JAIN MALLEABLES

BHARAT SAHAY

December 8, 1981

[V.D. TULZAPURKAR, BAHARUL {SLAM

AND A. V ARADARAJAN, JJ.]

53 A

Delhi Rent Control Act, 1958, section 14A (I) read with .1ection 25B and C

Governmet of India Notifications dated 9-9-1975 and 14-7-1,977, scope of.

The respondent-landlord filed a petition for eviction of the appellant, under 'section i4A read with section 25B of the Delhi Rent Control Act, 1958 on the ground of requirement for personal occupation, in view of the fact that he

as forced to pay penal rent of Rs. 1,448 from his Government accommodation as per Government of India notification dated 9-9-1975 and the special order dated 22-1-1916 requiring him to. vacate the Government accommodation by 31-12-1975. After presentation of the eviction petition and service of notice under section 25B of the Act, the appellant filed a petition for grant of leave to defend the main petition and raised several objections in the written statement. One such objection was that in view of the later circular of the Government dated 14-7-19"7, the respo!ldent was not required to vacate the Government accommodation and, therefore, he w11s not entitled to evict the appellants under the provisions of section 14A of the Delhi Rent Control Act. The said objection having been disallowed by the Additional 'Rent Controiler the appell!!nt filed Civil Revision Petition before the Delhi High Court, which met with the same fate. Hence the appeal against that order by special leave.

Dismissing the appeal, the Court

HELD : I. The respondent landlord is entitled to have recourse to section 14A of the Delhi Rent Control Act, 1958 for evicting the appellants from the premises in question.

[68 A-B]

The second notification dated 14-7-1977 of the Government, without taking away the obligation imposed by the first notification dated 9-9-75 on Govern men! employees owning houses in their own names or in the name of any other member of their families, within the limits of their place of posting, vacate the Government accomodation within three months from !st of October, 1975, has given an option to those employees to continue to occupy the Government accommodation subject to the obligation mentioned in the second notification, namely, that. the house owning Government employee will have to pay normal rent for the Government accommodation if the income from his 1>wn ho11se does not e11ceed Rs 1,000 per mensem half the market rent if the

SUPREME COURT REPORTS [!982] 2 s.c.il.

income from his own house exceeds Rs. 1,000 per mensem but does not exceed Rs. 2,000/- per mensem and full market rent if the income from his house is above Rs. 2,000 per mensem with effect from 1-6-1977. [64 C-E]

3. In the present case, (iJ even apart from the first notification dated 9-9-1975 which is general in nature and has been modified by the second notification dated 14-7-1977 there is the stiecial. order dated 22-1-1976 which required the respondent to vacate the Government accommodation by 31-12-1975, failing which he is to pay market rent with effect from 1-1-1976: (ii) the market rent/ licence fee which the respondent had to pay for the Government accommodation on the date of institution of the Eviction Petilion was Rs. 1,448 per mensem and it had been increased to Rs. 1,543 per mensem and further enhanced to Rs. 2,898 per mensem by the letter dated 17/18-7-1981 of the Assistant Director of Estates addressed to the respondent: (iii) there is nothing on record to show that the obligation imposed upon respondent by the first notification to vacate the Government accommodation within three months from !st of October, 1975 and by the special order dated 22-1-1976 by 31st December, 1975 has been withdrawn; (iv) the respondent has an option to continue to occupy the Government accommodation subject to certain obligations contained in the two notifications without vacating the Government accommoda tion within a period of three months from 1st of October, 1975 and (v) it is not open t.o the apoellants to compel the respondent to exercise his option and continue to occupy the Government accommodation in order that he may continue to occupy the premises in question as the tenant. [64 E-H, 65 A-BJ

Busching Schmitz Private Ltd. v. P.T. Menghani and Anr., [1977] 3 S.C.R. 312 referred to.

E K.D. Singh v. Shri Hari Babu Kanwal, [1980] 1 RCR 90, overruled.

J.L. Paul v. Ranjit Singh, [1980] 2 SCR 527, approved.

CIVIL APPELLATE JuRJSDJCTJoN : Civil Appeal No. 1472 of 1980.

Appeal by Special leave from the judgment and order dated the !st February, 1980 of the Delhi High Court in Civil Revision Petition No. I 22 of 1980.

Madan Bhatia, Rojiv Behl and Sushi! Kumar for the Appellant.

L.M. Singhvi, L.R. Gupta M. V. Goswami and L. K. Pandey for the Respondent.

The Judgment of the Court was delivered by

VARADARAJAN J. This appeal by special leave is directed against the one word order dated 1.2.1980 ofthe learned Single Judge of the

1A1N MALlEABLES v. BHARAT SAHAY (Varadarajan, J.) 55

Delhi High Court dismissing Civil Revision Petition No. I 22 of 1980 in limine.

The tenants who were respondents in the Rent Control Eviction Petition, filed the Civil Revision Petition against the Rent Controller's order dated 30. 10.1979, declining to permit them to raise certain grounds of defence while granting leave to defend the eviction petition on certain other grounds.

Special leave to appeal against the order of the learned Single Judge of the High Court has been granted by this Court only on the question whether s. 14A of the Delhi Rent Control Act, 1958 is applicable or not to the facts and circumstances of the case "in view of the later Circular of 1977". The "later Circular of 1977" mentioned in the special leave granted by this Court on 5.8.1980 is the Office Memorandum dated 14.7.1977 of the Joint Secretary to the Government of India, Ministry of Works and Housing, Directorate of Estates, hereinafter referred to as the "second notification".

The same Joint Secretary to the Government of India in the same Ministry had issued the earlier Memorandum dated 9.9.1975, hereinafter referred to as the "first notification".

The respondent-landlord filed the Petition for eviction of the apellants under s. 14A read with s. 25B of the Delhi Rent Control Act, 1958, hereinafter referred to as the "Act". In the Eviction Petition the respondent had alleged that by virtue of his being a Government servant he has been allotted residential accommodation at No. 83 Lodhi Estate, New Delhi since November 1971. Under the first notification he is required to vacate the Government accommodation and shift to his own house No. 11-B Maharani Bagh, New Delhi, which is now in the occupation of the appellants, and if he failed to do so he is to incur the obligation of paying rent/licence fee of Rs 1,448 per mensem on the ground that he owns a residential building in the Union Territory of Delhi and still continues to occupy Government accommodation: The appellants have not vacated the premises occupied by them in spite of several assurances given by them since February 1976. The respondent is paying a penal rent of Rs. 1,448 per mensem for the Government accommodation because he had not vacated that accomodation provided to him by the Government as a Government servant.

After presentation of the Eviction Petition and service of notice under s. 25B of the Act, the appellants filed a Petition for grant of leave to defend the main Petition. One of the objections disallowed, with which we are concerned in this appeal, is that in view of the second notification the respondent is not required to vacate the

SUPREME toURt REPORTS [1982) 2 s.c.i.

Government accommodation now available to him and that he is, therefore, not entitled to evict the appellants under the provisions of s. 14A of the Act. The Civil Revision Petition filed by the appellants against the order of the Additional Rent Controller has been dismissed by the learned Single Judge of the High Court as mentioned above. The appellants have, therefore, filed this appeal by special leave against that order.

We are concerned in this appeal with s. 14A (I) of the Act, which reads thus :

"14A (1) Where 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, there shall accrue, on and from the date of such order to such landlord notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force in any contract (whether express or implied), custom or usage to the contrary, a right to recover immediately possession of _any premises let out by him :

Provided that nothing in this section shall be construed as conferring a right on a landkird owning, in the Unio, o territory of Delhi, two or more dwelling houses, whether in his own name or in the name of his wife or dependent child, to recover the possession of more than one dwelling house and it shall be lawful for suci1 landlord to indicate the dwelling house, possession of which he intends to recover.

There is no dispute that the respondent is the owner of the premises in question, namely, 11-B Maharani Bagh, New Delhi, now occupied by the appellants on a rent of Rs. 2, I 00 per mensem and that he is at present in occupation of Government accommodation at No. 83 Lodhi Estate, New Delhi and is obliged to pay

JAIN MALLEABLES v. ilil:ARAT SAiIAY (Varadara}an, J.) )1

penal rent/licence fee of Rs. 1,448 per mensem.

The relevant por tion of the first notification reads thus :

"That undersigned is directed to say that the question of allotment of Government residential accommodation to officers owing houses at or near the stations of their posting

has been under consideration of Government for some B time past. It has now been decided, in supersession of all previous orders on the subject, as follows :-

(i) Those Government servants, who build houses in future at the place of their posting, within the limits of C any local or adjoining municipality, whether with or without Government assistance, or who become owners of houses .in future-either in their own names or in the names of any members of their familiesshall be required to vacate Government accommoda tion in their occupation from the date their own houses 0 are fit for occupation.

(ii) Those Government servants, who have already built houses at the place of their posting within the limits of any local or adjoining municipality' whether with or without Government assistance, or who own houses either in their own names or in the names of any members of their families-shall be required to vacate the Government accommodation allotted to them, within three months from the 1st of October 1975.

If they do not vacate Government accommodation after that period, they would be charged licence fee at market rates.

(iii) Hence onward, no Government accommodation should be allotted to an officer O\irning a house at the place of his posting within the limits of any local or adjoining municipality.

A certificate shall be obtained from a prospective allottee that he has no house at the station of his posing within the limits of any local or adjoining municipality-either in his own name or in name of any member of his family.

(iv)

SUPREME cobR'i' REPOR.ts [ 19821 i s.c.Ii..

(v)

The Ministry of Home Affairs, etc. are requested to bring the above decision of Government to the notice of all their attached and subordinate offices, and ensure that the decision is implemented in respect of different pools of Government residence under their control.

4. Jn so far as general pool accommodation is concerned, the Ministry of Home Affairs, etc., are requested to bring this to the notice of all Government Servants who are eligible for general pool accommodation as well as those who have already been allotted accommodation from the general pool, asking them by 15th October, 1975 to indicate whether they have their own houses as covered by these orders.

In case they have, a declaration may be obtained from them in the prescribed proforma and forwarded to the Directorate of Estate (Coordination I Section) by 15th November, 1975.

Other officers who do not own houses should also furnish a declaration to that effect.

All officials who have been allotted general pool accommodation may be advised that it is their responsibility to inform the Directorate of Estates, when they or any member of their families become owners of houses in future, within one month from the date of becoming such owners. All officers eligible for general pool accommodation may also be warned that severe action will be taken against them in case they furnish any incorrect information".

In addition to this general first notification relating to Government accommodation in the occupation of Government employees there is a special order dated 22.1.1976 of the Assistant Director of Estates, New Delhi calling upon the respondent to vacate the Government accommodation No. 83 Lodhi Estate allotted to him since 31.12.1975, failing which he would be charged market rent with effect from 1.1.1976 at the rate fixed by Government from time to time and informing him that a .bill at the market rate of licence fee for the said premises will follow.

JAIN MALLEABLES v. BHARAT SAHAY (Varadarajan, J.) 59

In the affidavit filed in support of the Petition for grant of leave to defend the main Eviction Petition the appellants have stated that the respondent is occupying a huge, massive and palatial bungalow in the Lodhi Estate, New Delhi built on an area of about two acres and allotted to him by the Government and that whereas he is paying an alleged rent of Rs. 1,448 per mensem for that accommodation, he is getting a rent of Rs. 2, 100 per mensem for his premises occupied by the appellants and he is thereby gaining a sum of Rs. 652 per mensem. The appellants have further stated in that affidavit that there is a clear shift in the policy of the Government whereby Government accommodation is made available to even those employees who happen to have their own houses at Delhi and that Government have modified the notification relied upon by the respondent whereby house owing officials have become eligible for allotment of Government accommodation at the places of their posting with effect from 1.6.1977.

The notification said to modify the first notificatition is the second notification. The relevant portion of that notification reads thus:

"The undersigned is directed to say that the orders contained in this Ministry's office Memorandum No. 12031 (1)/74-Pol. II, dated 9.9.1975, as modified from time to time have been reconsidered. Government has decided that the restrictions on allotment of accommodation to houses owning officers should be modified with effect from l.6.1977, making house owning officers eligible for Government accommodation as communicated in this Ministry's Office Memorandum of even number dated the 29th June,

1977. It has also been decided that allotment of such accommodation to a house owning official will be on normal rent if the income from his own house does not exceed Rs. 1,000 p.m. or half the market rent if the income exceeds Rs. 1,000 p.m. but does not exceed Rs. 2,000 p.m. and on full market rent if the income is above Rs. 2,000 p.m. Rent will be recovered on the same basis w.e.f, 1.6.1977 also from those house owing officials who are retaining Government accommodation on payment of market rents.

These decisions will apply equally whether the house is owned by the officer or bis/her wife/husbanc\ or by his/her dependent children,

SUPREMt COURT REPOR'JS

(1982) 2 s.c.R.

3. Allotment of accommodation to house owning officers who have already vacated Government accommodation.

Such officers will be considered for allotment of accommodation in their turn on the basis of their priority date under the allotment rules.

No preference should be shown to them in the matter of allotment in consideration of the fact that they were earlier in occupation of Government accommodation and bad vacated it in compliance with the earlier orders to which the officers are normally entitled without restriction of any locality or without any reference to the types of accommodation which the officers were occupying previously.

As usual, officers eligible for types V and above should also be considered for allotment in the types next below on the basis of their priority for such types.

After accepting initial allotment, they will be eligible for change in the normal manner in accordance with the allotment rules.

In so for as the general pool is concerned officers who have already vacated Government accommodation may submit fresh applications for allotment of accommodation in the prescribed application form, indicating the details of the houses owned by them or their spouses or dependent children, alongwitb documentary proof of the income they derive from the houses they own.

House owing officers, who are continuing in Government accommodation, should also furnish suitable documentary proof of the income they get from their private houses, to enable the Director of Estates to fix the licence fee recoverable from them w.e.f. 1.6.1977".

Mr. Madan Bhatia, learned counsel for the appellants, sub mitted that while under the first notification the respondent was required to vacine the Governmnt accommo<lati<m within three

iAIN MALLEABLES v. BHARAT SAHAY (Varadarajan, J.) 61

months from 1.10.1975 on pain of being liable to pay licence fee at the market rate if he failed to vacate within that time, Government employees like respondent have become eligible for Government accommodation under the second notification and are, therefore, not obliged to vacate the Government accommodation and that the respondent is, therefore, not entitled to seek eviction of the appellants from his premises under s. l 4A of the Act though he may file a Petition for eviction under s. 14 (I) (e) of the Act which is a general provision applicable to all landlords who seek to evict their tenants on the ground that they require the premises for their own bonafide occupation. Section 14 (1) (e) reads thus:

"14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant :

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 on one or more of the following grounds only, namely :-

(a)

(b)

(c)

(d)

(e) that 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 :

Explanation-For the purposes of this clause, "premises let for residential purposes" include any premises which having been let for use as a resic!ence are, witho11t the con-

SUPREME COURT REPORTS [19821 2 s.c I\

sent of the landlord, used incidentally for commercial or other purposes ;

Jn support of the contention that in view of the second noti~ B fication the respondent is not entitled to have recourse to the proc

. visi.ons of s. 14A of the Act, Mr. Madan Bhatia relied upon the decision of this Court in Busching Schmitz Private Ltd. v. P.T.

Menghani and Anr.(1) where the Court has observed at page 323 thus :

"Supposing the landlord, after exploiting the easy process of s. 14A, relets the premises for a higher rent; the social goal boomerangs because the ten ant is ejected and the lanlord does not occupy, as he would have been bound to do, if he had sought eviction for bona fide occupation under s. 14 (I) (e).

Section 19 obligates the landlord in this behalf. In literal terms, that section does not apply to eviction obtained under s. 14A. But the scheme of that section definitely contemplates a specific representation by the petitioner-landlord to the Con troll er that because he has been ordered to vacate the premises where he is residing E therefore, he requires immediate possession for his occupation ............ Ollce we grasp this cardinal point, the officer's application for eviction under s. 14A can be entertained only on his averment that he, having been asked to vacate, must get into possession of his own ............ The cause of action is not only the government order to vacate, but his F .consequential urgency to recover his own building."

Mr. Madan Bhatia relied also on the decision of learned single Judge of the Delhi High Court in K. D. Singh v. Shri Hari Babu Kanwal,(1) where the learned Judge has observed thus :

"At the time when this application was brought in February 1977, the Circular of 9,9.1975 held the field.

Unfortunately, for the. landlord this position under-went change when the Central Government issued a revised Circular dated 14.7.1977 by which the orders contained in

(l) [1977] 3 SCR 312.

(2) [1980] l RCR. 90,

JAlN MALLEABtES v. BHARA'l' SAHAY (Varadarajan, J.) 63

the earlier circular dated 9.9.1975 were modified after reconsideration..................... A vital change thuse took place by the Circular of 14.7.1977, namely, that there is no direction to a person who owns a house and who is in occupation of a residential premises allotted to him by the Central Government to vacate such residential accommodation... . . . . . . . . . . . . . . . Once therefore, the revised Circular of 14. 7.1977 has come, the very basis on which the Eviction Application under s.14 A of Act was brought has ceased to exist and cannot avail him . . . . .. . . . . . . . . . . . . . . It must be realised that s.14A was brought in only for a limited purpose to enable the Government servants in getting immediate possession of their house when they had been directed to vacate the Government accomodation. The special legislation was made to serve special purpose in pursuance of the Circular of 9.9.1975.

Once that purpose has been modified and the Government bas revised its decision and there is no directionto vacate such residential accommodation, it is impermissible in law to allow a Government servant to invoke s. l 4A and frustrate the beneficial Act of the Rent Control legislation like the Delhi Rent Control

Act".

We do not agree with this view of the learned Judge.

I~ is seen from paragraph 3 of the Order of the Additional Rent Controller, which was sought to be revised by the High Court, that the respondent is paying a rent of Rs. 1,448 per mensem for the Government accommodation No. 83 Lodhi Estate, New Delhi. In the reply affidavit filed in the Special Leave Petition the respondent has stated that he is liable to pay Rs. 1,543 per mensem for the Government accommodation as penal rent on account of bis failure to vacate the same. The respondent has produced in this Court a communicatio? addressed to him by the Assistant Director of Estates, New Delhi saying that without prejudice to any other action which may be taken in respect of the Government accommodation which has been allotted to him, his liability will continue to increase to Rs. 2,898 per mensem and three times that rate on the expiry of 15 days from the date of service of orders of eviction under the Public Premises (Eviction of Unauthorised Occupants) Act 1971 till he vacates and restores the premises to the Central Public Works Department. These facts and the liability ofthe

64 SUPREME COUR't REPORTS [1982) 2 s.c.lt

respondent to pay full market rent for the Government accommodation with effect from 1.6.1977 and the second notification in the light of his getting rental income exceeding Rs. 2,000 per mensem from his own premises show that the respondent has to incur certain obligations on his failure to vacate Government accommodation 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. We do not find anything in the second notification taking away the obligation which has been imposed on the respondent by the first notification to vacate the Government accommodation within three months from the !st of October 1975.

We are of the opinion that the second notification, without (taking away the obligation imposed by the first notification on Government employees owning houses in their own names or in the name of any other member of their families, within the limits of their place of posting, to vacate the Government accommodation within three months from the first of October 1975, has given an option to those employees to continue to occupy the Government accommodation subject to the obligation mentioned in the second notification, namely, that the house owning Government employee will have to pay normal rent for the Government accommodation if the income from his own house does not exceed Rs. 1,000 per mensem of half the market rent if the income from his own house exceeds Rs. 1,000 per mensem but does not exceed Rs. 2,000 per mensem and full market rent if the income from his house is above Rs. 2,000 per mensem with effect from 1.6.1977.

In the present case the market rent/licence fee which the respondent had to pay for the Government accommodation occupied by him on the date of institution of Eviction Petition was Rs. 1,448 per mensem and it had been increased to Rs. 1,543 per mensem as stated in the counter-affidavit filed by the respondent in the Special Leave Petition and it has been further enhanced to Rs. 2,898 per mensem by the letter dated 17/18-7-1981 of the Assistant Director of Estates addressed to the respondent and referred to above. The respondent has thus an option to continue to occupy the Government accommodation subject to the said obligation without vacating the Government accommodation within a period of three months from the 1st of October, 1975. We are of the opinion that it is not open to the appellants to compel the respondent to exercise his option and continue to occupy the Government accommodation in order that they may continue to occupy the premises in question as the tenants. Even apart from the first notification which is general in nature and has been modified by the

JAIN MALLEABLES v. BHARAT SAHAY (Varadarajan, J.) 65

second notification as mentioned above, there is the special order dated 22, 1.1976 which required the respondent to vacate the Government accommodation by 31.12.1975, failing which he is to pay market rent with effect from 1.1.1976 as mentioned above. In these circumstances it is not possible for us to accept the argument of Mr. Madan Bhatia that the respondent is not entitled to have recourse to s. 14A of the Act for seeking eviction of the appellants from the premises in question, having regard to first and second notifications and the special order dated 22.1.1976. Dr. L.M. Singhvi, learned counsel for the respondent invited our attention to the decision of another learned Single Judge of the Delhi High Court in JL Paul v. Ranjit Singh (supra) where we find the following observations:

"The last objection of the petitioner is that the nQtifications granting a right to the Government employee to 'seek eviction under Section 14A of the Act have been withdrawn, that this defence raises a triable issue and, therefore, . the Controller ought to have granted leave to contest so that

he may produce evidence on record in support of this part of his defence.

The right to claim eviction accrues to a landlord under s. 14A of the Act and not under any notification issued by the Government. The Government noti- . fication, general or special, only requires a landlord Government allottee to vacate the accommodation as he owns his house or pay penal rent. The respondent submits . that the general notification dated September 9, I 975 and the special order dated December 26, 1975 have never been withdrawn. His contention is that there has been a noti fication about the rate of rent/licence fee to be paid by a . Government employee, if he is also owner of his own house at the place of his posting and does not vacate allotted premises. In short his contention is that right of eviction is available to a landlord allottee of Government accommodation if he fulfils the conditions mentioned in s. I 4A of the Act. According to him there is modification that if the income of the landlord from his own house does not exceed Rs. 1,000 per month, he is liable to pay. only the normal . rent of the Government allotted accommodation, but if his income from his own house exceeds Rs. 1,000 and does not exceed Rs. 2,000 he is liable to pay half the market rent . and in cases where his income from his own house is above

~P1'.EME COURT REPORTS {1982] 2 s.c.R..

Rs 2,000 per month, he is liable to pay full market rent.

The respondent contends that s. I 4A of the Act conferring upon a landlord/Government allottee (a right) to get his own vacated has never been repealed. The learned counsel for the respondent further contends that mere assertion of the petitioner that the notifications have been withdrawn is vague and does not give him any right to leave to contest and lead any evidence .... If any notification has been withdrawn or cancelled, such an order must be in writing. The petitioner/tenant in his application does not disclose any notification under which the Government notification requi- _. ring a landlord/Government employee to vacate has been withdrawn.

Thus the notification dated September 9, 1975 stands modified to the extent as to what rate of rent would be payable by the respondent Government allottee/landlord owning his own house if he retains the allotted premises, that is, if he fails to vacate the Government accommodation in pursuance of the general order dated September 9, 1975 and the special order dated December 26, 1975. The income of the respondent from his own house, that is, suit property No. 164 Greater Kailash-1, New Delhi is Rs. 1,950 per month.

He is getting Rs. 850 per month from the petitioner occupying first floor and Rs. I, 100 per month from 'Escorts' occupying the ground floor.

In accordance with the notification dated July 14, 1977, the respondent/landlord is thus liable to pay half the market rent from June I,

1977 if he does not vacate the Government allotted accommodation. In fact after the issue of notification dated July 14, 1977 the respondent has been directed to pay half the market rent by means of an order dated September 20, 1977 issued by the Directorate of Estates, Government of India with effect from June l, 1977.

In short, it is certain that there is the general notification dated September 9, 1975 and the special order dated December 26, 1975 requir.ng the respondent/landlord to vacate the Government allotted residential accommodation or in default to pay half the market rent. fa other words he is to incur certain obligations, The liability is 011 account of the fact that he owns

JAIN MALLEABLES v. BitARAT SAHAY (Varadara}an, J.)

the house in suit in the Union Territory of Delhi, his place of posting.

On December 12, 1979 Directorate of Estates was required to state whether the notification dated September 9, 1975 stands withdrawn or it was simply modified. The Directorate of Estates in his letter dated December 14, 1979 informed that the Memorandum dated September 9, 1975 was not withdrawn but was only modified by the Memorandum dated July 14, 1977.

So if the two notifications dated September 9, 1975 and July 14, 1977 are read together, it appears that there is no cancellation of the earlier notification and that it is only a notification of the rate of rent payable by an allottee owning his own house.

Under this notification dated July 14, 1977 it is further provided that with effect from June 1, 1977 rent of allotted premises shall be recovered from the house owning officials retaining the premises at the rates mentioned therein. The respondent is, therefore, liable to pay the rent accordingly and thus liable to iricur obligation in default of vacating the premises.

The respondent satisfies the requirement of s. 14A of the Act. There is no defence available to the petitioner against the eviction application under s. 14A of the Act".

In the present case also there is nothing on record to show that the obligation imposed upon respondent by the first notification to vacate the Government accommodation within three months from

the Ist of October 1975 and by the special order dated 22.1.1976 by H 31.12.1975, has been withdrawn. The respondent can continue to

SUPREME COURT REPORTS (198~] i s.c.k.

occupy the Government accommodation only subject to certain obligations. We, therefore, hold that the respondent is entitled to have recourse to s. l 4A of the Act for evicting the appellants from the premises in question. Accordingly the appeal fails and is dismissed with costs.

S.R.

Appeal dismissed.

' I

JAIN MALLEABLES

December 8, 1981

Delhi Rent Control Act, 1958

section 14A

section 25B

Delhi Rent Control Act, 1958

section 25B

section 14A

Delhi High Court

section 14A

Delhi Rent Control Act, 1958

st of October, 1975

1st of October, 1975

[1977] 3 S.C.R. 312

[1980] 2 SCR 527

Madan Bhatia

Rojiv Behl

Sushi! Kumar

L.M. Singhvi

L.R. Gupta M. V. Goswami

L. K. Pandey

VARADARAJAN

Varadarajan

s. 14A

Delhi Rent Control Act, 1958

s. 14A

s. 25B

Delhi Rent Control Act, 1958

New Delhi

Delhi

s. 25B

s. 14A

s. 14A

Central Government

1st of October 1975

Ministry of Home Affairs

Ministry of Home Affairs

15th October, 1975

15th November, 1975

29th June,

Madan Bhatia

s. 14

Section 14

s. 14A

s. 14A

s. 14

Section 19

s. 14A

s. 14A

[1977] 3 SCR 312

st of October 1975

s. 14A

L.M. Singhvi

Section 14A

s. 14A

September 9, I 975

December 26, 1975

September 9, 1975

July 14, 1977

December 12, 1979

December 14, 1979

June 1, 1977

s. 14A

s. 14A


i14

BABU SINGH CHAUHAN

RAJKUMARI JAIN & ORS.

February 1, 1982

[S. MURTAZA FAZAL ALI AND R.B. MISRA, JJ.]

U.P. Urban Buildings (Regu/atiOn of Letting, Rent and Eviction) ALf 1972-Sectlons 16(1) (b) and 17(2)-Scope of

Section 16(1) (b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 empowers the District Mag_istrate to release the whole or any part of a building or any land appurtenant thereto, in favour of the landlord.

Section 17(2) provides that where a part of a building is in the occupation of the landlord for residential purposes or is released in his favour under section 16(1) (b) for residential purpose!' the allotment of the remaining part thereof under clause {a) of sub-section (l) shall be made in favour of a person nominated by the landlord.

On intimation from the tenant that he was vacating the premises, the rent control authority allotted them to the appellant without informing the landlady about the allotment. On appeal the District Judge cancelled the allotment made in favour of the appellant

The landlady then made an application for delivery of possession of the premises. This application was rejected on the ground that she had not applied for release of the accommodation.

Her application under section 16(1) (b) for release of the premises was rejected and the accommodation was rea\Jotted to the appellant. The District Magistrate affirmed the order of the rent control

authority.

The landlady's writ petition impugning the orders of the courts below was al.lowed by the High Court. the case was remitted to the courts below for reconsideration afresh of the question of allotment.

In appeal to this Court it was contended on behalf of the appellant that since the landlady was not in actual physical possession of the premises neither section 16(1) (b) nor section 17(2) had any application to the facts of this case.

Dismissing the appeal,

HELD : The order of the prescribed authority allotting the premises to the appellant was without jurisdiction and against the plain terms of section 17(2) of the Act. The District Judge had rightly allowed the landlady's appeal and cancelled the allotment to the appellant.

D.S. CUAUHAN v. RAiKUMARI ii5

The object of the- Act is that where a tenant inducted by the landlord voluntarily vacates the premises, pardy occupied by the landlord, allotment in the vacancy should be made only to a person nominated by him, the dominant purpose of such provision being to remove any inconvenience to the landlord by imposing or thrusting on tbe premises an unpleasant neighbour or a tenant who invades the landlord's right of priVacy. While empowering the prescribed authority to allot the accommodation, the Act safeguards the right of the landlord to have a tenant of his choice. [117 BC, DJ

In the inst.ant case if a tenant was thrust on the respondent without allowing her an opportunity to nominate a tenant of her choice it would violate the very ', spirit and tenor of section 17(2). [120 F]

Possession by a landlord of his property may assume various forms : a C landlord living outside the town might retain possession over his property or a part of it either by leaving it in charge of a servant or by putting his household effects locked up in the premises.

Such occupation would be full and complete possession in the eye of law. [119 F]

In the instant case from the fact that the landlady was residing in another tqwn and so was not actually residing in the premises it could not be '!aid that she D was not in possession of the premises or that she had severed her connection with her own property. [119 G]

The High Court was justified in quashing the orders of the rent control authority because no attempt had been made to approach the landlady for making a nomin1tion in respect of the premises vacated by the original tenant.

E All that the landlady did was to ask for the release of the premises. Even if this was refused it was incumbent on the rent control authority to have fulfilled the requirements of section 17(2) before making an allotment in favour of the appellant or a'oyone else.

Simply because the landl.ady was living outside the town it could not be said that the provisions of this subsection wriuld not apply and that the authorities concerned could make an allotment in favour of any person without giving an opportunity to her to exercise her privilege to nominate F a tenant. [120 A.CJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8i2 of 1980

Appeal by special leave from the judgment and order dated the 23rd November, 1979 of the Allahabad High Court in Civil Misc.

Writ No. 479 of 1978.

11..K. Garg, V.J. Prands and S.K. Jain fot the Appellant.

Shanti Bhushan, R.K. Jain, P.K. Jain and Pankaj Kalra for Respondent No. I.

The Judgment of the Court was delivered by

FAZAL Au, J. This appeal by special leave is directed againsta judgment dated November 23, 1979 of the Allahabad High Court allowing a writ petition quashing the order of the Rent Control and Eviction Officer and remanding the case to him for considering. the question afresh in accordance with law and in the light of the observations made by the High Court.

The appeal involves a short and simple point but the case appears to have had rather a long and chequered career. Put briefly, the facts of the case fall within a narrow compass so far as the points for decision are concerned.

The first repondent, Smt.

Rajkumari Jain, inducted Shri Thapalayal as a tenant in the premises in dispute which are situated in the town of Bijnor. The tenant intimated his intention to the Rent Control and Eviction Officer to vacate the premises on 25.6.1974 On receipt of the aforesaid application of the tenant a Rent Control Inspector was directed to visit the spot and after visiting the same he reported that the premises in question were likely to fall vacant on 9.6.74.

The prescribed authority by its Order dated 1.6. 74 allotted the premises to the appellant. In fact, the appellant had applied to the authority on 20.5.74 for allotment of the accommodation to him. It appears that these proceedings were taken behind the back of the respondent· landlady who was not taken into confidence either by the appellant or by the Rent Control authorities. It was only after the prescribed authority had allotted the premises to the appellant and the respondent-landlady came to know of this fact that she moved the prescribed authority for cancellation of the allotment but her prayer was rejected.

Thereafter, the landlady filed an appeal before the Additional District Judge, Bijnor which was allowed and the allotment in favoµr of the appellant was cancelled oe the ground that the provisions of s. 17(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act') were not complied with.

Before narrating further sequence of.facts, it may be necessary to examine the relevant provisions of the Act.

Section 17(2) of the Act may be extracted thus :

"Where a part of a building is in the occupation of the landlord for residential purposes or is released in his favour

11.S. CHAUHAN v. RAJKUMARI (Paza/ Ali, J.) 117

under clause (b) of sub-section (1) of Section 16 for resi- A dential purposes, the allotment of the remaining part thereof under clause (a) of the said sub:section (I) shall be made in favour of a person nominated by the landlord."

A perusal of this statutory provision would clearly disclose that the object of the Act was that where a tenant inducted by the landlord voluntarily vacates the premises, which are a part of the building .occupied by the landlord, an allotment in the vacancy should be made only to a person nominated by the landlord. The dominant purpose to be subserved by the Act is manifestly the question of removing any inconvenience to the landlord by imposing or thrusting on the premises an unpleasant neighbour or a tenant who invades the right of privacy of the landlord.

It is obvious that if the tenant has vacated the premises by himself and not at the instance of the landlord, there is no question of the landlord occupying the said premises because he has got a separate remedy for evicting the tenant on the ground of personal necessity.

The statute, hqwever, while empowering the prescribed authority to allot the accommodation, safeguards at least the right of the landlord to have a tenant of his choice.

In the instant case, the admitted position seems to be that

when the prescribed authority allotted the premises to the appellant, E the landlady was not taken into confidence nor was she asked to induct either ihe appellant or somebody else as the tenant of the premises which were likely to fall vacant or which may have fallen vacant.

This was undoubtedly an essential requirement of the provisions of s. 17(2) of the Act as extracted above.

In these circumstances, there could be no doubt that the Order of the prescrib- F ed authority allotting the premises to the appellant was completely without jurisdiction and against the plain terms of s, 17(2) of the Act. It was in view of this serious legal infirmity that the District Judge allowed t.he appeal filed by the landladY. on 27.1.1976 and cancelled the allotment of the accommodation to the appellant.

On 2.2.76 the landlady herself filed an application before the District G Magistrate, Bijnor for delivery of possession of the said premises to her but the District Magistrate rejected the application by his

Order dated 8.3.76 on the ground that as the landlady had not applied for release of the accommodation, she could not be allotted the premises straightaway. On 5.4.76 the District Supply Officer, ff , Pijnor directed the counsel for tlje landlady to noll'.linat~ a persoq

SUPRBMB COURT REPORTS [1982] 3 s.c.R.

A for allotment of the premises.

As against this, the la11dlady a1, plied for release of the accommodijtion to her in terms of the provisions of s. 16(1) (b) of the Act which rus thus :

"16.

Allotment and release of vacant building.

(I) Subject to the provisions of this Act, the District Magistrate may by order :

(a) xx xx

(h) release the whole or any part of such building, or any land appurtenant thereto, in favour of the landlord (to be called a release order)."

• The prayer of the landlady under s. 16(1) (b) also appears to have been ignored by the Rent Control authorities and by an Order dated 15.4.76, the District Supply Officer reallotted the accommodation to the appellant.

This led the landlady to file another appeal before the Additional District Judge, Bijnor who by his Order dated 21.9.77 rejected the plea of the landlady, dismissed the appeal and confirmed the order of allotment.

The respondent-landlady thereupon filed a writ petition in the High Court challenged the orders of the District Supply Officer as also of the District Judge who had affirmed that order and confirmed the order of allotment in favour of the appellant.

The High Court by the impugned order allowed the writ petition and sent the matter back to the Rent Control and Eviction Officer to consider the question of allotment afresh in view of the observations made by the High Court._

The appellant then obtained special leave of this Court against the order of the High Court and hence this appeal before us.

In support of the appeal, Mr. Shanti Bhushan, learned counsel G for the appellant submitted that the High Court had no jurisdiction to interfere with the concurrent finding of fact given by the District Supply Officer and the District Judge confirming the allotment in favour of the appellant and that too in a writ jurisdiction.

He also submitted that the landlady was not at all in actual physical posses-.

H sion of the premises and had been living outside Bijnor and, therefore, neither the provisions of s. 16(1) (b) nor those of s. l 7(2) of ihe Act would apply to the f11ct$ of tbe present 1>ase.

On the otlm

11.s. CHAUHAN v. RAIKUMARI (Fazal Ali, J.) 119

hand, tbe counsel for the respondent submitted that initially the only A question before the Rent Control Authority was whether the allotment should be made to the appellant even though he was not nominated by the landlady under s. 17(2) of the Act. It is common ground that the appellant was not a nominee of the landlady and, as discussed above, the District Judge in his iirst order had quashed the allotment on the ground that the provisions of s. 17(2) had not B been complied with.

It was also argued on behalf of the respondent-landlady that the circumstances having changed; she now wanted to stay in Bijnor permanently and as she wanted additional accommodation she had applied to the District Magistrate under s. 16(1) (b) for releasing the building in her favour.

This application was not at all considered on merits by the District Magistrate or by any court for that matter.

If the respondent could succeed in convincing the District Magistrate that a case for release of the entire building was made out, then the question of allotting the premises to the appellant would not have arisen at ali.

We have gone through the judgment of the High Court in the light of the arguments of the parties and we are inclined to agree with the view taken by the High Court that the mere fact that the lady did not actually reside in the premises which were locked and contained her household effects, it cannot be said that she was not in possession of the preniises so. as to make s. !7(2) inapplicable.

Possession by a landlord of his property may assume various forms.

A landlord may be serving outside while retaining his possession over a property or a part of the property by either leaving it incharge of a servant or by putting his household effects or things locked up in the premises.

Such an occupation also wonld be full and complete possession in the eye of I aw.

It was further argued by Mr. Shanti Bhushan that the landlady had absolutely no reason to stay in Bijnor because she was staying with her son in some other town. That by itself is hardly a good

ground for the landlady who was a widow to sever her connections G with her own property.

Moreover, we do not want to make any observations on the meri!s of this matter as the High Court has rightly remanded the case for a fresh decision on all the points involved.

So far as the second point is concerned, viz., the question of 11llotment of th~ prelllises to th~ appe.llant! the Hih Court was fully

justified in quashing the order of the District Supply Officer as affirmed by the District Judge because despite several opportunities no attempt had been made to approach the landlady to nominate a tenant.

There is no evidence to show that either the prescribed authority or the Rent Control and Eviction Officer ever approached the landlady for making a nomination in respect of the premises vacated by the original tenant and she refused to do .so.

All that the landlany did was to ask for the release of the premises but even if this was refused -it was incumbent on the Rent Control authorities to have fulfilled the essential conditions of s. 17(2) of the Act before making any allotment in favour of the appellant or for that matter any other person. It was suggested that as the landlady was not living in the premises which were Jocked up, section 17(2) did not apply.

We haye already rejected this argument because even occupation of a part of a building by the owner which she may visit 'off and on is' possession in the legal sense of the term and, therefore, it cannot be said that the provision of s. 17(2) would not apply and that the Rent Control authorities could make an allotment in favour of any person without giving an opportunity to the landlady or the landlord to exercise her/his privilege of nominating a tenant.

We have already pointed out that the object of the Act seems to be to arm the owner with the power of nomination so as to .protect him/her from unpleasant tenants or indecent neighbours who may make the life of the owner a hell.

Moreover, the conduct displayed by the appellant in this case clearly shows that if be was thrust on the resp_ondent without her being allowed an opportunity to nominate a tenant, it will violate the very spirit and tenor of

s, 17(2) of the Act.

As we are of the opinion that the order of the High Court has to be upheld we refrain from making any further observations on the merits or any aspect of the matter which have to be gone into _afresh as directed by the High Court.

We find no merit in this appeal which is dismissed with costs quantified at Rs. 1,000/- (Rupees one thousand only.).

P.B.R.

Appeal dismissed,

i14

BABU SINGH CHAUHAN

RAJKUMARI JAIN & ORS

February 1, 1982

S. MURTAZA FAZAL ALI

R.B. MISRA, JJ.

Section 16(1)

Section 17(2)

section 16(1)

section 16(1)

section 16(1)

section 17(2)

section 17(2)

section 17(2)

section 17(2)

K. Garg

V.J. Prands

S.K. Jain

Shanti Bhushan

R.K. Jain

P.K. Jain

Pankaj Kalra

FAZAL Au

Rajkumari Jain

Thapalayal

Bijnor

s. 17(2)

Section 17(2)

Section 16

s. 17(2)

District G Magistrate, Bijnor

SUPRBMB COURT REPORTS [1982] 3 s.c.R.

A

s. 16(1)

s. 16(1)

Additional District Judge, Bijnor

Shanti Bhushan

s. 16(1)

s. 17(2)

s. 17(2)

s. 16(1)

s. 17(2)

section 17(2)

s. 17(2)