Nihal Chand v. Kalyan Chand Jain

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 743 of 1977 Appeal by Special Leave from tbe Judgment and Order dated 6-12-76 of the Delhi High Court in Civil Revision No. 562/76. Sardar Bahadur Saharya and Vishn1t Bahadur Sahnrya for the Appellant. Radha Krishna Makhija, S. K. Mehta and P. N. Puri for the Respondent. The Judgment of tbe Court was delivered by TuLzAPURKAR, J.- This appeal by special leave is directed against the judgment and order dated December 6, 1976 of the Delhi High NIHAL CHAND v. K. c. JAIN (Tulzapurkar, J.) •Court dismissing the appellant-landlord's application for eviction under :s. 14A (1) read with s. 25B of the Delhi Rent Control Act 1958, which provisions were inserted therein: by Delhi Rent Control (Amend· ment) Ordinance, 1975 (No. 24 of 1975) subsequently replaced by .the Delhi Rent Control (Amendment) Act No. 18 of 1976. The appellant-landlord being a Government servant was at !lie material time in occupation of a residential accommodation bearmg No. B-11/791, situated at Lodhi Colony, New Delhi, the same having been allotted to him by the Central Government.

It appears that he ()Wns a two and a half storied residential house bearing No. F-43, Green Park, New Delhi, in his own name. In 1968 \he appeliant-landlord let out the first floor of his said house to the respondent for residential purposes on a monthly rent of Rs. 300/- which was later on increased to Rs. 400/- per month, exclusive of electricity and water charges. By c a general order dated September 9, 1975, the Government of India, Ministry of Works & Housing, Directorate of Est~t~s, took a decision in supersession of all pervions orders on the subject, that Government servants who have or own houses at the place of their posting, within the limits of any local or adjoining municipality, should be required to vacate Government accommodation allotted to them witilin' three montils from the Ist of October, 1975 and that in default of their vacating Government accommodation by December 31, 1975, they should be charged enhanced licence fee at the market rates.

Pursuant to this decision, by a general order dated September 30, 1975, issued by the Cabinet Secretariat, Government of India all officers and members of the staff who owned houses in their own names or in tile names of their families and were occupying Government accommodation were called upon· to vacate tile Government accommodation within tliree months with effect from October 1, 1975, failing which they were informed that tiley would be charged market rent after snch date. Copies •of this order were circulated to all offices and branches at headquarters and all outstation offices for information and in particular a copy was also forwarded to the appellant"landlord who happened to be the Accounts Officer, Pay and Accounts Office, Dept. of Supply. Government of India. In view of this order dated September 30, 1975, the appellant-landlord on December 19, 1975 filed an application under s. 14A(l) read with s. 25B of the Delhi Rent Control (Amendment) 'Ordinance, 1975 (No. 24 of 1975) for eviction of the respondenttenant from tile first floor of house No. F-43, Green Park, New Delhi, on the ground that he had been asked to vacate the Government accommodation on account of his owning a house in the Union Territory of Delhi and had incntred an obligation to pay penal licence fee in default.

In response to the summons served npon him in accordance with the Third Schedule under s. 25D(2) of the said Ordinance the responde~t-tenant fil~d on Ianuary 16. 1976 an application supported by a detailed affidavit, seeking leave to contest and defend the case on several grounds. First, it was contended that the summary procedure provided nnder s. 25B was available not for an application filed under s. l 4A( 1) but only for an application seekin~ eviction on ground of person:;! bona fide requirement nnder s. 14(1) ( c) of the Delhi Rent Control Act. Secondly, it was contended that even otherwise since according to the landlord's own showing he had retired from Government service on November 30, 1975 and was, therefore, liable. to vacate the Government accommodation, the application under s. 14A(l) was not maintainable in other words, s. 14A(l) was not meant for a retired Government servant or a Government servant who was transferred outside Delhi.

Thirdly, it was contended that the application seaking his eviction was not filed bona fide inasmuch as the appellant-landlord had earlier filed an application No. 497 of 1975 seeking respondent's eviction from the premises on the ground of bona fide personal requirement under s. 14(1 )( e) which had been dismissed by the Additional Rent Controller on December 17, 1975 inasmuch as his requirement could not be considered to be bona fide. Fourthly, it was contended that the application for eviction was wholly mak1 fide because the premises were let out initially at a rent of Rs. 300/- per month which was increased to Rs. 350/- per month with effect from October 1, 1971 and thereafter it was further increased to Rs. 400 /- per month and further because when the ground floor premises of the house in question had fallen vacant on two occasions prior to the filing of the opplication, the landlord instead of himself occupying the said premises, had let out the same at higher rents.

The appellant-landlord refuted these contentions and explained the circumstances why he had let out portions of his house after these had fallen vacant during the pendency of his earlier eviction-application and prior to his filing the instant application. By his order dated August 11, J 97 6, Shri R. K. Sain, Rent Controller, Delhi, negatived all the contentions that were urged by the respondent-tenant, rejected his prayer for granting leave to contest and defend the proceedings and passed an order for eviction against him,. under s. 14A of the Act directing the respondent to deliver vacant possession of the premises in his occupation to the appdlant-landlord within two months from the date of the order. The Rent Controller took the view that the summary procedure under s. 25B had been made applicable to applications under s. 14A when Ordinance No. 24 of 1975 was replaced by Amending Act 18 of 1975 with retrospective effect, that s.

14A(l) was available to the appellant-landlord notwithstanding his retirement from service on November 30, 1975 inasmuch as the documents on record clearly showed that he had been called· upon to vacate the Government accommodation not because of his retirement but on the ground of his owning a house in the Union Territory of Delhi and that the cause of action accrned to him on September 30, 1975 when he was served with the general order of that date ... . . . . . . . . . . He also took the view that the dismissaJ of the earlier petition under s. 14(1)

(e) had no bearing on the instant application for eviction because the instant application was based on a different cause of action requiring different set of facts to be proved which the appellant-landlord had proved in the case and according lo him ftlrthcr the circumstances put forward by appellant-landlord explainin7 why he had let out portions of the house in question prior to the coming into force of the Ordinance and prior to his filing the instant application had no bearing on the issue involved in the case. Since according to him the appellant-lancUord had satisfied or fulfilled all the c0rditions of s. 14A and since the respondent-tenant had not made out any ca.sec for the grant of leave to contest the proceedings, the Rent Controller NIHAL CilAND v. K. c. JAIN (Tulzapurkar, l.) I ~7 Jcfused leave to contest the case to the respondent and passed the cviction order in favour of the appellant-landlord.

Feeling aggrieved by the Rent Controller's order the respondenttenant preferred a R-evisional Application (C.R.A 562 of 1976) to the Delhi High Court. This revisional application was heard along with a group of other similar revisional applications and all these were disposed of by a common judgment by the High Court on December 1976 since they raised certain common questions, particularly the question as to the circumstances in which leave should be granted to tenant under sub-s. (5) of s. 25B of the Delhi Rent Control Act 1958 as amended by Act 18 of J 976. So far as the respondent's revisional application was concerned, the only contention urged on his behalf and which found favour with the High Court was thats. ! 4A( l) would not be available to a landlord who was an allottee of !he Government accommodation and whose allotment was liable to be cancelkcl by virtue u[ his retire1nent from service or transfer outside Delhi. Th{! High Court pointed out that the provision of s.

J 4A (I) as a'lso the summary procedure provided under s. 25B of the Act were extraordinary provisions intended to ensure expeditious eviction cf tenants who were in occupation of residential accommodation owned by such allottees of Government accommodation who were required to ..acatc by virtue of their ownership of such accommodation, that these provisions were intended to deal wi,:h had cases and that no landlord should be permitted to take undue advantage thereof if he was required to vacate Government accommodation by virtue of his retirement or transfer. On the facts of the case, the High Court took the view that the appellant was not entitled to invoke the provision of s. 14A( 1) of the Act inasmuch as even before the application for eviction was filed he had already retired from servire and was on that account liable to vacate the Government accommodation.

In this view of the matter, the High Court allowed the revisional application, set aside the Rent Controller's order and dismissed the application for eviction filed by the appellant-landlord, leaving the parties to bear the respective costs throughout. It is this order passed by the High Court on December 6, 1976 that has been challenged by the appellant-landlord before us. Mr. Saharya, Counsel for the appellant-landlord, raised two or three contentions before us in support of the appeal. In the first place he contended thats.

14A(l) merely speaks of "a landlord, who being a person in occupation of any residential premises allotted to him by Central Government or any local authority" and does not refer to Government servant as such who is in occupation of ;1 residential accommodation allotted to him by Central Government or any loca\ authority and as such it covers the case of a Non-Govt. cervant, as for instance a Law-Officer, being in occupation of Government accommodation and in whose case the concept of retirement fmm service of transfer outside Delhi would be inappropriate and irrelevant and, therefore it cannot be said that eases of Government servants required to vac~te Govermnent accommodation on account of retirement or transfer would be outside the purview of the section. Secondly, he mged that the view taken by the High Court that Government servants 13-1042 SCI/77 SUPREME comn &EPORT9' [1978]

2 s;c.R. who are required to vacate the Gove=ent accommodation on account of retirement or transfer wonk! be outside the purview of the section is unwarranted and unsustainable on a proper construction of the section. Thirdly, he contended that on the facts in the present case, the appellant-landlord though he retired from service on November 30, 1975 was in terms called upon to vacate the Govermnent acco=odation not on account of his retirement but on the ground that owned in his own name a residential accommodation in the Union Territory ot Delhi and that he was called upon to pay, and he did pay for some time, the penal licence fee for retaining the Government accommodation beyond December 21, 1975 and as such it should have been held that s. 14A (1) was available to him and had been properly availed of by him. He urged that the Rent Controller was right in his view that the appellant-landlord had satisfied all the requirements and conditions o[ s.

14A(l) and was entitled to an eviction order in his favour. On the other hand, Mr. Makhija, counsel for the respondent-tenam. supported the view taken by the High Court for the reasons indicated by it in its judgment. Relying upon a letter dated September 9, 1976, addressed by the Assistant Director of Estates to the Assistant Director, Cabinet Secretariat, copy of which was forwarded to the appellant- Jandlord (being Annexure 'D' to appellant's affidavit fikd in support of the special leave petition appearing at page 94 of Vol. l of the record) he contended that the allotment of Governmem accommodation in favour of the appellant-landlord had been cancelled with effecl from January 31.

1976 after the expiry of the concessional period cf two months admissible to him under the rules on his n:tirement from service on November 30, 1975 and, therefore, it could not be said that th.e appellant was required to vacate Government accommodation on the ground of his owning residential accommodation in the Union Territory of Delhi pursuant to the order dated September 30, 1975 under which his allotment would have been cancelled with effect from December 31, 1975. He, therefore, urged that the Rent Controller\ \iew ha<l been rightly reversed by the High Court. Since the question raised before us primarily pertains to proper construction of the provision contained ins. 14A(1), it would be desirable to set ont the said provision which runs thus . "I 4A Right to recover immediate possession of premises to accrue to certain persons.-(1)

Where a landlord who,. being a person in occupation of any residential premises allotted to him by the Central Government or any focal ·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 dafault, to incur certain obligations. on the ground that he owns, in the Union Terri-· tory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue. on and from the date of such order. to such landlord, notwithstanding anything contained elsewhere in thi• Act or in any other law for the time being in force or in any contract (whether express or implied), cnstom or usa2e to I l NIHAL CHAND v. K. c. JAIN (Tulzapurkar, J.) the contrary, a right to recover immediate possession of any_ premises let out by him : " At the ouset it may be stated that initially the aforesa_id provisiou as also. Chapter III A, comprising ss.

25A to 25C dealing with summary trial of certain applications were introduced in the Delhi Rent Control Act, 19 5 8 by means of Delhi Rent Control (Amendment) Ordinance No. 24 of 1975, which came into force on December 1, 1975. Subsequently, the said Ordinance was rep.laced by the Delhi Rent Control (Amendment) Act 18 of 1976. This Amendment Act was put on the Statute Book on February 9, 1976, but by virtue of sub-s. 1 it "shall be deemed to have come into force on December 1, 1975" 1.e. the date of the enforcement of the Ordinance. The Statement of Objects and Reasons accompanying the Amending Bill (No. XII of 1.976) clearly brings out the fact that the said amendment was necessitated because of the Central Government's decision on September 9, that a person who owns a house in his place of work should vacate the Government accommodation allotted to him on or before December 31, 1975; in other words, a speedy and eitpeditious remedy was provided to such a person to evict a tenant from bis own house if he was required to vacate Government accommodation by or pursuant to a general ~f special order of the Government on the ground of his owning a residential accommodation in the Union Territory of Delhi.

The object of s. 14A is thus to confer a right on certain landlords to reco,·er "immediate possession of the premises" belonging to them and which are in possession of their tenants provided they are required to vacate Government acoommodation in their occupation by a general or special order. On a plain reading of the section it will appear clear that such a right is "to accrue" to a laµdlord on his satisfying the followi11g conditions : (a) such a landlord must be in occupation of a residential accommodation allotted to him by the Central Government ·or any local authority; and (b) such a landlord must have been required to vacate rnch residential accommodation or in default to incur certain obligations by any general or special order made by that Government or authority on the gronnd that he owns in the Union Territory of Delhi a residential accommodation either in bis own name or in the name of his wife or dependant child.

It is also clear that, to such a landlord, who satisfies the aforesaid conditions, the right to evict his tenant accrues "on or from the date of snch order" (meaning the general of special order by which he is required to vacate or in de.fault he incurs certain obligations) . The crucial words are "'on or from the date of such order" with the result that the cause of action accrues to the landlord on the date when he is served with the general or special order requiring him to vacate or incur obligations, though the speedy remedy to secure possession on that canse ·of action could be said to have been made available to him only with the coming into force of the Ordinance No. 24 of 1975. It is in the light of these provisions that we will have to consider whether on the facts of the instant c"ase the appellantlandlord was entitled to invoke s. l 4A of the Act or not. Mr. Makhija appearing for the respondent-tenant, urged that on a plain reading of s.

14A(l) it wonld be clear that only.if the landlord was reqnfred to vacate Government accommodation "on tl1>' Ii SUPREME COURT, REPORTS , [1978] 2 s.c.R. -- ground that he owns in the Union Territory of Delhi a r&.;idential accommodation", he would be entitled to eject a tenant and recover immediate possession of the premises belonging to him which are in tllc occupation of the tenant but if such a landlord who is in occupation 01 Government accommodation is liable to vacate Government accommodation either on account of his retirement or transfer, both of whicll might have taken place before. he has sought eviction of the tenani, such a case would be beyond the purview of s. 14A(l) cf the Act, tor, according to him, reading s. -14A(l) and ss.

25A to 25C alongwitll Government's decision dated September 9, 1975, which necessitatEd the insertion of the provisions in the enactment, it would be cleat that these provisions were not intended to be used by a landlord who has either retired from service or is transferred outside Delhi before- December 1, 1975 and must vacate the Goverment accommodation - on that account. He pointed out that in the instant case the appellant-landlord had retired on November 30,-1975-long prior to the coming into force of the Ordinance No. 24 of 1975 and as such he had to vacate the Government accommodation on account of his retirement. He further pointed out that even the application for eviction had been filed by the appellant against the respondent on· December 19, 1975 long after he had retired from Government service and had incurred the obligation to vacate the Government accommodafion on account of such retirement.

He also pointed out that if the letter dated September 9, 1976, being Annexure 'D' to appellant's affidavit filed in support of the special leave petition (appearing at page 94 of Vol. I), is seen, it will appear clear that the allotment of Government premises to the appellant had been, cancelled with effect from January 31, 1976 after allowing concessional period of two months admissible to him under' the rules on his retirement from Government service on November 30, 1975. -He, therefore, urged that s. 14A(l) would not be available. to such a landlord. ,There appears to be some force in the view taken by the _ Higil Court that the provision of s.

14A( 1) was not intended for Government servants who have retired from Government servic~ or who have · been transferred outside Delhi and the provision substantially was intended for the benefit of such landlords who continue in Government service in the Union Territory of Delhi and who are required to vacate Government accommodation in their occupation er in default to incur certain obligations on account of their owning residential accoinmodations in their own names or in the names of their wives or dependent children, but having regard to the peculiar facts which obtain in the __ instant case it is unnecessary for us to go into such larger.question. On the factsobtaining here we are clearly of the view that the appellant- II landlord is entitled to invoke the provisions of s. 14A(l) notwithstandini: the fact that he had retired from service with effect from November 30, 1975 .. In the first place, it cannot be disputed that he satisfies all the requirements of s.

14A(l) in the ~ense that he is a landlord who is in occupation of a residential accommodation allotted to him by the _ Central Government and that Ion~ before his retirement on November 30, 1975, he was, by general order dated September 30,, 1975, issued _ - by the Government, required to vacate that accommodation on or before December 31; 1975 or in default to incur an obligation by way t NIHAL CHAND v. K. c. JAIN (Tulzapurkar, !.) payment of penacl licence fee on the ground t.hat he i.s ownin!\ a rnsi~ dential accommodation in his own name m the U mon Terntory of Delhi. It is true that the provisions of s. 14A(l) and the speedy remedy available under s. 25B came to be inserted in the Ddhi Rent Control Act 1958 with effect from December 1, 1975 and naturally. therefore he made an application for eviction on December 19, 1975, but as p~inted out earlier, to a landlord who satisfies the requirements of ~.

14A(l} the cause of action arises or the right to evict h;s tenant accrues 'on or from the date of the order' that ;nay be served upon him whereby he is required to vacate the Government acco.mmudation or in default to incur the liability to pay higher penal licence fee on the ground that he owns a residential accommodation in )11s own name in the Union Territory of Delhi. In the instant case, adm1tted·ly, pursuant to Central Government's decision taken in that behalf on September 9, 1975, a general order, requiring him to vacate the Government accommodation or in default to incur obligation of payment of penal licence fee on the ground that he owns residential accommodation in his own name in the Union Territory of Delhi, was served upon the appellant-landlord on September 30, 1975, which was much before his retirement, which took place on November 30, 1975.

In other words when the cause of action arose _or the right to evict h1' tenant accrued to him the appellant-landlord was very much in service. This is not a case where the right to evict has accrued to a Government servant landlord simultaneously with or after his retirement. It is thus clear that upon service of such general order dated September 30, 1975, upon the appellant-landlord, a right accrued to him under s. 14A of the Act, though, as said earlier, the speedy remedy contemplated under s. 25B became available to him after the Ordinance Np. 24 of 1975 came into force. Apart from service of this general order, it was not disputed before us that by letter dated January 14, 1976 en· hanced licence fee at the market rate, namely, at the rate of Rs. 520/- per month in place of Rs. 64/- per month, which was payable by the appellant-landlord to the Government. upto December 3 J, 1975. was actually demanded by the Government from the appellant-landlord and the appellant-landlord has not only incurred this obligation but h.as fulfilled this obligation for a few months by paying the licence fee at the enhanced market rate.

The letter dated September 9, 1976, on which strong reliance was placed bv Mr. Makhija, contains rather contradictory averments. It is true that in this letter it has been stated that the allotment of the Go,vernment a'ccommodation in favour of the appellant-landlord shall be deemed to have been cancelled with effect from January 31, 1976, that is to say, after allowing the concessional period of two months admissible to him under the rules after his retirement from Government service on November 30.

1975, but bv the ·same letter the appellant-landlord has been informed that he is liable to pay enhanced market liceuce fee "with effect from Januarv 1, 1976 being a house-owner." in other words, even by this letter dated September 9, 1976 enhanced market licence fee is claimed from the appe!lantlandlon! with effect from January 1, 1976, which could only be on the basis that he was called upon to vacate the premises on or before December 31, 1975 pursuant to the general order dated September 30, 1975 which was served upon him. -It was faintly argued by Mr. Makhija that the demand for enhanced licence fee with effect from January 1, 1976 made by the Government by this •letter must be by mistake because in the main body of the letter it has been recited that the allotment of the Government premises in favour of the appeUant is deemed to have been cancelled with effect from January 31, 1976. It ts not possible to accept this contention of Mr. Makhija nnd it appears to us that the reference to deemed cancellation of the allotment of the appellant with effect from January 31, ·1976 is a mistake in ·view ot the Government's decision of September 9, 1975 and the contents of the general order dated September 30, 1975.

In any case the letter da.ted September 9, 1976 on which reliance has been pbced by Mt. Makhija is self-contradictory and can be of no avail to show that C•·· appellant was required to vacate the premises on account of retirement and not on ground of his owning residential accommodation in th~ Union Territory of Delhi, especially, in view of the general order dated September 30, 1975 that was served upon the appellant--landlord. Having regard to the above discussion we are clearly of the view that the appellant-landlord was entitled to invoke the provision of s. 14A of the Act and, therefore, the decision of the Rent Controller was right. We accordingly allow the appeal and set aside the order of the High Court and restore that of the Rent Controller. In the circumstances of the case there will be no order as to the costs. S.R. Appeal allowed.