Busching Schmitz Private Ltd. Vs. P.T.
Menghani & ANR  INSC 89 (17 March 1977)
CITATION: 1977 AIR 1569 1977 SCR (3) 312 1977
SCC (2) 835
CITATOR INFO :
R 1979 SC 460 (14) RF 1982 SC 71 (10) E 1982
SC1518 (14,17) E&D 1987 SC 222 (17,18,26)
Interpretation of statute--Legislature can be
assumed not to intend obvious literal interpretation resulting into
obscurity--Whether statute can be mocked at--Section 4(1)(c), Delhi Rent
Control Act 1958--Sec. 14, 14A, 25B--Delhi Rent Control Ordinance 24 of
1975--Delhi Rent Control (Amendment) Act, 1976--Right of Government officer who
is asked to vacate Government accommodation to evict his tenant.--Whether can
apply to premises let out for commercial purposes--What is residential
Purpose--Triable issues--Meaning of.
The respondent No. 1 landlord let out his
building to the appellant, a company to carry on business and use part of it
for its manager's residence. The landlord was occupying residential premises
allotted by the Central Government.
After the amendment of the. Delhi Rent
Control Act, 1958, by Ordinance 24 of 1975 which was later replaced by Delhi
Rent Control (Amendment) Act, 1976, section 14A and 25B were added to the
Statute. Section 14 permits a landlord to evict the tenant if the premises let
for residential purpose are required bonafide by the landlord for occupation as
a residence for himself or for any member of his family dependent upon him.
Section 14A provides that where a landlord is in occupation of any residential
accommodation ,allotted to him by the Central Government or any local authority
and if he is required by order made by that Government or authority to vacate
such residential 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, there shall accrue to the landlord a right
to recover immediately possession of any premises let out by him. The said
provision has been given effect notwithstanding anything to the contrary in the
Delhi Rent Act or any other law or the custom or usage. Section 25B provides
for a summary remedy. It provides that the Controller shall give to the tenant
leave to contest the application if the affidavit filed by the tenant discloses
such facts as would disentitle the landlord for obtaining an order for the
recovery of possession on the ground specified in section 4(1)(c) or 14A. The
respondent was directed by the Government to vacate the Government
accommodation on the ground that he had let out residential accommodation of
which he was owner. The respondent No. 1 accordingly filed eviction proceedings
against the appellant claiming possession under Section 14A. The appellant
contended before the Rent Controller that the ground did not fail within the
sweep of section 14A since the premises were let out for residential-rum-commercial
purposes to, a joint Stock Company which was carrying on business besides using
for the residence of its Managing Director. This plea did not cut ice with the
Controller who refused leave to contest. The appellant filed a writ petition in
the High Court under Art 226 of the Constitution which was dismissed.
In appeal by special leave, the appellant
1. Nothing in s.14A compels the landlord to
occupy the premises after evicting the tenant.
He could still let it for a higher rent, take
on lease from the private sector a small house and make a gain, from the difference
flowing in rent.
2. The Controller could not shut him out from
being heard if a triable issue emerged from the affidavit in opposition. In the
present case such issues were-present and, therefore, the Rent Controller was
not justified in refusing leave to contest.
3. Section 14A does not apply in the present
case since the premises were not residential premises as they were let out both
for commercial and residential purposes.
313 (Krishna lyer, J.) Dismissing the appeal,
HELD: (1) It is fallacious to approximate
section 25B(5) with Order 37 rule 3 of the Code of Civil Procedure. The social
setting demanding summary proceeding, the nature. of the subject matter and
above all, the legislative diction which has been deliberately designed, differ
in the two provisions. Disclosure of facts which disentitle recovery of
possession is a sine qua non for grant of leave. [320 F-A, 321A] (2) The
definition of premises in section 2(i) covers any building or part of the
building leased for use, residential, commercial or other. To attract section
14A the landlord must be in occupation of residential premises allotted to him
by the Central Government. He must be required by order of that Government to
vacate his residential accommodation. The Delhi Development Authority granted
the land to respondent No. 1 for construction of a residential building
although it was let out for commercial purpose. Residential premises are not
only plots which are let out for residential purposes nor do all kinds of
structures where humans may manage to. dwell are residential. Use or purpose of
the letting is no conclusive test. Whatever is suitable or adaptable for
residential use, even by making some changes, cart be designated residential
premises. Once it is residential in the liberal sense, section 14A strands
attracted. In the present case the house was built on land given for
constructing a residence, is being used even now for residence is suitable
otherwise for residence and is being credibly demanded for the respondent's
Residential suitability being the basic
consideration, the building is residential. The `purpose test' will enable
officers who own houses to defeat the statute that they do not own residential
premises though it was suitably built for residence. The scheme of section 14A
definitely contemplates a specific representation from landlord to the
Controller that because he has been ordered to vacate the premises where he is
residing he requires immediate possession for his occupation. It's non-obstante
clause, the vesting of a right to immediate recovery, the creation of a summary
process and the package of connected provisions all emphasize that the
amendments have to be viewed as a whole, that the court cannot be fooled and
the statute mocked at.
The cause of action is not only the
Government orders to vacate but consequential urgency to recover his own building.
Parliament cannot be. assumed not to intend the obvious, or to. intend the
ludicrous. Literality is not right where obscurity is the result. [321 C-D, G-H
322 C-D, 323 A-B, G-H] Gillespie Brothers & Co. Ltd. v. Roy Bowles
Transport Ltd.  1 Q.B. 400 quoted in 39 MUd. L.R. 379 (1976) and Anderson
v. Abbott 321 US 349 at 366-67 quoted in Univ. of Pennsylvenia Law Review Vol. 117
(1968) p. 1, 63, quoted with approval.
(3) Judicial machinery while enforcing the
law shall forbid its being misused. [325 E] (4) The possibility of the power of
Government to issue orders to vacate being used discriminately should be carefully
avoided. If exceptions are made in the case of big officers, naturally the.
middling and the lesser minions of Government may have a grievance. It may'
perhaps be proper for Government when allotting good premises for high officers
who made from their own houses large returns to pay into the Government coffers
some: equitable part of the gain so made, giving consideration to circumstances
like loans investment and the like. [325 G-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 81 of 1977.
(Appeal by Special Leave from the judgment
and order dated 6-12-1976 of the Delhi High Court in C.R. No. 248/76).
F.S. Nariman, N.S. Sistani and K.C. Dua for
K.K. Jain, S.K. Jain and P. Dayal, for
respondent No. 1.
314 The Judgment of the Court was delivered
by KRISHNA lYER, J.--Delhi, the home of Power and the nidus of paradoxes,
presents many pathological problems to the students of history, social science,
politics and law, often inter-acting with each other. We are here concerned
with the socio-legal malady of accommodation scarcity and the syndrome of long
queues of government employees waiting, not knowing for how long, for allotment
of government quarters at moderate rents and the co-existence of several
well-to-do officers enjoying, by virtue of their office, State-allotted
residential accommodation while owning their own but letting them out at
lucrative rents, making substantial incomes in the bargain. The law awoke to
end this unhappy development and to help the helpless nonallottees get government
accommodation. Such is the back-drop to s.
14A which, read along with s. 25B, of the
Delhi Rent Control Act, 1958 (Act LIX of 1958) (for short, the Act), falls for
our consideration in the present appeal by special leave.
A deeper understanding of the need for the
new provisions just mentioned and the construction that they bear in the
context necessitates stating a little more in detail the social setting. The
seat of the capital of a vast country with varied activities naturally will be
honeycombed with government offices, public organisations and growing armies of
employees. The higher echelons in public service, over the decades, have made
generous use of the availability of government lands at low prices and of the
know-how of utilising, to their advantage, the immense developmental potential
in the years ahead if buildings were constructed with foresight. Thus many
neatly organised colonies blossomed all around Delhi whose owners were in many
instances officers who had the telescopic faculty to see the prospective spread
out of Delhi of the future. Taking time by the forelock, they wisely invested
money (often on soft loans from Government) in buildings which secured ambitious
rents when India's headquarters did, as it was bound to, explosively expand.
Most of such officials let their premises for high rents to big businessmen,
foreign establishments, company executives and others of their link.
Where did the officers themselves reside ?
The strange advantage of Delhi is that houses, with lawns, servants' quarters
and other amenities, built by government long years back are allotted to
government servants on rents which are a fraction of what similar accommodation
in the private sector may fetch oftentimes. The bigger officials according to
the hierarchical system (almost perfected into some sort of official castes and
sub-castes based on status and position in the ministries and not on the heads
of their families or office) occupied the classified quarters, the official
`brahmins', of course, getting the best.
The rents they paid as tenants were
negligible compared to the returns they made as landlords. Indeed, a
sociological research into the whole system may perhaps unravel the
semi-survival of quasifeudal life-styles and the unlovely phenomenon of public
servants paying little and collecting large.
The socio-economic sequel was worse than
this. An astronomical increase in the number of government servants led to a
terrific pressure for accommodation because, most of them--particularly at the
lesser 315 (Krishna lyer, J.) levels--had no worthwhile salaries and were
priced out of the private sector where rentals had unconscionably rocketed.
This rack-renting abuse can be checked, in some measure, by an activist policy
of relentlessly enforcing fair rents through penal tags. That, of course,
depends on the will and wisdom of Parliament and Government, and the court may
not make any comment. Anyway, currently, controls in this essential area of
human accommodation, in the capital city of our socialist republic, are a
statute book virtue. Similarly, the suggestion, in the course of his
submissions, made by counsel for the appellants, that the true solution is for
the State to build more accommodation for its servants and not eject tenants
like his client is commendable as a text book panacea but `a consummation to be
wished' in practical expectations! Nevertheless, the State took cognizance of
the sinister development of several officers owning private residences and
occupying government premises and making handsome dividends out of the
disparity in rents and, ergo, a large number of less fortunate officials having
to wait in a queue for years hoping against hope that someday some government
quarters would be allotted! These latter, with broken domestic budgets, huddle
together in small private tenements (or even servants' quarters) paying rents
beyond their means. The politics and economics of scarcity are well known. Out
of this distressing situation was born s. 14A of the Act.
A fasciculus of clauses creating substantive
and procedural provisions to meet the evil and advance the scheme in that
behalf came in, first by ordinance 24 of 1975 in December 1975, duly replaced
by the Delhi Rent Control (Amendment) Act, 18 of 1976. The chronic disease
needed drastic treatment and the legislative draftsmen created a chain of stiff
provisions. Speaking generally, the government, after satisfying itself about
the official having let out his residential building and occupying officially
allotted quarters, directed the person to vacate government premises but he had
quickly to get back his own house. So a new right (s. 14A) was created, accelerated
remedial procedures were prescribed (s. 25A and 25B).This appeal turns on the
meaning of s. 14A.
The purpose of the project has been explained
by Chandrachud J. in Sarwan Singh(1):
"The object of Section 14A, as shown by
its marginal note, is to confer a right on certain landlords to recover
immediate possession of premises belonging to them and which are in the
possession of their tenants. In the significant language of the marginal note,
such a right is `to accrue' to a class of persons.
The same concept is pursued and clarified in
the body of Section 14A by providing that in the contingencies mentioned in the
section, a right will accrue to the landlord 'to recover immediately possession
of any premises let out by him'..." * * * * "Whatever be the merits
of that philosophy, the theory is that an allottee from Central Government or a
local (1) Sarwan Singh v. Kasturi Lal, A.I.R. 1977 S.C. 265, 272-274.
316 authority should not be at the mercy of
law's delays while being faced with instant eviction by his landlord save on
payment of what in practice is penal rent. Faced with a Hobson's choice, to
quit the official residence or pay the market rent for it, the allottee had in
turn to be afforded a quick and expeditious remedy against his own tenant. With
that end in view it was provided that nothing, not even the Slum Clearance Act,
shall stand in the way of the allottee from evicting his tenant by resorting to
the summary procedure prescribed by Chapter IIIA. The tenant is even deprived
of the elementary right of a defendant to defend a proceeding brought against
him, save on obtaining leave of the Rent Controller. If the leave is refused,
by section 25B(4) the statement made by the landlord in the application for
eviction shall be deemed to be admitted by the tenant and the landlord is
entitled to an order for eviction. No appeal or second appeal lies against that
order. Section 25B(8) denies that right and provides instead for a revision to
the High Court whose jurisdiction is limited to finding out whether the order
complained of is according to law." It is a notorious fact that, vesting a
right is long years' distance away from getting the remedy, thanks to our legal
process with its slow motion mood. A jurisprudence of quick-acting and
comprehensive remedies, demanding restructuring and streamlining of the
judicative apparatus and imparting operational speed and modernisation of the
whole adjectival law and practice, is urgent and important--an observation we
make hoping that Parliament will programme for such a constructive change for
the good of the community, in consultation with the Court and the Bar. That
legal instrumentality alone truly sustains the rule of law which delivers
justice with inexpensive colority, finality and fullness. The big right--remedy
gap is the bane of our system. We regard it our duty to, mention this dimension
of justice and this desideratum of systemic reform so that repetitive litanies
to end law's delays may be intelligently heeded by the law-makers instead of
joining the chorus against the court.
Back to the statute. Section 14-A, with a
non-obstante rider, follows upon and is partly supplemental to s. 14 which
primarily governs eviction by landlords of tenants.
We may extract a part of s. 14 and the whole
of s. 14A:
"14(1) Notwithstanding anything to the
contrary 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) to (d) * * * * 317 (Krishna Iyer, J.) (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
Explanation.--For the purposes of this
clause, "premises let for residential purposes, includes. any premises
which having been let for use as a residence are, without the consent of the
landlord, used incidentally for commercial or other purposes, .... " X X X
X "14A. Right to recover immediate possession of premises to accrue to
certain persons.-(1) Where a landlord who, being a person in occupation 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 or 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 landlord owning, in the union 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 such landlord to indicate the
dwelling house, possession of which he intends to recover.
(2) Notwithstanding anything contained
elsewhere in this Act or in any other law for them. time being in force or in
any contract, custom or usage to the contrary, where the landlord exercises the
right of recovery conferred on him by sub-section (1 ), no compensation shall
be payable by him to the tenant or any person claiming through or under him and
no claim for such compensation shall be entertained by any court, tribunal or
Provided that where the landlord had
received,-318 (a) any rent in advance from the tenant, he shall, within a
period of ninety days from the date of recovery of possession of the premises
by him, refund to the tenant such amount as represents the rent payable for the
unexpired portion of the contract, agreement or lease;
(b) any other payment, he shall, within the
period aforesaid, refund to the tenant a sum which shall bear the same
proportion to the total amount so received, as the unexpired portion of the
contract or agreement, or lease bears to the total period of contract or
agreement or lease;' Provided further that, if any default is made in making
any refund as aforesaid, the landlord shall be liable to pay simple interest at
the rate of six per cent per annum on the amount which he has omitted, or
failed to refund." A summary remedy is provided by s. 25B which reads:
"25.B. Special procedure for the
disposal of applications for eviction on the ground of bona fide requirement.-(1)
Every application by a landlord for the recovery of possession of any premises
on the ground specified in clause (a) of the proviso to. Sub-section (1) of
Section 14, or under Section 14A, shall be dealt with in accordance with the
procedure specified in this section.
(2) The Controller shall issue summons, in
every application referred to in sub-section
(1 ), in the form specified in the Third Schedule.
(3) (a) The Controller shall, in acquisition
to, and simultaneously with, the issue of summons for service on the tenant,
also direct the summons to be served by registered post, acknowledgment due,
addressed to the tenant or his agent empowered to accept the service at the
place where the tenant or his agent actually and voluntarily resides or carries
on business or personally works for gain and may, if the circumstances of the
case so require, also direct the publication of the summons in a newspaper
circulating in the locality in which the tenant is last known to have resided
or carried on business or personally worked for gain.
(b) When an acknowledgment purporting to be
signed by the tenant or his agent is received by the Controller or the
registered article containing the summons is received back with an endorsement
purporting to have been made by a postal employee to the effect that the tenant
or his agent had refused to take delivery of the registered article, the
Controller may declare that there has been a valid service of summons.
319 (Krishna Iyer, J.) (4) The tenant on whom
the summons is dully served (whether in the ordinary way or by registered post)
in the form specified in the Third Schedule shall not contest the prayer for
eviction from the premises unless he files an affidavit stating the grounds on
which he seeks to contest the application for eviction and obtains leave from
the Controller as hereinafter provided; and in default of his appearance in
pursuance of the summons or his obtaining such leave, the statement made by the
landlord in the application for eviction shall be deemed to be committed by the
tenant and the applicant shall be entitled to an order for eviction on the
(5) The Controller shall give -to. the tenant
leave to contest the application if the affidavit filed by the tenant discloses
such facts as would disentitle the landlord from obtaining an order for the
recovery of possession of the premises on the ground specified in clause (a) of
the proviso to sub-section (1) of Section 14, or under Section 14A.
(6) Where leave is granted to the tenant to
contest the application, the Controller shall commence the hearing of the
application as early as practicable.
(7) Notwithstanding anything contained in
sub-section (2) of Section 17, the Controller shall, while holding an inquiry
in a proceeding to which this Chapter applies, follow the practice and
procedure of a Court of Small Causes, including the recording of evidence.
(8) No appeal or second appeal shall lie
against an order for the recovery of possession of any premises made by the Controller
in accordance with the procedure specified in this section;
Provided that the High Court may, for the
purpose of satisfying itself that an order made by the Controller under this
section is according to law, call for the records of the case and pass such
order in respect thereto as it thinks fit.
(9) Where no application has been made to the
High Court on revision, the Controller may exercise the powers of review in
accordance with the provisions of Order XL VIX of the first Schedule to the
Code of Civil Procedure, 1908 (5 of 1908).
(10) Save as otherwise provided in this
Chapter, the procedure for the disposal of an application for eviction on the
ground specified in clause (e) of the proviso to subsection (1) of Section 14,
or under Section 14A, shall be the same as the procedure for the disposal of
applications by Controllers." 320 The landlord-respondent no. 1 was a
government servant who had let his own building to the .appellant-tenant (a
company) to carry on business and use part of it for its manager's residence.
He himself was occupying residential premises allotted by the Central
Government and, since he was directed by that Government to vacate, on the
ground that he had let out 'residential accommodation' of which he was owner,
he sought refuge under s. 14A. The eviction proceeding was resisted, inter
alia, on the score that the ground did not fail within the sweep of s. 14A, the
premises 'having been let out for a residential-cum-commercial purpose to a
joint stock company which was carrying on its business .... besides using it
for the residence of its Managing Director'. This plea did not cut ice with the
Controller who refused leave to contest under s. 25B(4). of the Act. The
refusal would ordinarily have led to an order for eviction but this consequence
was intercepted by a writ petition under Art. 226 of the Constitution and a
revision to the High Court, as provided by the proviso to subs. (8) of s. 25B
of the Act. Dismissal of these proceedings has brought the appellant, special
leave having been granted, to this Court as the last hope of course, the issue
is of some moment, legally and otherwise. For while solving the twin problems,
viz. making more accommodation available to government servants in need and
ending the vice of officers gaining by letting their own residential houses, s.
14A creates another, viz., the ejectment of tenants by summary procedure on a
new ground. Maybe, as between the two.
hardships Parliament has made the choice and
the Court implements the law based on the policy decision of the legislature.
Mr. Nariman sought to expose the weakness of this legislative, policy by
stating that nothing in s. 14A compelled the officer-landlord to occupy the
premises after evicting the tenant. He could still let it for a higher rent,
take on lease from the private sector a small house and make a gain flowing
from the difference in rents.
While we, as Judges, cannot fail to apply the
provision merely because dubious ingenuities can circumvent it, we will later
interpret the section eliminating the possible evil pointed out.
The short but insistent submission made by
the counsel for the appellant was that the Controller could not shut him out
from being heard, as he did, if only a triable issue emerged from the affidavit-in-opposition
filed under 's. 25B(4).
Such an issue (in fact, more than one) was
obviously present here, urged counsel. But we make it plain even at this stage
that it is fallacious to approximate (as was sought to be done) s. 25B(5) with
Order 37, r. 3 of the Code of Civil Procedure. The social setting demanding
summary proceeding, the nature of the subject-matter and, above all, the legislative
diction which has been deliberately designed, differ in the two provisions. The
legal ambit and judicial discretion are wider in the latter while, in the
former with which we are concerned, the scope for opening the door to defence
is narrowed down by the strict words used. The Controller's power to give leave
to contest is cribbed by the condition that the affidavit filed by the tenant
discloses such facts as would disentitle the landlord from obtaining an order
for the recovery of posession of the premises on the ground specified in cl.
(e) of the proviso to sub-s. (1) of s. 14 321 (Krishna lyer, J.) or under s.
14A. Disclosure of facts which disentitle recovery of possession is a sine qua
non for grant of leave. Are there facts disentitling the invocation of s. 14A ?
The thrust of Shri Nariman's contention is that s. 14A does not apply at all,
as a matter of construction of the expression 'residential premises'. This is
net something factual but essentially legal and perhaps the question deserves
our decision. For, if we explain, as declaratory of the law, what the true
scope of s. 14A is, vis a vis the premises involved, the Controller may then
proceed on that footing and decide whether there is any fact disclosed which
Let us break down s. 14A, to the basic
components creative of the new right to recover possession of premises let to a
tenant. `Premises', by definition, covers any building or part of a building
let for use, residential, commercial or other (s. 2(i)). We confine ourselves
to the considerations relevant to our case. To attract s. 14A, the landlord
must be in occupation of `residential premises' allotted to him by the Central
Government. He must be required by order of that Government to vacate such
'residential accommodation'. These are fulfilled here. The ground for such
order to vacate must be 'that he owns, in the Union Territory of Delhi, a
residential accommodation'. If so, there accures to such landlord the right 'to
recover immediately possession of any premises let out by him' (emphasis
The bone of contention between the parties is
as to whether the premises let out are 'residential accommodation'. It may be a
pursuit of subtle nicety to chase the reason for using different expressions
like 'residential premises' and 'residential accommodation' in the same section.
If at all, 'accommodation' is ampler than 'premises'.
What is residential accommodation ? If the
building in dispute answers that description, the tenant must submit to
eviction. So this is the key question.
Admittedly, the building was let out for
commercial purpose also. Is the purpose of the lease decisive of the character
of the accommodation ? For a long time it was used as an office of the tenant's
business, the manager also residing in a part thereof. Does user clinch the
issue ? At present, the main use to which the building is put is as residence
of the manager.
The Delhi Development Authority granted the
land to the government servant-respondent for construction of a residential
building although he later let it out for non-residential use, apparently for
getting large rents, silencing his compunction about the basis on which he
secured the allotment of the land at low cost. But can the court conclude from
the object of the land assignment whether the building later put up is
residential or not ? Marginal relevance there may be in these diverse factors,
telling value they do not possess, Law, being 6--436SCI/77 322 pragmatic,
responds to the purpose for which it is made, cognises the current capabilities
of technology and lifestyle of the community and flexibly fulfils the normative
role, taking the conspectus of circumstances in ,the given case and the nature
of the problem to solve which the statute was made. Legislative futility is to
be ruled out so long as interpretative possibility permits. Residentiality depends
for its sense on the context and purpose of the statute and the project
Guided by this project-oriented approach, we
reject the rival extreme position's urged before us by Shri Nariman and Shri
Jain. Residential premises are not only these which are let out for residential
purposes as the appellant would have it. Nor do they cover all kinds of
structures where humans may manage to dwell. If a beautiful bungalow were let
out to a businessman to run a show-room or to a meditation group or music
society for meditational or musical uses, it remains none-the-less a
residential accommodation. Otherwise, premises may one day be residential,
another day commercial and, on yet a later day, religious. Use or purpose of
the letting is no conclusive test. Likewise, the fact that many poor persons
may sleep under bridges or live in large hume pipes or crawl into verandahs of
shops and bazars cannot make them residential premises. That is a case of
reductio ad absurdum.
Engineering skills and architectural
designing have advanced far enough to make multi-purpose edifices and, by minor
adaptations, make a building serve a residential, commercial or other use. The
art of building is no longer' rigid and the character of a house is not an
It can be both, as needs demand. It is so
common to see a rich home turned into a business house, a dormitory into a
factory. Many small-scale industries are run in former living quarters. To
petrify engineering concepts is to betray the law's purpose. Whatever is
suitable or adaptable for residential uses, even by making some changes, can be
designated 'residential premises'. And once it is 'residential' in the liberal
sense, s. 14A stands attracted. Dictionary meaning, commonsense understanding
and architectural engineering concur in the correctness of this construction.
What falls outside the ambit of 'residential
purposes' may be limited but not non-existent. A shop in Connaught Place, a
factory in an area prescribed by any municipal regulation for residential use
or any structure too patently non-residential such as a hothouse for botanical
purposes or a bath and toilette or teashop by the road margin are obvious
instances. We may visualise other cases but that is not our purpose here. The
house we are considering was built on land given for constructing a residence
is being used even now for residence, is suitable otherwise for residence and
is being credibly demanded for the respondent's residence.
Residential suitability being the basic
consideration, this building fills the bill. Nothing said in the affidavit-inopposition
puts it out of the pale of residential accommodation. A building which
reasonably accommodates a residen323 (Krishna Iyer, J.) tial user is a
residential accommodation--nothing less, nothing else. The circumstances of the
landlord are not altogether out of place in reaching a right judgment. The
'purpose test' will enable officers who own houses to defeat the government by
pleading that they do not own 'residential premises' because the lease is for
commercial use, built though it was and stumble ,though it is, for residence.
Similarly, the 'possibility test' may make nonsense of the provision. The
contrast in the phraseology between s. 14(1)(e) and s. 14A strengthens our inference.
The legislature has, in the former provision,
used the expression 'premises let for residential purposes', thus investing the
purpose of the lease with special significance. The deliberate omission of such
words in s. 14A and, instead, the use of the flexible but potentially more comprehensive,
though cryptic, expression 'residential accommodation' cannot be dismissed as
Shri Nariman argued that the court must have
the power to consider whether the order of the government stating that the
government servant's building is residential, is valid or not. We do not deny
that in the last resort it is within the Court's province to do so. But it must
give due-not deadly--weight to the decision of the government that the premises
owned by its officer is residential. Perversity and mala fides will, of course,
invalidate government orders here, as elsewhere. They are the exceptions but as
a practical guideline, the government's order may be taken as correct. For,
after all, while courts must finally pronounce, others familiar with the
work-a-day world and enquire before passing orders are not too inexpert or
incompetent to be brushed aside. The power to render binding decisions vests in
the judicial process, not because it is infallible or occult but because it is
habitually independent and professionally trained to consider contending view
points aided by counsel for a adversaries. The humility that makes for wisdom
behoves the judge to show respect for--not obedience to--the view of an
There remains the conundrum raised by Shri
Supposing the landlord, after exploiting the
easy process of s. 14A, re-lets the premises for a higher rent; the social goal
boomerangs because the tenant is ejected and the landlord does not occupy, as
he would have been bound to do, if he had sought eviction for bona fide
occupation under s. 141(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
Controller that because he has been ordered to vacate the premises where he is
residing, therefore he requires immediate possession for his occupation. The
non-obstante clause, the vesting of a right to immediate recovery, the creation
of a summary process under s. 25B and the package of connected provisions, all
emphasize that the amendments have to be viewed as a whole, that the Court
cannot be fooled and the statute mocked at. The law, as Mr. Bumble (in Oliver
Twist) said. `is a ass--a idiot', but today the socio-economic project cannot
be frustrated by legalistics. Underlying the whole legislative plan and
provision is the fundamental anxiety to recover, for the officer's occupation,
his own premises. Once we grasp this cardinal point, the 324 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. For
instance, if he has a vacant house of his own and, on getting an order to
vacate, he moves into his vacant house, he cannot thereafter demand recovery
under s. 14A. The cause of action is not only the government order to vacate,
but his consequential urgency to recover his own building.
That is the rationale legis. To interpret
otherwise is to vindicate Mr. Bumble ! We hold that Shri Nariman's apprehension
is unfounded and s. 14A is largely a rider to .s. 14 and the condition
indicated in s. 19 must, mutatis mutandis, bind the landlord. Parliament cannot
be assumed not to intend the obvious, or to intend the ludicrous. Literality
not right where absurdity is the result.
The same result is reached by reading into
every application for eviction by a landlord a necessarily implied
representation to court that for the reason of his being directed to get out he
must be given possession of his own residence for his own occupation with the
aid of the judicial process. If the finale is reached and possession obtained,
the Court will not allow a party to reduce its process to a mere make-.
believe, or a clever parody, breaking faith with the judicial process itself.
Such paths can be interdicted by the use of the inherent power of the court.
The re-letting to someone else or non-occupation, even after a reasonable time
or without reasonable cause, will be regarded as an abuse of the process of the
court and, at the instance of the affected tenant or otherwise, the eviction
order cancelled and possession restored. We affirm this legal position lest
overly cute but qualmless landlords should hopefully hoax the court and reduce
its decree to a joke. Every tribunal has the inherent power to prevent its
machinery from being made a sham, thereby running down the rule of law itself
as an object of public ridicule. It will and must prove any strategem
self-defeating if a party indulges in making the law the laughing stock, for,
the court will call him to order.
We are not adventuring into any innovation of
legal principle in inhibiting un conscionability in the enforcement of rights.
Lord Denning M.R. said:
"What is the justification for the
courts in this or any other case, departing from the ordinary meaning of words
? If you examine all the cases you will, I think, find that at bottom it. is
because the clause (relieving a man from his own negligence) is unreasonable or
is being applied unreasonably in the circumstances of the particular case. The
judges have then, time after time, sanctioned a departure from the ordinary
Are the courts then powerless ? Are they to
permit the party to enforce his unreasonable clause, even when it is
unconscionable, or applied so unreasonably as to be unconscionable ? When it
gets to this point, I would say, as I said many years ago: `There is the
vigilance of the common law which, while allowing freedom of contract, watches
to see that it is not abused.'" X X X X 325 (Krishna Iyer, J.) He
"I know that the judges hitherto have
never confessed openly to the test of reasonableness. But it has been the
driving force behind many of the decisions."(1) We agree that, in the
words of Lord Erakine, 'there is no branch of the jurisdiction of this court
more delicate than that, which goes to restrain the exercise of a legal right'.
But the principle of unconscionability
clothes the court with the power to prevent its process being rendered a
parody. The justice of the law steps in end, the area of eviction of a tenant
by a landlord, the tribunal cannot tolerate double-dealing or thwarting the
real intendment of the statute.
The same conclusion can be reached through
another line of reasoning expressed by Justice Jackson of the Supreme Court of
the United States in D' Cench Duhme:(2) "If the judicial power is helpless
to protect a legislative program from schemes for easy avoidance, then indeed
it has become a handy implement of high finance .... Once the purpose or effect
of the scheme is clear, once the legislative policy is plain, we would indeed
forsake a great tradition to any we were helpless to fashion the instruments
for appropriate relief." The doctrine that the judicial machinery, while
enforcing the law, shall forbid its being misused is another dimension of two
deeply rooted, but inter-connected maxims.
Actus curiae neminem gravabit (An act of the
court shall prejudice no man: Jenk. Cent. 118) and Actus legis est damnosus
(The act of the law is hurtful to no one: 2 Inst.
287): Actus legis nemini facit in-juriam (The
act of the law does injury to no one: 5 Coke. 116). This principle is
fundamental to any system of justice and applies to our jurisprudence.
An Afterword The possibility of the power of
government to issue orders to vacate being used discriminatorily should be
carefully avoided. If exceptions are made in the case of big officers,
naturally the middling and the lesser minions of government may have a
grievance. It may perhaps be proper if government, when allotting good premises
for high officers who make from their own houses large returns by way of
rentals, makes them pay into government coffers some equitable part of the gain
so made, giving consideration to circumstances like loans, investments and the
like. This, again, is a matter falling with(1) 39 Mod. L.R. 379 (1976) (2)
Referred to in 318 U.S. 366, at 366-67; Quoted in Univ.
of Pennsylvania Law Review VoL. 117 (1968) p.
326 in the province of the sense of justice
of the Administration. But we mention it only to save the legislation from the
aspersion of invidiousness in the exercise of the power.
In the view we have already taken, it follows
that the appeal must be dismissed and we hereby do so; but the parties, in the
circumstances, will bear their own costs throughout.
P.H.P. Appeal dismissed.