Smt. Bimla Devi Vs. MST Additional
District Judge & Ors [1984] INSC 70 (27 March 1984)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J) MISRA RANGNATH
CITATION: 1984 AIR 1376 1984 SCR (3) 315 1984
SCC (2) 582 1984 SCALE (1)578
ACT:
Uttar Pradesh Urban Buildings (Regulation of
Letting, Rent and Eviction) Act. 1972, Scope of - Words and Phrases- Import,
interpretation and meaning of the word "occupation" occurring in
Explanation (IV) to section 22(1)(b)- The words used are not a rule of evidence-A
tenant has no right to question the mode in which the Landlord may choose to
live in.
HEADNOTE:
In both Civil Appeal No.41 of 1979 and Civil
Appeal No.
379 of 1980, the appellants are the
unsuccessful house- owners to get an eviction order against their tenants from
the portions of their respective houses from the court's below. In the first
case, the questions arose whether the portion of the premises sought to be
vacated by the landlady was one single unit or two separate units. In the second
case, the point involved was whether the word " occupation" included
actual residence of the landlord even though the may not have been residing
there.
Allowing the appeals, by special leave, the
Court,
HELD: (C.A. No. 41/1979) In view of the Trial
Court's finding basing its decision on the report of the Commissioner appointed
for the purpose, that the entire building constituted one single unit, the
appellant being in occupation of a portion of the same, she is entitled to get
release of the other portion occupied by the tenant. [323F-G] In C.A. No.
379/1980.
1:1. The case of the appellant is clearly
covered by the provisions of Explanation (iv) to section 21(1)(b) of the Uttar
Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction), Act 1972.
[323C] 1:2. The policy of the law was to give a facility to the landlord so to
secure the entire building where he is in occupation of a part of the same and
wants to occupy the whole house. [321D] 316 1:3. In Babu Singh Chauhan v.
Rajkumari Jain & Ors.
[1982] 3 S.C.R. 114, the Supreme Court, while
construing the word "occupation" occurring in section 21(1)(b) of the
1972 Act, used the word "possession", treating the word
"possession" as synonym of "occupation" and since the word
"possession" or "occupation" may take various forms held
that even keeping the house-hold effects by the owner is an act of occupation.
[319H, 320D-G] Therefore, even if a landlord
is serving outside or living with his near relations but makes casual visits to
his house and thus retains control of over the entire area or a portion of the
property, he would in law be deemed to be in occupation of the same. To accept
the contention that Explanation IV required actual physical occupation by the
landlord of the portion retained by him would destory the very concept of
constructive or actual possession or occupation. [320H; 321A-B] 2:1. All the
Rent Control Acts try to deprive and curtail the right of an owner of his
property and have put constraints and restraints on his right by giving
substantial protection to the tenants in public interest, otherwise if Rent
Acts were to be abolished or were not there, the landlord could get a tenant
evicted only by a notice after expiry of the tenancy in accordance with the
provisions of the Transfer of Property Act.[321E-F] 2:2. The words "shall
be conclusive to prove" in Explanation (iv) clearly indicate that it is a
substantive right which belongs to the landlord and which has been affirmed and
recognised if a part of an accommodation is retained by the landlord. The words
"conclusive to prove that the building is bona fide required by the
landlord" does not constitute a rule of evidence. [321F-G] 2:3. The right
to ejectment having accrued to the appellant under Explanation (iv) was a
vested right as an owner and could not be affected by the 1976 amendment unless
it was couched in a language which was either expressly or by necessary
intendment meant to be operative retrospectively. Explanation (iv) deals not
merely with a particular procedure but with the substantive rights of the
parties. The said Explanation has asserted and affirmed the substantive right
of a landlord to get portion of a building vacated where he is in occupation of
a part of it. Such a substantive right cannot be taken away merely by a
procedural amendment nor does the language of the amendment introduced the
1976. Act envisage or contemplate such a position. Section 14 of the 1976 Act
merely recites that Explanation (ii) and (iv) of s.21(1)(b) shall be omitted.
There is nothing to show that the legislature
intended to give any retrospective effect to the deletion of Explanation (iv).
[321H, 322A-D]
3. The argument that merely because the
landlord was living with his son or his relation after retirement and,
therefore, was not in occupation of the house cannot be accepted because it was
not for the tenant to dictate to the landlord as to how he should use his own
premises. A tenant to has got no right nor any business to interfere with the
mode or manner in which a landlord may choose to use his property or live
therein. [323 A-B] 317
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 41 of 1979.
(From the Judgment and Order dated 23rd
August, 1978 of Allahabad High Court in Writ Petition No, 1483 of 78) WITH Civil
Appeal No. 379 of 1980.
From the Judgment and order dated 28th March,
1979 of the Allahabad High Court in civil Misc-Writ No. 1287 of 1977 G.L.
Saghi, V.A. Bobde & H.K. Puri for the appellant in C.A. No. 41/79.
R.K. Jain for the appellant in C.A. No.
379/80.
K.P. Gupta for the respondents in C.A. No.
41/79.
Shanti Bhushan and R.B. Mehrotra for the
respondent in C.A. No. 379/80.
The Judgment of the Court was delivered by
FAZAL ALI J. We would first take up Civil appeal No.
379 of 1980 which is directed against an Order
dated March 28, 1979 passed by the Allahabad High Court dismissing the writ
petition of the appellant and arises in the following circumstances.
The appellant owns a house bearing No. 113,
Amroha Gate, Fruit Market, Moradabad, in a portion of which he had inducted
respondent No.3 (Vishwa Nath Kapoor) as a tenant while retaining some portion
for himself, when he (appellant) was serving as a Judicial Officer in the State
of Uttar Pradesh. In the year 1968, the appellant retired as a District Judge
as a result of which he had to vacate his official residence, which
necessitated the present eviction proceedings against respondent No.3. The
application for eviction was filed on 2.1.1973 under s.21(1) (b) of the Uttar
Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972
(hereinafter referred to as the '1972 Act') in which the appellant prayed that
the portion occupied by respondent No.3 may be released on the ground of
personal requirement as after retirement he wanted to occupy the entire house.
The appellant further claimed that due to shortage of accommodation he had to
stay with his son elsewhere. The eviction proceedings were contested by the
respondent on the following grounds:- (a) that since the appellant was already
living with his son there was no particular urgency or personal necessity for
him to occupy the rented portion also, 318 (b) that the appellant had in his
occupation a part of the house which was retained by him even after inducting
him (respondent) as a tenant and which was sufficient for his needs, and (c)
that the appellant after keeping his household effects in the portion retained
by him had locked up the same and was, therefore, not in actual occupation of
the house as required by Explanation (iv) to s. 21 (1) (b).
In the same token, it was submitted as a
point of law that the essential ingredient of Explanation (iv) to s.21(1) (b)
was that the building must have been in occupation of the landlord for
residential purposes which alone would be a conclusive proof of personal
necessity. It was also contended as a question of fact that as the appellant-
landlord was not in actual occupation of the premises, Explanation (iv) would
not be attracted in the instant case.
To buttress this argument it was submitted
that the landlord never occupied or possessed the premises but had locked up
the same and was residing elsewhere. This plea of the respondent-tenant did not
find favour with the Prescribed Authority or the High Court.
The dominant question, therefore, turns upon the
import and interpretation of Explanation (iv) to s.21(1) (b), particularly the
nature and meaning of the word 'occupation' as used in Explanation (iv). The
crux of the matter, therefore, was as to whether or not the case of the
appellant squarely fell within the four corners of Explanation (iv) and whether
the word 'occupation' included actual residence of the landlord even though he
may not have been residing there. We might mention that while the eviction
proceedings were pending before the Prescribed Authority the 1972 Act was
amended by U.P. Act No.28 of 1976 (for short to be referred to as the '1976
Act') which came into force with effect from 5th July 1976 and which deleted
Explanation (iv). The Prescribed Authority, relying on Explanation (iv), held
that the need of the landlord was fully made out and accordingly passed an
order of eviction against the tenant, partly releasing some portion in
appellant's favour. The appellant then filed an appeal before the District
Judge which was heard by an Additional District Judge who accepted the offer of
the tenant and modified the Order of the Prescribed Authority by further
releasing some other portion in his favour. The appellant then filed a writ 319
petition before the High Court which upheld the decision of the District Judge
and dismissed the writ petition.
Before we approach the question of law raised
before us it may be necessary to give a detailed picture of the position of the
premises retained by the landlord and that rented out to the tenant. The house
in question is a double- storied one containing some rooms on the first floor
and some on the ground floor which were retained by the landlord at the time of
the lease and the rest of the portion was let out to the tenant.
The learned counsel for the appellant
contended that in view of the requirements of the landlord he had a real and
bona fide need for occupying the entire house and therefore, the entire portion
occupied by the tenant should have been released in favour of the appellant.
This argument was countered by Mr. Shanti Bhushan, counsel for the respondent,
who put forward the following legal submission:
In the first place, he contended that
Explanation. (iv) would not in terms apply to the facts of the present case
because on the findings of fact arrived at by the courts below it was not shown
that the appellant was in actual occupation of the portion retained by him,
which is a prerequisite for the application of Explanation (iv) to s.21 (1)
(b). In this connection, it was submitted that the admitted position being that
the application was previously employed as a District Judge and was living
elsewhere, he could not be deemed to be in occupation of the portion retained
by him. In order to appreciate this argument, it may be necessary to examine
closely the language of Explanation (iv) which may be extracted thus:
"(iv) the fact that the building under
tenancy is a part of a building, the remaining part thereof is in the
occupation of the landlord for residential purposes, shall be conclusive to
prove that the building is bona fide required by the landlord." The
pivotal argument of the counsel for the respondent turns upon the
interpretation of the word 'occupation'.
This, however, does not present any
difficulty because in a recent decision in the case of Babu Singh Chauhan v. Rajkumari
Jain & Ors.(1) this Court while 320 construing a similar term in the same
Act observed as follows:
"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
premises so as to make s. 17 (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 in-charge of a servant or by putting his household effects or things
locked up in the premises. Such an occupation also would be full and complete
possession in the eye of law." It is true that the court used the word
'possession' but in Explanation (iv) to s.21(1) (b) the word used is
'occupation' and not 'possession' but this Court treated the word 'possession'
as being a synonym of 'occupation'. In Webster's Third New International
Dictionary the word 'occupation' has been defined at page 1560 thus:
"Occupation-to take possession of,
occupy, employ" The Black's Law Dictionary (5th Edn.) defines 'occupation'
at page 82 thus:
"occupation-possession; control; tenure;
use." In Corpus Juris Secundum (vol.67) at page 74 'occupation' has been
mentioned thus:
"The word may be employed as referring
to the act or process of occupying, the state of being occupied, occupancy, or
tenure." This Court in the observations, extracted above, has clearly
pointed out that 'possession' or 'occupation' may take various forms and it was
expressly held that even keeping the household effects by the owner is an act
of occupation.
It is, therefore, manifestly clear that even
if a landlord is serving outside or living with his near relations but makes
casual 321 visits to his house and thus retains control over the entire or a
portion of the property, he would in law be deemed to be in occupation of the
same. Therefore, we are unable to accept the argument of Mr. Shanti Bhushan
that the essential ingredient of Explanation (iv) has not been made out, there
being no actual physical occupation by the landlord of the portion retained by
him. Indeed, if the broad argument put forward by the counsel is to be accepted
then that would destroy the very concept of constructive or actual possession
or occupation. For, instance, even if a house is not let out to anybody but is
locked up, can it be said that the owner who is not living there but has kept
his household effects, would not be deemed to be in occupation of the same? The
answer must necessarily be in the negative.
It seems to us that the policy of the law was
to give a facility to the landlord so as to secure the entire building where he
is in occupation of a part of the same and wants to occupy the whole house.
Mr. Shanti Bhushan then argued that Explanation
(iv) does not confer any substantive right but merely raises a presumption that
if a landlord is in occupation of a part of the premises, his need would be
deemed to be bona fide. We are, however unable to agree with this argument. We
must remember that all the Rent Control Acts try to deprive and curtail the
legal right of an owner to his property and have put constraints and restraints
on his right by giving substantial protection to the tenants in public
interest, otherwise if the Rent Acts were to be abolished or were not there,
the landlord could get a tenant evicted only by a notice after expiry of the
tenancy in accordance with the provisions of the Transfer of Property Act. The
words "shall be conclusive to prove" in Explanation (iv) clearly
indicate that it is a substantive right which belongs to the landlord and which
has been affirmed and recognised if a part of an accommodation is retained by
the landlord. We are unable to agree with Mr. Shanti Bhushan that the words
"conclusive to prove that the building is bona fide required by the
landlord" constitute a rule of evidence. In fact, this argument was put
forward before us because the learned counsel wanted to submit that in view of
the 1976 Amendment Act, deleting Explanation (iv) to s.21(1) (b) of the 1972
Act, it would be deemed to be retrospective and therefore the relief given by
Explanation (iv) would disappear. We cannot agree with this somewhat
far-fetched submission because Explanation (iv) deals not merely with a
particular procedure but with the substantive rights of the parties. The said
Explanation has asserted and affirmed the substantive right of a landlord to
get a portion of a building vacated where he is in occupation of a part of it.
Such a substantive right cannot be taken away
merely by a procedural amendment nor does the language of the amendment
introduced by the 1976 Act envisage or contemplate such a position. Section 14
of the 1976 Act merely recites that Explanations (ii) and (iv) of s.21(1) (b)
shall be omitted.
There is nothing to show that the legislature
intended to give any retrospective effect to the deletion of Explanation (iv).
In these circumstances, therefore, the right
to ejectment having accrued to the appellant under Explanation (iv) was a
vested right as an owner and could not be affected by the 1976 amendment unless
it was couched in a language which was either expressly or by necessary
intendment meant to be operative retrospectively.
Lastly, it was argued by Mr. Shanti Bhushan
that the fact remains that the appellant, even after retirement, was not in
actual possession of the portion retained by him and was living with his son or
other relations most of the time exception casual visits to the premises in
dispute. A further argument was raised in an additional Note supplied by the
counsel for the respondent that as the bathroom and the latrine were in
occupation of the tenant, the landlord could not possibly have occupied the
premises retained by him and could not have lived there in the absence of these
facilities. The High Court rightly rejected these arguments by observing thus:
"The last argument was that the view of
the Prescribed Authority that since the petitioner did not occupy the portion
retained by him and lived with his son and, therefore, his need was not bona
fide has no merits in as much as the petitioner did not have either a latrine
or a bathroom and that he could not possibly occupy the house in the position
in which it had been retained. There may be some truth in the submission made
by the learned counsel for the petitioner. But, as neither the Prescribed
Authority nor the Appellate Authority based their judgment on this feature of
the case and they examined the merits of the claim of the respective parties,
it is not possible to interfere with the judgments of the courts below."
323 An attempt was made by the parties to come to a settlement but,
unfortunately, the efforts failed. The argument of Mr. Shanti Bhushan that
merely because the landlord was living with his son or his relation after
retirement and, therefore, was not in occupation of the house cannot be
accepted because it was not for the tenant to dictate to the landlord as to how
he should use his own premises. A tenant has got no right nor any business to
interfere with the mode or manner in which a landlord may choose to use his
property or live therein.
In these circumstances, therefore, we are
satisfied that the case of the appellant is clearly covered by the provisions
of Explanation (iv) to s.21(1) (b) and a decree for release of the entire
premises should have been passed by the District Judge against the respondent.
We, therefore, allow this appeal, set aside the judgments of all the courts
below and order release of the entire premises in possession of the respondent
to the appellant. Time is granted to the respondent to vacate the premises on
or before 31st December 1984, subject to the usual undertaking to be given and
filed by him in the Court within four weeks from today, failing which the grant
of time shall stand revoked without further reference to the Bench and the
appellant would be entitled to be put in possession forthwith.
Civil Appeal No. 41 of 1979 this appeal was
heard along with civil appeal No. 379 of 1980 which we have decided by our
judgment. The main point involved in this appeal was as to whether the portion
of the premises sought to be vacated by the landlady was one single unit or two
separate units. This Court remanded the matter to the trial court for examining
this point and the trial court has returned a finding, basing its decision on
the report of the Commissioner appointed for the Purpose, that the entire
building constituted one single unit.
It is, therefore, manifest that if the entire
building was one unit and the appellant being in occupation of a portion of the
same, she is entitled to get release of the other portion also. In view of our
decision in civil appeal No. 379 of 1980, the appeal is allowed and we order
release of the entire portion in favour of the appellant. Time is granted to
the respondent to vacate the premises on or before 31st October 1984, subject
to the usual undertaking being given and filed within four weeks from today,
failing which the grant of time 324 shall stand revoked without further
reference to the Bench.
There will be no order as to costs.
Let a certified copy of this judgment be
placed on the file of civil appeal No.41 of 1979.
S.R. Appeals allowed.
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