitled at the most to some compensation. The Additional Rent Controller condoned the delay in depositing the arrears of rent and held that the respondent-tenant was entitled to get the benefit of the provisions of section 14(2) of the Rent Control Act. On appeal before the Tribunal, the only ground urged was that there was no reason for condonation of delay and the Additional Rent Controller should have struck out the defence of the respondent. The Tribunal held that the tenant was rightly given the benefit of section 14(2) of the Act it being the case of first default. Second appeal to the High Court by the appellant-landlord was also dismissed.
Findings of the Court: It was contended on behalf of the appellant that once there is a failure on the part of the tenant to carry out the direction given by the Controller under section 15(1) of the Act, the tenant is not entitled to any further opportunity to pay in terms of the order passed under section 15(1) and the landlord is entitled straightaway to an order for striking out the defence of the tenant and consequently an order for eviction of the tenant.
In support of this contention, the judgment of Supreme Court in Hem Chand v. Delhi Cloth and General Mills Co. Ltd., MANU/SC/0347/1977: AIR 1977 SC 1986 was relied upon. However, the Supreme Court held that it is not obligatory for the Rent Controller to strike out the defence of the tenant under section 15(7) of the Delhi Act, if the tenant fails to make payment or deposit as directed by an order passed under section 15(1). The language of sub-section (7) of section 15 is that 'the Controller may order the defence against eviction to be struck out'. That clearly means, the Controller, in a given case, may not pass such an order. It must depend upon the facts of the case and the discretion of the Controller whether such a drastic order should or should not be passed.
While doing so, the Supreme Court relied upon its judgment in Shyamcharan Sharma v. Dharamdas, MANU/SC/0504/1979: AIR 1980 SC 587 which was decided under the provisions of the Madhya Pradesh Accommodation Control Act, 1967 whose provisions relating to eviction of the tenants were held to be similar to the corresponding provisions of the Delhi Rent Control Act, 1958.
The Supreme Court quoted the following mentioned portion of the judgment of Shyam Charan case decided by a bench of three judges:-
"We think that section 13 quite clearly confers a discretion, on the Court, to strike out or not to strike out the defence, if default is made in deposit or payment of rent as required by section 13(1). If the Court has the discretion not to strike out the defence of a tenant committing default in payment or deposit as required by section 13(1) the Court surely has the further discretion to condone the default and extend the time for payment or deposit. Such a discretion is a necessary implication of the discretion not to strike out the defence."
The Supreme Court also showed its inability to upheld the contention of the appellant that the case of Ram Murti v. Bhola Nath, MANU/SC/0324/1984: AIR 1984 SC 1392 was wrongly decided and reliance was wrongly placed in that case on the decision of a Bench of three Judges of this Court in the case of Shyamcharan Sharma v. Dharamdas, MANU/SC/0504/1979: AIR 1980 SC 587. In the view of the Court sub-section (7) of section 15 of the Delhi Rent Control Act, 1958 gives a discretion to the Rent Controller and does not contain a mandatory provision for striking out the defence of the tenant against eviction. The Rent Controller may or may not pass an order striking out the defence. The exercise of this discretion will depend upon the facts and circumstances of each case. If the Rent Controller is of the view that in the facts of a particular case the time to make payment or deposit pursuant to an order passed under sub-section (1) of section 15 should be extended, he may do so by passing a suitable order. Similarly, if he is not satisfied about the case made out by the tenant, he may order the defence against eviction to be struck out. But, the power to strike out the defence against eviction is discretionary and must not be mechanically exercised without any application of mind to the facts of the case.
Hence appeal was allowed and the judgment of High Court was set aside.
5.
Question of law decided: The provision contained in section 15(7) of the Act are directory and not mandatory.
Facts of the case: The appellant was a tenant of a commercial premises situated in Karol Bagh, New Delhi. Landlord filed a petition for eviction of the appellant under section 14(1)(a) of the Rent Control Act on the ground of the non payment of arrears of rent. The Rent Controller passed an order in compliance with section 15(1) of the Act on 20-12-1999 directing the appellant-tenant to deposit or pay to the landlord within one month the entire arrears of rent with effect from 1-6-1996 and to continue to pay the future rent by 15th of each succeeding month. The landlord moved an application under section 15(7) of the Act for striking out the defence of the appellant-tenant on the ground that he did not comply with the order. On the other hand, the appellant claimed that he had complied with the order and it sent the rent by cheques but the landlord did not encash the same. But Rent Controller held that the appellant had neither paid rent to the landlord nor had deposited the rent in Court. Accordingly an order dated 19-3-2001 was passed allowing the application filed by the landlord for striking out the defence of the tenant. On appeal, the Rent Control Tribunal directed to the tenant to deposit the whole arrears of rent alongwith penalty of the whole amount within 30 days failing which his defence was ordered to be struck off as directed by Rent Controller. This order was challenged by the landlord by way of a writ petition under article 227 of the Constitution of India before the Delhi High Court. The appellant also filed a petition for quashing of certain findings which were recorded against him by the Rent Controller. The High Court allowed the writ petition filed by the landlord, setting aside the order passed by the Rent Control Tribunal and restored that of the Rent Controller. The writ petition filed by the tenant was dismissed.
Findings of the Court: The question which required consideration before the Supreme Court was whether the appellant made out any ground for exercising discretion in his favour for not striking out his defence. The Supreme Court examined the meaning of 'judicial discretion' in Black's Law Dictionary as the exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law; a Court's power to act or not act when a litigant is not entitled to demand the act as a matter of right. The word 'discretion' connotes necessarily an act of judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard and fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and knowledge of facts upon which the discretion may properly operate1, when it is said that something is to be done within the discretion of the authorities that some thing is to be done according to the rules of reasons and justice and not according to private opinion; according to law and not humour. It only gives certain latitude or liberty accorded by statute or rules, to a Judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him. In the present case, on facts while considering the rival contention, it was observed that even assuming the version of the appellant-tenant to be correct, he failed to either pay or deposit the rent for the months of January to May 2000 by 15th day of each succeeding month. Even otherwise, it was observed the arrears of rents, which were required to be sent were Rs. 1260 and not Rs. 930 as claimed to have been sent through cheque to the landlady. Therefore, it was held on facts that apart from pleadings that the appellant-tenant had sent the amount through cheques, no other fact which can be taken into consideration by the Rent Controller for exercising discretion in his favour. Hence, after noting that the premises are commercial and situated in Karol Bagh, which is a prime business area of Delhi and that the rent is hardly Rs. 30 per month, the appellant did not pay even that much small amount of rent which is virtually a pittance and as such remained in arrears for a long period of time. Hence, the Court finally concluded that there is absolutely no ground on which any discretion can be exercised in his favour. The appeal was dismissed with costs.
6.
Question of law decided: In Rent Control Legislation if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so, he cannot take advantage of the benefit conferred by such a provision. Thus, if a person does not deposit the rent in accordance with the provisions of the Act, he would be considered as defaulter in payment of rent to his landlord.
Facts of the case: The appeal was filed against the impugned judgment and order of the High Court whereby the petition filed by respondent/landlady was allowed while setting aside the judgment and order of eviction passed against the tenant by the Additional Rent Controller vide Order dated 15-11-1999 and
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1. Corpus Juris Secundum, p. 289.
Rent Control Tribunal dated 28-8-2000. Vide the impugned judgment, High Court recorded a finding that the appellant/tenant had defaulted in payment of rent for the period of February 1, 1992 to January 31, 1995. It was observed that this was a case of second default, the appellant having already availed such a benefit under section 14(1). The question, which arose for consideration before the Court was whether the appellant defaulted in payment of rent inasmuch as he had not paid or tendered or deposited the rent for the period in question in the manner required by law.
The facts are not in dispute. The appellant is a tenant of a respondent and the rent presently payable for the premises is Rs. 56 per month. There is no dispute with regard to payment of rent till January, 1991. According to the appellant, he sent a money order remitting the rent payable for the month of February, 1992 on February 7, 1992 but the respondent refused to accept the same. Thereafter, he sent a money order on March 29, 1993 tendering the rent for the period January 1, 1992 to April 30. 1993. The same was refused. The respondent claimed enhancement of rent by 10% i.e. from Rs. 50.75 per month to Rs. 56 per month. The money order sent on August 10, 1994 tendering the rent for the period February 1, 1992 to August 30, 1993 was again refused by the respondent. The case of the appellant is that in these circumstances in the month of January, 1995 he deposited the rent for the period February 1, 1992 to January 31, 1995 under the provisions of the Punjab Relief of Indebtedness Act, 1934, (hereinafter referred to as the 'Punjab Act'). The respondent refused to receive the deposit made under the provisions of the said Act. Consequently, by order dated February 12, 1995 the petition under the Punjab Act was disposed of and the appellant was allowed to withdraw the amount deposited by him.
The respondent called upon the appellant to pay the arrears of rent by issuance of notice dated May 16, 1996. The appellant expressed his willingness to pay the arrears of rent but sent with his reply a cheque for a sum of Rs. 952 only purporting to pay rent due for the period February, 1995 to June, 1996. Thereafter the appellant deposited rent for the period February, 1995 to July, 1996 under section 27 of the Act. This was deposited on July 20, 1996 by cheque for the sum of Rs. 1008. It is not in dispute that the arrears of rent so tendered excluded the rent for the period February 1, 1992 to January 31, 1995, which the appellant had deposited under the Punjab Act, referred earlier. On January 1, 1998, the respondent filed an application for eviction of the appellant from the premises in question under section 14(1)(a) of the Act before the Additional Rent Controller, Delhi. The Additional Rent Controller by his judgment and order of November 15, 1999 dismissed the Eviction Petition which was confirmed by the Rent Control Tribunal by its judgment and order of August 28, 2000, The respondent preferred a petition under article 227 of the Constitution of India which has been allowed by the impugned judgment and order dated October 31, 2002. The crucial fact which deserves to be noticed is that for the period February 1, 1992 to January 31, 1995 the rent due was deposited under the provisions of the Punjab Act, which proceeding was disposed of by order dated February 12, 1995 permitting the appellant to withdraw the amount deposited by him in Court under the aforesaid Act.
Findings of the Court: From the facts noticed above it is apparent that the rent for the period February 1, 1992 to January 31, 1995 was never remitted by the appellant to the respondent nor was it ever deposited in the Court of the Rent Controller, though the appellant had deposited the rent for the later period - February 1, 1995 to July 31, 1996 under section 27 of the Act, Despite service of notice he did not deposit the rent for the period February 1, 1992 to January 31, 1995 in the Court of the Rent Controller as provided under the Act. This was despite the fact that the proceeding under the Punjab Act, stood concluded by order of the Court dated February 12, 1995 permitting the appellant to withdraw the amount deposited under the Punjab Act, on the respondent's refusal to accept the same.
It was observed that it has been the consistent view of the Court that in Rent Control Legislation if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so, he cannot take advantage of the benefit conferred by such a provision.
Section 26 of the Delhi Rent Control Act, 1958 provides that every tenant shall pay rent within the time fixed by contract, and in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable. Every tenant who makes a payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorized agent a written receipt for the amount paid to him, signed by the landlord or his authorized agent. It is also open to the tenant to remit the rent to his landlord by postal money order.
The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept rent tendered by him within the specified period. He is required to deposit the rent in the Court of the Rent Controller giving the necessary particulars as required by sub-section (2) of section 27. There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act, it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Controller as required by section 27 of the Act, and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default.
Hence it was held that the High Court was right in holding that the appellant had failed to pay/tender arrears of rents for the period in question. Therefore, the deposit made under the provisions of Punjab Act, was of no avail in view of the express provisions of section 27 of the Act.
7.
Question of law decided: Where a deposit of arrears of rent has been made by the tenant in compliance with an order specifically passed under section 15(1) of the Act in the course of proceedings initiated for his ejectment under section 14(1)(a) the benefit cannot be availed of in a subsequent proceeding for his ejectment on the same ground. The existence and proof of such an order in an earlier proceeding covered by section 14(1)(a) is essential in order to deprive the tenant of the protection which section 14(2) gives him. The benefit which the proviso to sub-section (2) of section 14 speaks of is: "the benefit under this sub-section" and not the benefit, under section 15.
Facts of the case: The appellant was a tenant of the respondent in respect of one room in house, whose rent was @ Rs. 10 per month. On March 19, 1967, the respondent-landlord filed an application for possession of the room on the ground of arrears of rent and for bona fide requirement. The Rent Controller passed an order in compliance with section 15(1) of the Delhi Rent Control Act, 1958, calling upon the tenant to pay or deposit the arrears of rent within one month, which was complied with by the appellant. However, on April 1, 1968, the respondent landlord withdrew the ejectment application with liberty to file a fresh application on the ground that they have not given to the appellant a notice to quit under section 106 of the Transfer of Property Act, 1882 and therefore, on April 7,1969, the respondents gave a notice to quit to the appellant, terminating his tenancy with effect from May 9, 1968. On May 13, 1968, respondents filed a fresh application for possession against the tenant on the ground that they require the room for their bona fide personal use. That application was dismissed on February 14, 1969. On March 9, 1971 the respondents filed the instant application against the appellant for possession of the room on the ground that the appellant-tenant was in arrears of rent from April 1968 until March 1971. In these proceedings, the Additional Rent Controller refused to pass an order under section 15(1) of the Act on the ground that such a benefit was given to the appellant in the first eviction petition and that by reason of proviso to section 14(2) of the Rent Control Act, the appellant cannot claim that benefit once again. Consequently Rent Controller passed order of eviction against the appellant-tenant.
The appeal filed by the appellant against the order of eviction was allowed by the Rent Control Tribunal, which took the view that the appellant was entitled to the benefit of the provision contained in section 14(2) of the Act and that, the proviso to that sub-section had no application because, the benefit of the provision contained in section 14(2) was being availed of by the appellant for the first time in the present proceedings. According to the Tribunal, the first ejectment application filed by the respondents against the appellant was dismissed because, respondents asked for leave to withdraw that application with liberty to file a fresh application on the ground that they had not served a notice to quit on the appellant and not on the ground that the appellant had complied with the order passed under section 15(1) of the Act.
The judgment of the Rent Control Tribunal was set aside in Second Appeal by the High Court of Delhi. The High Court took the view that though the first ejectment application was withdrawn by the respondents on the ground that they had not given a notice to quit to the appellant, that cannot alter the position that the appellant had availed of the benefit of the provision contained in section 14(2) of the Act. Therefore, according to the High Court by reason of the proviso to section 14(2), the appellant was not entitled to invoke the provisions of section 15(1) of the Act. By this appeal the tenant challenges the correctness of the judgment of the High Court.
Findings of the Court: Therefore the question before the Supreme Court was whether in the facts and circumstances of the case, it can be said that tenant had obtained the benefit of section 14(2) in the previous ejectment application and as such he was not entitled to the benefit of that section once again in the subsequent proceedings. Before proceeding to decide the question, the Supreme Court made a very interesting observation that:
"It is contended by Shri Lalit, who appears on behalf of the appellant that the proviso to sub-section (2) of section 14 can have no application to the instant case because, in the first ejectment proceeding which was filed by the respondents against the appellant the latter had not obtained any benefit under that sub-section. On the other hand, it is contended by Shri Goel that if a tenant avails of the benefit of order passed under section 15(1), he must be regarded as having obtained the benefit of the provision contained in section 14(2). According to the learned Counsel, the object of the proviso to section 14(2) is to ensure that an order under section 15(1) is not passed in favour of a tenant more than once. Therefore, it is contended, the final result of the eviction petition in which an order was passed under section 15(1) for the first time, or the form of the final order passed in that proceeding has no relevance on the question whether the tenant had obtained benefit of the provision contained in section 14(2)."
While rejecting the contention of the respondent/landlord the Supreme Court observed as under:
"That brings out the relevance of the nature of the order which was passed in the earlier proceeding in which the tenant had complied with the order passed by the Controller under section 15. If the earlier proceeding was withdrawn by the landlord, it cannot be said that the tenant obtained the benefit of not having had an order of possession passed against him. It is self-evident that if a proceeding ends in an order granting permission for its withdrawal it cannot possibly be said that "no order for the recovery of possession was passed therein for the reason that the tenant had made payment or deposit as required by section 15". That is the gist of section 14(2), the stage or occasion for passing an order to the effect that "no order for possession can be passed because of the fact that the tenant has complied with the order passed under section 15 does not arise in the very nature of things, in a case wherein the landlord is permitted to withdraw the application for ejectment of the tenant."
There are two circumstances which must be borne in mind in this case though, Supreme Court added, they will not make any difference to the legal position which is stated above. The first circumstance is that the respondents asked for leave to withdraw the earlier ejectment application, in which the appellant had duly complied with the order passed by the Controller under section 15, on the ground that the application was liable to fail for a formal defect since they had not given a notice of quit to the appellant under section 106 of the Transfer of Property Act, 1882. Thus, the reason leading to the termination of the earlier ejectment application was that the respondents wanted to cure the formal defect from which the application suffered and not that no order for possession could be passed against the appellant for the reason that he had complied with the order passed under section 15. In other words, there was no nexus between the final order which was passed in the earlier ejectment application and the fact that the appellant had complied with the order passed under section 15. The second circumstance which must be mentioned is that the earlier ejectment application was founded on two grounds, namely, that the appellant had committed default in the payment of rent and that respondents wanted the premises for their personal need. The fact that the first of these grounds was no longer available to the respondents since the appellant had complied with the order passed under section 15 could not have resulted in the dismissal of the ejectment application because, the other ground on which eviction of the appellant was sought by the respondents had yet to be considered by the Rent Controller. This is an additional reason why it cannot be said on the facts of this case that the appellant obtained a benefit under section 14(2). At the cost of repetition, Supreme Court clarified that the two circumstances which it has just mentioned will not make any difference to the fundamental legal position which it has explained above that the proviso to section 14(2) can be attracted only if it is shown that the tenant had obtained the benefit of the provision contained in that section and not otherwise."
It was further observed as under:-
As we have stated earlier conflicting decisions of the High Court of Delhi were read out to us. It is both needless and difficult to consider them individually. Supreme Court will only indicate that, on facts similar to those before us, the view taken by D.K. Kapur, J., in Rama Gupta v. Rai Singh Kain, 1972 Rent CJ 712, is the correct view to take. The learned Judge held in that case since the landlord had withdrawn the earlier eviction petition, it could not be said that the tenant had derived a benefit under section 14(2) of the Act. In Kahan Chand Makun v. B.S. Bhambri, AIR 1977 Del 247, a Division Bench of the Delhi High Court noticed the conflicting-judgments rendered by the different Benches of the High Court including the judgment of D.K. Kapur, J. in Rama Gupta v. Rai Singh Kain, 1972 Rent CJ 712. It is not possible to say with certainty whether the view taken by D.K. Kapur, J., was approved, because, the judgment of the Division Bench refers to various decisions of the High Court without stating which of those is correct and which is not. In any case, the conclusion recorded by the Division Bench in paragraph 13 of its judgment seems too broad to apply to varying situations. Besides, the learned Judges with respect have apparently confused the availing of the facility under section 15 by the tenant with the benefit which accrues to him under section 14(2). They say:
"We, therefore, hold that where a deposit of arrears of rent has been made by the tenant in compliance with an order specifically passed under section 15(1) of the Act in the course of proceedings initiated for his ejectment under section 14(1)(a) the benefit cannot be availed of in a subsequent proceeding for his ejectment on the same ground. The existence and proof of such an order in an earlier proceeding covered by section 14(1)(a) is essential in order to deprive the tenant of the protection which section 14(2) gives him."
The benefit which the proviso to sub-section (2) of section 14 speaks of is: "the benefit under this sub-section" and not the benefit, under section 15".
Finally, while allowing the appeal and setting aside the judgment of the High Court, the orders of the Rent Control Tribunal was restored with the modification that period of one month for depositing the arrears of rent was to be computed from the date of this judgment.
8.
Question of law decided: If the landlord under the law is not entitled to recover that rent through the process of law no petition shall lie for eviction of the tenant in respect of that rent.
Facts of the case: On March 2, 1960, the respondent who is a tailor, occupied premises No. 26, Faiz Bazar, Darya Ganj, Delhi (hereinafter referred to as 'the suit premises') of H.S. Sharma, the father of the appellant. The said Sharma and the respondent entered into an arrangement pursuant to which he executed a document, Ext. P-l, on March 28, 1960 (Ext. P-l, however, bears the date June 28, 1960), purporting to join as Manager of the tailoring business said to be of H.S. Sharma, which was being carried on in the suit premises. The said arrangement could not continue for long. On June 10, 1966, the said Sharma filed a suit claiming mandatory injunction against the respondent on the ground that he was a licensee in the suit premises in the capacity of Manager, which having been terminated he had no right to remain there and that he be directed to remove himself from the premises and further to restrain him from entering into the suit premises. The respondent contested the suit denying that he was a licensee. He pleaded that he was carrying on his tailoring business therein as a tenant on a monthly rent of Rs. 30. Ext. P-1, it was alleged, was executed to circumvent the provisions of the Delhi Rent Control Act, 1958 (for short 'the Act') and that it was not a valid document. The Trial Court accepted the case of H.S. Sharma and decreed the suit, as prayed for, on December 21, 1974. The respondent went in appeal before the learned District Judge who reversed the decree of the Trial Court believing the case set up by the respondent that he was a tenant of the suit premises on a monthly rent of Rs. 30. Challenging the judgment of the learned District Judge dated April 16, 1979, Rajinder Kumar Sharma son of H.S. Sharma filed R.S.A. No. 29 of 1980 in the High Court of Delhi. The finding of the Appellate Court that the said Sharma was the landlord and the respondent was the tenant, was upheld but the quantum of rent payable by the respondent was modified to Rs. 140 by the High Court on September 5, 1991. In the meanwhile, the said Sharma died leaving the appellant and her brother Rajinder Kumar Sharma as his legal representatives. The appellant claims title to the suit premises on the basis of a family settlement.
On August 19, 1992 the appellant issued notice to the respondent demanding rent for the period from March 28, 1960 to July 28, 1992 amounting to Rs. 54,320. The respondent paid rent for the period of three years prior to 1-9-1992 and disowned his liability to pay arrears for the earlier period. The appellant filed petition under section 14(1)(a) of the Act for eviction of the respondent from the suit premises for non-payment of arrears of rent for the said period in the Court of the Additional Rent Controller, Delhi. The respondent pleaded that the arrears of rent for the period of three years immediately preceding the demand notice dated August 19, 1992 were paid by him to the appellant; with regard to the rest of the period, it was pleaded, that the arrears were not legally recoverable. By its order dated September 4, 1996, the Additional Rent Controller dismissed the petition holding that as the respondent had paid arrears of rent at the rate of Rs. 140 per month for the period of three years immediately preceding the demand notice and the arrears of rent for the rest of the period was not legally recoverable, there was no cause of action for the appellant to file the petition. Against the said order dated September 4, 1996, the appellant filed C.R. No. 1002 of 1996 in the High Court of Delhi, which was dismissed on November 28, 1996. It is the correctness of that order of the High Court that is canvassed in this appeal.
It was strenuously argued on behalf of the appellant that for the first time the rent of the suit premises @ Rs. 140 per month was determined by the High Court on September, 1991 so earlier to that judgment the appellant could not have claimed the rent as such 'the rent legally payable' would be the arrears from March 28, 1960, the date of Ext. P-1, but not for a period of three years prior to the date of the said judgment of the High Court. The Additional Rent Controller and the High Court, submitted the learned Counsel, erred in holding the arrears of rent from the date of Ext. P-1 till September 1989 to be barred by limitation.
On the other hand, respondent contended that the cause of action for recovering the rent accrued to late Sharma each month after March 1960 when the rent became payable and that once the period of limitation started running it would not stop, therefore, the claim for recovery of rent from March 28, 1960 till September 1, 1989 was barred by limitation and as such not legally recoverable; the learned Additional Rent Controller and the High Court committed no error in law in dismissing the petition of the appellant.
Findings of the Court: The Supreme Court while perusing the provisions of section 14(1)(a) observed that it postulates making an order of eviction by any Court/Controller in favour of the landlord and against a tenant for non-payment of arrears of rent legally recoverable within two months of the service of notice of demand, claiming the arrears of rent, on the tenant by the landlord. It may be pointed out that if the claim of the appellant for recovery of arrears of rent was not enforceable in a Court of law for having become barred by limitation, the amount ceases to be 'legally recoverable'. Here the appellant will be entitled to recover only that much of the arrears of rent for which she can sue in a Court of law. For recovery of arrears of rent, article 52 of the Indian Limitation Act prescribes a period of three years from the date the arrears become due. Now, the question is narrowed down to this: when did the rent of the suit premises become due?
On behalf of the appellant a decision of Privy Council in Rangayya Appa Rao v. Bobba Sriramulu, 27 ILR Mad 143 was relied upon wherein the landlord granted a Patta of agricultural land to a tenant at a particular rate of rent. But section 7 of the Madras Rent Recovery Act, 1865 enacted, inter alia, that no suit brought and no legal proceedings taken to enforce the terms of a tenancy shall be sustainable in a Civil Court unless pattas and muchilkas have been exchanged or patta has been tendered which the tenant was bound to accept, or unless both parties had agreed to dispense with such document. If a patta was tendered and the tenant refused to accept it, the landholder had the option to proceed in a summary suit before the Collector for the acceptance of the patta. In such a suit, it was for the Collector to settle the terms of tenancy including the rent in accordance with the principles laid down in the Act. An appeal was provided from the Collector's decision to the Civil Court. It was on those facts the Privy Council held that it was necessary for the landholder to take proceedings under the said Act to have the proper rate of rent ascertained, so the period of limitation in a suit for arrears of rent would run from the date of the final decree determining the rent, and not from the close of the fasli year for which the rent was payable.
The support was also sought to be derived from the judgment of Delhi High Court in Ram Sarup v. Raj Dulari, AIR (1974) Del 23. In that case during the pendency of the proceedings for eviction of the tenant, the Court fixed the interim rent at the rate less than the contracted rent. The eviction petition was dismissed in default. Thereafter, the landlord claimed the amount representing the difference in the contractual rent and the interim rent fixed by the Court. It was held by the High Court that so long as the interim order was in force the landlord could not have recovered the rent at the contractual rate, therefore, the cause of action to recover the arrears of rent arose on the termination of the proceedings. The other decisions of the High Courts cited by the learned Counsel also laid down the same principle and it is futile to multiply the decisions here.
However, Supreme Court distinguish the Ramayya Appa Rao case by pointing out in that the right to recover the rent did not accrue till the rent was determined by the Collector. So also in the case of Ram Sarup (supra), the right to recover the difference of rent stood suspended during the pendency of the proceedings by virtue of the order of the Court, so the right did not accrue till the proceedings terminated. In the last mentioned case, on his dismissal from service the Government employee lost the right to claim the salary and that he became entitled to claim salary only after the order of termination of his services was set aside by this Court. Those cases are clearly distinguishable from the instant case. A distinction must be drawn between cases in which by virtue of an order of the Court a right accrues to a party and cases in which the Court merely lays the bare truth well within the knowledge of the parties. In the former category the cases referred to above fall and in the latter cases of the kind of the instant case fall. What happened here is that the parties actually entered into a transaction of tenancy but camouflaged the relationship of landlord and tenant by executing a document purporting to create a relationship of employer and employee and in the litigation that ensued between the parties the Court had to discern the truth and declare the real position in which the parties stood to one another. Such a declaration by the Court relates back to the date on which the parties entered into the arrangement/agreement under which the suit premises was put in possession of the respondent.
In the result it was held that suit for eviction against the tenant on the ground of non payment of arrears of rent lies only qua that rent which is legally recoverable. In other words, if the landlord under the law is not entitled to recover that rent through the process of law no petition shall lie for eviction of the tenant in respect of that rent. In the result, it was held that judgment of the High Court under appeal did not suffer from any illegality.
2.
Clause (b) of the proviso to sub-section 1 of section 14 of the Rent Control Act, deals with this ground of eviction. It is provided that if the landlord is able to prove before the Rent Controller that the tenant has sublet the premises further, he is entitled to get back the possession of the premises. However section 16 puts restrictions on sub-letting and provides that where at any time before the 9th day of June 1952, a tenant has sublet the whole or any part of the premises and the sub tenant is, at the commencement of this Act, in occupation of such premises, then notwithstanding that the consent of the landlord was not obtained for such sub-letting, the premises shall be deemed to have been lawfully sub-let.1
The section further provides that no premises which have been sub-let either in whole or in part on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord, shall be deemed to have been lawfully sub-let.2However, after the commencement of the Rent Control Act, it is provided that, no tenant shall, without the previous consent in writing of the landlord (a) sub-let the whole or any part of the premises held by him as a tenant; or (b) transfer or assign his rights in the tenancy or in any part thereof.3
The section further puts a bar on the landlord to 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 premises held by the tenant.4
________________
1. Section 16(1) of the Delhi Rent Control Act, 1958.
2. Section 16(2) of the Delhi Rent Control Act, 1958.
3. Section 16(3) of the Delhi Rent Control Act, 1958.
4. Section 16(4) of the Delhi Rent Control Act, 1958.
If the provisions of section 16 have been complied with, in such a situation, the premises is deemed to have been sub-let properly. Otherwise, the landlord is entitled to get the tenant evicted in terms of clause (b) of proviso to section 14(1), which provides that the Controller may make an order for recovery of possession of the premises on the ground that the tenant has, on or after the 9th day of June, 1952, sub-let, assigned or otherwise parted with the possession of the premises without obtaining the consent in writing of the landlord.1
Even after seeking permission of the landlord for creating sub-tenancy, the tenant is under obligation to give notice of creation and termination of sub-tenancy in terms of section 17. Accordingly, whenever, after the commencement of the Rent Control Act, any premises are sub-let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant or the sub-tenant to whom the premises are sub-let may, in the prescribed manner, give notice to the landlord of the creation of the sub-tenancy within one month of the date of such sub-letting and notify the termination of such sub-tenancy within one month of such termination.2
On the other hand, where before the commencement of this Act, any premises have been lawfully sub-let either in whole or in part by the tenant, the tenant or the sub-tenant to whom the premises have been sub-let may, in the prescribed manner, give notice to the landlord of the creation of the sub-tenancy within six months of the commencement of this Act, and notify the termination of such sub-tenancy within one month of such termination.3At this juncture it would be pertinent to mention here that definition of the tenant as provided in section 2(l) of the Rent Control Act, also includes a sub-tenant, but it is for a purpose, for the conferment of rights and obligations on such sub tenant wherever statute requires under various provisions of an Act, of that which is conferred on a tenant. But this would have no application where Statute itself treats both as 2 separate entities as is incorporated both in section 14(1)(b) and sections 16, 17 and 18 of the Act. When a tenant inducts a sub-tenant without written consent of a landlord, he makes himself liable for eviction under section 14(1)(b) of the Act; Kapil Bhargava v. Subhash Chand Aggarwal, 93 (2001) DLT 65 (SC). It would be fruitful to mention section 18 at this juncture which provides that where an order for eviction in respect of any premises is made under section 14 against a tenant but not against a sub-tenant referred to in section 17 and a notice of the sub-tenancy has been given to the landlord, the sub-tenant shall, with effect from the date of the order, be deemed to become a tenant holding directly under the landlord in respect of the premises in his occupation on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued.4
However, where before the commencement of Act, the interest of the tenant in respect of any premises has been determined without determining the interest
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1. Section 14(1)(b) of the Delhi Rent Control Act, 1958.
2. Section 17(1) of the Delhi Rent Control Act, 1958.
3. Section 17(2) of the Delhi Rent Control Act, 1958.
4. Section 18(1) of the Delhi Rent Control Act, 1958.
of any sub-tenant to whom the premises either in whole or in part had been lawfully sub-let, the sub-tenant shall, with effect from the date of the commencement of this Act, be deemed to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued.1
Thus, it is borne from a conjoin reading of sections 16, 17 and 18 that both tenant and sub-tenant have been treated as separate entity; Kapil Bhargava v. Subhash Chand Aggarwal, 93 (2001) DLT 65 (SC).
Sub-section 3 of section 14 of the Rent Control Act, provides that no order for the recovery of possession in any proceeding under sub-section (1) shall be binding on any sub-tenant referred to in section 17 who has given notice of his sub-tenancy to the landlord under the provisions of that section, unless the sub-tenant is made a party to the proceeding and the order for eviction is made binding on him.2
Sub-section 4 of the section 14 further clarifies that in any application for eviction of tenant on the ground of sub-tenancy as provided in section 14(1)(b), any premises, which have been let for being used for the purpose of business or profession shall be deemed to have been sub-let by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person to occupy the premises ostensibly on the ground that such person is a partner of the tenant in the business or profession but really for the purpose of sub-letting such premises to the person.3
1.
Question of law decided: If a premises is sublet to a person in the guise of partnership between him and the tenant, it would be a ground for eviction of the tenant. In such a situation, interpretation of the partnership deed to find out the aforesaid fact of sub-letting would be a question of law.
Facts of the case: Late G.K. Bhatnagar, who has expired during the pendency of these proceedings and whose legal representatives have been brought on record in his place as the appellants, owned a suit shop let out to the tenant-respondent on 1-5-1966 on payment of Rs. 50 by way of rent and
Rs. 6 by way of electricity charges. For the purpose of convenience Supreme Court referred to Late G.K. Bhatnagar as 'landlord' and the respondent as 'tenant'. On 28-5-1979, proceedings for eviction were initiated by the landlord by filing a petition before the rent controller on the ground under clause (b) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958 (hereinafter 'the Act', for short) alleging that the tenant had, without the permission of the landlord, sub-let the premises and parted with possession of the whole of the premises in favour of one Jagdish Chander.
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1. Section 18(2) of the Delhi Rent Control Act, 1958.
2. Section 14(3) of the Delhi Rent Control Act, 1958.
3. Section 14(4) of the Delhi Rent Control Act, 1958.
According to the tenant-respondent, there was no sub-letting as Jagdish Chander was taken into partnership by him in his pre-existing business run in the suit shop under 'deed of partnership' dated 13-10-1978.
The Rent Controller found that there has been no sub-letting of the premises and, therefore, directed the petition to be dismissed. The landlord preferred an appeal which was allowed by the appellate authority, which reversed the finding of the Rent Controller and directed the petition for eviction to be allowed. The tenant preferred a second appeal before the High Court under section 39(2) of the Act. The appeal has been allowed. The High Court has set aside the judgment of the appellate authority and restored the one by the Rent Controller.
Findings of the Court: The Supreme Court after making a conjoin reading of section 14(1)(b) and section 14(4) observed that on and after 9th June, 1952, sub-letting, assigning or otherwise parting with the possession of the whole or any part of the tenancy premises, without obtaining the consent in writing of the landlord, is not permitted and if done, the same provides a ground for eviction of the tenant by the landlord. However, inducting a partner in his business or profession by the tenant is permitted so long as such partnership is genuine. If the purpose of such partnership may ostensibly be to carry on the business or profession in partnership, but if the real purpose be sub-letting of the premises to such other person who is inducted ostensibly as a partner, then the same shall be deemed to be an act of sub-letting attracting the applicability of clause (b) of the proviso to sub-section (1) of section 14 of the Act.
On facts, the Supreme Court observed that on the very date of entering into partnership the respondent-tenant had left for Iraq and that, in fact, he did not leave India on the date of partnership; he left much thereafter and actually on the date on which his statement was recorded by the Rent Controller. In such circumstances, it was held that the High Court has not erred in reversing the judgment of the Appellate Tribunal and restoring that of the Trial Court.
Finally, the Court came to conclusion that the case involve interpretation of the partnership deed and general power of attorney so as to see whether on a totality of the interpretation of recitals contained therein, read in the light of other facts and circumstances, a case of subletting disguised as partnership was made out and such interpretation of deeds is a question of law-substantial one in the facts and circumstances of the case. Hence the appeal was dismissed.
2.
Q.
Question of law decided: Section 17(2) of the Rent Control Act, casts an obligation on the sub-tenant to give notice to the landlord within six months of the commencement of the Act, even if the sub-tenant is lawful under section 16(1).
Facts of the case: Though the order of eviction was passed on the ground of section 14(1)(d) (non-user of the premises by the tenant or his family member for a period of six months immediately before the filing of the application for recovery of possession), the contentions urged by the appellant were based on the interpretation of section 14(1)(d) read with sections 16, 17 and 18 since it was argued on his behalf that in view of concurrent findings by both the Courts below that the appeal was legally constituted sub-tenant by virtue of section 16(1) of the Rent Control Act, he could not be evicted in view of the definition of 'tenant' under section 2(l) of the Act.
Findings of the Court: This entails interpretation of sections 16, 17 and 18 of the Act. In 1974, Rama Rani and her son Sher Bahadur the original landlord filed an eviction petition in respect of the premises in question under section 14(1)(b), (d) and (e) of the said Act against Murli Manohar Lal, the tenant and M.L. Bhargava, the sub-tenant, the appellants are the legal representatives of the said sub-tenant. The said M.L. Bhargava was the brother-in-law of the said tenant. The appellant case is, the sub-tenant was residing in the premises in question with his family since June, 1945 and with the consent of the landlord continued to reside therein even after the transfer of the said tenant Murli Manohar Lal from Delhi. On the other hand landlord case is that the tenant had sub let and parted with the possession in favour of the said M.L.Bhargava without written permission of the landlord. No notice as contemplated under section 17 of the said Act was served by the sub-tenant on the landlord. Neither tenant nor any member of his family is residing therein for a period of more than six months before filing this eviction petition and the premises is required bona fide for personal need.
The Court of Rent Controller dismissed his eviction petition holding, since the landlady Rama Rani died during the pendency of eviction petition hence question of bona fide need under section 14(1)(e) does not survive. Further the said sub-tenant was in possession of the premises in question since before 9th June, 1952, he would be deemed sub-tenant under section 16(1) of the Act, hence the case would not fall under section 14(1)(b). For this reason, even ground under section 14(1)(d), does not survive as the said sub-tenant was a lawful sub-tenant under section 16(1) of the said Act.
In order to appreciate the submission of the appellant the Supreme Court referred to sections 16, 17 and 18 of the Rent Control Act and observed that if no notice is served by such a sub-tenant as contemplated under section 17(2), which has not been served, as finally recorded in this case, the appellant could not resist a decree of eviction even if passed against a tenant. Unless such a notice is served, a decree against a tenant would bind even a sub-tenant.
Supreme Court found that section 16 refers to the restrictions of sub-letting. It classifies the cases of sub-letting into three categories. Sub-section (1) of section 16 refers to cases where a sub-tenant is inducted by a tenant before 9th June, 1952, without the consent of the landlord but is deemed to be a lawful sub-tenant, if he is in occupation of such premises at the commencement of the Act. Sub-section (2) deals with cases where a sub-tenant is inducted on or after the aforesaid date, and it is without a written consent of the landlord he is not treated to be a lawful sub-tenant and sub-section (3) mandates a tenant, after the commencement of the Act, not to sub-let any premises without written consent of the landlord. The present case admittedly falls under sub-clause (1) of section 16, under which the appellant could claim to be a deemed sub-tenant. On one hand it confers on a sub-tenant statutory right, on the other hand section 17(2) casts an obligation on such sub-tenant to serve a notice on the landlord.
Court also observed that thus, the question which arises for consideration is, whether by mere declaration of a sub-tenant as deemed sub-tenant, could he resist his eviction, if it is against a tenant under section 14 without performing the obligation cast on him under section 17(2). Sub- section (2) of section 17 spells out, before the commencement of this Act if any premises have been lawfully sub-let by the tenant in the prescribed manner, a sub-tenant is obliged to give notice to the landlord of the creation of sub-tenancy within six months of the commencement of this Act. Though an attempt was made on behalf of the appellant before the Courts below that such a notice was served on landlord but this has been disbelieved on facts by the Courts below. So, it cannot be disputed that no notice was served by the appellant on the landlord in terms of sub-section (2) of section 17. This service of notice saves a sub-tenant from eviction even if a decree of eviction is passed against a tenant under section 14 and further confers on such sub-tenant an independent right as that of a tenant. Thus notice under section 17(2) cannot be construed as a mere procedural, in fact it confers substantive right on such a sub-tenant. So, a conjoint reading of sections 16, 17 and 18, makes it clear that a sub-tenant falling under section 16(1) is deemed to be a lawful sub-tenant even without written consent of the landlord. But section 17(2) casts an obligation on such sub-tenant to give notice to the landlord under sub-clause (2), within six months of the commencement of the Act. The legislature has used in sub-section (2) the words "lawful sub-let". So even if the appellant is a lawful sub-tenant by virtue of section 16(1), still an obligation is cast on such lawful sub-tenant to serve a notice on the landlord for gaining a right under section 18. This as we have said is as a protective measure in favour of a sub-tenant. So, the submission that by mere declaration as lawful tenant under section 16(1), no decree for eviction is enforceable against the sub-tenant has no merit and is hereby rejected. Hence it was held, unless notice under sub-section (2) of section 17 is served by the sub-tenant, he cannot take the benefit of section 18 and any decree passed under section 14 against a tenant is executable against a sub-tenant.
For the aforesaid reasons and for the findings recorded by the court, the appeal was dismissed.
3.
Question of law decided: No question of law pertaining to any ground of eviction is decided in the present case. Rather the case discusses as to whether the appeal lies under clause 10 of the Letters Patent for the High Court of Lahore to a Division Bench against a judgment passed by single judge of the said High Court in a second appeal under section 39 of The Delhi Rent Control Act, 1958. The Apex Court while answering the question in the negative observed that the said Act is a self-contained code and the intention of the Legislature was to provide the exhaustive code for disposing of the appeal arising under the Act. Therefore, it was held that the expression "appeal" in section 39(1) of the Act and an appeal under clause 10 of the Letters Patent does not form part of a single appeal. The expression "appeal" in section 39 of the Act does not take in Letters Patent appeal under clause 10 of the Letters Patent.
Facts of the case: The facts relevant to the question raised may be briefly stated. The respondents are the owners of plot No. 5, Connaught Circus, New Delhi. Messrs. Allen Berry & Co. Private Ltd. took a lease of the same under a lease deed dated March 1, 1956. Messrs. Allen Berry & Co. assigned their interest under the said lease deed to South Asia Industries (Private) Ltd., the appellant herein. Thereafter, the respondents filed an application before the Controller, Delhi, under section 14 of the Act for the eviction of the appellant from the said premises on the ground that Messrs. Allen Berry & Co. unauthorizedly assigned the said premises in favour of the appellant. The Controller, by his order dated October 10, 1962, allowed the petition. On January 23, 1963, the appeal filed by the appellant against the said order was dismissed by the Rent Control Tribunal, Delhi. Against the said order of the Tribunal the appellant filed an appeal in the High Court of Punjab under section 39 of the Act. The said second appeal was dismissed on May 10, 1963, by Harbans Singh, J. The appellant filed an appeal against the judgment of the learned single Judge to a Division Bench of the said High Court under clause 10 of the Letters Patent. That appeal came up for disposal before a Division Bench of the High Court, which dismissed the same on the ground that it was not maintainable. Hence the present appeal.
Decision of the case: The Court observed as under:
"Let us at the outset consider the relevant provisions uninfluenced by judicial decisions. At this stage it will be convenient to read the material provisions of the Letters Patent governing the Punjab High Court.
Clause 11. And we do further ordain that the High Court of Judicature at Lahore shall be a Court of Appeal from the Civil Courts of the Provinces of the Punjab and Delhi and from all other Courts subject to its superintendence, and shall exercise appellate jurisdiction in such cases as were, immediately before the date of the publication of these presents subject to appeal to the Chief Court of the Punjab by virtue of any law then in force, or as may after that date be declared subject to appeal to the High Court of Judicature at Lahore by any law made by competent legislative authority for India.
Clause 10, before its amendment by Letters Patent of 1928, read of follows:
"And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore, from the judgment (not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act, 1915, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 13 of the said recited Act, and that an appeal shall also lie to the said High Court from the judgment (not being a sentence or order as aforesaid) of two or more Judges of the said High Court, or of such Division Court, whenever such Judges are equally divided in opinion, and do not amount in number to a majority of the whole of the Judges of the said High Court, at the time being; but that the right of appeal from other judgments of the Judges of the said High Court, or of such Division Court, shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided."
After the amendment in 1928, clause 10 reads:
"And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court, subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence, under the provisions of section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, made on or after the first day of February, 1929, in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgment of Judges of the said High Court or of such Division Court shall be to Us, our heirs or successors in Our or Their Privy Council, as hereinafter provided."
The first part of clause 11 of the Letters Patent says that the High Court shall be a Court of appeal from Civil Courts of the Provinces of Punjab and Delhi and from all other Courts subject to the superintendence of the High Court; the second part thereof empowers the High Court to exercise appellate jurisdiction in such cases as were immediately before the date of the publication of the Letters Patent subject to appeal to the Chief Court of Punjab by virtue of any law then in force, or as may after that date be declared subject to appeal to the High Court of Judicature at Lahore by any law made by competent legislative authority for India. The second part does not make a distinction between appellate jurisdiction over Courts and that over Tribunals which are not Courts. If a law made by a competent legislative authority declares a case to be subject to appeal to the High Court of Judicature, the said High Court acquires jurisdiction to entertain the same and dispose of it in accordance with law. If the High Court entertains an appeal in terms of clause 11 of the Letters Patent, clause 10 thereof is attracted to such an appeal. Under section 108 of the Government of India Act, 1915, the High Court may by its own rules provide, as it thinks fit, for the exercise by one or more Judges or by a Division Court constituted by two or more Judges of the High Court, of original and appellate jurisdictions vested in the Court; and under clause (2) thereof the Chief Justice of each High Court shall determine that Judge in each case is to sit alone, and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several Divisions Courts. If in exercise of the jurisdiction under section 108 of the Government of India Act, 1915, an appeal filed in a High Court is posted before a single Judge of that Court and a judgment is delivered therein by that Judge, one has to look to clause 10 of the Letters Parent whether a further appeal lies to the High Court against the said judgment. Before the amendment of clause 10 of the Letters Patent in 1928, from the Judgment of a single Judge of the said High Court or one Judge of any Division Court an appeal lay to the said High Court; but there were certain exceptions to that rule. If the judgment was made by a single Judge in exercise powers of superintendence under section 107 of the Government of India Act, 1915, or in exercise of criminal jurisdiction, no further appeal lay from his judgment. There were no further exceptions such as that the said judgment should have been in an appeal against an order of a Court. A plain reading of the said clause indicates that except in the 3 cases excluded an appeal lay against the judgment of a single Judge of the High Court to the High Court in exercise of any other jurisdiction. As the clause then stood, it would appear that an appeal lay against the judgment of a single Judge of the High Court made in exercise of second appellate jurisdiction without any limitation thereon. The effect of the amendment made in 1928, so far as is relevant to the present enquiry, is the exclusion of the right of appeal from a judgment passed by a single Judge sitting in second appeal unless the Judge who passed the Judgment grants a certificate that the case is a fit one for appeal. The amended clause, presumably for the purpose of artistic drafting, practically leaves the first part as it was and in the second part introduces a limitation in the matter of a further appeal against the judgment of such a single Judge. Looking at the part of the amended clause excluding the exceptions, it is obvious that its wording is general. Thereunder an appeal lies from the judgment of one Judge of the said High Court, whether the said judgment is made in exercise of appellate, revisional or criminal jurisdiction or where the judgment is made in a first appeal or second appeal against the order of a Court or a Tribunal. Four exceptions are carved out from the general rule. Apart from the three exceptions to the general rule already noticed in the context of unamended clause the amended clause introduces another exceptions noticed supra. The result is that under the first part of clause 10 of the Letters Patent an appeal lies from the judgment of a single Judge of the High Court by him in exercise of his original jurisdiction or in exercise of first appellate jurisdiction, whether the appeal is against the order of a Court or not; and in the case of second appellate jurisdiction, if the appeal is against the order of a Tribunal, which is not a Court. But in the case of a judgment made in a second appeal against the decree or order of a Court subordinate to the High Court, no further appeal lies unless the said Judge declares that the case is a fit one for appeal. It is not permissible, by construction, to restrict the scope of the generality of the provisions of clause 10 of the Letters Patent. The argument that a combined reading of clauses 10 and 11 of the Letters Patent leads to the conclusion that even the first part of clause 10 deals only with appeals from Courts subordinate to the High Court has no force. As we have pointed out earlier, clause 11 contemplates conferment of appellate jurisdiction on the High Court by an appropriate Legislature against orders of a Tribunal. Far from detracting from the generality of the words "judgment by one Judge of the said High Court", clause 11 indicates that the said judgment takes in one passed by a single Judge in an appeal against the order of a Tribunal. It is said, with some force, that if this construction be accepted, there will be an anomaly, namely, that in a case where a single Judge of the High Court passed a judgment in exercise of his appellate jurisdiction in respect of a decree made by a Court subordinate to the High Court, a further appeal to that Court will not lie unless the said Judge declares that the case is a fit one for appeal, whereas, if in exercise of his second appellate jurisdiction, he passed a judgment in an appeal against the order of a Tribunal, no such declaration is necessary for taking the matter on further appeal to the said High Court. If the express intention of the Legislature is clear, it is not permissible to speculate on the possible reasons that actuated the Legislature to make a distinction between the two classes of a cases. It may be, for ought we know, the Legislature thought fit to impose a limitation in a case where 3 Courts gave a decision, whereas it did not think fit think to impose a limitation in a case where only one Court gave decision.
This Court in National Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd., (1953) 4 SCR 1028, construed clause 15 of the Letters Patent for the Bombay High Court, corresponding to clause 10 of the Letters Patent for the Lahore High Court. There the question was whether a Letters Patent appeal lay from a judgment of a single Judge of the Bombay High Court to a Division Bench of that High Court against the decision of the Registrar of Trade Marks under the Trade Marks Act, 1940. Section 76(1) of the said Act provided that "an appeal shall lie from any decision of the Registrar under this Act or the rules made thereunder to the High Court having jurisdiction" and the Act did not make any provision in regard to the procedure to be followed by the High Court in the appeal, or as to whether the order passed in the appeal was appealable. Two points were raised before this Court, namely, (1) the provisions of the first part of clause 15 of the Letters Patent for the Bombay High Court could not be attracted to an appeal preferred to the High Court under section 76 of the Trade Marks Act, 1940; and (2) the said clause would have no application in a case where the judgment could not be said to have been delivered pursuant to section 108 of the Government of India Act, 1915. On the first question, this Court held that the High Court being seized as such of the appellate jurisdiction conferred by section 76 of the Trade Marks Act, 1940, it had to exercise that jurisdiction in the same manner as it exercise its other appellate jurisdiction and when such jurisdiction was exercised by a single Judge, his judgment became subject to appeal under clause 15 of the Letters Patent of the Bombay High Court there being nothing to the contrary in the Trade Marks Act. On the second question, this Court held thus:
"We are therefore of the opinion that section 108 of the Government of India Act, 1915, conferred power on the High Court which that Court could exercise from the High to time with reference to its jurisdiction whether existing at the coming into force of the Government of India Act, 1915, or whether conferred on it by any subsequent legislation."
The difference between that case and the present one is that the single Judge in that case passed a judgment in a first appeal against the order of the Registrar, while in the present case of single Judge passed an order in a second appeal. But that will not make any difference in the construction of the part of clause 10 of the Letters Patent for the High Court of Lahore, corresponding to clause 15 of the Letters Patent for the High Court of Bombay. Another difference is that while under the last part of clause 11 of the Letters Patent for the Lahore High Court there are the words "or as may after that date be declared subject to appeal to the High Court of Judicature at Lahore by any law made by competent legislative authority for India", the said words are absent in the corresponding clause 16 of the Letters Patent for the Bombay High Court. Notwithstanding the said omission this Court in the said case held that the appeal under the Trade Marks Act was an addition of a new subject-matter of appeal to the appellate jurisdiction already exercised by the High Court and that the rules made under section 108 of the Government of India Act, 1915, applied to the same. It is contended that in that case it was not argued that the Registrar was not a Court, and therefore the Supreme Court assumed that the Registrar was a Court and on that assumption held that the first part of clause 15 of the Letters Patent of the Bombay High Court was attracted. We do not see any justification for this argument. One of the contentions raised before the Court was that the Trade Marks Act, created a new Tribunal and conferred a new appellate jurisdiction on the High Court. This Court rejected that contention with the following words:
"The statute creates the Registrar a tribunal for safeguarding these rights and for giving effect to the rights created by the Act and the High Court as such without more has been given appellate jurisdiction over the decisions of this tribunal."
The entire judgment proceeded on the basis that the Registrar was only a tribunal. It is not possible to visualize that both the Advocates as well as the Judges of this Court missed the point that the tribunal was not a Court and, therefore, applied the first part of clause 15 of the Letters Patent of the Bombay High Court. Indeed, the question of applicability of section 108 of the Government of India Act, 1915, to the appeal in that case would not have arisen if it was an appeal against the order of Civil Court. We, therefore, cannot countenance the argument that this Court assumed that the Registrar was a Court in applying clause 15 of the Letters Patent of the Bombay High Court in the appeal in question in that case. This decision therefore covers the question now raised before us.
The relevant rule applicable to the present case has been stated by this Court in the aforesaid decision thus;
"Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in according with the provisions of the charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then the appeal must be regulated by the practice and procedure of that Court."
This principle was laid down by the Judicial Committee in a number of decisions: see National Telephone Co. Ltd. v. Postmaster-General, (1913) AC 546; R.M.A.R.A. Adaikappa Chettiar v. Ra. Chandrasekhara Thevar, (1947) 74 IA 264; Secretary of State for India v. Chellikani Rama Rao, ILR 1916 Mad 617; Maung Ba Thaw v. Ma Pin L.R, (1934) 61 IA 158; Hem Singh v. Basant Das."
Under these circumstances, the Court laid down following principles of law from the said discussion: A statute may give a right of appeal from an order of a tribunal or a Court to the High Court without any limitation thereon. The appeal to the High Court will be regulated by the practice and procedure obtaining in the High Court. Under the rules made by the High Court in exercise of the powers conferred on it under section 108 of the Government of India Act, 1915, an appeal under section 39 of the Act will be heard by a single Judge. Any judgment made by the single Judge in the said appeal will, under clause 10 of the Letters Patent, be subject to appeal to that Court. If the order made by a single Judge is a judgment and if the appropriate Legislature has, expressly or by necessary implication, not taken away the right of appeal, the conclusion is inevitable that an appeal shall lie from the judgment of a single Judge under clause 10 of the Letters Patent to the High Court. It follows that, if the Act had not taken away the Letters Patent appeal, an appeal shall certainly lie from the judgment of the single Judge to the High Court.
Consequently, it was held that in the view of foregoing it is not necessary to consider the question whether the tribunal is a court or not, for, as pointed out earlier, it is not germane to the question of maintainability of the Letters Patent appeal.
On the next question as to whether the right of appeal conferred by clause 10 of the Letters Patent, Lahore, has been taken away by a law made by the appropriate Legislature, it was observed as under:
"It is conceded that the appropriate Legislature can take away that right: see clause 37 of the Letters Patent, Lahore. It is argued by the learned counsel for the respondents that section 43 of the Act has that effect. The relevant provisions of the Act may now be noticed.
Section 39. (1) Subject to the provisions of sub-section (2), an appeal shall lie to the High Court from an order made by the Tribunal within sixty days from the date of such order.
(2) No appeal shall lie under sub-section (1), unless the appeal involves some substantial question of law.
Section 43. Save as otherwise expressly provided in this Act, every order made by the Controller or an order passed on appeal under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding."
A combined reading of the said two sections may stated thus: Subject to the right of appeal to the High Court on a substantial question of law, the order passed by the High Court on appeal is final and it shall not be called in question in any original suit, application or execution proceeding. Mr. Viswanatha Sastri contends that the last sentence in section 43 of the Act gives colour to the expression "final". According to him, finality is only with reference to collateral proceedings, such as, suits, applications and execution proceeding.
The expression "final" prima facie connotes that an order passed on appeal under the Act is conclusive and no further appeal lies against it. The last sentence in section 43 of the Act, in our view, does not not restrict the scope of the said expression; indeed, the said sentence imposes a further bar. The expression "final" in the first part of section 43 of the Act puts an end to a further appeal and the words "shall not be called in question in any original suit, application or execution proceeding" bar collateral proceedings. The section imposes a total Bar. The correctness of the judgment in appeal cannot be questioned by way of appeal or by way of collateral proceedings. It is true that the expression "final" may have a restrictive meaning in other contexts, but in section 43 of the Act such a restrictive meaning cannot be given, for Ch. VI of the Act provides for a hierarchy of tribunals for deciding disputes arising thereunder. The Act is a self-contained one and the intention of the Legislature was to provide an exhaustive code for disposing of the appeals arising under the Act. The opening words of section 43 of the Act "save as otherwise expressly provided in this Act" emphasize the fact that the finality of the order cannot be questioned by resorting to something outside the Act. Some of the decisions cited at the Bar defining the expression "final" may usefully be referred to. In Maung Ba Thaw v. Ma Pin, the Judicial Committee had to the consider whether an LR (1934) 61 IA 158, lay to the Privy Council against the order of the High Court under section 75(2) of the Provincial Insolvency Act, 1920. The said Act provided by section 4(2) that subject to the provisions of the Act and notwithstanding anything contained in any other law for the time being in force, the decision of the District Court under the Act was final; but under section 75(2), however, there was a right of appeal to the High Court from the decision of the District Court. The Judicial Committee held that in a case where the Act gave a right to appeal to the High Court, an appeal from the decision of the High Court lay to the Privy Council under, and subject to, the Code of Civil Procedure. It reiterated the principle that where a Court is appealed to as one of the ordinary Courts of the country, the ordinary rules of the Code of Civil Procedure applied. It will be noticed at once that the order of the District Court was final subject to the provisions of the said Act and under the said Act a right of appeal was given to the High Court. The order of the High Court in the appeal was not made final. Therefore, the Judicial Committee held that an appeal lay to the Privy Council against the order of the High Court. This decision, therefore, does not really help the appellant. In Kydd v. Liverpool Watch Committee, LR (1934) 61 IA 158, the facts were as follows: Under section 11 of the Police Act, 1890 (53 & 54 Vict. c. 45), there was an appeal to quarter sessions as to the amount of a constable's pension. The duty of the quarter session was stated thus: "that Court, after inquiry into the case, may make such order in the matter as appears to the Court just, which order shall be final."
Lord Loreburn, L.C. construed the said section thus:
"Where it says, speaking of such an order, that it is to be final, I think it means there is to be an end of the business at quarter sessions........".
The Judicial Committee again in Secretary of State v. Hindustan Co-operative Insurance Society Ltd., (1934) LR 61 IA 158 construed the expression "final" and held that the expression was intended to exclude any further appeal. There, under section 71 of the Calcutta Improvement Act, 1911, a limited right of appeal to the High Court was given from an award of the Tribunal and it provided that, subject to that right only, the award should be final. Their Lordships held that the provision for finality was intended to exclude any further appeal. No further citation is called for. As we have stated, the expression "final" in section 43 of the Act indicates that no further appeal is contemplated against the order passed on appeal against the order of the Tribunal.
To escape from this construction a larger scope is sought to be given to the expression "appeal to the High Court". It is said that the expression "appeal" in sections 43 and 39 of the Act means an appeal to the High Court and not to a single Judge and that the said appeal is finally disposed of only by the final judgment of the High Court. It is said that whatever may be the internal arrangement in disposing of that appeal, there is only one appeal till it is finally disposed of. This argument is plausible, but it has not found favour with this Court. This Court in Union of India (UOI) v. Mohindra Supply Company, (1962) 3 SCR 497 considered the question whether section 39(2) of the India Arbitration Act, 1940, has taken away the right of appeal under the Letters Patent. Section 39(2) of the said Act reads as follows:
"No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court."
It was argued, as it is argued before us, that the second appeal under the section referred to an appeal to a superior Court and not to appeals "intra-Court" and, therefore, section 39(2) of the Arbitration Act did not operated to prohibit an appeal under the Letters Patent against the order of a single Judge. This Court held that the expression "second appeal" included an appeal under the Letters Patent. This decision rules that a Letters Patent appeal is not a part of the appeal filed in the High Court against the award of the Arbitrator, but is a fresh appeal against the order of the single Judge. This Court in Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd., (1964) 1 SCR 270 held that the expression "Court immediately below" in article 133(1)(a) of the Constitution took in a single Judge of the High Court. There, the judgment of the District Judge was reversed by the single Judge of High Court. Against the order of the single Judge of the High Court in appeal from that of the Subordinate Judge a letters Patent appeal was preferred to a Division Bench of the High Court and the said Division Bench affirmed the judgment of the single Judge. The question arose whether the single Judge was a Court immediately below the Division Bench. For the respondent it was contended that the judgment of the High Court against which the appeal was preferred the affirmed the decision of the Court immediately below and that the appeal did not involve any substantial question of law and, therefore, the High Court was not competent to grant a certificate under article 133(1)(a) of the Constitution. For the appellant it was urged that the appeal against the judgment of the single Judge to a Division Bench under clause 10 of the Letters Patent was a "domestic appeal" within the High Court and in deciding whether the decree of a Division Bench in an appeal under the Letters Patent from decision of a single judge exercising appellate jurisdiction affirmed the decision of the Court immediately below, regard must be had to the decree of the Court subordinate to the High Court, against the decision of which appeal was preferred to the High Court. This Court came to the conclusion that the expression "Court immediately below" in article 133(1)(a) must mean a Court from the decision of which the appeal has been filed in the High Court, whether such a Judge was a single Judge of the High Court or a Court subject to the Superintendence of the High Court. It will be seen that if a Letters Patent appeal was only a continuation of the appeal filed from the decree of the District Judge by a domestic arrangement, this Court would have held that the judgment in the Letters Patent appeal was not a judgment of affirmation but one of reversal of the judgment of the District Court. This decision, therefore, recognizes that an appeal disposed of by a single Judge of the High Court and the appeal from the judgment of the single Judge to a Division Bench thereof are different appeals. Apart from these to a decisions, on principle we do not see any justification to hold that an appeal under section 39(1) of the Act and an appeal under clause 10 of the Letters Patent from part of a single appeal. They are in law and in fact different appeals - one given by the statute and the other by the Letters Patent. We cannot, therefore, accede to the argument advanced by the learned counsel for the appellant that the expression "appeal" in section 39 of the Act takes in a Letters Patent appeal under clause 10 of the Letters Patent.
Learned counsel for the respondents further contended that section 39 of the Act conferred a special jurisdiction on the High Court as persona designate and therefore, the decision of the single Judge in appeal is not a "judgment" within the meaning of clause 10 of the Letters Patent. In support of this view reliance was placed, inter alia, on Radha Pathak v. Upendra Patowary, MANU/GH/0080/1961: AIR 1962 Gau 71; Hanskumar Kishanchand v. The Union of India (UOI), (1959) 1 SCR 1177 But, in the view we have expressed on the construction of section 39, read with section 43, of the Act, it is not necessary to deal with that question in this appeal. We shall not be understood to have expressed our opinion on this question one way or other."
In the result, the appeal was dismissed with costs.
Non-user of the Rented Premises for more than six months
Clause (d) of the proviso to sub-section (1) of the section 14 of the Delhi Rent Control Act, 1958 deals with this ground of eviction. It provides that if the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of filing of the application for the recovery of possession thereof, the landlord is entitled to get back the possession of the premises.
It has been observed by the Apex Court that a close analysis of section 14(1)(d) would reveal that before the landlord can succeed, he must prove three essential ingredients:
(1)that the premises were let out for use as a residence,
(2)that the tenant after having taken the premises has ceased to reside, and
(3)that apart from the tenant no member of his family also has been residing for a period of six months immediately before the date of the filing of the application for ejectment1.
4.
Clause (c) of the proviso to sub-section 1 of the section 14 of the Rent Control Act deals with this ground of eviction. It provides that if the landlord is able to prove before the Rent Controller that the tenant has used the premises for purpose other than that for which they were let-(i) If the premises have been let on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord; or (ii) If the premises have been let before the said date without obtaining his consent; he is entitled to get back the possession of the premises.2
This ground of eviction has to be studied alongwith ground of eviction as provided under clause (k) of the proviso to section 14(1). Because in both the grounds, tenant is alleged to be using the premises for a different purpose. This aspect of the matter we would be discussing subsequently when we would be dealing with section 14(1)(k). According to the ground of eviction as provided in section 14(1)(c) the Rent Controller may make an order for recovery of possession of the premises after the tenant has used the premises for purpose other than that for which they were let.
However, sub-section 5 of the section 14 provides that no application for the recovery of possession of any premises shall lie under sub-section (1) on the ground specified in clause (c) of the proviso thereto, unless the landlord has given to the tenant a notice in the prescribed manner requiring him to stop the misuse of the premises and the tenant has refused or failed to comply with such requirement within one month of the date of service of the notice; and no order for eviction against the tenant shall be made in such a case, unless the Controller is satisfied that the misuse of the premises is of such a nature that it is a public nuisance or that it causes damage to the premises or is otherwise detrimental to the interest of the landlord.3
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1. Baldev Sahai Bagla v. R.C. Bhasin, MANU/SC/0216/1982: AIR 1982 SC 1091.
2. Section 14(1)(c) of the Delhi Rent Control Act, 1958.
3. Section 14(5) of the Delhi Rent Control Act, 1958.
5.
This case also lays down the proposition of law with regard to the ground of eviction mentioned in clause (j) of section 14(1) of the Delhi Rent Control Act, 1958, according to which, if the tenant has caused or permitted to be caused substantial damage to the premises, the landlord is entitled to get the tenant evicted. Further, vis-…-vis clause (c) of section 14(1) of the Act, sub-section (5) lays down that misuse of the premises, as mentioned in clause (c), should be of such a nature that it is a nuisance or that it causes damage to the premises or is otherwise detrimental to the interest of the landlord. The present case is basically interpretation of this sub-section (5) of section 14 of the Act.
Question of law decided: The words used in section 14(5) of the Act are 'public nuisance' and not 'nuisance'. It is clear that the requirement of the law is that the nuisance falling within the mischief of the section is not private nuisance/common nuisance affecting the neighborhood and the residents of the locality.
Facts of the case: This is the landlady's second appeal against the order of the Rent Control Tribunal, Delhi dated May 1, 1973. The original petition for eviction of the tenant was filed by the landlady under section 14(1)(c) and 14(1)(j) of the Delhi Rent Control Act. The landlady lost in the Court of the Rent Controller and the Tribunal and hence the present appeal. From the evidence on the record it was found that the landlady failed to prove that the tenant had caused substantial damage to the suit premises. The Rent Controller and the Tribunal refused the eviction on this ground.
The material averments regarding the ground of eviction under section 14(l)(c) and section 14(5) in the landlord's application and the tenant's reply are as follows: The suit premises consisting of two rooms; one kitchen, one bath room and a latrine on the ground floor of house No. 20/45, Shakti Nagar, Delhi-7 were let out to the tenant for the residential purpose by the then landlord Mohan Lal on 1-5-1967. The house in question was purchased by the appellant landlady on 23-1-1969. That sometimes in early months of 1970 the tenants started the business of assembling the radio and transistors in a part of the suit premises. It was alleged that the tenant started using the court-yard (which was meant for common (use) for stocking his goods It was further averred (hat the stocking of goods and frequent visits of customers caused public nuisance in the residential area in which the suit premises is, detrimental to the interest of the landlady.
In reply the tenant admitted that he had been using the part of the premises for business purpose but contended that the original letting out of the premises was for residential trial-cum-commercial purpose. The tenant stated in his evidence that from 1-5-1967 to 1-8-1967 he had his office in the residential suit premises. thereafter he shifted his place of business to Paharganj, Kamla Nagar and Prem Nagar. According to he tenant he re-started his business in a part of the suit premises from June, 1970. The tenant denied the landlady's allegations regarding public nuisance, damage and the alleged actions detrimental to the interest of the landlady. The tenant' positive case was that the premises were let out to him for residential-cum-commercial purpose.
Findings of the Court: The Delhi High Court observed that the words used in section 14(5) of the Act are 'public nuisance' and not 'nuisance'. It is clear that the requirement of the law is that the nuisance falling within the mischief of the section is not private nuisance/common nuisance affecting the neighborhood and the residents of the locality. It was held as under:
"There are no particulars of public nuisance stated in the landlady's petition nor is there any independent evidence adduced by the landlady for establishing public nuisance. The counsel for the landlady contends that the very act of stocking goods and frequent visits of customers should be treated as sufficient in law to infer public nuisance. I do not agree. Assembling transistors and selling radios would not in itself result into public nuisance unless there is convincing evidence from the residents of the locality that the noise created disturbs the quietness of the locality or results into annoyance, to the neighbourhood. Business in dangerous substances such as cooking gas might on proper evidence be construed as public nuisance. But a radio shop per se does not fall under such a category of business. There is also no evidence led by the landlord to prove that the alleged misuse by the tenant has caused damage to the premises. As regards the remaining clause in section 14(5) of the Act, namely, the misuse 'detrimental to the interest of the landlord, also the landlord must fail as neither there is any positive averment nor evidence to support the allegations. The words detrimental to the interest of the land lord connote that either the property interest or the reputation of the landlady owning the house in the locality is jeopardized. Suppose if a house is constructed on the land taken on lease, from Governmental authorities, one of the conditions of which is that it should be used only for residential purposes and not for commercial purpose, and tenant uses the premises for commercial purpose, it would cause detriment to the interest of a landlord as it might result into termination of lease. Since the landlady has failed to satisfy the Controller by convincing evidence that any of the clauses mentioned in section 14(5) are satisfied no decree for eviction can be passed."
Hence the appeal was dismissed.
6.
It would be suffice, for the purpose of our study that, the Punjab & Haryana High Court, while interpreting section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949, with regard to change of user, observed as under:
"The basic idea of clause (b) of section 13(2)(ii) of the East Punjab Urban Rent Restriction Act, 1949 is that the tenant should not be allowed to make use of a building for a purpose for which the landlord may not have agreed to give the same on lease. A landlord may have no objection to giving a shop on rent to a person who wants to carry on the business of sale of books and stationery or other general merchandise, but may not like to let out the same to a person who wants to carry on the business of a halwai or any other business. So the Act, in a way provides that the landlord and tenant may agree between themselves as to the purpose for which the building would be used, and if later on the tenant wants to use the premises for a different purpose, he must obtain the consent of the landlord to do so. In order to take this matter beyond all controversy it has been provided that such a covenant should be in writing.
That it is true that the words a part of the building do not exist in sub-clause (b) of section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act and, therefore, it would mean that merely because some slight change of use of building is made in a small part of the building that would not automatically render the tenant liable to be ejected under this sub-clause, but at the same time the word 'entire' is not used as qualifying the word 'building' as is the case in sub-clause (a). Taking into consideration the object of the legislation in inserting this clause, namely, that a tenant should not be allowed to make use of the demised premises for a purpose for which if at all the time of the lease an enquiry had been made from the landlord, he would not have consented to give the same on lease.
That no doubt conversion of a very small portion of the premises for a purpose which could be said to be different from the one for which the premises mere originally let, may not render the tenant liable to eviction under clause (iii) (b) of section 13(2) of the East Punjab Urban Rent Restriction Act, yet where a substantial portion of the premises is used for a purpose different from the one for which the same had been let, the consequences contemplated by the aforesaid clause would follow.
That a book-seller's business cannot be taken to include the printing of the books. So far as sale of books is concerned, that is a commercial activity, whereas the business of printing is an industrial activity. It is unlikely that the landlord while letting the shop for sale of books and merchandise, would have agreed, at the time of letting, that a printing press, to be run by electric power, be fixed on the premises.
That if the result of the use of even a small portion of a building is such that the category of the building is changed from residential, non-residential and scheduled and, it becomes a category different from the one for which the same had been let, clause (ii)(b) of sub-section (2) of section 13 of the East Punjab Urban Rent Restriction Act, is attracted.
That if a substantial part of the demised premises is being utilized for a purpose other than the one for which the same had been leased, the tenant would render himself liable to eviction. Whether in a particular case, there has been a substantial conversion of the premises for a purpose different from the one for which the same were let, would be a question of fact to be determined in each particular case.
1.
Question of law decided: The word 'family' in clauses (d) and (e) of the proviso to sub-section (1) of section 14 has to be given not a restricted but a wider meaning so as to include not only the head of the family but all members or descendants from the common ancestors who are actually living with the same head.
Facts of the case: The appellant tenant took the premises on rent on May 12, 1961 at a monthly rent of Rs. 95. At the time when the tenancy started, the tenant was living in the tenanted house with his father, mother, two sisters and a brother. The tenant himself was a bachelor at that time, but got married subsequently. One of his sisters got married in this very house.
As it happened, in 1971 the tenant went to Canada followed by his wife and children. It is alleged that after having gone to Canada, the husband along with his wife took up some employment there. Admittedly, the tenant did not return to India after 1971. While leaving for Canada the tenant had left his mother and brother in the house who were regularly paying rent to the landlord. There is some controversy as to whether or not the mother and brother, who were left behind, were being supported by the tenant or were living on their own earnings or by the income of the property left by the tenant in India. Such a controversy however, is of no consequence in deciding the question of law which arises for consideration in this case.
On September 27, 1972 the landlord filed an application for ejectment of the tenant on the ground of bona fide requirement and non-residence of the tenant under clauses (d) and (e) of sub-section (1) of section 14 of the Delhi Rent Control Act, 1958. The fundamental plea taken by the landlord was that with the exit of the tenant from the house it became vacant and his mother and brother who were left behind could not be treated as members of the family. Hence, in the eyes of law the tenanted premises must be deemed to have fallen vacant. The suit was resisted by the mother, brother and sister of the tenant who averred that even if the tenant along with his wife and children had shifted to Canada, the non-applicants were continuing to live in the tenanted premises and as they had been paying rent to the landlord regularly, who had been accepting the same, no question of the tenancy becoming vacant arose.
Finding of the Court: It was observed that the entire case hinged on the interpretation of the word family' as also clauses (d) and (e) of section 14(1) of the Act. So far as clause (e) is concerned, both the Courts below found as a fact that the landlord was not able to prove his bona fide necessity. Therefore, as far as ground (e) is concerned, the same no longer survives in view of the findings of fact recorded by the Courts below. The only question that remains to be considered is whether the landlord can bring his case for eviction within the ambit of clause (d) of section 14(1).
The Supreme Court observed that a close analysis of section 14(1)(d) would reveal that before the landlord can succeed, he must prove three essential ingredients:
(1)that the premises were let out for use as a residence,
(2)that the tenant after having taken the premises has ceased to reside, and
(3)that apart from the tenant no member of his family also has been residing for a period of six months immediately before the date of the filing of the application for ejectment.
It is manifest that unless the aforesaid conditions are satisfied, the landlord cannot succeed in getting a decree for ejectment. In the instant case, while it is the admitted case of the parties that the tenant had shifted to Canada along with his wife and children, yet he had left his mother, brother and sister in the house, hence the second essential condition of clause (d) continues to apply with full force.
Thereafter the Supreme Court attempted to find out the definition of the word 'family' from the various sources. It observed that in Words and Phrases1the word 'family' has been defined as:
"The father, the mother, and the children ordinarily constitute a "family".
The word "family" embraces more than a husband and wife and includes children.
A "family" constitutes all who live in one house under one head.
Father and mother of two illegitimate children, and children themselves, all living together under one roof, constituted a "family."
The word "family" in statute authorizing use of income for support of ward and "family" is not restricted to those individuals to whom ward owes a legal duty of support, but is an expression of great flexibility and is liberally construed, and includes brothers and sisters in poor financial circumstances for whom the insane ward, if competent, would make provision. The general or ordinarily accepted meaning of the word "family", as used in Compensation Act, means a group, comprising immediate kindred, consisting of the parents and their children, whether actually living together or not."
The Court also observed that-
"Similarly, in Webster's Third New International Dictionary, the word 'family' is defined thus:
"Family-household including not only the servants but also the head of the household and all persons in it related to him by blood or marriage...a group of persons of common ancestry".
In Chambers Twentieth Century Dictionary (New Edition 1972), the word 'family' has been defined thus:
Family-the household, or all those who live in one house (as parents, children, servants): parents and their children.
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1. Permanent Edn., Volume 16, pp. 303-311.
In Concise Oxford Dictionary (Sixth Edition), the same definition appears to have been given to the word 'family' which may be extracted thus:
"Family-Members of a household, parents, children, servants, etc. set of parents and children, or of relations, living together or not; person's children. All descendants of common ancestor.
A conspectus of the connotation of the term 'family' which emerges from a reference to the aforesaid dictionaries clearly shows that the word 'family' has to be given not a restricted but a wider meaning so as to include not only the head of the family but all members or descendants from the common ancestors who are actually living with the same head. More particularly, in our country, blood relations do not evaporate merely because a member of the family, the father, the brother or the son leaves his household and goes out for some time. Furthermore in our opinion, the legislature has advisedly used the term that any member of the family residing therein for a period of six months immediately before the date of the filing of the action would be treated as a tenant. The stress is not so much on the actual presence of the tenant as on the fact that the members of the family actually live and reside in the tenanted premises. In fact, it seems to us that clause (d) of section 14(1) of the Act is a special concession given to the landlord to obtain possession only where the tenanted premises have been completely vacated by the tenant if he ceased to exercise any control over the property either through himself or through his blood relations.
Finally the Supreme Court observed that in fact, a controversy arose as to what would happen to the members of the family of the tenant if while residing in the premises he dies and in order to resolve this anomaly the legislature immediately stepped in to amend certain provisions of the Act and defined the actual connotation of the term 'members of the family'. By virtue of Act 18 of 1976 the definition of "tenant" was inserted so as to include various categories of persons. Sub-clause (iii) of clause (l) of section 2 of the Act actually mentions the persons who could be regarded as tenant even if main tenant dies.
It would appear that parents were expressly included in sub-clause (iii). It has also been provided that apart from the heirs specified in clauses (a) to (d) mentioned section 2(l), even those persons who had been ordinarily living in the premises with the tenant would be treated as members of the family. The statement of objects and reasons for this amendment may be extracted thus:
"There has been a persistent demand for amendments to the Delhi Rent Control Act, 1958 with a view to conferring a right of tenancy on certain heirs/successors of a deceased statutory tenant so that they may be protected from eviction by landlords and also for simplifying the procedure for eviction of tenants in case the landlord requires the premises bona fide for his personal occupation. Further, Government decided on the 9 September, 1975 that a person who owns his own house in his place of work should vacate the Government accommodation allotted to him before the 31st December, 1975. Government considered that in the circumstances, the Act required to be amended urgently."
It was also observed by the Court that if this was the intention of the legislature then clause (d) of section 14(1) of the Act could not be interpreted in a manner so as to defeat the very object of the Act. It is well-settled that a beneficial provision must be meaningfully construed so as to advance the object of the Act, and curing any lacuna or defect appearing in the same. There are abundant authorities to show that the term "Family" must always be liberally and broadly construed so as to include near relations of the head of the family.
Therefore, it was laid down that the word 'family' is capable of wider interpretation, but that interpretation must have relation to the existing facts and circumstances proved on the record in each case. Hence, after perusing the case law on the subject, the Supreme Court held that the view taken by the High Court is illegally erroneous and cannot be supported. Therefore, the appeal was allowed and the landlord was held to have the miserably failed to prove the essential ingredients of clause (d) of the proviso to section 14(1) of the Rent Control Act so as to entitle him to evict the members of the family of the main tenant.
2.
A recent judgment delivered by the Supreme Court in Satyawati Sharma (Dead) by Lrs. v. Union of India, 2008 (6) SCALE 325 (referred to as Satyawati Sharma's Judgment) has changed the whole concept of the ground of eviction as provided under clause (e) of the proviso to sub-section 1 of section 14 of the Rent Control Act. Therefore, it would be appropriate to study this particular ground of eviction in two parts. Firstly, what was the position prior to this judgment and, secondly, how the legislative changes have been brought in by way of judicial activism, keeping in mind the suggestion made by the Apex Court in Gian Devi Anand v. Jeevan Kumar, MANU/SC/0381/1985: AIR 1985 SC 796, way back in 1985, to the effect 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."
a. Position Prior to Satyawati Sharma's Case
Before dealing with the position of law prior to the judgment of the Supreme Court in Satyawati Sharma's case on the ground of eviction as provided in clause (e) of the proviso to sub-section 1 of section 14 of the Rent Control Act, it would be pertinent to mention here that that the Supreme Court in this judgment has laid down that this provision may be read as under:-
"that the premises are required bona fide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation." Prior to this judgement 14(1)(a) read as under:-
The effect of this legislative change brought in by the judiciary is that now this ground of eviction would be available not only with regard to residential premises, but also in respect of those premises, which have been let-out for commercial purposes. However, prior to this landlord could seek eviction of his tenant under section 14(1)(e) only if the tenanted premises was let-out for residential purposes.
The earlier provision of section 14(1)(e), prior to the Satyawati Sharma's case, provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises if the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation. However, where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall lie on this ground, unless a period of five years have elapsed from the date of the acquisition.1Further, where an order for the recovery of possession of any premises is made on this ground of bona fide requirement, the landlord shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of the order.2
The availability of an alternative accommodation with the landlord i.e., an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to the bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the court to draw an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of clause (e) of sub-section (1) of section 14, which speaks of non-availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available then the Court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternative residential accommodation though available is still of non-consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternative accommodation, to entail denial of the claim of the landlord must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant factors. While considering the totality of the circumstances, the Court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come; Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, MANU/SC/0432/1999: (1999) 6 SCC 222.
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1. Section 14(6).
2. Section 14(7).
b. Position after Satyawati Sharma's Case
For the first time section 14(1)(e) of the Delhi Rent Control Act, 1958, as stated above, was challenged before the Supreme Court, being violative of the doctrine of equality enshrined in article 14 of the Constitution of India in Satyawati Sharma's case. After appreciating salient features of Rent Control Legislations, which were made applicable to Delhi from time to time, starting from New Delhi House Rent Control Order, 1939, promulgated under Rule 81 of the Defence of India Rules, till the present piece of legislations, including various amendments made from time to time between 1960 to 1988, it was observed by the Supreme Court that though in 1992 National Housing Policy was notified in order to remove legal impediments to the growth of housing in general and rental housing in particular and also though the same was adopted by both the Houses of Parliament and consequently the 1995 Act was enacted, but till date the same has not been enforced so far nor the Court agreed to issue a Writ of mandamus to Central Government to notify the same; Common Cause v. Union of India, MANU/SC/0799/2003: 2003 (8) SCC 250. Further, after taking note of the statements of objects and reasons of 1995 Act, it was observed that the 1995 Act does not make any distinction between the premises let for residential and non-residential purposes in the matter of eviction of tenant on the ground that the same are required for bona fide use or occupation of the landlord. Therefore, the Court took judicial notice of the fact that the legislature has, after taking note of the developments, which have taken place in the last 37 years i.e., substantial increase in the availability of the commercial and non-residential premises or the premises, which can be let for commercial or non-residential purposes and meteoric rise in the prices of land and rentals of residential as well as non-residential premise, removed the implicit embargo on the landlord's right to recover possession of the premises if the same are bona fide required by him/her.
Thereafter, the Court surveyed various judgments, in which it has been consistently held that the paramount object of every Rent Control Legislation is to provide safeguards for tenants against the exploitations by landlords, who seek to take undue advantage of the pressing need for accommodation of a large number of people looking for a house on rent for residence or business in the background of acute scarcity thereof. However, the Court took note of the fact that a different trend is clearly discernible in the latter judgments; Malpe Vishwanath Acharya v. State of Maharashtra, MANU/SC/0905/1998: (1998) 2 SCC 1; Joginder Pal v. Naval Kishore Behal, MANU/SC/0453/2002: (2002) 5 SCC 397; Harbilas Rai bansal v. State of Punjab, MANU/SC/0227/1996: (1996) 1 SCC 1; Rattan Arya v. State of Tamil Nadu, MANU/SC/0550/1986: (1986) 3 SCC 385; Rakesh Vij v. Dr. Raminder Pal Singh Sethi, (2005) 8 SCC 504. Finally it was laid down that legislation, which may be quite reasonable and rationale at the time of its enactment may with lapse of time and/or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equality and even if the validity of such legislation may have been upheld at a given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become non-existent. Consequently the Court held that section 14(1)(e) of Delhi Rent Control Act, 1958 is violative of the doctrine of equality embodied in article 14 of the Constitution of India, in so far as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latter's right to seek eviction of the tenant from the premises let for residential purposes only. However, it was clarified that this declaration should not be misunderstood as total striking down of the said provision of section 14(1)(e) of the Delhi Rent Control Act, 1958 and as such it was laid down that the ends of justice would be met by striking down the discriminatory portion of section 14(1)(e) so that the remaining part thereof may read as under:
"that the premises are required bona fide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation."
As a consequence thereof the explanation appended to the said section was declared to be treated as redundant.
Question of law decided: (1) It is not necessary that a person in occupation of residential premises allotted to him by the Central Government or a local authority who is required by or in pursuance of a general or special order made by that Government or authority to vacate such accommodation or, in default, to incur certain obligations, such as payment of market rent, on the ground that he owns in the Union territory of Delhi a residential accommodation either in his own name or in the name of his wife or dependent child should be in occupation of the accommodation allotted to him on the date when he files an eviction application under section 14A(1) of the Delhi Rent Control Act, 1958, to recover possession of the residential premises which he so owns and which has been let by him. (2) If such person has, however, other premises which he owns either in his own name or in the name of his wife or dependent child which are available to him for his residential accommodation or into which he has already moved, he cannot maintain an application under section 14A(1) of the Act. (3) Even if the other premises owned by him either in his own name or in the name of his wife or dependent child are not reasonably suitable for his accommodation, he cannot maintain an application under section 14A(1) but must file an application on the ground specified in clause (e) of the proviso to sub-section (1) of section 14 of the Act.
Facts of the case: The appellant was the tenant of the respondent-landlord in respect of the premises consisting of one room and two tin sheds prior to 1975, the respondent was employed with the Posts and Telegraphs Department, Government of India and in January, 1975 he was sent on deputation to the Union Public Service Commission, wherefrom he retired on May 1, 1978. During the course of his service in October, 1972, the respondent-landlord was allotted Government residential accommodation, which he occupied from November 1, 1972. By way of an order issued by Minister of Works and Housing in the form of an office Memorandum dated September 9, 1975 and another order dated December 12, 1975, the Government of India directed that all Government servants, who had their own dwelling houses at the place of posting within the limits of the local or adjoining municipality should vacate the Government accommodation allotted to them within three months from October 1, 1975 or in default to pay, consequently, market rent in respect thereof.
The respondent, therefore, vacated the Government accommodation in his occupation on December 27, 1975 and went to reside in other premises belonging to him adjoining to premises allotted to the appellate-tenant. Therefore, on May 17, 1976, the respondent-landlord filed an application under section 25B of the Act on the ground specified in section 14(A)(1) thereof. After the summons had been duly served on him, the appellant-tenant filed an affidavit stating the grounds on which he sought to contest the said eviction application and obtained leave from the Rent Controller, Delhi to contest the said application. A number of defences were taken by the appellant and all of which were rejected by the Rent Controller, however, he considered the accommodation in respect of the occupation of the parties and held that the respondent's family consisted of himself, his family, his married sons and their wives, eight grand children and two married daughters with their childrens and held that it could not be said that the premises occupied by the respondent constituted reasonably suitable residential accommodation.
It was further held that the section 14A(1) of the Act of the Rent Control Act, did not stipulate a condition that the Government Servant, who made an application under that provision should not be in possession of reasonable suitable alternative accommodation as was the case under clause (e) of the Proviso to section (1) of section 14 of the Act and that even if such a factor were to be taken in consideration, it could not be said that the respondent was in occupation of reasonably suitable alternative accommodation. Accordingly, vide Order dated 1st August, 1981, the Rent Controller passed an order of eviction against the tenant and directed it not to be executed for a period of two months. The High Court rejected the revision against the said order of Rent Controller. In this way, the matter approached the Supreme Court. The appellant-tenant assailed the judgment of the High Court mainly on the maintainability of the said eviction application on two grounds:
(1)The respondent was not in occupation of the Government accommodation allotted to him on the date when he filed his application and
(2)On the date when he filed his application, the respondent was already residing in the premises belonging to him.
Findings of the Court: Court observed that it is not disputed that the premises let to the appellant and the premises belonging to the respondent which the respondent occupied after giving up the Government accommodation allotted to him are separate premises and that each constitutes a dwelling house under the proviso to section 14A(1). It is also not disputed that the Central Government issued the said general order dated September 9, 1975, and subsequently clarified it by another order dated December 12, 1975. It is equally not in dispute that on the date when the respondent filed his said eviction application he was residing in premises belonging to him. It is in the light of these admitted facts and the statutory provisions referred to above that the Apex Court considered the question of maintainability of the eviction application filed by the respondent. With regard to the first ground of challenge, Court held:
"It was submitted on behalf of the appellant that though such a condition was not expressly provided in section 14A, it should be read into that section as being implicit in it. We find no merit in this submission. Admittedly, the section does not contain any such condition. The object of section 14A(1) is to provide an additional ground of eviction to a landlord who had been allotted residential accommodation by the Central Government or a local authority and who is required by a general or special order of that Government or authority to vacate that accommodation or in default, to incur certain obligations, for example, payment of market rent, on the ground that he owns in the Union territory of Delhi a residential accommodation either in his own name or in the name of his wife or dependent child. Being asked to vacate on the ground that he owns his own residential accommodation, he must be in a position to move into such accommodation. It is for this reason that the section expressly states that "there shall accrue, on and from the date of such order, to such landlord... a right to recover immediately possession of any premises let out by him". To accept the contention of the appellant would be to postpone the accrual of the right given by section 14A to the date of the filing of the application. In order to recover possession of residential accommodation let out by him, a landlord to whom residential accommodation had been allotted by the Central Government or any local authority cannot be obliged to continue to reside in such accommodation by paying market rent in respect thereof. On the passing of a general or special order of the nature specified in section 14A(1) the landlord may vacate accommodation allotted to him and find accommodation for himself elsewhere, either by renting premises or in a hostel, hotel, lodging house, boarding house or with a relative. He is not thereby debarred from filing an application under section 14A(1)."
With regard to the second challenge, it was observed by the Court that can such a person file an application under section 14A(1) on the ground that a dwelling house owned by him either in his own name or in the name of his wife or dependent child and available for his residence is not reasonably suitable for his residential accommodation? It was held that answer to this question must also be in the negative. Section 14A does not contain a condition that a person who has or had to vacate the accommodation allotted to him by the Central Government or any local authority by reason of a general or special order mentioned in section 14A(1) has "no other reasonably suitable residential accommodation" as clause (e) of the proviso to section 14(1) does. Under section 14A(1) such allottee should have no other dwelling house which he owns either in his own name or in the name of his wife or dependent child for him to move into. If such dwelling house is not adequate or suitable for his residence, he must proceed under clause (e) of the proviso to section 14(1). That this is the only remedy open to him is clear from the provisions of section 25C. A landlord who desires to recover possession of premises on the ground specified in the said clause (e), which premises have been acquired by him by transfer, he cannot under clause (6) of section 14 file an application under the said clause (e) for a period of five years from date of the acquisition of those premises by him. Further, such an applicant if he succeeds in getting an order of eviction is not entitled to obtain possession of the premises for a period of six months from the date of the eviction order. In the case of a landlord referred to in section 14A(1) these two conditions have been relaxed by section 25C. Under section 25C(1) even though the premises which have been let out by such landlord have been acquired by him by transfer, clause (6) of section 14 does not apply to him and he does not have to wait for a period of five years or for any length of time before filing an application for the recovery of possession of such premises. Further, the period of six months during which the order of eviction cannot be executed under sub-section (7) of section 14 is reduced by section 25C(2) in the case of such a landlord to two months. These provisions clearly show that if a landlord referred to in section 14A(1) has other residential accommodation of his own either in his own name or in the name of his wife or dependent child which accommodation is not reasonably suitable for his residence cannot proceed under section 14A(1) but must file an application on the ground specified in clause (e) of the proviso to section 14(1). The Rent Controller was, therefore, in error in considering the respective needs of the parties and the suitability of accommodation occupied by the respondent.
Finally, the court summarized its conclusion as under:
"(1) It is not necessary that a person in occupation of residential premises allotted to him by the Central Government or a local authority, who is required by or in pursuance of a general or special order made by that Government or authority to vacate such accommodation or, in default, to incur certain obligations, such as payment of market rent, on the ground that he owns in the Union territory of Delhi a residential accommodation either in his own name or in the name of his wife or dependent child should be in occupation of the accommodation allotted to him on the date when he files an eviction application under section 14A(1) of the Delhi Rent Control Act, 1958, to recover possession of the residential premises which he so owns and which has been let by him.
(2) If such person has, however, other premises which he owns either in his own name or in the name of his wife or dependent child which are available to him for his residential accommodation or into which he has already moved, he cannot maintain an application under section 14A(1) of the Act.
(3) Even if the other premises owned by him either in his own name or in the name of his wife or dependent child are not reasonably suitable for his accommodation, he cannot maintain an application under section 14A(1) but must file an application on the ground specified in clause (e) of the proviso to sub-section (1) of section 14 of the Act.
Hence, the appeal was allowed and judgment of the High Court was set aside with costs.
Question of law decided: (1) That sections 14A, 25A, 25B and 25C of the Rent Act are special provisions so far as the landlord and tenant are concerned and in view of the non-obstante clause these provisions would override the existing law so far as the new procedure is concerned; (2) That there is no difference either on principle or in law between sections 14(1)(e) and 14A of the Rent Act even though these two provisions relate to tenants under different situations; (3) That the procedure incorporated in Chapter IIIA of the Amending Act into the Rent Act is in public interest and is not violative of article 14 of the Constitution; (4) That in view of the procedure in Chapter IIIA of the Rent Act, the Slum Act is rendered inapplicable to the extent of inconsistency and it is not, therefore, necessary for the landlord to obtain permission of the Competent Authority under section 19(1)(a) of the Slum Act before instituting a suit for eviction and coming within section 14(1)(e) or 14A of the Rent Act.
Facts of the case: The appellant was tenant into the suit premises since 1945. The landlord applied under section 19(1)(a) of the Slum Clearance Act (in short Slum Act) before the Competent Authority for permitting him to institute a suit for the eviction of the appellant but the application was dismissed. Even the appeal filed against that order was dismissed by Appellate Authority namely Financial Commissioner. Thereafter the respondent-landlord filed a suit for eviction of the tenant under section 14(1)(e) read with section 25B of the Rent Control Act, on April 13, 1979.
The tenant applied for leave to defend but the same was rejected and order of eviction was passed, which was challenged in revision before the High Court, who also dismissed the same. Consequently, an appeal was preferred before the Supreme Court.
The second set of facts of another case, which was also decided in this judgment, pertains to a suit for eviction filed by the Landlady against her tenant, which was allowed by the Rent Controller and a revision therefrom was dismissed by the High Court. Hence, the petition for Special Leave against the judgment of the High Court was filed and was directed to be heard along with the above mentioned case. It is pertinent to mention here that the suit premises in both the cases are located within the Slum Area as defined under the Slum Act. It is common ground in both the cases that the suits for eviction by the landlord were not competent in view of the want of permission from the Competent Authority under the Slum Act, because section 19(1)(a) of the said Act makes it obligatory on the part of landlord to obtain permission from the Competent Authority before instituting a suit for evicting a tenant from the premises, if the same is situated in a Slum Area. This argument has been countered by the landlords on the ground that by virtue of amendments made in the year 1976 special procedure has been provided in Chapter IIIA, which is different from the procedure followed in other cases. It is argued that this procedure should have overriding effect over the existing procedure because of the non-obstante clause provided in clause 25A of Chapter IIIA.
Considering this, Supreme Court also decided yet another argument of the tenants that the section 25A and 25B of the Rent Control Act are ultra vires article 14 of the constitution and were inconsistent with the Slum Act, which was an existing act and therefore, the procedure substituted under Chapter III, particularly in section 25A and 25B should be invalidated.
Findings of the Court: The Supreme Court after perusing the extract of Statement of Objects and Reasons1 of the Amending Act, the dominant object of the Amending Act was, therefore, to provide a speedy, expeditious and effective remedy for a class of landlords contemplated by sections 14(1)(e) and 14(A) and for avoiding unusual dilatory process provided otherwise by the Rent Act. It is common experience that suits for eviction under the Act take a long time commencing with the Rent Controller and ending up with the Supreme Court. In many cases experience has indicated that by the time the eviction decree became final several years elapsed and either the landlord died or the necessity which provided the cause of action disappeared and if there was further delay in securing eviction and the family of the landlord had by then expanded, in the absence of accommodation the members of the family were virtually thrown on the road. It was this mischief which the legislature intended to avoid by incorporating the new procedure in Chapter IIIA. The legislature in its wisdom thought that in cases where the landlords required their own premises for bona fide and personal necessity they should be treated as a separate class along with the landlords covered by section 14A and should be allowed to reap the fruits of decrees for eviction within the quickest possible time. It cannot, therefore, be said that the classification of such landlords would be an unreasonable one because such a classification has got a clear nexus with the objects of the Amending Act and the purposes which it seeks to sub serve. Tenants cannot complain of any discrimination because the Rent Act merely gave certain protection to them in public interest and if the protection or part of it afforded by the Rent Act was withdrawn and the common law right of the tenant under the Transfer of Property Act was still preserved, no genuine grievance could be made. This was clearly held in the case of Kewal Singh v. Lajwanti, MANU/SC/0491/1979: AIR 1980 SC 161.
The Court further observed that the matter, is no longer Res Integra and is covered by two decisions of this Court which are directly in point. The first one is the case of Sarwan Singh v. Kasturi Lal, MANU/SC/0071/1976: AIR 1977 SC 265 in which an identical point came up for consideration. It was held by this Court that sections 25A, 25B and 25C of the Rent Act (introduced by the Amending Act) were special provisions with reference to section 14A thereof which superseded all existing Acts to the contrary. It was also pointed out that these newly added sections in the Rent Act were to apply only to a class of landlords and, therefore, the question of violation of article 14 of the Constitution did not arise. While considering various aspects of the aforesaid provisions, Chandrachud, J. (as he then was), spokes for the Court thus:
"When two or more laws operate in the same field and each contains a non-obstante clause stating that its provisions will override those of any other law, stimulating and innovative problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration.... For resolving such inter se conflicts, one other test may also be applied though the persuasive force of such a test is but one of the factors which combine to give a fair meaning to the language of the law. That test is that the later enactment must prevail over the earlier one. Section 14A and Chapter IIIA having been enacted with effect from December 1, 1975, are later enactments in reference to section 19 of the Slum Clearance Act, which in its present form, was placed on the statute book with effect from February 28, 1965 and in reference to section 39 of the same Act, which came into force in 1956 when the Act itself was passed. The legislature gave over-riding effect to section 14A and Chapter IIIA with the knowledge that sections 19 and 39 of the Slum Clearance Act contained non-obstante clauses of equal efficacy. Therefore, the later enactment must prevail over the former.... Bearing in mind the language of the two laws, their object and purpose, and the fact that one of them is later in point of time and was enacted with the knowledge of the non-obstante clauses in the earlier law, we have come to the conclusion that the provisions of section 14A and Chapter IIIA of the Rent Control Act, must prevail over those contained in sections 19 and 39 of the Slum Clearance Act."
Thus, finally, the Supreme Court held that by taking over all picture of the situation, the circumstances under which landlord's needs have been classified and the safeguards given by the statute, it cannot be said by any stretch of imagination that section 25B and its sub-sections are violative of article 14 of the Constitution, or that section 25B suffers from the vice of excessive delegation of powers. In fact section 25B contains valuable and sufficient guidelines, which completely exclude the exercise of uncanalised or arbitrary powers by the Rent Controller. Therefore, it was laid down that, it is clear from the new provision in the Amending Act, that the procedure indicated therein was intended to have overriding effect and all procedural laws were to give way to the new procedure. Hence, applications under section 14(1)(e) clearly fell within the protective umbrella of the new procedure as prescribed in Chapter IIIA of the Rent Control Act.
The judgment of the High Court was upheld and the appeal was accordingly dismissed but without costs.
Question of law decided: Although ordinarily an office would mean the place where official business is transacted. A personal office in contradistinction to an office simpliciter or a commercial office would be a place where an outsider would not normally be admitted; commercial transactions would not take place; there would be no fixity of the location and the tenant would be entitled to use any portion of the premises as his personal office and the like. Such a place if referred to as personal office would essentially be residential.
Facts of the case: The landlord, appellant before us, applied to the Controller on March 14, 1972, for eviction of the respondent under section 14(1)(e) of the Delhi Rent Control Act, 1958 ('the Act' for short). The tenant obtained leave to contest and pleaded, inter alia, that the premises were let out both for residential as well as for office and the composite purpose of the tenancy took the premises out of the purview of residential accommodation. The Controller did not accept the defence and passed an order for eviction. Thereupon, the tenant carried a revision to the Delhi High Court and reiterated his defence that the tenancy was not for residential purpose. The present judgement carries no senctity in view of Satyawati Sharma's case (supra). The High Court found that there was no infirmity in the finding about the bona fide requirement but adverting to the conclusion on the letting purpose held:
"It is well-known that premises may be let out for residence only, for use as an office, for use as a shop and for other commercial purpose. Once any of the latter purposes is combined with the purpose of use as residence, the premises let out for a composite purpose and for residence only."
The High Court rejected the landlord's submission that the use of the word 'personal' before 'office' was intended to convey the idea that the tenancy was 'not' for the purpose of accommodating a place of business.
Findings of the Court: Therefore, the short question arising for consideration in the matter was as to the true meaning of a clause in the rent deed. Court observed that the word 'office' is used in different senses and in each case that meaning must be assigned to it which conforms with the language used. In Corpus Juris Secundum1the following statement appears: "The term 'office' is one which is employed to convey various meanings, and no one definition thereof can be relied on for all purposes and occasions". It was also observed that the Court has approved the observation of Lord Wright in Macmillan v. Guest, (1942) AC 561 where it was stated:
The word 'office' is of indefinite content. Its various meanings cover four columns of the New English Dictionary....; Kanta Kathuria v. Manak Chand Surna, [1970] 2 SCC 232.
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1. Volume 67, p. 96.
Thus, Court found that:
"In this view of the position the High Court was not right in picking one of the meanings given to the word in the Chamber's dictionary and proceeding to the conclusion that 'office' is certainly not residence and a letting purpose which includes office must be understood to include a purpose other than residence only."
Section 2(i) of the Act defines 'premises' to mean "any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose...." Respondent's counsel has argued that tenancy under the Act can be for three purpose:-(1) residential, (2) commercial and (3) for any other purposes depending upon the use for which the premises are let out. Conceding that the definition is capable of such an argument being built up, a reference to the pleadings in this case shows that the permission in the rent deed of locating a personal office had been stated to be a commercial purpose. Great care seems to have been taken by the landlord while inducting the tenant under the rent deed to put a total prohibition to commercial user of the premises. That is why in clause 12 it has been specifically stated that it is "not for commercial purposes". In the back-drop of such a provision in the lease agreement, the true meaning of the words 'personal office' has to be found out. Law is fairly settled that in construing a document the ordinary rule is to give effect to the normal and natural meaning of the words employed in the document itself; Krishna Biharilal v. Gulabchand, [1971] Supp SCR 27. This Court in D.D.A. v. D.C. Kaushish, MANU/SC/0329/1973: AIR 1973 SC 2609 observed:
There (at pages 28-29) [Construction of Deeds and Statutes' by Odger's (5th ed. 1967)] the First General Rule of Interpretation formulated is: the meaning of the document or of a particular part of it is therefore to be sought for in the document itself. That is, undoubtedly, the primary rule of construction to which sections 90 to 94 of the Indian Evidence Act, give statutory recognition and effect.... Of course, 'the document' means 'the document' read as a whole and not as a piecemeal.
The rule stated above follows logically from the Literal Rule of Construction which, unless its application produces absurd results must be resorted to first. This is clear from the following passages cited in Odgers' short book under the First Rule of Interpretation set out above.
Lord Wensleydale in Monypenny v. Monypenny, [1861] 9 HLC 114 said:
the question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed; a most important distinction in all cases of construction and the disregards of which often leads to erroneous conclusions.
Brett, L.J, in Re Meredith, ex-parte Chick, [1879] 11 Ch D 731 observed:
I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke.... They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used.
Since we agree with this exposition of the law reference to the oral evidence or even to the tenant's documents would be wholly out of place. The terms of the document if they make any good meaning must be given effect to."
Thus, the Court found that all the provisions of the lease deed have to be read and in fact with the assistance of counsel they read the same more than once during the hearing. The parties to the document were anxious enough and took proper care in order to keep the user of the premises confined to residential purpose; that is why it was expressly stipulated in the lease to prohibit commercial user. Even while permitting an office to be located, equal care was taken to put the word 'personal' before 'office' to convey the idea that the tenant would not be entitled to transact official business connected with his avocation. Although ordinarily an office would mean the place where official business is transacted, a personal office in contradistinction to an office simpliciter or a commercial office would be a place where an outsider would not normally be admitted; commercial transactions would not take place; there would be no fixity of the location and the tenant would be entitled to use any portion of the premises as his personal office and the like. Such a place if referred to as personal office would essentially be residential and obviously while entering into the present lease deed, the parties were not trying to create a lease of premises for any other purposes.
Therefore it was laid down that the High Court went wrong in reversing the decision of the Rent Controller by merely relying upon clause 12 of the lease deed. Appeal was allowed and judgment of the High Court was set aside.
Question of law decided: Section 14(1)(e) of the Delhi Rent Control Act, is violative of the doctrine of equality embodied in article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latter's right to seek eviction of the tenant from the premises let for residential purposes only.
Facts of the case: After purchasing the property, the appellant filed petitions for eviction of the tenants by claiming that she needed the house for her own bona fide need and also for the use and occupation for the family members dependant upon her. The appellant further pleaded that she wanted to demolish the building and reconstruct the same. She also alleged that tenants have been using the premises in violation of the conditions of lease and, therefore, they are liable to be evicted. By an order dated 17-5-1991, Additional Rent Controller, Delhi dismissed the eviction petitions on the ground that appellant is owner and landlady of the suit premise, but she has not been able to prove that portions thereof were let for residential purposes: that the appellant and her dependent family members do not have suitable alternative accommodation except the one occupied by her elder son, who was under the threat of eviction and that the need of the appellant is bona fide. The Additional Rent Controller further held that the tenants are guilty of violating clause 4(c) of deed dated Akugust 18, 1953. He, however, declined to pass order for recovery of possession by observing that under section 14(1)(e) of the Act, such an order can be passed only in respect of premises for residential purposes. The Additional Rent Controller also rejected other grounds of eviction put forward by the appellant.
The appeal preferred by the appellant was dismissed by Rent Control Tribunal, Delhi vide its judgment dated 10-11-1998. The Tribunal agreed with the Additional Rent Controller that an order of eviction of the tenant can be passed under section 14 (1)(e) only if the premises were let for residential purposes. The Tribunal then held that the portions given to the tenants were being used for non-residential purposes and, therefore, they cannot be evicted on the ground of bona fide need of the landlord.
The order of the Additional Rent Controller and the Rent Control Tribunal were challenged before the High Court. Besides this even section 14(1)(e) of the Delhi Rent Control Act, was challenged as violative of article 14 of the Constitution of India insofar as it does not provide for eviction of the tenant from the premises let for non-residential premises. The full Bench of the High Court dismissed both the petitions.
Findings of the Court: We have already discussed this aspect of the matter above under the heading "Position after Satyawati Sharma's case".
Question of law decided: [(The case is under the old Rent Control Act, namely the Delhi & Ajmer Rent Control Act, 1952, wherein section 13(1)(e) is in pari materia to section 14(1)(e) of the present Delhi Rent Control Act, 1958.)] The jurisdiction of the Court may be exercised under section 13(1)(e) of the Act only when the premises are let for residential purposes and not when the premises being let for composite purposes, are used in specific portions for purposes residential and non-residential. The contract of tenancy is a single and indivisible contract, and in the absence of any statutory provision to that effect it is not open to the Court to divide it into two contracts - one of letting for residential purposes, and the other for non-residential purposes, and to grant relief under section 13(1)(e) of the Act limited to the portion of the demised property which "is being used" for residential purposes.
However, in view of abovementioned Satyawati Sharma's judgment, delivered by the Supreme Court, this case carries no value, because now the provision of section 14(1)(e) is also applicable to commercial premises.
Question of law decided: This case is more on facts. No specific question of law has been laid down in this case. Rather the law already settled vis-…-vis "bona fide requirement of the landlord" in earlier cases has been affirmed in the present case.
Facts of the case: Present petition has been filed under section 25B(8) of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act'), seeking to set aside judgment dated 12th September, 2008 whereby Additional Rent Controller after having granted leave to defend to petitioner-tenant has allowed respondents-landlords' eviction petition.
Learned Counsel for petitioner-tenant contends that respondents-landlords have not disclosed the alternative accommodation available to them in Delhi. He states that there is no averment in the eviction petition that other family members of respondents did not possess or own any other reasonable suitable residential accommodation. He further contends that though respondents-landlords have been in possession of first and second floors of tenanted premises comprising of four rooms, respondents had not occupied the said floors for the last fifty years. Therefore, according to him, respondents-landlords' requirement was not bona fide and respondents-landlords' intent was only to sell the property at a high price.
Findings of the Court: While rejecting the contention of the petitioner-tenant, who relied on the judgments of the Supreme Court in Precision Steel & Engineering Works v. Prem Deva, MANU/SC/0210/1982: AIR 1982 SC 1518; Deena Nath v. Pooran Lal, (2001) 5 SCC 705; Ram Narain Arora v. Asha Rani, MANU/SC/0558/1998: (1999) 1 SCC 141, in support of his case, the Delhi High Court observed as under:
"In the eviction petition, I find that respondents-landlords have categorically stated, "that the first floor of the Suit property consist of 4 small rooms. The barsati floor (on the 2nd floor) has 2 small rooms and does not have bathroom or kitchen. This accommodation is insufficient for the petitioners (respondents-landlords herein) and their family members who are dependent on them for residence and the petitioners (respondents-landlords herein) have no other suitable residential accommodation in Delhi except the suit property." Further, in the present case, unlike in Precision Steel case (supra), I find that petitioner-tenant had been granted leave to defend and he had an opportunity not only to file written statement but also to lead evidence and cross-examine the respondents-landlords. In my view, if the petitioner-tenant had some information that respondents-landlords or any of their dependant family members possessed or owned some other alternative residential property which was available to them, he should have either cross-examined respondents-landlords with regard to specific alternative accommodation available or he should have filed substantial evidence. But he failed to do so. Consequently, the case law cited by petitioner-tenant is inapplicable to facts of the present case.
As far as petitioner's contention that respondents-landlords had not occupied the first and second floor of tenanted premises for the last fifty years is concerned, I am of the opinion that in view of Additional Rent Controller's finding that respondents-landlords require minimum thirteen rooms for accommodating their two families, it cannot be said the said accommodation is sufficient alternative accommodation as respondents cannot be forced to stay in four bedrooms alleged to be available on the first and second floors of tenanted premises.
As far as petitioner's apprehension that respondents-landlords have only filed an eviction petition with a view to get the tenanted premises evicted so that they can sell the same, I am of the view that this apprehension is baseless as firstly no evidence to this effect has either been filed or led by petitioner-tenant. Moreover, section 19 of DRC Act, specifically takes care of this apprehension inasmuch as it provides that landlords after getting the premises evicted under section 14 of said Act cannot sell the same for a period of three years without obtaining permission of Controller."
Consequently petition along with application was dismissed, being devoid of merits, with costs of Rs. 11,000.
Question of law decided: This case is more on facts. No specific question of law has been laid down in this case. Rather the law already settled vis-…-vis "bona fide requirement of the landlord" in earlier cases has been affirmed in the present case.
Facts of the case: Present civil revision petition has been filed by petitioners/tenants under section 25B(8) of the Delhi Rent Control Act, 1958 seeking to set aside order dated 25th September, 2008 passed by Additional Rent Controller (in short 'ARC') in E No. 879/2007 whereby petitioners' leave to defend application has been dismissed and an eviction order in favour of respondent/landlord has been passed.
Learned Counsel for petitioners contended that respondent/landlord is not the owner of premises in question and sale deed relied upon by respondent is a forged and fabricated document. He further stated that ARC had wrongly concluded that respondent was owner of property in question on the basis of a judgment rendered by a Judge of Small Causes Court in Suit No. 810/1991. He submitted that said judgment cannot be relied upon to conclude the ownership issue as a Court of Small Causes has limited jurisdiction. In this context learned Counsel for petitioners relied upon a judgment of Hon'ble Supreme Court in Sunder Dass v. Ram Prakash, MANU/SC/0368/1977: AIR 1977 SC 1201.
He further submitted that ARC could not have relied upon the principle of res judicata as decision on question of jurisdiction was purely a question of law, unrelated to rights of parties to previous suit. In this context, he relied upon a judgment of Hon'ble Supreme Court in Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970) 3 SCR 830.
Findings of the Court: The Delhi High Court while rejecting the abovementioned contentions observed as under:
"In my opinion, judgment of Sunder Dass (supra) relied upon by counsel for petitioners, is clearly inapplicable to facts of the present case, as it is not petitioners' case that judgment passed by a Court of Small Causes was a nullity for lack of inherent jurisdiction.
Undoubtedly, a Court of Small Causes has limited jurisdiction, but in my opinion, on the principles of res judicata, finding of Court of Small Causes that respondent was owner of tenanted premises, would disentitle petitioners from raising this plea in their leave to defend application. The finding rendered by Small Causes Court with regard to respondent's ownership of suit premises is reproduced hereinbelow for ready reference:
From the pleadings of the parties it is admitted case of the parties that Heera Lal was the previous owner and Ram Lal deceased husband of the defendant was the tenant. The defendant herself has not come forward to enter in the witness box. Her son appearing as DW has not stated a word about having become owner by way of adverse possession. It is settled law that once a tenant always a tenant. Succession of tenancy rights is governed by the provisions of Delhi Rent Control Act, 1958 and on the demise of a tenant tenancy rights are inherited by his spouse, son or daughter provided they were living with the deceased on the date of his death, as laid down in sub-section (L) of section 2 of the Act. This provision is further subject to explanation (I) and in the order of succession provided therein the tenancy rights devolved firstly upon the surviving spouse and if there is no surviving spouse then upon son or daughter of that deceased. Since the deceased Ram Lal is survived by his wife presently living in the tenanted premises tenancy rights cannot be said to have devolved upon the son or daughter of the deceased. Therefore, other LRs of the deceased are not necessary to be impleaded. It has not been explained as to how DDA is a necessary party. Even if rent of the premises was once attached by the DDA for non-payment of lease money unless possession is taken the ownership does not comes to end.
Regarding ownership of the plaintiff he has proved on record sale deed Ex. PX and PW-1/A and copies of mutations Ex. PW1/B&C. A bare perusal of these sale deeds shows that Heera Lal the previous owner, sold the property to Sh. Ram Kumar and others who in turn later on sold the same to the plaintiff. It was contended by the learned Counsel for the defendant that the Sale Deed has to be properly proved. In this connection PW3 Shri G.R. Chopra, Advocate has identified his signature as well that of executants before the Sub-Registrar and has thus proved the sale deed, from the record brought by clerk of Sub-Registrar Office, certified copy of which is Ex. PX. Other sale deed Ex. PW-1/A was proved by the plaintiff himself. Copies of mutation placed on record and proved as Ex. PW-1/B & C further show that first property was mutated in the name of Ram Kumar and therein the name of the plaintiff. In my opinion this is sufficient proof of ownership.
In his deposition the defendant's son himself stated that if rightful owner claims the rent the defendant is willing to pay the same. Since there is no dispute regarding rate of rent and the period and it stands proved on record that the plaintiff is the rightful owner to recover the rent, I find the plaintiff entitled to claim the same. Suit is thus, liable to be decreed against the defendant....
Admittedly, aforesaid finding has attained finality as the same was never challenged by petitioners' predecessor in interest - through whom petitioners claim tenancy. Moreover, on a perusal of judgment of Court of Small Causes, it is apparent that the same dispute with regard to ownership of tenanted premises was raised in the said proceedings, as is being sought to be done in the present case, and further that finding of Court of Small Causes was in fact a finding of fact and not of law. Even the judgment of Mathura Prasad Sarjoo Jaiswal (supra) relied upon by petitioners' Counsel is inapplicable to the present case.
It is pertinent to mention that petitioner No. 1 had deposed as a witness in support of his mother - who was the defendant before Court of Small Causes. It is rather unfortunate that judgment of Court of Small Causes was not disclosed by petitioners in their leave to defend application. The tendency of not making full disclosure in pleadings is unfortunate and largely responsible for delay in the judicial system. Unless this practice of making incomplete disclosure is curbed with a heavy hand, courts will not able to dispense speedy justice. Consequently, petitioners' conduct of making incomplete disclosure is deprecated and present petition along with application are dismissed with costs of Rs. 15,000 to be paid to Prime Minister Relief Fund within a period of six weeks from today."
Question of law decided: The right to evict given by clause (k) being personal to and for the benefit of the landlord, it is open to him to waive the same and agree to an user by the tenant in a manner contrary to the condition in the lease for the land, taking a risk as regards the forfeiture of the lease by the Lesser.
No question of an estoppel against a statute arises when the lessee agrees to let out the premises built on the land for a non-residential purpose, which would only be, if at all, a breach of the term of the contract. The transaction between the lessee and his tenant, which is not prohibited by any statute, will be valid as between the lessee and his tenant, though it may be invalid and not binding as between the lessee and his Lesser.
The non-obstante clause applies only to the provision in sub-section (1) that no order or decree for the recovery of possession of any premises shall he made by any court or Controller in favour of the landlord against a tenant. It does not apply to the proviso which is an exception to the main provision in the sub-section (1). A reading of the sub-section and the proviso shows that it is laid down in the main provision in the sub-section generally that even if the landlord is entitled to the passing of an order or decree for the recovery of possession of a premises from the tenant by virtue of any law or contract no court or Controller shall pass such an order or decree in favour of the landlord. Then, an exception to the said general provision is made by the proviso enabling the Controller to pass an order or decree for eviction in favour of the landlord in the various circumstances and situations, set out in the clauses of the proviso. In considering the applicability of the provisions of any of the clauses of the proviso, the question of applying the non-obstante clause does not arise, as the non-obstante clause does not qualify or apply to the clauses of the proviso.
Delhi Rent Control Act (1958), Section 14, Proviso to sub-section (1)-clauses (c) & (k)-difference between.
The two clauses (c) and (k) provide for two different situations. Clause (c) applies to all cases of user by the tenant other than the one for which the premises are let out to him by the landlord, while clause (k) applies to the specific case where the land on which the premises arc situate has been granted to the landlord subject to certain condition regarding the user thereof, and the tenant uses the premises in a manner contrary to the said condition. Clause (c) is thus a general provision, while clauses are not identical. There is a clear distinction between the provisions and user thereof mentioned in the clause. The provisions in the two clauses are not identical. There is a clear distinction between the provisions in, the two clauses. While in cases covered by clause (c) the landlord can seek for eviction when the tenant uses the premises for a purpose different from the one for which the premises is let out to him and there is no question of the landlord giving him an opportunity by notice to change his user, in cases covered by clause (k) the landlord is bound to give an opportunity by notice to the tenant to change his user and conform to the conditions prescribed in the original lease of the land to the landlord. The two provisions thus operate in different situations and no question of either of them being redundant can arise. Even if the facts of a case are such that they are covered by both the clauses, the provision in clause (k) alone would apply, because it being a specific provision, would exclude the general provision in clause (c).
Facts of the case: This Second Appeal has been filed against the order of Shri Pritam Singh Pittar, Rent Control Tribunal, Delhi, dated 22-5-1962, in Rent Control Appeal No. 486 of 1961, dismissing the said 'appeal and confirming the order of Shri B.L. Mago, Rent Controller, Delhi, dated 27-10-1961, whereby the Rent Controller dismissed the application filed by S.P. Arora, appellant herein, under section 14(1)(c) and (k) of the Delhi Rent Control Act, 1958, praying for the eviction of Ajit Singh, the respondent herein from the suit premises.
On 6-5-1943, the father of the appellant herein obtained a perpetual lease (Exhibit A-9) in respect of certain land from the Delhi Improvement Trust. One of the terms of the lease was that the lessee should erect upon the said land within one year from the date of the lease and thereafter at all times during the terms of the lease maintain on the land a good and substantial residential house. Another term was that the lessee should not use the said land and the building thereon during the term of the lease for any other purpose than for the purpose of residential use without the consent in writing of the Lesser, and it was stipulated that the lease shall become void if the land is used for any purpose other than the purpose for which the lease was granted for being a purpose subsequently approved by the Lesser. The lease contained certain additional covenants, one of which was that no forfeiture or re-entry shall be effected for non-observance or non-performance of the covenants in the lease until the Lesser has served on the lessee a notice in writing:
"(A)specifying the particular breach complained of: and
(B) if the breach is capable of remedy, requiring the lessee to remedy the breath, and the lessee fails within a reasonable time from the date of service of the notice to remedy the breach, if it is capable of remedy; and in the event of forfeiture or re-entry the Lesser may in its discretion relieve against forfeiture on such terms and conditions as it thinks proper."
(3) It was decided in the lease deed that the grant of the lease was made under the authority of the Crown, and that the provisions of the Crown Grants Act (XV of 1895) shall apply to the grant.
(4) Thereafter, the appellant built a house on the land. In April,1951, the respondent herein took on rent the first floor of the house from the appellant herein for residential purposes, the rent being Rs. 110.00 per mensem. The rent was subsequently increased to Rs. 121.00 per mensem. In September, 1953, the respondent took on rent the ground floor also from the appellant for a rent of Rs. 115.00 per mensem. According to the appellant. the ground floor was let out for residential purposes, while according to the respondent the ground floor was let out for commercial purposes. In April, 1954, the respondent obtained connection for electrical power, and in June, 1955, he obtained a license for running a factory on the ground floor (vide Rw 2).If appears that the respondent began to run a factory known as Bangson Electronic Industries on the ground floor.
(5) The Delhi Improvement Trust was succeeded by the Delhi Development Authority. The said Authority issued a notice (Exhibit A-1) on 11-9-1959, to the appellant in which it was stated that the appellant herein, as' a lessee of the plot of land, was entitled to use the land and the building thereon for the purpose of residential use only, that he. however, permitted the same to be used for purposes of a factory which was contrary to the terms of the lease, and that as the lease was liable to be determined for the breach of the terms of the lease, the appellant was required to discontinue the said use of the land and the building thereon. The appellant was also required to show cause why the lease be not determined and the land together with the building be not re-entered upon without any compensation. The appellant sent a reply (Exhibit A-8) on 15-9-1959, stating that he let out the building in question to the respondent herein expressly and solely for residential purposes only, that the building was being used as factory without the appellant's authority, that he was sending a notice to the respondent-herein to remove the factory from the premises at once and that the authority may rest assured that the appellant would do everything possible to have the factory removed from the house. On the same date, the appellant sent a letter (Exhibit A-7) to the respondent stating that the ground floor was let out to him solely for residential purposes, that the respondent however was using the building for the purpose of a factory known as Bangson Electronic Industries that the factory should be vacated within two weeks failing which legal action for ejectment would be taken against the respondent and that a copy of the notice issued by the Delhi Development Authority was enclosed wherefrom the respondent could notice that in case of failure on his part very severe action was threatened by the Authority. The respondent however does not admit the receipt of this letter. On 9-11-1959, the Authority again sent a letter (Exhibit A-5) to the appellant enquiring what legal action was taken for the removal of the factory. The appellant thereupon sent through his lawyer a notice (Exhibit A-10)to the respondent on 20-11-1959, referring to the earliest letter (Exhibit A-7) dated 15-9-1959. In this letter the appellant pointed out that both the ground floor and the first floor were let out to the respondent for purposes of residence only, that the respondent was however using the premises for a factory a purpose other than that for which it was let out, that the respondent was fully aware of the fact that the lease of the land under the said premises was given to the appellant on the express condition that the premises built on the land would be used for the purposes of residence only that the said fact was brought to the notice of respondent by letter dated 15-9-1959, sent along with a copy of the notice received from the Delhi Development Authority under a registered A/D cover, that the respondent however, did not care to acknowledge the said letter and did not remove the factory, that the Delhi Development Authority had again sent a letter dated 19-11-1959, and a copy of the same was enclosed, and that the respondent should remove the factory and cease using the premises for a purpose other than that of residence failing which action would be taken for the ejectment of the respondent from the premises in a Court of law. The receipt of this letter is admitted by the respondent. He, however, did not remove the factory, but is slated to have sent a reply on 7-12-1959,stating that the ground floor was let out-for commercial purpose and not for residential purpose, As the respondent did not remove the factory, the appellant herein filed an application on 15-11-1960, in the Court of the Rent Controller, Delhi, under clauses (c) and (k) of the proviso to section 14(1) of the Delhi Rent Control Act, 1958, praying for the eviction of the respondent from the ground floor on two grounds, viz.-
"(1)Because the tenant is using the premises notwithstanding previous notice in a manner contrary to the conditions imposed on the landlord by the Lesser while granting him the lease of the land under the premises let; and
(2) Because the premises were let after 9-6-1952 and the tenant is using them for a purpose other than for which they were let without obtaining the consent of the landlord in writing."
The respondent contested the application and pleaded that the premises in dispute, i.e., the ground floor, was not rented for residential purpose, that he had not used the premises in a manner contrary to the purpose for which it was let out, that he did not know the terms of the lease of the land on which the premises were situate, that he had been using the premises in dispute as a factory from the start of the tenancy, and that the appellant herein had been receiving rent and had, thus waived the objection, if any, to the user of the ground floor for the purpose of a factory.
The Rent Controller, by his judgment, dated 27-10-1961, held that the ground floor was let out for the purpose of using the same as factory premises and not for the purpose of residence, and that, therefore, there was no mis-user by the respondent within the meaning of clause (c) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958. As regards the second ground relied upon by the landlord, the learned Rent Controller relying upon a decision of the High Court of Punjab in Uma Kumari v. Jaswant Rai Chopra, 1960 PLR 460 held was let out by the appellant herein to the respondent for the purpose of a factory and he himself committed the breach of the condition of the lease between himself and the Delhi Development Authority, he could not now ask his tenant to quit or to change the user, and that the respondent could not, therefore, be ejected on the ground specified in clause (k) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act. In the result, the Rent Controller dismissed the application.
Against that order, the appellant preferred an appeal, Rent Control Appeal No. 486 of 1961, to the Court of Sri Pritam Singh Pattar, Rent Control Tribunal. Delhi. By an order, dated 22-5-1962 the Tribunal agreed with the decision of the Rent Controller and dismissed the appeal. It is against that appellate order that the present second appeal has been filed by the landlord, S. P. Arora.
Findings of the Court: On a consideration of the above facts and circumstances, the Rent Controller came to the conclusion that in view of the long use of the premises (ground floor) as factory premises, 'and in view of the fact that the appellant had been receiving rent without objection, it was reasonable to presume that the purpose of the letting of the premises in dispute (ground floor) was not residence, but the purpose was to use the premises as factory premises. The learned Rent Control Tribunal, on a consideration of the aforesaid facts and circumstances, agreed with the conclusion of the Rent Controller and confirmed the same. The said conclusion of the Rent Controller and the Tribunal cannot be regarded as based on mere conjecture. It was based on the evidence on the record and the High Court found no legal infirmity in the said concurrent conclusion of the Rent Controller and the Tribunal. It follows that the ground floor was not used by the respondent for a purpose other than that for which it was let out, and. therefore, the Tribunal and the Controller rightly held that the respondent was not liable to be evicted on the ground specified in clause (c) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958. It was further observed:
"In view of the finding that the appellant himself had let out the building to the respondent for a commercial purpose which was different from the purpose for which the lease was granted, the Rent Controller held that since the appellant had himself let out the premises turn a purpose contrary to the condition in the original lease, and thus himself committed a breach of the condition in the lease, he could not get the respondent-tenant ejected under section 14(1)(k) of the Rent Control Act. The Rent Control Tribunal agreed with the said view of the Rent Controller. Both the Rent Controller and the tribunal relied upon a decision of the High Court of Punjab in Uma Kumari v. Jaswant Rai Chopra, 1960 PLR 460. In that case, the landlady, Uma Kumari, who had taken land on permanent lease from the Delhi Improvement Trust on condition that the premises built upon it would be used for business purposes, let out the same for residential purposes. She subsequently sued for the ejectment of the tenant on the ground that the tenant was using the premises in a manner contrary to the terms and conditions of the permanent lease, and sought eviction under clause (k) of the proviso to sub-section (1) of section 13 of the Delhi & Ajmer Rent Control Act, 1952, which was similar to clause (k)of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958. The eviction sought for was decreed by the Trial Court. On appeal, the Appellate Court allowed the appeal and refused to grant eviction taking the view that the landlady, who herself had let out the premises in breach of the condition in the original lease in respect of the land was estopped from claiming ejectment on the ground that the premises was being used for a purpose other than the one for which the land was leased by the Trust. In a revision preferred by the landlady to the High Court, it was contended that the provision in the Rent Control Act contained a clear prohibition against the use of the premises contrary to the condition imposed on the landlord by the Delhi Improvement Trust while giving; him the lease, that any agreement between the land lady and the tenant in contravention and disregarded of the said inhibition would be illegal and unenforceable under section 23 of the Contract Act, that the provision in the Rent Control Act, was based on public policy, and public policy demands that a contravention of the express prohibition should not be allowed even though it was covenanted to by the landlady and agreed upon between the parties, and that there could be no waiver against a statute. Chopra, J. rejected the said contention as being fallacious and based upon a wrong hypothesis. The learned Judge pointed out that clause (k) of the proviso to section 13(1) of the Act did not prohibit a landlord from letting out the premises for a purpose different from the purposes for which the land under the premises was originally granted to him, that the clause merely provided for the protection of a personal right of the landlord and was meant for his benefit, and that the landlord could, therefore, waive the same and once it was waived the landlord was estopped from enforcing that right. The learned Judge explained the position as follows:-
"As I read it clause (K) of the proviso to section 13(1) of the Act does not contain any letting out of the premises by a landlord contrary to the term and condition imposed on him by the Government or the Delhi Improvement Trust while giving him the lease. The clause merely contains a provision for the protection of a personal right of the landlord and is meant for his benefit. The landlord is given the right to sue for ejectment of the tenant and get him evicted if the tenant, in spite of notice, uses or deals with the premises contrary to the terms and conditions of the lease by the Government. This right was refused to him by sub-section (1) of section 13, but an exception to it was created by clause (k) of the proviso. The statute does not impose any duty or obligation on the landlord or the tenant; it merely imposes a penalty on the tenant and creates a right in the landlord, which he may or may not exercise. There being no express prohibition in the Act, there was nothing wrong in the agreement being a personal one it could be waived by the landlord. Once it is waived the landlord would be estopped from enforcing that right."
The learned Judge further pointed out an anomaly that would result if the contention of the landlady was to be accepted, as follows:-
"Clauses (b) and (c) of the proviso to section 13(1) of the Act, laid down infer alias that the tenant can be evicted if he without obtaining the consent of the landlord, in writing after the commencement of the Act or oral prior to the commencement, uses or has used the premises for a purpose other than that for which they were let. In the present case, the premise were let for residential purposes and under the law the tenant was liable to be evicted if he used the premises for any other purpose. There is nothing in the statute to bind the landlord to give him consent to the use of the premises for business purposes. If the landlord refuses to give his consent and the tenant uses the premises for business purposes he would be liable to be evicted because of the conversion of user. But if the tenant continues to use the premises for a residential purpose for which they were let he could, according to the interpretation placed on it by the counsel, still be liable to be evicted under clause (k) of the proviso. The anomaly would never have been intended by the legislature".
The learned Judge distinguished the decision in Waman Shriniwas Kini v. Rati Lal Bhagwandas & Co., AIR 1950 SC 89, on the ground that it was based upon the peculiar and specific provisions in section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 57 of 1947, and that the said sectionclearly prohibited sub-letting and made it unlawful for a tenant to assign or to transfer his interest in the premises let out to him.
It appears that the landlady, Uma Kumari, preferred an appeal to the Supreme Court, viz., Civil Appeal No. 246 of 1961, against the decision of Chopra, J. The said appeal was dismissed by the Supreme Court on 16-2-1962, on the ground that no notice as contemplated by clause (k) of the proviso to section 13(1) of the Delhi & Ajmer Rent Control Act, 1952, was given in that case. In that view, their Lordships of the Supreme Court did not consider it necessary to decide whether the view of Chopra, J. that the landlady was estopped from claiming eviction under clause (k) was correct or not, and observed as follows:-
"We have come to the conclusion that for the purposes of disposal of this appeal, it is not necessary to decide whether the High Court's view that the landlord is estopped from claiming eviction under clause (k) in the circumstances like those in the present case is corrector not."
The provision in clause (k) of the proviso to section 14(1) of the Delhi Rent Control Act, 1958, is similar to the provision in clause (k) of the proviso to section 13(1) of the Delhi & Ajmer Rent Control Act, 1952. and the reasoning in the decision of Chopra, J. applies to the present case also, as will be seen presently.
It was further observed that section 14 occurs in Chapter III of the Act which is given the heading "Control of Eviction of Tenants". Section 14 as given the heading "protection of tenant against eviction". The said control and protection against eviction is provided by the general prohibition in sub-section (1) against the making of an order or decree by any court or Controller for the eviction of a tenant, notwithstanding any law or contract to the contrary. But, by the proviso to the sub-section, an exception to the said prohibition was provided by permitting the eviction of a tenant on any of the grounds mentioned in the clauses to the proviso. In other words, the right of the landlord to evict the tenant which he may have under any law or contract has been preserved to him in the circumstances and situations mentioned in the clauses of the proviso to sub-section (1). The situation mentioned in clause (k) is the user of the premises by the tenant in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate. Such an user would, entail the forfeiture of the leasehold right of the landlord in the land, and, therefore, provision is made in clause (k) enabling the landlord to evict the tenant incase of such an user with a view to protect the lease-hold right of the landlord. The provision in clause (k) is thus meant for his(landlord's) benefit. It does not impose any duty or obligation on the landlord or the tenant. The landlord may or may not utilise the provision in the clause. As observed by Chopra, J., it merely imposes a penalty on the tenant, and gives the landlord aright to evict the tenant, which he may or may not exercise. The clause does not by itself prohibit the landlord from agreeing to an user by the tenant in 'a manner which is contrary to any condition in the lease deed for the land. The right to evict given by clause (k) being personal to and for the benefit of the landlord, it is open to him to waive the same and agree to an user by the tenant in a manner contrary to the condition in the lease for the land, taking a risk as regards the forfeiture of the lease by the Lesser. As pointed out by Rajamannar, C.J. in S. Raja Chetty v. Jagannatha Das, AIR 1950 Mad 2840, it is a well established principle of law that-
"Every one has a right to waive and to agree to waive the advantage of a law or a rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy (Maxwell, 9th Edn. p. 389)."
The Court further laid down that, by leasing out the premises for a purpose which is contrary to the condition in the lease deed for the land, the landlord is only committing a breach of a contractual term. So far as clause (k) of the proviso to section 14(1) of the Delhi Rent Control Act, is concerned, it does not expressly prohibit the landlord from entering into such a transaction. It only enables the landlord to seek for the eviction of his tenant in a case in which the tenant uses the premises in a manner contrary to the condition in the lease deed for the land on which the premises are situate. There is no express prohibition in clause (k) against the landlord contracting out of it and waiving the advantage conferred upon him by the clause. In so waiving the advantage, the landlord cannot be said to be infringing any public right or public policy. Once he so agrees and waives the right given to him under clause(k), he would be estopped from enforcing that right. Further, it was observed:
"It was argued by Shri Misra that to constitute 'an estoppel, there has to be a representation on the part of the landlord and a change of position by the tenant to his detriment relying upon the representation. There is no force in the argument. The agreement to an user by the tenant contrary to the conditions the lease deed for the land amounts to a representation that he would not exercise his right to evict on the ground of such user, and when the tenant acts in pursuance thereof and changes his position by using the property in that manner incurring expenses in connection therewith, the principle of estoppel would be attracted and the landlord would be estopped from seeking to enforce the right to evict given to him under clause (k). Even If the principle of estoppel as such is not attracted, the principle that the landlord cannot be allowed to approbate and reprobate would apply, and the landlord would not be permitted to enforce the aforesaid right to evict.
The above view gains support from the fact that a view to the contrary would lead to the anomalous position pointed out by Chopra, J. In the present case, the ground floor was let out to the respondent for commercial purposes. If the tenant uses the ground floor for residential purposes, it would be user by him for a purpose other than that for which it was let within the meaning of clause (c) of the proviso to sub-section (1) of section 14, and the respondent would be liable to be evicted by virtue of the said clause. On the other hand, if he uses the ground floor for commercial purposes, he would be liable to be evicted under clause (k)of the proviso to sub-section (1) of section 14, if the contention of Shri Misra is to be accepted. In other words, the respondent would be liable to be evicted for both the kinds of user. As observed by Chopra, J. such an anomaly could never have been intended by the legislature.
Shri Misra 'also contended that the principle of estoppel cannot be applied in view of the non-obstante clause, "Notwithstanding anything to the contrary contained in any other law or contract" in sub-section (1) of section 14. This argument also cannot be accepted. The non-obstante clause applies only to the provision in sub-section (1) that 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. It does not apply to the proviso which is an exception to the main provision in the sub-section (1). A reading of the sub-section and the proviso shows that it is laid down in the main provision in the sub-section generally that even if the landlord is entitled to the passing of an order or decree for the recovery of possession of a premises from the tenant by virtue of any law or contract, no court or Controller shall pass such an order or decree in favour of the landlord. Then, an exception to the said general provision is made by the proviso enabling the Controller to pass an order or decree for eviction in favour of the landlord in the various circumstances and situations set out in the clauses of the proviso. In considering the applicability of the provisions of any of the clauses of the proviso, the question of applying the non-obstante clause does not arise, as the non-obstante clause does not qualify or apply to the clauses of the proviso.
Another argument of Shri Misra was that if the contention of the respondent is to be accepted and the principle of estoppel is applied to a case under clause (k) of the proviso to sub-section (1) of section 14, the said clause would become redundant as the landlord can as well seek eviction under clause (c) of the said proviso. I am unable to see how clause (k) would become redundant because of the provision in clause (c) of the proviso. The two clauses (c) and (k) provide for two different situations. Clause (c) applies to all cases of user by the tenant other than the one for which the premises are let out to him by the landlord, while clause (k) applies to the specific case where the land on which the premises are situate has been granted to the landlord subject to certain condition regarding the user thereof, and the tenant use the premises in a manner contrary to the said condition. Clause (c) is thus a general provision, while clause (k) is a special provision applicable to the specific kind of premises and user thereof mentioned in the clause. The provisions in the two clauses are not identical. There is a clear distinction between the provisions in the two clauses. While in cases covered by clause (c) the landlord can seek for eviction when the tenant uses the premises for a purpose different from the one for which the premises is let out to him and there is no question of the landlord giving him an opportunity by notice to change his user, in cases covered by clause (k) the landlord is bound to give an opportunity by notice to the tenant to change his user and conform to the conditions prescribed in the original lease of the land to the landlord. The two provisions thus operate in different situations, and no question of either of them being redundant can 'arise. Even if the facts of a case are such that they are covered by both the clauses, the provision in clause (k) alone would apply, because it .being a specific provision, would exclude the general provision in clause (c). For instance, there may be a case where the land is let out by the concerned authority on condition that it should be used only for residential purposes and the lessee also lets out the premises built thereon to a tenant for residential purposes, but the tenant uses it for non-residential purposes. In that case, it may be said that the landlord, i.e. the lessee from the Authority, may seek eviction of the tenant from the premises, either under clause (c) 'as the tenant used the premises for a purpose other than that for which they were let within the meaning of the said clause, or under clause (k) as the tenant used the premises in a manner contrary to the condition imposed on the landlord by the Authority within the meaning of clause (k) being in such a case the provision in clause (k), being a specific provision with its own requirements and procedure, prevails over and excludes the general provision in clause (c).Thus, there can be no conceivable occasion when either of them would become redundant.
Shri Misra also contended that there can be no estoppel against a statute, viz., the provisions in clause (k) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, and section 3 of the Crown Grants Act, 15 of 1895. As already pointed out above, clause (k) of the proviso to section 14(1) of the Delhi Rent Control Act does not prohibit the landlord from agreeing to an user by the tenant in a manner contrary to the condition in the lease deed for the land taking a risk as regards the forfeiture of the lease by the Lesser-Authority. It merely enables the landlord to seek eviction of the tenant if the tenant uses the premises in a manner contrary to the condition imposed upon the landlord in the lease deed for the land on which the premises are situate. If the landlord chooses, in breach of the condition in the lease deed for the land, to let out the premises for a purpose which is contrary to the said condition, all that he does thereby is to give up or waive the right conferred by the provision in clause (k), which is meant for his own benefit. Such an action of his cannot be regarded as one against the provision in clause (k), and there is, therefore, no question of any estoppel against the statute, viz., the provision in clause (k).
As regards the provision in the Crown Grants Act, it is true that it was recited in the lease deed (Exhibit A-9) that the grant of the lease was made under the Authority of the Crown, and that the provisions of the Crown Grants Act, 15 of 1895, shall apply to the grant. The said Act is now called the Government Grants Act. The Act, as its preamble shows, was enacted as doubts had arisen "as to the extent and operation of the Transfer of Property Act, 1882, and as to the power of the Crown to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority", and it was expedient to remove such doubts. The Act, contains only three sections. Section I contains the title and the extent of the Act. Section 2 lays down that the Transfer of Property Act, 1882. shall not apply to any grant or other transfer of land or of any interest therein by or on behalf of the Crown or the Government. Section 3 merely provides that the Crown or the Government grants are to take effect according to their tenor, and runs as follows:-
"3.All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the legislature to the contrary notwithstanding."
The provision in section 3 only validates the provisions, restrictions. conditions and limitations contained in any grant or transfer by the Crown or the Government. It does not contain any provision which prohibits the grantee. The prohibition is contained only in the terms of the grant (lease deed). As already stated, one of the terms in the lease deed (Exhibit A-9) is that the lessee should not use the land and the building: thereon during the term of the lease for any other purpose than for the purpose of residential use without the consent in writing of the Lesser. But. This prohibition is in the lease deed and not in 3 statute. It is just a contractual term and not a statutory prohibition. It is, therefore, clear that no question of an estoppel against a statute arises when the lessee agrees to' let out the premises built on the land for anon-residential purpose, which would only be, if 'at all, a breach of the term of the contract. The transaction between the lessee and his tenant, which is not prohibited by any statute, will be valid as between the lessee and his tenant, though it may be invalid and not binding as between the lessee and his Lesser-Authority (vide Abdulla v. Mammod, 25 Mad 156."
For the above reasons, it was held that the Rent Control Tribunal and the Rent Controller rightly decided that the respondent was not liable to be evicted on the ground mentioned in clause (k) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act. The second appeal, therefore, was dismissed without costs.
3.
We have already seen that on account of rapid growth of population in urban areas, the landlords were tempted to terminate tenancies of the existing tenants and ask for their eviction in order to let out the premises to new tenants at higher rents. The Rent Control Legislations were passed in different States during the second world war so as to provide for the control of rent and eviction. The object of the ground of eviction as provided in clause (h) of the proviso to sub-section (1) of section 14 is not to allow the tenant more than one residence in Delhi. Therefore it provided that in case tenants built the residence, the landlord could get the house vacated. It also provided that if the tenant acquired vacant possession of any other residence, he is not protected. Lastly, it also stipulated that if any premises has been allotted to the tenant he is not entitled to retain the premises taken on rent by him. However, in the year 1988 by way of Rent Control (Amendment) Act, 1988, the word "built" was omitted and consequently now the said provision reads as under:
"That the tenant has, whether before or after the commencement of this Act, acquired vacant possession of, or been allotted, a residence."
The following mentioned judgment prior to the oforesaid amendment of 1988, is a landmark judgment on this ground of eviction and makes the concept clear on this aspect:
Question of law decided: Landlord in order to be entitled to evict the tenant must establish one of the alternative facts positively in an eviction petition under section 14(1)(h) of the Rent Control Act, either that the tenant has built or acquired vacant possession or has been allotted a residence. It is essential that ingredients must be pleaded by the landlord, who seeks eviction, but after the landlord has proved or stated that the tenant has built, acquired vacant possession or has been allotted a residence, whether it is suitable or not, and whether the same can be really an alternative accommodation for the tenant or not, are within the special knowledge of the tenant and he must prove and establish those facts.
Facts of the case: Three appellants namely Jai Bhagwan, Pearey Lal and Ganpat Ram were inducted into the suit premises by the then landlord Dina Nath. In 1952 a piece of land and building constructed thereon was purchased by one Nathu Ram, father of Ganpat Lal and Pearey Lal together with the appellant Jai Bhagwan, his son-in-law. The building consisted of two rooms, two kitchen and a Barsati.
In the year 1958, Ganpat Ram was allotted a quarter in an area, which was declared to be an Urban Area to which the Rent Control Act, was made applicable. During 1967-68 one Smt Sushila Devi was inducted into this quarter consisting of a room, kitchen and bathroom. The authorities allotted that quarter to her in 1965-70 since Pearey Lal had been occupying the above mentioned portion of the land and building purchased by the three appellants in the year 1952. The other portion of this building was occupied by one Kalu Ram and his family members being brother of Jai Bhagwan. There were 18 people residing at the relevant time in the said house. The present respondent-landlord purchased the suit premises from the erstwhile landlord.
In the year 1973, the present landlord applied to the Competent Attorney under the Slum Act, for permission to evict the tenant from the premises. The Competent Authority on December 12, 1974 granted the permission to proceed in eviction against the three appellants. On or about April 16, 1975, the respondent landlord filed three eviction suits against the appellants on the grounds mentioned in section 14(1)(a), (h) and (j) of the Rent Control Act.
The Additional Rent Controller vide an order dated January 31, 1977 held that the ground under section 14(1)(h) was made out against all the three appellants. Though the ground under section 14(1)(a) was also upheld but the appellants were asked to deposit arrears of the rent within a month from the date of order so as to avail the benefit under section 15(1) of the Rent Control Act.
On Appeal the Rent Control Tribunal framed a decree of eviction under section 14(1)(h) of the Rent Control Act. Even the High Court did not interfere with the order.
Findings of the Court: The main contention of the appellant before the Supreme Court was that there was no finding as to the suitability of the residence i.e., building allotted or of which the tenant has acquired vacant possession thereof. It was argued that none of the courts has re-examined the size of the space, distance and inconvenience that may be caused, a number of persons in the tenants' families or the state of residence built or allotted by or to the tenants.
The Supreme Court after upholding the observation of the High Court observed that the object of the clause (h) is not to allow the tenant more than one residence in Delhi. Therefore, if in case the tenant has built residence or has acquired vacant possession or has been allotted a residence, the landlord can claim his eviction. It was further observed that the word "or" showed that these were different circumstances in which tenants were liable to be evicted; these were-
(i)If the tenant had built a new residence; or
(ii)If he had acquired a vacant possession of it; or
(iii)If he had been allotted a residence.
It was further observed that the word 'built' and 'allotted' do not mean that after building residence or after allotment of a residence, a tenant must also acquire its possession. If the tenant builds a house and does not occupy it, he is liable for eviction. Similarly if a residence is allotted to a tenant but he does not occupy it and allows others to occupy the same, he is not protected. The Act provides that building of a house by tenant or allotment of residence to him is a ground of eviction available to the landlord against his tenant.
It is not necessary for the landlord to prove either that the tenant has built and acquired vacant possession of the building or that he has been allotted and taken possession of the allotted premises. Consequently the appeal was dismissed with costs.
4.
Q.
Section 14(1) of the Act gives protection to the tenants from being evicted from the premises let out to them. Clauses (a) to (l) of the proviso to section 14(1) of the Act contain the grounds on which recovery of possession of the premises can be ordered by the Controller. Where the premises are used in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or Municipal Corporation of Delhi, then the landlord would be entitled to recovery of possession under section 14(1)(k) of the Act. Sub-section (11) of section 14, however gives an option to the Controller to pass an order whereby recovery of possession may not be directed. The alternative to an order for recovery of possession under section 14(1)(k) is to pass an order under sub-section (11) of section 14 of the Act, whereby the tenant is directed to comply with the conditions imposed on the landlord by the authorities referred to in clause (k) namely to stop the misuser of the premises in question. Sub-section (11) of section 14 also uses the words "pays to that authority such amount by way of compensation as the Controller may direct". Keeping in view the fact that clause (k) of the proviso to sub-section (1) has been inserted in order that the unauthorised use of the leased premises should come to an end, and also bearing in mind that the continued unauthorised use would give the principal lessor the right of re-entry after cancellation of the deed. The aforesaid words occurring in sub-section (11) of section 14 cannot be regarded as giving an option to the Controller to direct payment of compensation and to permit the tenant to continue to use the premises in an unauthorised manner. The principal lessor may, in a given case, be satisfied, in cases of breach of lease to get compensation only and may waive its right of re-entry or cancellation of lease. In such a case the Controller may, instead of ordering eviction under section 14(1)(k) of the Act, direct payment of compensation as demanded by the authorities mentioned in clause (k). Where, however, compensation is demanded in respect of condoning/removal of the earlier breach, but the authority insists that the misuser must cease then the Controller has no authority to pass an order under section 14(11) or section 14(1)(k) of the Act giving license or liberty of continued misuser. In other words, sub-section (11) of section 14 enables the Controller to give another opportunity to the tenant to avoid an order of eviction. Where the authority concerned requires stoppage or misuser then an order to that effect has to be passed, but where the authority merely demands compensation for misuser and does not require the stoppage of misuser then only in such a case would the Controller be justified in passing an order for payment of compensation alone, Dr. K. Madan v. Krishnawati, MANU/SC/0150/1997: AIR 1997 SC 579.
Q.
It would be pertinent to discuss at this juncture the ground of eviction provided to the landlord under clause (c) of the proviso to section 14 of the Rent Control Act. (impermissible use of rent premises). In both these grounds of eviction, as provided under sections 14(1)(c) and 14(1)(k), there is an impermissible use of rented premises. But the difference lies in the fact that in clause (k) the permissible use is contrary to any condition imposed on the landlord by the Government or any other authority, while giving him a lease of the land on which the demised premise is situated. However, here the impermissible use may be even with the consent of the landlord.
On the other hand under clause (c) the impermissible use of the premises by the tenant is without the consent of the landlord. Hence, in clause (k), the tenant cannot take the plea that he is using the premises for the alleged purpose with the consent of the landlord, since that would not be defence available to him in an application for his eviction moved under the said clause, though such a plea would negate the landlord a decree of eviction under section 14(1)(c). It has been laid down that even if the tenant is using the demised premises with the consent of the landlord for the purpose contrary to the condition imposed on him by the original lessor (the Government or any another local authority), the landlord cannot be estopped from getting the tenant evicted for that impermissible use of the suit premises; Dr. K. Madan v. Krishnawati, MANU/SC/0150/1997: AIR 1997 SC 579.
Such kind of stand can be taken only in an eviction petition filed under section 14(1) (c) of the Rent Control Act. Hence, if it is a case where the tenant as contrary to the terms of his tenancy used the building for commercial purpose, the landlord could take action under clause (c). He need not depend upon clause (k) at all. These two clauses are intended to meet different situation. There was no need for, an additional provision in clause (k) to enable the landlord to get possession, where the tenant has used the building for a commercial purpose contrary to the terms of the tenancy. An intention to put in a useless provision in a statute cannot be imputed to the legislature somes meaning would have to be given to that provision. The only situation in which it can take effect is whether the lease is for a commercial purpose agreed upon by both the landlord and the tenant but that is contrary to the terms of the lease of the land in favour of the landlord. This clause does not come into operation, where there is no provision in the lease in favour of the landlord prohibiting its use for a commercial purpose, Faquir Chand v. Ram Ratan, MANU/SC/0412/1973: AIR 1973 SC 921.
1.
Question of law decided: In an eviction petition under section 14(1)(k), the landlord is not estopped or otherwise prohibited from getting possession of the property from the tenant because he himself had let it out for commercial purpose i.e., for a purpose contrary to the condition imposed on him (landlord) by the original lessor (the Government or the Delhi Development Authority or the Municipal Corporation of Delhi).
Facts of the case: The respondents are landlords of two houses built on the lands given on long lease by the Delhi Improvement Trust, succeeded by Delhi Development Authority. Under the terms of the lease, subject to revision of rent, the lessees were to put up residential buildings on the leased lands and the lessees undertook:
"(vi)not to use the said land and buildings that may be erected thereon during the said term for any other purpose than for the purpose of residential house without the consent in writing of the said lessor; provided that the lease shall become void if the land is used for any purpose than that for which the lease is granted not being a purpose subsequently approved by the lessor..."
The present landlord are not the original lessees but their successors in interest. Portions of the building have been leased out for commercial purposes. The original lessor namely Delhi Development Authority appears to have given a notice to them, drawing their attention to the provision of the lease extracted above and that since they allowed the premises to be used contrary to the terms of the lease, the lease was liable to be determined and called upon them to discontinue the use of the land for commercial purposes, failing which they were asked to show cause why their lease should not be determined and the land, together with the buildings thereon, re-entered upon without any compensation to them. Consequently, landlords issued notice to the tenants asking them to stop the commercial use of the buildings and later instituted the proceedings out of which the present appeal before the Supreme Court arose.
The question that arose for consideration in these cases was that - Are the landlords estopped or otherwise prohibited from getting possession of the property from the tenants because they themselves had let it out for commercial purposes?
The Controller dismissed the petitions filed by the landlords and the appeals filed by them were dismissed. They, thereupon, filed appeals to the High Court. A learned single Judge of the High Court taking a view contrary to two earlier decisions in Uma Kumari v. Jaswant Rai Chopra, PLR (1960) 460 and S.P. Arora v. Ajit Singh, ILR (1970) II Del 130 referred the question that arose in these appeals to a Division Bench which took a view contrary to that taken in the two earlier decisions above referred to, and decided in favour of the landlords.
Findings of the Court: Therefore, the Supreme Court was to consider the question: Are the landlords estopped or otherwise prohibited from getting possession of the property from the tenants because they themselves had let it out for commercial purposes. After setting out the relevant portion of the statutory provisions the Supreme Court observed that the anxiety of the Legislature is to prevent unauthorised user rather than protection of the tenant or strengthening the hands of Development Authority in effecting forfeiture. The Development Authority can always resort to the terms of the lease. There is no estoppel here because both the landlord and the tenant knew that the tenancy was not one permitted under the terms of the lease of the land. In any case there can be no estoppel against the statute. It would not benefit the tenant even if it is held that the landlord cannot, under the circumstances, evict him. The landlord will lose his property and the tenant also will lose. He cannot, after the Development Authority takes over the building use it for a commercial purpose.
The Supreme Court opined that the High Court was not justified in leaving to the Controller no option but to pass an order for eviction. That would make the alternative provided in sub-section (11) of section 14 useless. The High Court is not correct in saying that since the Authority has no power to legalize the misuser of land contrary to the plans by acceptance of compensation under the Development Act, the Controller cannot order the payment of compensation by the tenant to the Delhi Development Authority. This is in effect nullifying part of the provisions contained in sub-section (11) of section 14. The High Court has arrived at its conclusion on the basis that section 14 of the Delhi Development Act, applies to this case. It was found the section has no relevance to the decision of this case.
Finally, the appeal was allowed and the judgment of the High Court was set aside. The matter was remanded back to the Controller for deciding the question under sub-section (11) of section 14, whether he should exercise the one or the other of the two alternatives mentioned therein.
Under what circumstances section 14(11) of the Act, justified the Rent Controller in passing an order for payment of compensation alone and not asking the sub-leasee stoppage of insurer of the tenanted premises? Explain.
2.
Question of law decided: Sub-section (11) of section 14 enables the Controller to give another opportunity to the tenant to avoid an order of eviction. Where the authority concerned requires stoppage of misuser then an order to that effect has to be passed, but where the authority merely demands compensation for misuser and does not require the stoppage of misuser then only in such a case the Controller would be justified in passing an order for payment of compensation alone.
Facts of the case: The appellant is a lady Doctor and in the year 1963, she took the ground floor of House No. 1-II/91, Lajpat Nagar, New Delhi from one Gyan Chand Shingari at a monthly rent of Rs. 175 p.m. According to the appellant, this rent was first raised to Rs. 265 p.m. in the year 1968 and then to Rs. 300 p.m. in the year 1970. In August, 1974 the aforesaid Gyan Chand Shingari died and his widow, the respondent herein, became the owner of the property and the appellant attorned to her. According to the appellant, the premises were taken on rent by her for residential-cum-commercial purposes. She was residing in the said premises and was also running a clinic. According to the respondent, however, the premises were given on rent only for residence.
In the year 1974, the appellant constructed her own residential house in East of Kailash, New Delhi and, soon thereafter she shifted her residence to the new house but continued to retain the premises in dispute where she maintained her clinic. It appears that possession of some of the portion of the ground floor, which had been in the occupation of the appellant, was taken back by the respondent but the appellant continued to be the tenant of two rooms with a common use of latrine and front varandah on the ground floor of the aforesaid house.
Pursuant to the issuance of the aforesaid notice by the Additional Rent Controller under section 14(11) of the Act, the Deputy Land and Development Officer filed a written statement before the Additional Rent Controller, Delhi. After stating that the property was originally leased to Gyan Chand and, after his death, the name of the respondent had been substituted, with regard to alleged misuse and regularisation, it was stated as follows:-
"That the question of regularisation/condoning the breaches permanently does not arise. However, the lessor may consider, if proper application is made by the lessee with an undertaking to remove the breaches, within the specified period, and with readiness to pay the misuse/additional charges leviable for such misuser, that may be fixed for the period of the breach to postpone the right of re-entry till such time the breaches are finally removed.
That the misuse in the nature of running a doctor clinic cannot be allowed, but the area extending to 500 sq. feet is permitted in case the doctor is residing in the premises. Terms for the temporary regularisation of misuse charges upto 14-1-1981 were communicated to the lessee vide this office letter No. L. and DO/PS. 11/1830, dated 3-12-1980 but the terms have not so far been complied with. In the present case benefit of 500 sq. feet was not given because lady doctor Madan who is a tenant of the lessee, was not residing in the premises as noticed during inspections from time to time."
After filing the aforesaid written statement, the statement of misuse charges was also filed before the Additional Rent Controller, Delhi. The appellant, thereupon filed an appeal before the Rent Control Tribunal, inter alia contending that there had been no misuser of the premises on her part inasmuch as since the inception of the tenancy, she had been using the same as her residence as well as clinic. This contention was not accepted and it was held by the Tribunal that there was misuse of suit premises. It had also been contended on behalf of the appellant before the Tribunal that the property in question had become free-hold and, therefore, the appellant was not liable to pay misuse charges. Relying upon the evidence of an officer of the Land and Development Office, the Tribunal came to the conclusion that the property in question had not become free-hold. While dismissing the appeal, the appellant was granted two months time by the Tribunal to comply with the directions contained in the order dated 19-4-1994 passed by the Additional Rent Controller, Delhi.
The appellant then filed an appeal to the High Court of Delhi raising the contentions that order under section 14(1)(k) of the Act should not have been passed and secondly, the Government had permitted the conversion of the property from lease-hold to free-hold. By order dated 28-10-1995, the High Court held that with regard to the plea pertaining to applicability of section 14(1)(k) of the Act, the finding of the Additional Rent Controller, Delhi and of the Tribunal was a question of fact and no question of law arose. With regard to the policy of the Government permitting conversion of the property, it was held that the property in dispute was admittedly a lease-hold property and the owner/landlord was not bound to seek conversion under the alleged policy. Hence, this appeal.
Findings of the Court: The only contention, which arose in this case was that an order under section 14(1)(k) read with section 14(11) of the Act, ought not to have been passed. It was further submitted while relying upon the decision in the case of Punjab National Bank v. Arjun Dev Arora, MANU/SC/0548/1986: (1986) 4 SCC 660 that no order could be passed requiring the closure of the clinic as long as penalty for wrongful user is continued to be paid by the tenant. After taking into consideration the evidence on record and, in particular, the written statement of the Land and Development Officer as well as the statement of the witnesses before the Additional Rent Controller, the Tribunal has found as fact that the appellant was using the premises in question in a manner which was contrary to the terms of lease between the landlady and the Land and Development Office. It cannot be said that this conclusion was not warranted. It was contended on behalf of the appellant that as long as the order for payment of compensation to the Land and Development Office remained, the order for eviction or for closure of the clinic need not be passed.
Dealing with the contention that the landlords were estopped from filing or getting any relief under clause (k), the court relied upon its judgment in Faqir Chand v. Ram Rattan Bhanot, MANU/SC/0412/1973: (1973) 1 SCC 572 wherein it was held that:
"The anxiety of the Legislature is to prevent unauthorised user rather than protection of the tenant or strengthening the hands of Development Authority in effecting forfeiture. The Development Authority can always resort to the terms of the lease. There is no estoppel here because both the landlord and the tenant knew that the tenancy was not one permitted under the terms of the lease of the land. In any case there can be no estoppel against the statute. It would not benefit the tenant even if it is held that the landlord cannot, under the circumstances, evict him. The landlord will lose his property and the tenant also will lose. He cannot, after the Development Authority takes over the building use it for a commercial purpose."
The Supreme Court further relied upon its judgment delivered in Curewell (India) Ltd. v. Sahib Singh, [1993] Supp 1 SCC 507 in which while construing sub-section (11) of section 14 of the Act, it was observed as follows:-
"This sub-section prevents eviction if the tenant has complied with the condition imposed on the landlord by the Government. The sub-section also requires the person in possession, namely, the sub-lessee to pay to the authority such amount by way of compensation as the Controller may direct. It is not in dispute that the original lessee, upon receipt of notice, from the Government, had in turn issued notice to the sub-lessee, namely, the appellant calling upon him to stop misuser or vacate the premises. If the appellant has, as contended by him, stopped misuser, he is of course not liable to be evicted by reason of the protection given to him under sub-section (11). Nevertheless, for the past misuser, the appellant is liable to pay such charges as are payable in terms of the sub-section. The charges under the sub-section are such charges as are determined by the Controller. The Controller must, therefore, after hearing the parties determine the amount payable by the person responsible for the misuser, namely, the appellant who is the tenant of the original lessee and determine the correct amount.
We are of the view that the appellant is liable to be evicted unless he has already stopped or stops immediately the misuser of the premises and pays the misuse charges for the period of misuse. Whether the misuser has stopped, and if so when, are questions of facts which do not appear to be clear from the pleadings or the impugned judgment and the orders of the statutory authorities."
In the light of these observations in the cases of Faqir Chand (supra) and Curewell (supra) the relevant provisions were examined as under:
"Section 14(1) of the Act gives protection to the tenants from being evicted from the premises let out to them. Clauses (a) to (l) of the proviso to section 14(1) of the Act, contain the grounds on which recovery of possession of the premises can be ordered by the Controller. Where the premises are used in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or Municipal Corporation of Delhi, then the landlord would be entitled to recovery of possession under section 14(1)(k) of the Act. Sub-section (11) of section 14, however gives an option to the Controller to pass an order whereby recovery of possession may not be directed. The alternative to an order for recovery of possession under section 14(1)(k) is to pass an order under sub-section (11) of section 14 of the Act, whereby the tenant is directed to comply with the conditions imposed on the landlord by the authorities referred to in clause (k) namely to stop the misuser of the premises in question. Sub-section (11) of section 14 also uses the words "pays to that authority such amount by way of compensation as the Controller may direct". Keeping in view the fact that clause (k) of the proviso to sub-section (1) has been inserted in order that the unauthorised use of the leased premises should come to an end, and also bearing in mind that the continued unauthorised use would give the principal lessor the right of re-entry after cancellation of the deed, the aforesaid words occurring in sub-section (11) of section 14 cannot be regarded as giving an option to the Controller to direct payment of compensation and to permit the tenant to continue to use the premises in an unauthorised manner. The principal lessor may, in a given case, be satisfied, in cases of breach of lease to get compensation only and may waive its right of re-entry or cancellation of lease. In such a case the Controller may, instead of ordering eviction under section 14(1)(k) of the Act, direct payment of compensation as demanded by the authorities mentioned in clause (k). Where, however, as in the present case compensation is demanded in respect of condoning/removal of the earlier breach, but the authority insists that the mis-user must cease then the Controller has no authority to pass an order under section 14(11) or section 14(1)(k) of the Act, giving a license or liberty of continued misuser. In other words, sub-section (11) of section 14 enables the Controller to give another opportunity to the tenant to avoid an order of eviction. Where the authority concerned requires stoppage or misuser then an order to that effect has to be passed, but where the authority merely demands compensation for misuser and does not require the stoppage of misuser then only in such a case would the Controller be justified in passing an order for payment of compensation alone."
Thus, the Court found that the observations of this Court in Punjab National Bank's case to the effect that as long as the penalty continued to be paid, deviation to user could be permitted, do not appear to be in consonance with the decision of the larger Bench in Faqir Chand's case (supra). Continued wrongful user cannot be permitted by levying penalty but if the authorities do not require the stoppage of misuser, but merely ask for payment of penalty or compensation, then in such a case, an order of eviction or for stoppage of premises need not be passed and it will be sufficient if compensation is required to be paid.
Applying these principles to the facts of the present case, the Court held that, the Additional Rent Controller in order dated 13-9-1985, while issuing notice under section 14(11) has observed that the landlord has placed on record a notice sent by the Land and Development Office regarding misuser. In the written statement filed on behalf of the Land and Development Office in response to the notice issued under section 14(11), it was stated that the question of regularisation/condoning the breach permanently did not arise. The said reply contemplates an undertaking being given by the Landlord for removal of breach otherwise there is a threat of re-entry. The payment of misuse charges would only amount to temporary regularisation of the earlier misuser and the Land and Development Office clearly insisted on the stoppage of the misuser. This being so, the question of the Controller requiring payment of penalty or compensation and permitting continued misuser would not be in accordance with law.
For the aforesaid reasons, while upholding the orders of the Court below, the Court granted the appellant two months time to comply with the order dated 19-4-1994 of the Additional Rent Controller, Delhi.
3.
Question of law decided: The original lessor cannot be directed to permit the lessee and consequently the sub-lessee to continue the misuser contrary to the terms of the original lease on the ground that the lessees are prepared to pay such amount of penalty as compensation as may be determined to be payable to the DDA (or the concerned authority, i.e., the original lessor).
Facts of the case: The tenanted premises are part of building constructed on the land leased to the original lessee by Delhi Improvement Trust. The DDA succeeded the said Trust. The perpetual lease, inter alia, provides that the lessee will not use the land and building that may be erected thereon during the terms of the lease for any other purpose than for the purpose of residential house without the consent in writing of the lessor. Admittedly the premises are being used by the appellants for commercial purposes.
By notice dated 4th January, 1982 issued by DDA, respondent No. 3 was informed that the premises were being used for the purpose of commercial-cum-residential which is contrary to the terms of the lease and the lease has become void and the lessor has right to re-enter after cancellation of lease. It was further stated in the said notice that the lease has been cancelled by DDA on 23rd December, 1981 for breach of clause I(VI) and the possession of the plot together with the building and the fixtures standing thereon will be taken over by DDA. In a suit filed by respondent No. 3 against DDA for grant of permanent injunction, interim injunction was granted by Civil Court inter alia noticing in the order that the owner had instituted eviction proceedings as far back as in 1974 against the tenants who were running their shops even at the time of the purchase of premises in question by the owner from its erstwhile owner.
The Additional Rent Controller by order dated 6th September, 1988 after coming to the conclusion that the DDA is not interested in permitting the misuse permanently or even temporarily and has threatened to re-enter the premises, directed the appellants to pay within two months the past misuser charges to respondent No. 3 for being deposited with the DDA. The appellants were also directed to pay further compensation/charges as may be demanded by DDA in this regard. The appellants were directed to stop misuser of the premises within two months from the date of the order and in the event of non-compliance of any of these conditions, it was directed that the order of eviction under section 14(1)(k) of the Act shall be deemed to have been passed against the appellants for their eviction from the premises in question. This conditional order of eviction has been upheld by the Rent Control Tribunal in appeal as also by the High Court.
Findings of the Court: Challenging the aforesaid orders, it was contended on behalf of the tenants that since they were prepared to pay such amount of penalty as compensation as may be determined by the Controller to be payable to DDA till the matter of regularization of user is finally decided by the said authority, the matter be remanded to Rent Controller for such determination.
Strong reliance was placed in the case of Narain Dass v. Manohar Lal, (1988) Supp SCC 432, wherein, an order of eviction passed under section 14(1)(k) was set aside and the case was remitted to the Controller to determine the quantum of penalty payable to the DDA for the purpose of wrong user of property by changing it from residential to commercial purpose and directing that the tenant would bear the payment of penalty as may be determined. However, the Supreme Court held that the said decision was not applicable to the facts of the case since in that case, the DDA did not press the notice for cancellation of the lease and for this reason the case was remitted to the Controller for determining the penalty. Under these circumstances, it was held that in the relied upon case, there was no threat of cancellation of lease, which is a pre-condition for an order of eviction under section 14(1)(k). However, the Court made it clear that in the event of fresh notice being issued by the Delhi Development Authority to the landlord for cancellation of lease in his favour, the landlord would be free to take action against the tenant in accordance with law and the decision of this case shall not operate as bar to such proceedings. It was also observed that unlike facts of that case, in the present case, DDA had been insisting to act upon the notice dated 4th January, 1982 sent to the landlord.
The appellant-landlord further relied upon the following mentioned documents:-
(i)the order dated 3rd January, 1983 passed by Lt. Governor of Delhi inter alia stating that the issue of notices and further action under misuser clause in the various areas of Delhi may be suspended till the matter has been reviewed at a high level or in the next meeting of DDA;
(ii)the affidavit of the Secretary of Delhi Development Authority of February, 1983 filed in the High Court of Delhi in another case in a second appeal inter alia stating that the further show cause notice has been suspended for the time being and even the prosecution for the misuse has been suspended for the time being as per the order of the Lt. Governor as there is a likelihood of permission being granted for commercialisation of the area in accordance of the provisions of the master plan/zonal plan after charging certain dues, and
(iii)to a somewhat similar statement as in (ii) given in another case by the Commissioner (Land), DDA.
The Court held that reliance on these documents is wholly misplaced for more than one reason. Firstly, these documents pertain to 1980s whereas in the present case the Commissioner (Land Disposal), DDA has filed an affidavit even in September, 1998 inter alia stating that though a scheme dated 12/17 September, 1996 has been forwarded by DDA to the Ministry of Urban Affairs and Employment for approval of the Government of India for promotion of Karol Bagh area as special area and for promotion of commercial use on ground floor on the basis of location but the examination of the plan of the premises in question shows that the disputed area falls outside the area of the scheme which is under consideration with DDA and Union of India. In nutshell, the affidavit is that in respect of the area in question there is no proposal under consideration to allow commercial user. Secondly, it was observed that facts of the cases were not before the Court in which the above noted affidavits were filed by the Secretary of DDA or statement was given by Commissioner (Land Disposal), DDA. Thirdly, we are considering not a violation of master or zonal plan but breach of a term of lease, which paramount lessor is unwilling to condone. In the present case, it is not necessary to decide as to the effect of the proposal sent by DDA to Central Government to allow commercial user since the ground of eviction is clause (k) as aforesaid where the question is about breach of a term of lease and the lessor has declined to regularise the misuser for future. Learned Additional Solicitor General submits that the DDA is not only serious in pursuing the action taken by it on account of misuser but it is duty bound to do so.
With regard to the last contention on behalf of the appellant in reference to the Delhi Development Act, 1957, the court made the following observations:-
"Mr. Thakur also referred to the provisions of the Delhi Development Act, 1957 (for short 'the DD Act') to contend that plans thereunder have not specified any particular use of the area where the building is situate. Chapter III of the DD Act deals with Master Plan and Zonal Development Plans. Section 7 provides for the DDA to carry out a civic survey and prepare a master plan for Delhi. Section 8 provides for preparation of a Zonal Development Plan for each of the zones into which Delhi may be divided and also refers as to what aspects may be contained in the said Plan. The land in use is one such aspect. Mr. Thakur contends that neither the master plan for the year 1990-2001 shows that the permissible user of the area in question is only residential nor Zonal Development Plan under section 8 of the Delhi Development Act, has been framed providing for only residential use. Reference has also been made to section 14 which inter alia provides that after the coming into operation of any of the plans in a zone, no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan. The proviso to the said section stipulates that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations, any land or building for the purpose and to the extent for and to which it is being used on the date on which such plan comes into force. Section 57(1)(f) stipulates making of regulations to provide for terms and conditions subject to which user of lands and buildings in contravention of plans may be continued. Learned Counsel contends that the impugned eviction orders deserve to be set aside as even regulations under section 57(1)(f) have not been framed by DDA providing for terms and conditions on which continued user in contravention of plans may be permitted. None of the aforesaid provisions have any applicability to the present case. We are not concerned with the contravention as postulated by section 14 of the DD Act. The question whether master plan and/or zonal plans provide or not for any use is not relevant for this matter. As already noted, we are concerned with the breach of the terms of the lease. It is not in dispute that the commercial use is contrary to the use permissible under the lease. The paramount lessor has taken action to terminate the lease for contravention of the terms thereof. It cannot be held that despite contravention of the lease, the paramount lessor is debarred for exercising its rights under the terms of the lease for absence of providing a user under section 7 in the master plan or under section 8 in the Zonal Development Plan."
Finally, the Court while relying upon its judgment in Dr. K. Madan v. Krishnawati, MANU/SC/0150/1997: AIR 1997 SC 579 dismissed the appeal & granted, two months time to comply with the order of the Additional Rent Controller.
4.
Question of law decided: In the proceedings under section 14(1)(k) the tenant can not be made liable for payment of any amount towards the misuser charge as determined under section 14(11) of the Rent Control Act, in case he does not contest the eviction under the said provision of the Act.
Facts of the case: The appellants are the tenants on the first floor and barsati (hereinafter referred as 'the suit property') of P-2, Connaught Circus, previously known as 2/90, Connaught Circus, New Delhi. The suit property was taken on rent from the predecessor in interest of respondent Nos. 1 to 11, namely Ram Singh, sometime in 1950. The predecessor in interest of respondents Nos. 1 to 11 had taken the suit property on lease from the Governor General in Council in 1938. The Governor General in Council is now succeeded by the Union of India acting through the Land and Development Officer (for short 'the L&DO'). It was stipulated in the lease that the leasehold property was not to be used for commercial purpose. Despite the stipulation in the lease, the lessee i.e., the predecessor in interest of respondents No. 1 to 11 let out the suit property to the appellants for office purpose. The L&DO issued a notice dated 25-10-1968 to Ram Singh enumerating certain breaches in use of the leasehold premises, including misuse of first floor and barsati floors as office and misuse of unauthorized shop measuring 21'x7' as a tailoring shop. It was specifically stated in the notice that despite the previous notice issued under the L&DO's letter No. 90(2C.C.)/63-LI, dated 9-2-1965 to stop/remove the misuser, the lessee had failed to comply with the notice. Therefore, in consequence of the failure on the part of the lessee to remedy the aforesaid breach the lessor had decided to determine the lease. The relevant portion of the letter dated 25th October, 1968 is extracted as under:
"Please take notice, therefore, that in consequence of your failure to remedy the aforesaid breach the Lessor has been pleased to determine the Lease and re-enter upon the premises with effect from 16-9-1968 on and from which date, therefore all your rights and title in the leasehold property in question have ceased.
The entire plot of land forming the subject matter of the relevant Lease Deed and all the buildings standing thereupon including all structures, erections and fittings vest now in the President of India. Bharat Bhushan, an Assistant Engineer of the Land and Development Office, has been directed to take possession of the premises from you and he will call upon you for this purpose on 13-11-1968 at 10.30 A.M., and I, hereby call upon you to hand over peacefully the possession of the premises including land, building, fittings, fixtures, etc. to him."
In the meantime, Ram Singh had filed a petition for eviction of the petitioners under clauses (b), (c) and (k) of the proviso to section 14(1) of the Delhi Rent Control Act, 1958, alleging sub-letting and misuser of suit property and breach of condition of the lease by the tenant in favour of the landlord. The Rent Controller dismissed the eviction petition vide Order dated 18th August, 1981. The landlord filed an appeal, RCA No. 717 of 1981 before the Rent Control Tribunal, Delhi against the order of the Rent Controller. By the order dated 30th August, 1982 the Rent Control Tribunal affirmed the findings of the Rent Controller insofar as dismissal of the eviction petition filed under clauses (b) and (c) of the proviso to section 14(1) of the Act was concerned. It was stated by the Tribunal as regards clause (k) of proviso to section 14(1) of the Act that "in view of the decision in the case of Lilawati v. K.B. Union Club, 1981 Rajdhani Law Report p. 524, it is admitted that ground of eviction is available and notice under section 14(11) be directed to be issued." Accordingly, the Rent Controller was directed to issue notice to the L&DO under section 14(11) of the Act to determine the misuser charges. The parties were directed to appear before the Rent Controller. In compliance with the order of the Tribunal, the Rent Controller by its order dated 14th August, 1984 apportioned the misuser charges between the parties and directed the payment as apportioned and determined. It was further directed that in case there is any violation of the order by the tenants an order of eviction would be deemed to have been passed against them. Against the said order the appellants herein filed an appeal No. 957 of 1985 before the Rent Control Tribunal. They also filed, though belatedly a petition for review of the order, dated 30th August, 1982 on the ground that the counsel appearing for them (appellants) would not make a concession in law that the ground for eviction under clause (k) of proviso to section 14(1) of the Act had been made out. By the order dated 19th August, 1985 the learned Tribunal dismissed the appeal as well as the review petition filed by the appellants. Therefore, they filed the second appeal before the High Court of Delhi which was decided by the impugned judgment. Vide the impugned judgment, the High Court dismissed the appeal.
Findings of the Court: Two concurring judgments were delivered by the Bench of Three Judges in the matter. The main judgment was delivered by D.P. Mohapatra, J and the other by Dharam Adhikari, J.
At the outset, on behalf of the appellants, it was contended that the appellants do not intend to contest the order of eviction passed by the statutory authorities under clause (k) of proviso to section 14(1) of the Act and that they are ready to handover vacant possession of the suit property to any party as this Court may direct. Thereafter the order passed by the Rent Controller purportedly under section 14(11) of the Act, was challenged. It was contended that since the tenant is ready and willing to deliver possession of the suit property to the lessor or the lessee as the Court may direct, it cannot be made liable for payment of any amount towards the misuser charges. It was further contended that since the owner (Governor-General in Council succeeded by the Union of India) had decided to cancel the lease in favour of the lessee (predecessor in interest of respondent Nos. 1 to 11) and to re-enter the property, the landlord or the petitioner has no locus standi to claim apportionment of misuser charges in the proceeding under the Act. Indeed, according to appellant, the proceeding under the Act, is not maintainable and should be dismissed as infructuous.
In the context of the facts and circumstances discussed above, the question that arises for determination is whether in this proceeding the appellants could be made liable for payment of any amount towards the misuser charges as determined under section 14(11) of the Act? The further question that arises in this connection is whether after determination of the lease of the suit property granted in favour of the predecessor-in-interest of respondent nos. 1 to 11 and the decision of the lessor to re-enter the property whether the proceeding under section 14 of the Act should be proceeded with and any order passed therein can be said to be valid and binding on the parties?
After perusing the sections 14(1)(b), (c) and (k) and 14(11), the court observed that the answer to the question depends on interpretation of clause (k) of proviso to section 14(1) and section 14(11) of the Act. From the statutory provisions it is manifest that user of the premises by the tenant for a purpose other than that for which it was let without obtaining the consent of the landlord, is itself a ground for eviction under clause (c) of proviso to section 14(1) of the Act. Under clause (k) of proviso to section 14(1) of the Act an independent ground of eviction is laid down in case of properties obtained on lease by the landlord from the Government or the Delhi Development Authority or the Municipal Corporation of Delhi. It is provided in that clause that if the tenant, notwithstanding the previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government while giving him lease of the property the tenants shall be liable for eviction. From this provision it is clear that the tenant is given an opportunity to stop the misuser or stop breach of condition of the lease and discontinue the misuser by issuing a notice to him and despite such notice he having failed to take the necessary steps for stoppage of misuser, a right is vested in the landlord to seek order of his eviction. Under sub-clause (11) of section 14 yet another opportunity is given to the tenant to comply with the conditions imposed on the landlord by any of the authorities referred to in clause (k) of sub-section (1) of section 14 of the Act and pay back the authority such amount by way of compensation as the Controller may direct before recovery of possession of the premises. From the scheme of the statutory provisions noted above, it is clear to us that the provisions are intended for protection of the tenant against eviction from the premises. Then the question that arises is whether a tenant who is not interested in seeking such protection and wants to vacate the premises could be compelled to pay misuser charges in the proceedings under the Act? The answer to the question, in the considered opinion of the Court, is the negative. But that is not to say that the owner of the property or landlord of the tenant is precluded from realizing any compensation or damages for misuser or unauthorized user of the suit property. The Rent Control legislation, being intended for the benefit of a tenant and to protect legitimate interests of a landlord does not contemplate of a proceeding which in essence will be a substitute for a suit or other proceedings under law for realisation of damages or mesne profits.
While relying upon the judgments of Faqir Chand v. Ram Rattan Bhanot, MANU/SC/0412/1973: AIR 1973 SC 921; Dr. K. Madan v. Krishnawati, MANU/SC/0150/1997: AIR 1997 SC 579 and Munshi Ram v. Union of India, MANU/SC/0498/2000: AIR 2000 SC 2623 the Court applied the principles laid down in those cases on the facts of the present case and held:
"In the case in hand, the clear factual position that emerges is that the appellants had used the suit property in a manner contrary to the stipulations in the lease granted by the 'paramount lessor' in favour of their landlord. The paramount lessor had given notice to the lessee (landlord) to stop the misuser; despite such notice the misuser had continued. Therefore, the paramount lessor passed the order of termination of the lease and of re-entry; the possession of the suit property continued with the tenants (appellants). In such circumstances the landlords (respondent nos. 1 to 11) were entitled to seek eviction of the tenants under clause (k) of proviso to section 14(1) of the Act. The Controller was within his jurisdiction in passing the order of eviction under clause (k) of proviso to section 14(1) of the Act. Regarding the order purportedly passed under section 14(11) of the Act it has to be kept in mind that the L & DO representing the paramount lessor had not stated before the Controller its intention to receive misuser charges or permit such misuser despite the order of cancellation of the lease and re-entry of the property. As noted earlier, Dr. Dhawan, learned senior counsel appearing for the appellants has, at the very outset, conceded that the appellants are not challenging the order of eviction passed against them and they are ready and willing to deliver vacant possession to the landlord or the paramount lessor as this Court may direct. In such circumstances the question of Controller directing the tenant to pay misuser charges does not arise. To maintain such an order will mean that even if the tenant has no intention to continue in possession of the premises and even if he is not contesting the eviction order the Controller in exercise of his statutory power will compel him to pay misuser charge and continue in possession of the property. The Legislature could not have intended to create such a situation while enacting the provision in section 14(11) of the Act. At the cost of repetition we would like to state here that we do not intend to hold that in such a situation the landlord or the paramount lessor cannot realize compensation, damages or mesne profits for wrongful user of the property from the tenant or erstwhile tenant. However, this purpose cannot be achieved by an order of the Controller under section 14(11) of the Act in the situation as discussed earlier. Therefore, the position that emerges is that the order passed by the Controller for eviction of the appellants under clause (k) of proviso to section 14(1) of the Act, which was confirmed by the appellate authority and the High Court has to be maintained. The order passed by the Controller under section 14(11) of the Act, determining the misuser charges and apportioning the same between the parties which was also confirmed by the appellate authority and the High Court is unsustainable and has to be set aside."
On the question of handing over of the possession of the premises, it was held that the vacant possession be delivered to the Union of India represented by the L&DO within one month.
5.
The section 211embodies the legislative policy to devise a special mechanism to increase the supply of accommodation to meet the rising demands of a growing metropolis. It operates in limited circumstances; and, strictly within those bounds, and subject to the vigilant enquiry of the Controller before according his permission, the parties are, once permitted to regulate their relationship in accordance with the section, totally governed by the terms of their contract. The section operates in terms thereof, notwithstanding any other law, unless the contract itself, or the permission of the Controller is vitiated by fraud. Absent such vitiating circumstance, and once the Controller has accorded sanction, the parties to the contract are presumed to have entered into their relationship at arm's length and the law binds them to the terms of their agreement; Shrisht Dhawan v. Shaw Brothers, MANU/SC/0295/1992: AIR 1992 SC 1555.
While the Act, is meant for the protection of the tenant, the legislative policy reflected in section 21 is to carve out an area free of that protection. Where the conditions stipulated in section 21 are satisfied, the prohibition contained in section 14 against eviction of tenants except on the specified grounds or the requirements of the Transfer of Property Act, or the Civil Procedure Code or any other law are removed or dispensed with. The section is attracted in the specific circumstances postulated by it. The absence of requirement by the landlord of the whole or any part of the premises for a particular period, the permission of the Controller in the prescribed manner for the lease of the premises in question, the agreement in writing between the landlord and the tenant for the lease of such premises as a residence for the agreed period, the refusal of the tenant to vacate the premises on the expiry of that period, and an application made within the prescribed time by the landlord invoking the power of the Controller under this section: these are the conditions precedent to the exercise of power by the Controller to place the landlord in vacant possession of the premises by evicting the tenant or any other person in occupation of such premises. The person in occupation of the premises has no right in law to resist eviction once the section is attracted. This is an extraordinary power vested in the Controller to restore possession of the premises to the landlord by a quick and summary action. The non obstante clause contained in the section protects the action of the Controller from challenge on any ground postulated in section 14 of the Act, or any other law. This is a wide protection of any action duly taken in terms of
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1. Recovery of possession in case of tenancies for limited period.—(1) Where a landlord does not require the whole or any part of any premises for a particular period, and the landlord, after obtaining the permission of the Controller in the prescribed manner, lets the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant and the tenant does not on the expiry of the said period, vacate such premises then, notwithstanding anything contained in section 14 or in any other law, the Controller may, on an application made to him in this behalf by the landlord within such time as may be prescribed, place the landlord in vacant possession of the premises or part thereof by evicting the tenant and every other person who may be in occupation of such premises.
the section, but the requirements of the section must be strictly complied with before action is taken under it; Shrisht Dhawan v. Shaw Brothers, MANU/SC/0295/1992: AIR 1992 SC 1555.
The order of the Controller in the circumstances warranted by the section is a self-executing order requiring no further proceeding. It is at once a sanction for the lease and for eviction on expiry of the period of the lease. Neither can the landlord evict the tenant during the period of the lease nor can the tenant remain in possession beyond that period. Parties are bound by their contract, as sanctioned by the Controller, and the provisions of section 14 are of no avail to either party to circumvent section 21. Once the period has expired, there is no question of any further notice to the tenant or any other person in occupation of the premises and there is no scope for any further proceeding. None has any right outside the section which operates strictly in terms thereof provided the conditions stipulated therein are unquestionably satisfied; J.R. Vohra v. India Export House Pvt. Ltd., MANU/SC/0384/1985: (1985) 1 SCC 712.
The only protection that the tenant has is what section 21 itself postulates. He is protected against the conduct of a fraudulent landlord. The law does not protect either party whose actions are tainted by fraud. A landlord seeking recovery in terms of that section must satisfy that he has strictly complied with the provisions of that section. The landlord must obtain the permission of the Controller in the manner prescribed. He is not entitled to the permission unless the condition specified for the purpose in section 21 is satisfied, namely, the absence of his requirement of the building for a particular period. The period must be clear and definite. The lack of requirement must be honestly felt by the landlord. That the landlord does not require the building is a question of honest belief held by him at the relevant time, that is, at the time of his seeking the Controller's permission. The landlord must have honestly and reasonably believed that he would not require the building for the period specified in his application to the Controller for permission to let out the premises. If that belief was truthfully held by him at the time of his application to the Controller, the fact that subsequent events proved him wrong, and that he did not require the building not only for the period stated in the application, but also for a longer period, or that he required it earlier than anticipated, would not make the belief any less honest or valid. All that the landlord is required to state in his application for permission of the Controller is the absence of his requirement of the premises for the particular period, but he is not bound to state its reasons; Inder Mohan Lal v. Ramesh Khanna, MANU/SC/0762/1987: (1987) 4 SCC 1.
What the section postulates is the bona fide belief of an honest and reasonable landlord, and not the reckless and casual opinion of an irresponsible and careless person. The question is, did the landlord make a fraudulent representation to the Controller about the absence of his requirement of the premises, i.e., knowingly that his statement was false or without belief in its truth or recklessly careless whether it was true or false. Did the landlord honestly believe that what he stated in his application to be a true and fair representation of the facts? There is no fraud if what he honestly believed to be true turned out to be false. The section does not place any higher degree of responsibility on the landlord. The section requires that the premises have to be let out solely for the purpose of residence for the period agreed to in writing. If the agreement does not so stipulate, the section is not attracted, and the Controller cannot sanction the lease in terms of the section. No non-residential premises can come within the protection of the section. On the other hand, if the premises let out as a residence in terms of the section is deliberately used by the tenant for nonresidential purposes, he loses the protection of the statute for the period of the lease and the Controller can, on an application by the landlord, evict the tenant, or any other person in occupation, and restore possession of the premises to the landlord forthwith. The section protects the landlord and the tenant strictly in terms thereof, and on the fraud or deliberate breach by either party of the terms of the lease as contemplated by the section, the protection is withdrawn from the guilty party. This means, if the permission of the Controller has been fraudulently obtained by the landlord, and the tenant has been let into the premises, the landlord loses the right to seek eviction of the tenant by the summary procedure contemplated by the section. Likewise, if the tenant has deliberately but not accidentally violated the terms of the lease by using the premises otherwise than as permitted by the section, he is liable to be evicted on an application by the landlord, although the stipulated period of the lease has not expired. All this is because the very basis of the Controller's order has been violated by the fundamental breach of the guilty party. The section thus postulates that both the landlord and the tenant act honestly. Neither of them can take advantage of his own deceit or breach. No sanction of the statutory authority procured by fraud can protect the guilty or harm the innocent; Shrisht Dhawan v. Shaw Brothers, MANU/SC/0295/1992: AIR 1992 SC 1555.
Fraud is essentially a question of fact, the burden to prove which is upon him who alleges it. He, who alleges fraud, must do so promptly. There is a presumption of legality in favour of a statutory order. The Controller's order under section 21 is presumed to be valid until proved to be vitiated by fraud or mala fide. If his order was obtained by the fraud of the party seeking it or if he made a 'mindless order' in the sense of acting mala fide by illegitimate exercise of power owing to non-application of his mind to the strict requirements of the section, then the special mechanism of the section would not operate; S.B. Noronah v. Prem Kumari Khanna, MANU/SC/0502/1979: (1980) 1 SCC 52.
1.
Question of law decided: On the substantive safeguard therefore the law that is settled and should be followed by the authorities may be stated thus:
(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 be 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.
Facts of the case: On 3rd November, 1978, the landlady filed an application before the Controller under section 21 the material allegations of which were that the ground floor of the house was lying vacant and she desired to give it on rent for a short period of three years whereafter she needed the house for herself. It was mentioned that the premises were being given for residential purpose only and a proposed lease agreement between her and the tenant along with the plan was attached with the application. Her statement was recorded in which she stated that she would require the premises for her own use after three years. It was also mentioned that the premises had not been let out earlier. Statement of tenant was also recorded in which he expressed his agreement to take the premises for a period of three years after expiry of which he agreed to vacate the same. In absence of any material on the record to establish that the statement was not correct, the Controller assumed jurisdiction and granted the permission as required under section 21 for a period of three years. Twenty days before tenancy was to come to an end, the tenant, which is a firm, wrote a letter, through one of its partners to the landlady for sympathetic consideration for renewal of lease as theft had occurred in the premises in which the tenant had lost valuable goods. There was a veiled, irrelevant, suggestion in the letter that no reason was disclosed by her for requiring the premises as her family was having sufficient accommodation for living. Since the landlady did not agree to extend the lease and filed an application under section 21 of the Act for a direction to the Controller to place her in vacant possession of the premises. An objection was filed by the tenant on all possible grounds which could be imagined from inaccuracy, lack of knowledge, fraud, collusion etc. One of the objections was that since the premises was taken by one of the partners of the firm, only, without any authority the agreement entered into by him for grant of permission under section 21 was not binding. It was also alleged that this was done without knowledge of other partners. Therefore the permission was neither binding nor enforceable. But the partner who made the statement was neither examined nor it was stated that the firm was not aware that the tenancy was for short duration only. The tenant went to the length of averring that in fact they were already in occupation of the premises from a date before the tenancy was created, a plea which was rejected by the Rent Control Authorities. Even the plea that the premises were let out for residential-cum-commercial purposes did not find favour with any of the authorities. Nor did the Controller find any merit in the claim that the order of permission was mindless or it was bad for non-disclosure of reason. But the challenge succeeded because the permission was obtained by playing fraud as the landlady knew from the very beginning that premises were available for letting out indefinitely. The Controller found that in absence of any averment in the objection that she had let out the premises in 1978 for three years as she would require it after expiry of this period for her younger son her statement in support of it could not be looked into. The authority further found that variance between pleading and proof, apart, the landlady failed to establish that premises were let out with intention to get it back after three years for her second son. Inference was drawn against her due to non-production of the son who could have been the best person to throw light on it as later on he not only joined another service but purchased a flat in Bombay. It was held that even if it was assumed that the premises were not needed by her for son that could not validate the sanction. The Appellate Authority agreed with the finding of the Controller as there was no statement in the application, made at the time for grant of permission, that the premises shall be required after three years by her son. In other words since she stated that she required the premises for herself after three years and she was having an accommodation which was sufficient for her and family the permission obtained by her was vitiated by fraud. The High Court did not consider it proper to examine the matter as it was concluded by findings of fact.
Findings of the Court: Two concurrent judgments were delivered in the matter. One of them by Thommen, J, major portion of which has been reproduced above. The second judgment was delivered by R.M. Sahai, J, who observed that Economically equally matched tenant, resisted execution, successfully, under section 21 of Delhi Rent Control Act, (in short the Act) by accusing landlady of fraud, misrepresentation and lies thus giving rise to a very important issue in this landlady's appeal as to the nature and extent of fraud which could vitiate the sanction granted under section 21 of the Act, by the Rent Control Officer.
It was observed:
"Short durational tenancy, a provision unique of its kind in a rent control legislation, with a fresh look on eviction ensuring vacant possession statutorily, after expiry of lease period 'without notice even' J.R. Vohra v. India Export House Pvt. Ltd., MANU/SC/0384/1985: (1985) 1 SCC 712; Shiv Chand Kapoor, MANU/SC/0498/1989: (1990) 1 SCC 234; or hazard of establishing bona fide need, Pukhraj Jain v. Padma Kashyap, MANU/SC/0208/1990: (1990) 2 SCC 431 due to social necessity, peculiar to Delhi, favourably inclined towards landlord, was subjected to inherent and implied limitations by this Court in Noronah, S.B. Noronah v. Prem Kumari Khanna, MANU/SC/0502/1979: (1980) 1 SCC 52 in larger social interest of fairness and justice, which permeates our jurisprudence, to avoid any abuse of provision or arbitrary exercise of power, by directing such sanction or permission to pass the test of being clear of fraud or collusion. Even a mindless order was held to vitiate the proceedings. And the tenant was permitted to raise the objection in execution. Another was added to it in V.S. Rahe v. Ram Chambeli, MANU/SC/0208/1990: (1990) 2 SCC 431 when an order on incorrect facts was also held to be invalid. But the decision not only created misapprehension amongst tenants who seized upon it to raise all possible objections frivolous and otherwise but was misunderstood by the authorities, too, who applied erroneously and tested validity of the permission on requirement on the date of execution, or it was bad because the reason due to which sanction was obtained did not materialise even at the time of execution. At times the yardstick applied was of bona fide necessity as understood in section 14 of the Act. Consequently short-term tenancy became an illusion and in a span of ten years from Noronah (supra) there came to be rendered at least a dozen reported decisions by this Court only. Although Noronah (supra) has, since, been substantially watered down, in subsequent decisions, yet it still furnishes the basis for assailing the sanction therefore it is necessary to examine, in brief, how much of it survives today and to what extent the law may be taken as settled".
Court observed that what strikes one is, the simplicity of the language and oneness of purpose. As observed in Noronah (supra) the Parliament was keen on maximising accommodation available for letting, due to scarcity crisis. The objective was sought to be achieved by simplifying the provision for letting and assuring possession after expiry of lease. The only condition for applicability of the section is non-requirement of it by the landlord for short period. It is not subjected to any restriction by requiring the landlord to disclose any reason nor whether it shall be required thereafter for self or any family member. Other conditions, namely, passing of order, letting it for residential purpose, and entering of agreement with tenant, are incidental only. Use of non-obstante clause further leaves no room for doubt that the legislature intended it to operate on its own. That is why it has been held to be a self-contained code in Shiv Chand Kapoor v. Amar Bose, [1991] 1 SCC 234. Neither creation of tenancy nor recovery of possession after expiry of period has been hedged in with any statutory restriction or condition. However, Noronah (supra) culled out, dual protection for tenants one substantive and other procedural by providing that validity of sanction could be assailed on fraud etc. and the objection could be taken in execution. But the latter, that is, procedural safeguard has been diluted in four subsequent decisions of three Judge Bench. In Vohra warrant of possession issued under section 21, without service of notice, to the tenant was upheld as after expiry of short term tenancy the tenant had no right to continue. However, to avoid a tenant from being completely shut out even where the permission was obtained by 'a mere ritualistic observance of procedure' or, 'where such permission was procured by fraud' or, 'was a result of collusion' the court held that competing claims could be harmonised by-
"insisting upon his approaching (tenant) the Rent Controller during the currency of the limited tenancy for adjudication of his plea sooner he discovers facts and circumstances that tend to vitiate ab initio the initial grant of permission."
It was reiterated in Shiv Chand Kapoor, MANU/SC/0498/1989: (1990) 1 SCC 234 and Yamuna Maloo v. Anand Saroop, MANU/SC/0303/1990: (1990) 3 SCC 30 narrowed it down further when it held that;
"if the tenant has objection to raise to the validity of the limited vacancy it has to be done prior to the lapse of lease and not as a defence to the tenants application for being put in possession. We would like to reiterate that even if such an exercise is available that must be taken to be very limited and made applicable in exceptional cases; Yamuna Maloo v. Anand Saroop, MANU/SC/0303/1990: (1990) 3 SCC 30, para 21."
In Pankaj Bhargava v. Mohinder Nath, MANU/SC/0300/1991: (1991) 1 SCC 556 it was observed;
"It is true that in Noronah's case a challenge to the validity of the limited tenancy was permitted even after the period of limited lease. But later cases have substantially denuded this position. In Vohra's case, MANU/SC/0319/1984: MANU/SC/0384/1985: AIR 1985 SC 475, this Court laid down that a tenant who assails the permission was procured by fraud a ground not dissimilar to the one urged in the present case must approach the Rent Controller during the currency of the limited tenancy for an adjudication of his pleas as soon as he discovers facts and circumstances which, according to him, vitiate the permission; Pankaj Bhargava v. Mohinder Nath, MANU/SC/0300/1991: (1991) 1 SCC 556, para 16."
Thus a tenant cannot wait for the entire period of lease and then raise objection to execution on fraud or collusion unless he is able to establish that it was not known to him and he came to know of it, for the first time only at the time of execution. In other words, the Controller shall not be justified in entertaining an objection in execution unless the tenant establishes, affirmatively, that he was not aware of fraud before expiry of the period of lease. To the following extent, therefore, the law on procedural aspect should be taken as settled:-
(1)Any objection to the validity of sanction should be raised prior to expiry of the lease.
(2)The objection should be made immediately on becoming aware of fraud, collusion etc.
(3)A tenant may be permitted to raise objection after expiry of lease in exceptional circumstances only.
(4)Burden to prove fraud or collusion is on the person alleging it.
Applying the aforesaid principles on the facts of the present case, it was held that the tenant was not entitled to claim the protection as the objection filed by him to execution application was in defence to landlord's application for delivery of possession. The application is conspicuously silent on knowledge of fraud. It did not whisper that the tenant was unaware of facts stated therein during subsistence of lease. In fact, from a letter sent, twenty days, before expiry of lease to the landlord it is clear that the tenant was not only aware that he was required to vacate the premises after expiry of the time but he requested the landlady to grant him some more reasonable time for vacating the premises. In any case in absence of any averment in the application that he was not aware of various allegations made against the landlady in the application seeking invalidity of the permission granted by Controller the application was liable to be dismissed. No exceptional circumstance so as to bring it within the principle laid down in Yamuna Maloo's case could be deciphered either from the application or from the statement of the tenant. Neither the Controller nor the Appellate Authority found any exceptional circumstance which could justify the tenant to resist the execution after expiry of the period. Therefore, the Controller was not justified in entertaining his objection and entering upon an enquiry which was roving in nature and wholly uncalled for. But since law was not so clear when the objection was decided by the Controller it is appropriate to examine if the finding on merits is sustainable.
Hence the appeal was allowed with costs, while setting aside the impugned judgment of the High Court.
2.
Question of law decided: The proceedings for recovery of possession under section 21 of the Rent Control Act, can be initiated and continued by legal representatives of the landlord, who had obtained permission but who died before the expiry of the period of tenancy.
Facts of the case: Tenant inducted in 1979, for three years, by the landlord under a written agreement, in C-4/33, Safdarjang Development Area, New Delhi, with permission of Controller under section 21 of Delhi Rent Control Act (for brevity the 'Act') seeks leave of this Court on limited question of law if proceedings for recovery of possession under section 21 of the Act could be initiated and continued by legal representatives of the landlord who had obtained permission but who died before expiry of period of tenancy.
Findings of the Court: Court observed that answer of it shall depend, primarily, on construction of word 'landlord' used in section 21, a provision held to be self-contained code in Shiv Chand Kapoor v. Amar Bose, MANU/SC/0498/1989: (1990) 1 SCC 234 and also the purpose and objective of its enactment as provision of short duration tenancy or periodical tenancy in Rent Control Act of Delhi right from 1952, is unique amongst such legislations and is probably non-existent in any other State.
It was further observed that what it, undoubtedly, projects is the legislative awareness of acute crisis of houses in the State. To resolve the paucity of accommodation, on one hand, due to enormous influx of office personnel and business class as a result of rapid growth of social, economic and political activity and apprehension of houseowners, on other, bulk of whom hail from middle class or service class, of losing their houses if not for good then for substantial period due to development of strange phenomenon in big cities that allotted or rented houses are more economical than, even own, the legislature which is the best-judge of need of its people carved out an exception to usual rent control provisions of protecting tenants from eviction. What was unique of it was not short duration tenancy but a fresh look on eviction. Vacant possession was ensured, statutorily, without any notice, or termination of tenancy or the hazard of establishing bona fide need and comparative hardship etc. Since section 21 is an exception to section 14 and it mandates restoration of possession, "notwithstanding any other law" it has to be construed strictly and against any attempt to frustrate it. Intensity of it can be appreciated better if its language, is compared with other provisions of recovery of possession even though those provisions, namely, sections 14A, 14B, 14C and 14D, were introduced later. They also provide speedy remedy to recover possession. But the landlord cannot succeed unless he is able to prove circumstances mentioned in it. More than this the tenant has been given right to contest under section 25B. Import of section 21 on the other hand is altogether different. It enjoins Controller to place landlord in vacant possession after expiry of time without any right to tenant to contest it except to the limited extent that permission was vitiated by fraud as held in S.B. Noronah v. Prem Kumari Khanna, MANU/SC/0502/1979: (1980) 1 SCC 52 or misuse of the provision by landlord taking advantage of helpless situation of the tenant as held in V.S. Rahe v. Rem Chambeh, MANU/SC/0330/1984: (1984) 1 SCC 612 or the permission really did not create genuine tenancy as held in Shiv Chand Kapoor v. Amar Bose, MANU/SC/0498/1989: (1990) 1 SCC 234. Recovery of possession under section 21 is not hedged, by any inquiry or opportunity, if permission is not challenged on any of those exceptions which have been carved out by courts, obviously, to uphold fairness and honesty is the core of our jurisprudence. Right to get vacant possession is, thus absolute. Purpose and objective of the section having been ascertained, it may now be examined if the word "landlord" used in the second part of the section which empowers landlord to make an application for recovery of possession is to be understood as the same landlord who made the application or his legal representatives as well. In other words, is there any justification for construing the word "landlord" in a narrow sense so as to restrict it, only, to the person who made the application and obtained permission". "Landlord" has been defined in section 2(e) as under:
"2(e). 'landlord' means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant.
Court observed that:-
Expression, "for the time being" makes it clear, that landlord has to be understood in presentii. That is anyone entitled to receive rent is the landlord. It does not visualise, past or future landlord. Therefore, the word "landlord", on plain reading of section 21 does not warrant construction of the word in any other manner. Basis for submission, however, that landlord in second part of section 21 entitling him to claim vacant possession should be confined to the person who obtained permission was founded on use of expression, "who does not require the whole or any part of the premises for a particular period." Attempt was made to personalise eviction proceedings by linking it with the person, due to whose non-requirement the permission was granted resulting in automatic exclusion of legal representatives. To put it interpretationally the word "landlord", in second part was urged to be understood in a manner different than it is defined in section 2(e). Can it be said that context or setting of section 21 is such that the word "landlord" in second part of it should be understood in a different sense than that in definition clause? Not on prima facie reading of it which has already been adverted to. Nor on close analysis. What is visualised is occasion for short duration tenancy due to non-requirement of whole or part of premises by landlord for time being; method of its creation by written agreement entered with tenant, statutory status to it by permission obtained from Controller and execution by restoration of vacant possession if the tenant does not vacate after expiry of period. All condensed in one. Constructionally it is in two parts one creation of short term tenancy and other its execution after expiry of time. Both stand on their own and operate independently. Non-requirement of premises for time being furnishes basis for entering into agreement for periodical tenancy. Truth of it on its genuineness are relevant considerations for granting permission. But it exhausts thereafter except to the limited extent pointed out in decisions referred earlier. And the permission granted continues unabated, unaffected irrespective of variation in requirement. Necessity of landlord, again, does not entitle him to seek its revocation. Even his death cannot shorten the period. Similarly once period expires the agreement, the permission all cease to operate by operation of law. Nothing further is required. Vacation is not linked with landlord but with time. Expiry of it obliges tenant to vacate. If he does not then the landlord may approach Controller for putting him in vacant possession. Which landlord? Obviously whosoever is the landlord at the time of afflux of tenancy. Death of landlord does not either shorten or enlarge period nor the consequences envisaged are altered or affected."
Use of expression 'notwithstanding any other law render' it obligatory on tenant to vacate without questioning authority of landlord. Any other construction, may, as rightly observed by the High Court lead to disastrous consequences. Even on principles of civil law the provision for recovery of possession being in nature of execution it could not be successfully resisted on the death of landlord due to whose non-requirement the permission was granted. Such narrow and unrealistic construction of the word 'landlord' shall frustrate entire purpose of section 21.
Even otherwise an action for eviction abates only if the cause of action does not survive. What is the cause of action for an application for vacant possession in section 21 whether death of landlord or expiry of time for which tenancy was created. Obviously the latter, the failure' of tenant to honour his commitment to vacate the premises after expiry of time for which he was inducted with permission of Controller. The death of the person who obtained the permission has nothing to do with it. Permission was obtained because the landlord did not require the premises on the date when it was let out to tenant. That does not continue on the date when the tenant does not vacate the premises. The necessity of not requiring the premises, for some time, or for the duration the tenant was inducted was confined to the date when the permission was granted. It could not be taken further to the time when the question of vacation arose. The cause of action for granting permission was the non-requirement by the landlord of the premises for the time mentioned in the agreement whereas cause of action for eviction is non-vacation by the tenant after the expiry of period. Therefore, it is immaterial who is the landlord at the time when the action for vacation arose.
Court held that even on facts, permission was applied for by the landlord as, premises was surplus to his need for a limited period of 3 years due to the reason that his son had gone abroad and he was expected to return after three years. Permission was granted for this reason on statement of parties. Such necessity to let out or non-requirement by the landlord could not be brought into those exceptions which invalidate permission. Therefore death of the landlord was immaterial as even the reason for letting out did not die with death of landlord.
In the result the petition for special leave was dismissed with costs.
3.
Question of law decided: At the time of seeking permission under section 21 of the RCA, the landlord is not under obligation to state the reason why the premises was not required by him for that limited period.
Facts of the case: This appeal by special leave is from the judgment and order of the High Court of Delhi dated 19th of July, 1985. The appellant had made an application on or about 15th of July, 1976 before the Rent Controller to let out the premises for a period of two years under section 21 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Rent Act'). The Rent Controller after recording the statements of the appellant and the respondent, made an order permitting creation of limited tenancy only for a period of two years for residential purposes to which the respondent had agreed upon. It may be material to refer to the fact that the appellant in his application under section 21 of the Rent Act had stated as follows:-
"I do not require the premises for a period of two years from 15-7-1976. The purpose of letting shall be residential only and the premises are shown in the site plan Ex. A-l. The proposed agreement is Ex. A-2. Limited tenancy under section 21 of the Act may be allowed to be created for the said period."
The respondent agreed to the aforesaid statement and stated as follows:-
"I have heard the statement of the petitioner and I accept it as correct. I have no objection. I shall vacate the premises after the expiry of two years from 15-7-1976. The purpose of letting shall be residential only."
Upon this the Rent Controller passed the following order:-
"This is an application filed under section 21 of the Act, for permission to create limited tenancy for a period of two years from 15-7-1976. The purpose of letting shall be residential only and the premises is shown in the site plan Ex. A-l. The proposed agreement is Ex. A-2. From the perusal of the statements of the parties, I am satisfied that as at present the petitioner does not require the premises. Therefore, limited tenancy is allowed to be created for a period of two years from 15-7-1976."
The appellant filed an application on 6th November, 1978 for eviction of the respondent as the respondent had refused to vacate the premises in spite of his statement made before the Rent Controller. The appellant filed an application on the said date under section 21 of the Rent Act on behalf of himself and his family members claiming possession of the premises for their bona fide need and use. The appellant contended that he (the appellant) was a retired official and was living in a rented house while the respondent was a rich man doing business in jewellery and was also owning a house in Delhi. In the application made under section 21 of the Rent Act the appellant had stated that the appellant owned a newly built house in the New Friends Colony comprising of dining, drawing, three bed rooms with attached bath rooms, a study room, family lounge and a garage. The appellant had further stated that he did not require the premises for the personal residence for a period of two years. The appellant had also stated in that application, that the appellant had agreed to let it out to the respondent for the first time on the terms and conditions set out in the proposed lease deed for a period of two years. It was stated that the respondent had heard the statement and recorded that he had no objection and would vacate the premises after expiry of two years. Subsequently, when the second appeal was pending in the Delhi High Court, the appellant had filed an application for early hearing in which he had stated that when the construction of the house in question was completed the appellant's father R.B. Nanak Chano, advocate, was old and alone (the appellant's mother had died earlier and other brother and sister being away from Delhi) and in view of his father's ailing health the appellant was living with him in the rented premises at 4-Flag Staff Road, Delhi to look after his old and ailing father. It was in those circumstances that the appellant had decided to let out the suit premises for a limited period of two years only. It may be mentioned that the appellant's father died two months after the Rent Controller had granted permission.
The Rent Controller after hearing both the parties on the 4th of January, 1980 held, rejecting the contention of the respondent, that section 21 of the Rent Act was not ultra vires. Furthermore, he was satisfied that a limited tenancy had been created and as such he granted permission for eviction. Aggrieved by the aforesaid order the respondent preferred an appeal to the Rent Control Appellate Tribunal. The Rent Control Appellate Tribunal upheld the eviction order.
On or about the 19th of July, 1985, being further aggrieved, the respondent preferred a second appeal before the High Court of Delhi. The High Court of Delhi by the impugned judgment allowed the appeal on the ground that there was no ground stated in the application under section 21 of the Rent Act as to why a limited tenancy was intended to be made. The High Court held that the order under section 21 of the Rent Act was a mindless order inasmuch as the respondent before it had not disclosed as to how the demised premises were being dealt with before creating the said alleged tenancy and why the respondent before it did not require the demised premises for the alleged period of two years and as to why the same would be required by him after the period of two years.
The High Court relying on the decision in the case of S.B. Noronah v. Prem Kumari Khanna, MANU/SC/0502/1979: AIR 1980 SC 193 held that the order in question in this case was a mindless order and in that view of the matter the order passed under section 21 of the Rent Act was not valid. The High Court was of the view that there was no inquiry by the Controller to come to the conclusion on the basis of the material that the premises for which the permission was sought for creating a limited tenancy was in fact available for being let for a limited period only and in the absence of that, this was a mindless order. Under these circumstances, the appeal was filed before the Supreme Court.
Findings of the Court: In appeal before the Supreme Court, the question which arose for consideration was whether in view of the requirements under section 21 of the Rent Control Act, was the permission invalid. After perusing the section 21 of the Rent Control Act and the case law on the subject, the Court came to the conclusion that:
"When the application under section 21 is filed by the landlord and/or tenant the Controller must satisfy himself by such inquiry as he may make, about the compulsive requirements of that provision. If he makes a mindless order, the Court, when challenged at the time of execution will go into the question as to whether the twin conditions for sanction have really been fulfilled. Of course, there will be a presumption in favour of the sanction being regular, but it will still be open to a party to make out his case that in fact and in truth the conditions which make for a valid sanction were not present. An analysis of this judgment which has been applied in the various cases would indicate that section 21 only gives sanction if the landlord makes a statement to the satisfaction of the court and the tenant accepts that the landlord does not require the premises for a limited period; this statement of the landlord must be bona fide. The purpose must be residence. There must not be any fraud or collusion. There is a presumption of regularity. But it is open in particular facts and circumstances of the case to prove to the satisfaction of the executing court that there was no collusion or conspiracy between the landlord and the tenant and the landlord did not mean what he said or that it was a fraud or that the tenant agreed because the tenant was wholly unequal to the landlord. In the instant case none of these conditions were fulfilled. There is no evidence in this case that when the landlord stated that he did not require the premises in question for a particular period, he did not mean what he stated or that he made a false statement. There was no evidence in this case at any stage that the tenant did not understand what the landlord was stating or that he did not accept what the landlord stated. There was no evidence that either the tenant was in collusion or perpetrating any fraud with the landlord or the tenant was unequal to the landlord in bargaining powers. It is manifest that there is no evidence to show that the Controller did not apply his mind. If that is so then on the principle enunciated by this Court in Noronah's case, this sanction cannot be challenged. It is not necessary to state under section 21 the reasons why the landlord did not require the premises in question for any particular period. Nor is there any presumption that in all cases the tenants are the weaker sections. The presumption is, on the contrary, in favour of sanction, it is he who challenges the statement and the admission of the landlord or the tenant who has to establish facts as indicated in Nagindas's case, MANU/SC/0417/1973: AIR 1974 SC 471."
It was found that the facts are more stronger and clearer in support of the instant case. Here there was no permission previously. This was first letting out. There was nothing which indicated that any statement was made which was incorrect. We are of the opinion that sanction under section 21 in the instant case was not a nullity. The onus was on the tenant to show that it was so. He did not make any attempt to dislodge the presumption in favour of the permission. There is another aspect of the matter which has to be borne in mind. The tenant not only failed to establish any fact impeaching the order, he waited for the full term to take this point and did not contest when the permission was obtained on a misrepresentation.
It was further observed that in aid of the submission that in order to be entitled to eviction under section 14 of the Rent Act, the Court had to be satisfied itself that the statutory ground for eviction existed and that application of satisfaction of the Court could not be by passed and circumvented by a compromise decree, reliance was placed on certain observations on a decision in Ferozi Lal Jain v. Man Mal, MANU/SC/0513/1970: AIR 1970 SC 794. In view of the facts of the particular case, the Court opined that it is not necessary to discuss the said decision in detail. Numerous decisions of the Delhi High Court were placed before us in support of or in respect of contentions of the parties especially in support of contention that the Delhi Rent Act, required a separate lease. The scope and ambit of the Delhi Rent Act, after the decision of Noronah's case came up for consideration before a division bench of the Delhi High Court in Vijay Kumar Bajaj v. Inder Sain Minocha, AIR 1982 Del 260. In that decision, in the light of section 21, the following questions were posed:-
"(1)Whether the permission under section 21 of the Act, is invalid in view of Supreme Court judgment in S.B. Noronah's case (supra), if reasons for not requiring the premises by the landlord for a particular period are not disclosed in his application or his statement before the Controller?
(2)Whether before or after permission execution of any agreement in writing to let the premises for the fixed period is necessary, if so, whether such a document requires registration?
(3)Whether the proposed agreement of tenancy in writing submitted along with the application under section 21 of the Act, in this appeal required registration?"
The questions were answered by the High Court as follows:-
(1)Not necessarily. The landlord or the tenant may be able to show that cogent reasons did exist or were within the knowledge of the parties as to why the landlord did not require the whole or a part of his premises for a specified period.
(2)No registration is necessary. The agreement in writing may be entered into either before or after grant of permission.
(3)An agreement in writing submitted along with the application under section 21 of the Act is really a proposed agreement. It comes into effect only after the grant of permission under section 21 of the Act. It does not require registration.
The Supreme Court agree with the aforementioned views of the Delhi High Court. Finally, on the facts of the present case, the appeal was allowed and impugned judgment of the High Court was set aside, thereby restoring the order and judgment of the Rent Control Tribunal.
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