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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