S. B. Noronah Vs. Prem Kumari Khanna
[1979] INSC 150 (16 August 1979)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
SHINGAL, P.N.
CITATION: 1980 AIR 193 1980 SCR (1) 281 1980
SCC (1) 52
CITATOR INFO :
F 1984 SC 595 (6,13) F 1984 SC1019 (1) E 1985
SC 475 (5,6,11,12) RF 1987 SC1986 (30) F 1987 SC1996 (9,10) F 1989 SC 458
(9,10) F 1990 SC 325 (14,18) R 1990 SC1133 (3) R 1990 SC1725 (21) RF 1991
SC1233 (10,12,13) RF&E 1992 SC1555 (2,10,15,16,18,19)
ACT:
Delhi Rent Control Act, 1958, Section 21
scope of-Duty of the Court in dealing with applications under Section 21,
explained.
HEADNOTE:
Dismissing the appeal by special leave, the
Court
HELD: Section 21 of the Delhi Rent Control
Act, 1958 carves out a category for special treatment. While no landlord can
evict without compliance with sections 14, 19 and 20 of the Act, a liberal
eviction policy cannot be said to under-lie in section 21. Parliament was
presumably keen on maximising accommodation available for letting, realising
the scarcity crisis. One source of such spare accommodation which is usually
shy is potentially vacant building or part thereof which the landlord is able
to let out for a strictly limited period provided he has some credible
assurance that when he needs he will get it back. The law seeks to persuade the
owner of the premises available for letting for a particular period by giving
him a special assurance that at the expiry of that period the appointed agency
will place the landlord in vacant possession. And, Section 21 confines the
special remedy to letting for residential uses only.
Parliament had the wholesome fear that if the
section were not controlled by many conditions it might open the floodgates for
wholesale circumvention of the rent control legislations by ingenious landlords
exploiting the agonising need of houseless denizens. [285B-D, G-H, 286A]
2. Section 21 over-rides section 14 precisely
because it is otherwise hedged in with drastic limitations and safeguards
itself against landlords' abuses. The first condition is that the landlord does
not require the demised premises "for a particular period" only. This
means that he must indicate to the authority before which sanction is sought
for letting what is the particular period for which he can spare the
accommodation. The Controller exercises an important regulatory function on
behalf of the community.
The fact that a landlord and a potential
tenant together apply, setting out the formal ingredients of Section 21, does
not relieve the Controller from being vigilant to inquire and satisfy himself
about the requisites of the landlord's non-requirement "for a particular
period" and the letting itself being "as a resident". A fraud on
the statute cannot be permitted especially because of the grave mischief that
may be perpetrated in such event. [286E, H, 287A-D]
3. There would be a terrible blow to the rent
control law if section 21 were freely permitted to subvert the scheme of
Section 14. Every landlord will insist on a tenant going through the formal
exercise of Section 21, making ideal averments in terms of that Section. The
consequence will be that both the Civil Procedure Code which prescribes suits
for recovery of possession and the Delhi Rent Control Act which prescribes
grounds for eviction will be eclipsed by the pervasive operation of Section 21.
Neither grounds for eviction nor suits for eviction will thereafter be needed,
and if the landlord moves the Court 282 for a mere warrant to place the
landlord, through the Court process, in vacant possession of the premises, he
gets it.
No court-fee, no decree, no execution
petition, no termination of tenancy-wish for possession and the court is at
your command. Such a horrendous situation will be the negation of the rule of
law in this area. [287 D-F]
4. When an application under Section 21 is
filed by the landlord and/or tenant the Controller must satisfy himself by such
inquiry as he may make, about the compulsive requirements of that provision. If
he makes a mindless order, the Court, when challenged at the time of execution
will go into the question as to whether the twin conditions for sanction have
really been fulfilled. Of course, there will be a presumption in favour of the
sanction being regular, but it will still be open to a party to make out his
case that in fact and in truth the conditions which make for a valid sanction
were not present.
[287 G-H, 288A]
5. The sanction granted under section 21, if
it has been procured by fraud and collusion cannot withstand invalidity
because, otherwise, high public policy will be given as hostage to successful
collusion. The doctrine of estoppel cannot be invoked to render valid a
proceeding which the legislature has, on grounds of public policy subjected to
mandatory conditions which are shown to be absent. As between unequals the law steps
in and as against statutes there is no estoppel, especially where collusion and
fraud are made out and high purpose is involved. [288D- E, G-H]
6. Law that non-performs stultifies the rule
of law and hence the need for strict compliance. Or else, the sanction is
non-est....Collusion between the strong and the weak cannot confer validity
where the mandatory prescriptions of the law are breached or betrayed. [289A]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 290 of 1979.
Appeal by Special Leave from the Judgment and
Order dated 25th January 1979 of the Delhi High Court in S.A.O. No. 73/78.
Hardev Singh and R. S. Sodhi for the
Appellant.
Y. S. Chitaley and K. C. Dua for the
Respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J. This appeal is symptomatic of a social pathology which
afflicts the Justice System at every level with none concerned to cure it.
The extraordinary scarcity of accommodation
in our country has produced the legislative and legislative phenomena of
tenants' protection laws and interminable 'eviction' cases. The situation cries
for a social audit of the explosive expansion of ruinous and pathetic 283 'rent
control litigation' and an urgent yet dynamic policy of promoting house
construction for the lower brackets of Indian humanity.
A landlady let out her premises to another
day several years ago (1968) for a term and, thereafter, from time to time,
continued the possession of the tenant on fresh lease and increase in rent.
Every time there was homage to the law by grant of sanction by the Rent
Controller under Section 21 of the Delhi Rent Control Act, 1958. (the Act, for
short), as if the letting were of a residential accommodation. It is apparent
that all these years an elitist 'residential school' is being run in the
premises and that is the purpose expressly recited in all but the last lease
deed of December 1975. This lease recites blandly that 'the lessee requires a
suitable accommodation for residential purposes'. The period of the lease
having expired the landlady applied for summary eviction by application for
execution-a novel procedure enjoyed by the landlords of this capital city which
relieves them of the need even to file a suit for eviction. The tenant, whose
expensive and lucrative school was about to be uprooted for want of habitation,
hunted for a legal plea to resist the threat of dispossession. Technicality is
the unfailing resource of an Indian litigant and the ingenious defence, among
others, was set up that because the application for eviction did not mention
that the letting was 'in writing' it was fatally flawsome. Better pleas which
merited serious consideration were over-ruled but this little infirmity in the
pleading loomed large in the eyes of the Rent Controller who, for that reason
alone, rejected the relief.
The inevitable appeal to the Tribunal
followed. An application for amendment of the pleading, by way of abundant
caution, to make good the verbal deficiency was also made. Furious forensic
battles raged and the appellate tribunal as well as the High Court allowed the
appeals and the amendments, over-ruling the further plea of limitation for the
application as on the date of the amendment. The worsted tenant has secured
leave to appeal and there is an application for revocation of leave.
We have been addressed two main arguments
plus other points of lesser moment. The first is that the application for
execution is defective because in the narration of facts the lease is mentioned
but the words 'in writing' are not stated. It is further contended that by the
time these words were supplied by amendment of the application, the period of
limitation (six months) had elapsed and that bar prevented entertainment of the
proceedings.
284 Pleadings are not statutes and legalism
is not verbalism. Common sense should not be kept in cold storage when
pleadings are construed. It is too plain for words that the petition for
eviction referred to the lease between the parties which undoubtedly was in
writing. The application, read as a whole, did imply that and we are clear that
law should not be stultified by courts by sanctifying little omissions as fatal
flaws. The application for vacant possession suffered from no verbal lacunae
and there was no need to amend at all. Parties win or lose on substantial
questions, not 'technical tortures' and courts cannot be 'abettors'.
The further arguments on limitation when a
vital fact creative of a cause of action is brought in by amendment after
expiry of limitation is an important question which need not be considered in
the view we have taken on the adequacy of the pleading.
The next issue is of importance not merely
for this lis but also for the sensitive application of Sec. 21 in its social
perspective. The notorious rack-renting and impotence of legislation against
unreasonable eviction in the capital city of Delhi (and elsewhere) compels us
to take a close look at the facile provision in Sec. 21, its social purpose and
functional distortion, its potential for subversion of the statutory scheme
unless, by interpretation, it is canalised and the 'mischief rule' in Hyden's
case applied.
After all, for the common man, law-in-action
is what the court says it is.
To maintain the integrity of the law the
court must 'suit the action to the word, the world to the action, and so we
have to fathom, from the language employed and the economic, milieu, what the
meaning of Sec. 21 is and save it from possible exploitation by unscrupulous
landlords for whom 'fair is foul, and foul is fair'.
Rent control legislation in Delhi, as
elsewhere in the country, is broadly intended 'to provide for the control of
rents and evictions and of rates of hotels and lodging houses and for the lease
of vacant premises to Government, in certain areas in the Union Territory of
Delhi.
This is understandable where the city
population swells and the city accommodation stagnates, the people suffocate
for space and landlords 'make hay' playing the game of 'each according to his
ability to grab'.
Parliament has built into the Act restriction
on eviction. Sec. 14 (1) starts off:
"Notwithstanding anything to the
contrary in any other law or contract, no order or decree for the recovery of
posses- 285 sion 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:- ............................................
The scheme of embargo on eviction makes a
pragmatic swerve by the time we reach Sec. 21. We can correctly visualise the
scope and sweep of this provision only in its proper social setting. It carves
out a category for special treatment. While no landlord can evict without
compliance with Sections 14, 19 and 20; does a liberal eviction policy underlie
Sec. 21 ? Apparently contrary but actually not once we understand the raison
d'etre of the section. Parliament was presumably keen on maximising accommodation
available for letting, realising the scarcity crises. One source of such spare
accommodation which is usually shy is potentially vacant building or part
thereof which the landlord is able to let out for a strictly limited period
provided he has some credible assurance that when he needs he will get it back.
If an officer is going on other assignment for a particular period, or the
owner has official quarters so that he can let out if he is confident that on
his retirement he will be able to re-occupy, such accommodation may add to the
total lease-worthy houses. The problem is felt most for residential uses. But
no one will part with possession because the lessee will become a statutory
tenant and, even if bona fide requirement is made out, the litigative tiers are
so many and the law's delays so tantalising that no realist in his sense will
trust the sweet promises of a tenant that he will return the building after the
stipulated period. So the law has to make itself credit-worthy. The long
distance between institution of recovery proceedings and actual dispossession
runs often into a decade or more-a factor of despair which can be obviated only
by a special procedure.
Section 21 is the answer. The law seeks to
persuade the owner of premises available for letting for a particular or
limited period by giving him the special assurance that at the expiry of that
period the appointed agency will place the landlord in vacant possession. As
stated earlier, the critical need was for residential, not nonresidential
housing. Therefore, Section 21 confines this special remedy to letting for
residential uses only. Parliament had the wholsome fear that if the section
were not controlled by many conditions it might open the flood gates for
wholesale circumvention of the rent control legislation by ingenious landlords
exploiting the 286 agonising need of houseless denizens. Against this back-
drop, let us read Section 21 and highlight the essential conditions written
into the provision:
"21. Where a landlord does not require
the whole or any part of any premises for a particular period, and the
landlord, after obtaining the permission of the Controller in the prescribed
manner, lets the whole of the premises or part thereof as resident for such
period as may be agreed to in writing between the landlord and the tenant and
the tenant does not, on the expiry of the said period, vacate such premises,
then, notwithstanding anything contained in Section 14 or in any other law, the
Controller may, on an application made to him in this behalf by the landlord
within such time as may be prescribed, place the landlord in vacant possession
of the premises or part thereof by evicting the tenant and every other person
who may be in occupation of such premises." We must notice that Section 21
runs counter to the general scheme and, therefore, must be restricted severely
to its narrow sphere. Secondly, we must place accent on every condition which
attracts the Section and if any one of them is absent the Section cannot apply
and, therefore, cannot arm the landlord with a resistless eviction process.
Thirdly, we must realise that the whole
effect of Section 14 can be subverted by ritualistic enforcement of the
conditions of sanction under Sec. 21 or mechanical grant of sanction therein.
Section 21 overrides Section 14 precisely because it is otherwise hedged in
with drastic limitations and safeguards itself against landlords' abuses.
What, then, are those conditions and
safeguards? The first condition is that the landlord does not require the
demised premises "for a particular period" only. This means that he
must indicate to the authority before which sanction is sought for letting what
is the particular period for which he can spare the accommodation. The
Controller must be satisfied that the landlord means what he says and it is not
a case of his not requiring the property indefinitely as distinguished from a
specific or particular limited period of say one year, two years or five years.
If a man has a house available for letting for an indefinite period and he so
lets it, even if he specifies as a pretense, a period or term in the lease,
Section 21 cannot be attracted. On the other hand, if he gives a special reason
why he can let out only for a limited period and requires the building at the
end of that period, 287 such as that he expects to retire by then or that he is
going on a short assignment or on deputation and needs the house when be
returns home it is good compliance. The second condition is that the letting
must be made for a residential purpose. The house must be made over "as a
residence". If it is let out for a commercial purpose, Section 21 will not
apply, whether the ritual of a sanction under that provision has been gone
through or not. Thirdly, the Controller's permission is obligatory where he
specifies the particular period for which he gives permission and further
qualifies the permission for use as a residence. The Controller exercises an
important regulatory function on behalf of the community. The fact that a
landlord and a potential tenant together apply, setting out the formal
ingredients of Section 21, does not relieve the Controller from being vigilant
to inquire and satisfy himself about the requisites of the landlord's
nonrequirement "for a particular period" and the letting itself being
"as a residence". A fraud on the statute cannot be permitted
especially because of the grave mischief that may be perpetrated in such event.
It is easy to envisage the terrible blow to
the rent control law if Section 21 were freely permitted to subvert the scheme
of Section 14. Every landlord will insist' on a tenant going through the formal
exercise of Section 21, making ideal averments in terms of that Section. The
consequence will be that both the Civil Procedure Code which prescribes suits
for recovery of possession and the Delhi Rent Control Act which prescribes
grounds for eviction will be eclipsed by the pervasive operation of Section 21.
Neither grounds for eviction nor suits for
eviction will thereafter be needed, and if the landlord moves the court for a
mere warrant to place the landlord, through the court process, in vacant
possession of the premises, he gets it.
No court-fee, no decree, no execution
petition, no termination of tenancy-wish for possession and the court is at
your command. Such a horrendous situation will be the negation of the rule of
law in this area. So it is that we deem it necessary to lay down the law as
implied in Section 21 When an application under Section 21 is filed by the
landlord and/or tenant, the Controller must satisfy himself by such inquiry as
he may make, about the compulsive requirements of that provision. If he makes a
mindless order, the Court, when challenged at the time of execution, will go
into the question as to whether the twin conditions for sanction have really
been fulfilled. Of course, there will be a presumption in favour of the
sanction being regular, but it will still be open to a party to make out his
case that in fact and in truth the 288 conditions which make for a valid
sanction were not present.
We do not agree with the statement of the law
by the Delhi High Court striking a contrary note. In this context, we may make
special reference to Kasturi Lal's case, a decision of the Delhi High Court
reported in 1976 R.C.J.p. 582. It is true as Misra, J. in that case, following
earlier decisions has observed that the provisions of Section 21 are designed
to meet the problem of shortage of housing in Delhi. If the landlord does not
need the premises for a limited period, section 21 permits him to lease it out
during that period.
Without the facility of section 21 the
landlord might have preferred to keep the premises vacant, but that does not
mean that the law surrenders itself to this landlord and releases him from all
conditions. That is why the need for sanction and the mandatory conditions for
such sanction are specified in the section. It is altogether wrong to import
the idea that the tenant having taken advantage of induction into the premises
pursuant to the permission, he cannot challenge the legality of the permission.
As between unequals the law steps in and as against statutes there is no
estoppel, especially where collusion and fraud are made out and high purpose is
involved.
The doctrine of estoppel cannot be invoked to
render valid a proceeding which the legislature has, on grounds of public
policy, subjected to mandatory conditions which are shown to be absent:
"Where a statute, enacted for the
benefit of a section of the public, imposes a duty of a positive kind the
person charged with the performance of the duty cannot by estoppel be prevented
from exercising his statutory powers. A petitioner in a divorce suit cannot
obtain relief simply because the respondent is estopped from denying the
charges, as the court has a statutory duty to inquire into the truth of a
petition".
It is an old maxim that estoppels are odious,
although considerable inroad into this maxim has been made by modern law. Even
so, "a judgment obtained by fraud or collusion, even it seems a judgment
of the House of Lords, may be treated as a nullity." (See Halsbury's Laws
of England, Vol. 16-fourth edition para 1553). The point is that the sanction
granted under section 21, if it has been procured by fraud or collusion, cannot
withstand invalidity because, otherwise, high public policy will be given as
hostage to successful collusion.
289 Law that non-performs stultifies the rule
of law and so it is that we stress the need for strict compliance. Or else, the
sanction is non est. Collusion between the strong and the weak cannot confer
validity where the mandatory prescriptions of the law are breached or betrayed.
We have said enough to make the point that it is open to the tenant in the
present case to plead and prove that the sanction under Section 21 is invalid,
and if it is void the executing court is not debarred from holding so.
We, therefore, hold on the first point that
no question of amendment arises in the present case and the application before
the Controller did not suffer from any deficiency. On the second point we hold
that it is perfectly open to the Controller to examine whether the sanction
under Section 21 is a make-believe, vitiated by fraud and collusion.
We make it clear that the Controller is
concerned with delivery of possession at the expiry of the lease of 1975 and he
will, therefore, examine the position with reference to that lease only. The
appellant-tenant urged a further contention that because there was fraud the
court could not assist the party in fraud even if both sides were involved in
the fraud. He invoked the doctrine of inpari delicto potior est conditio
defendantis. We are not inclined to examine these contentions but leave it open
to the executing court to go into such pleas as are permissible at the execution
stage. Beyond that he has no jurisdiction but within that he has a duty to
decide. On these findings we dismiss the appeal but direct the Controller to go
into the question of the validity of the sanction and such other objections as
may be available in the light of our observations recorded above. The first
point raised is untenable and we should have directed costs while dismissing
the appeal. The second point raised is of great public moment and the appellant
has broadly succeeded on that question. The result is that the community has
benefited by our declaration of the law and the parties must, therefore bear
their respective costs throughout.
S.R. Appeal dismissed.
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