J.R. Vohra Vs. India Export House Pvt.
Ltd. & ANR [1985] INSC 25 (14 February 1985)
TULZAPURKAR, V.D. TULZAPURKAR, V.D.
MISRA RANGNATH KHALID, V. (J)
CITATION: 1985 AIR 475 1985 SCR (2) 899 1985
SCC (1) 712 1985 SCALE (1)219
CITATOR INFO:
R 1987 SC1986 (22) F 1987 SC1996 (11) RF 1989
SC 458 (11) R 1990 SC 325 (19,20,24) E 1990 SC1725 (21) E 1991 SC1233
(10,13,15) RF 1992 SC1555 (2,6,15,16)
ACT:
Delhi Rent Control Act, 1958 section 21 read
with section 37 and Rule 5 of Delhi Rent Control Rules, 1959, scope of-Limited
tenancy created with permission of the Rent Controller under section 21-Whether
a warrant for recovery or possession can be issued in favour of a landlord
without notice to the tenant under section 21
HEADNOTE:
A tenancy for a limited period of three years
commencing from 1.6.79 in respect of a house at 34, Paschimi Marg, Vasant
Vihar, New Delhi at a monthly rental of Rs. 5,000 was created by the appellant
in favour of the first respondent company for the residence of its Chairman,
Shri C.L. Sachdev after obtaining the requisite permission under section 21 of
the Delhi Rent Control Act. In the application filed before the Rent Controller
and in the proposed lease- deed it was- specifically stated that the appellant
landlord in order to clear the loan taken by him for the construction of the
premises was creating the limited tenancy for a period of three years. The
appellant was desirous of getting possession of the house at the expiry of the
period i.e 31st May, 1982 but before applying for possession under section 21
of the Act, by two registered letter one dated 1st March, 1981 and the other
dated 5th May, 1982 he called upon the respondents to hand over vacant
possession of the leased premises on the due date. The respondent neither replied
these letters nor did handover possession. Therefore, the appellant filed an
application under section 21 for recovery of possession before the Rent
Controller On 1st July, 1982.
On 9.7.82 the appellant took possession of
the house through the bailiff and started residing therein with his family
members.
On 14th July 1982 the respondents filed a
writ petition (CM No. (Main) 174 of 1982) in the Delhi High Court under Article
227 of the Constitution seeking to quash the warrant of possession issued by the
Rent Controller on 6.7.1982 and further proceedings taken in pursuance thereof
on two grounds: (a) that the initial order dated 10th May, 1979 granting
permission to create the limited tenancy was vitiated by fraud practiced by the
appellant in as much as he had suppressed the fact that an earlier application
for such permission has been declined on the ground that premises had been let
out for commercial-cum-residential purposes and therefore, there was no
executable order pursuant to which and warrant for possession could be issued
under section 21 of the Act and (b) that the issuance of a warrant for recovery
of possession on 6th July 1982 without notice to the tenant was erroneous law
and in violation of the principle of natural justice and such nonissuance of
notice on the part of the Rent Controller had deprived the tenant of an
opportunity to prove his case of fraud. By his reply the appellant denied all
the allegation made in the Writ Petition.
900 The High Court took the view that no
warrant for recovery of possession under section 21 of the Act would be issued
in favour of the landlord without issuance of a notice to the tenant, and by
its judgment and order dated 18th October, 1982 allowed the writ petition,
quashed the warrant of possession Issued by the Rent Controller and sent the
matter back to him for hearing and adjudicating upon the objections of the
tenant to the issuance of such warrant of possession and in the meanwhile it
also is directed that possession be restored to the tenant. Hence the appeal by
special leave Allowing the appeal, the Court, ^
HELD: 1.1. Neither section 21 and 37 of the
Delhi Rent Control Act 1958 nor the Rules framed under t`he Act require service
of any prior notice upon the tenant before he is evicted and in the instant
case, the order directing issuance of warrant of possession under section 21
without prior notice to the tenant, for the purpose of putting the landlord in
possession of the leased premises at the expiry of the limited tenancy cannot
be regarded as illegal, invalid or unwarranted. [908 E-F] 1.2. An analysis of
section 21 of the Delhi Rent Control Act will show that in regard to tenancies
for limited period mentioned therein only two orders arc contemplated; (i) an
order by the Rent Controller sand or permitting the creation of a tenancy for a
particular fixed period only, and (ii) an order by the Rent Controller putting
the landlord in vacant possession of the leased premises by evicting the tenant
and every other occupier thereof at the expiry of that period. Before passing
the first order the Rent Controller is required to satisfy himself that the two
conditions mentioned in the section are genuinely satisfied in every case,
namely, (a) that the landlord does not require the premises for a particular
period only and (h) that the letting itself is for residential purposes and no
other. The landlord s non- requirement OF the premises for a particular period
may arise out of various circumstances for instance, being an officer he may be
going on some other assignment for a particular period or being in occupation
of official quarters he may have to vacate the same on his retirement or having
borrowed a loan for the same on his retirement or having borrowed a loan for
the construction he may issuer to clear it of before occupying the premises for
this own use, etc. Both the conditions must be truly fulfilled and not by way
of any make belief before the Rent Controller grants his permission for the
creation of such limited tenancy but once such limited tenancy is properly
created the second order of putting the landlord in vacant possession of the
leased premises by evicting the tenant at the expiry of the fixed period has to
be passed as a matter of course because the tonality, in view of the non-obstinate
clause contained in section 21, has no right or protection whatsoever under law
to continue in possession nor has he any defense to eviction. The second order
contemplated by section 21 is in the nature OF a process in execution where
under landlord has to be put in possession of the leased premises by evicting
the tenant and every other occupant thereof, and no notice to the tenant is
contemplated before issuing ll the warrant of possession for putting the
landlord in possession. [906 G-H; 907 A-E] 901 1.3. Section 21 carves out
tenancies of particular category for A special treatment and provides a special
procedure that will ensure to the landlord vacant possession of the leased
premises forth-with at the expiry of the fixed period of tenancy, evicting whoever
be in actual possession Such being the avowed object of prescribing the special
procedure, service of a prior notice on the tenant upon receipt of the
landlord's application for recovery of possession and inviting his objections
followed by an elaborate inquiry in which evidence may have to be recorded will
rally frustrate that object. [909F-G] S. B. Noronah v. Prem Kumari Khanna,
[1980] I SCR 201, followed.
1.4 In ease there was in fact a mere
ritualistic observance of the procedure while granting permission for the
creation of a limited tenancy or where such permission was procured by fraud
practised by the landlord or as a result of collusion between the strong and
the weak, the solution lies not in insisting upon service of a prior notice on
the tenant before the issuance of the warrant of possession to evict him but by
insisting upon his approaching the Rent Controller during the currency of the
limited tenancy for adjudication of his pleas no sooner he discovers facts and
circumstances that tend to vitiate ab- initio the initial grant of permission,
and certainly not to wait till the landlord makes his application for recovery
of possession after the 1) expiry of the fixed period under section 21. The
special procedure provided for the benefit of the landlord in section 21
warrants such immediate approach on the part of the tenant. Of course, if the
tenant aliunde comes to know about landlord's application for recovery of
possession and puts forth his plea of fraud or collusion etc. at that stage the
Rent Controller would inquire into such plea but he may run the risk of getting
it rejected as an after-thought. [912A-D] 1.5. Except Rule 5 which deals with
applications made under s. 21 and which merely provides for period of
limitation by saying that every application under section 21 shall be made by
the landlord within six months from the date of the expiry of the period of
tenancy, there is no other rule in Delhi Rent Control Rules 1959 framed by the
Central Government under section 56 of the Delhi Rent Control Act, requiring a
notice being served upon the tenant before the issuance of warrant or
possession to evict him.
[907E-G] 1.6. Section 37 (1) of the Act also,
cannot be construed as requiring service of a prior notice upon the tenant
before issuance of a warrant of possession against him. All that sub-section
(1) of section 31 of Delhi Rent Control Act does is to incorporate a rule of
natural justice, namely, that an order prejudicially affecting a person shall
not be made without hearing him and considering his objections if any to the
proposed order. But an order can be said to affect a person prejudicially only
if any right of his would be affected adversely and in view of the
non-obstinate clause contained in section 21 the tenant on the expiry of the
limited period has no right or protection whatsoever under any law to continue
in possession and as such the issuances of a warrant of possession directing
him to vacate the premises in his Occupation cannot be regarded as one which
prejudicially affect him.
[907H; 908C-D] 902
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 3381 of 1982.
From the judgment and order dated 18.10 82 of
the High Court of Delhi in C.M. (M)) No. 174/82.
V.M. Tarkunde, B. Dutta and Mrs. & Mr. A.
Minocha for the Appellant.
L N. Sinha and Mr.. Parmod Dayal, for the
Respondent.
The Judgment Or the Court was delivered by
TULZAPURKAR. J. The only question raised in this appeal is whether a warrant
for recovery of possession can be issued ill favour of a landlord without
notice to the tenant under s. 21 of the Delhi Rent Control Act, 1958
(hereinafter referred to as the Act) ? A tenancy for a limited period of three
years commencing from 1.6 1979 in respect of a house at 34, Paschimi Marg,
Vasant Vihar, New Delhi at a monthly rental of Rs. 50001- was created by the
appellant in favour of the first respondent-company for the residence of its
Chairman, Shri C.L. Sachdev after obtaining the requisite permission under s.21
of the Act.
It appears that the said house was constructed
by the appellant for his own use and occupation but having taken a loan for its
construction he was desirous of clearing the said before occupying the same and
he, therefore, offered in writing the tenancy for a limited period of three
years to the first respondent-company, and since the offer was accepted a joint
application seeking permission of the Rent Controller under s.21 for creating
such limited tenancy was made by the parties on 9th May, 1979 in which it was
expressly stated that three years tenancy was being created as the appellant
had to clear the construction loan; the proposed lease-deed containing the
terms and conditions of letting was annexed thereto, clause 2 whereof expressly
recited that the premises shall be used by the respondent Company only for the
residential purposes of its Chair man, Shri C.L. Sachdev (second respondent).
On 10th May 1979 the parties appeared before the Rent Controller and their
statements were recorded; the second respondent stated on oath that the premises
were being taken by the respondent company for the residence of its Chairman
(i.e. himself) on a monthly rental of Rs. 5000/- for 903 three years with
effect from 1.6.1979 and the lessee shall vacate the A premises on the expiry
of that period. By his order passed on that very day the Rent Controller, on
being satisfied that the requirements of s.21 had been fulfilled, 1, granted
permission for the creation of the tenancy for the said period which Was to
expire on 31st May 1982. The appellant was desirous of getting possession of
the house at the expiry of the period but before applying for possession under
s.21 of the Act, by two registered letters one dated 1st March 1982 and the
other dated 5th May 1982 h- called upon the respondents to hand over vacant possession
of the leased premises on the due date as the period permitted by the Rent
Controller was coming to an end and also because h- required the, pretenses for
himself. There was no reply to any of this letters nor was possession handed
over and, therefore, the appellant filed application under s.21 for recovery of
possession before the Rent Controller on 1st July 1982; the application was
directed to be registered on that day and the appellant was directed to file a
certified copy of the plan on 16.7.1982; the appellant, however, filed the
certified copy of the plan on the 6th July 1982; the Rent Controller, therefore
cancelled the date 16th July 1982 fixed for filing the plan, took on record
certified copy of the plan and issued warrant of possession in favour of the
appellant. On 9.7.1982 the appellant took possession of the house through the
bailiff and started residing therein with his family members.
On 14th July 1982 the respondents filed a
writ petition (C.M. No. (Main) 174 of 1982) in the Delhi High Court under Art.
227 of the Constitution seeking to quash the warrant of possession issued by
the Rent Controller on 6.7.1982 and the further proceedings taken in pursuance
thereof on two grounds: (3) that the initial order dated 10th May 1979 granting
permission to create the limited tenancy was vitiated by fraud practised by the
appellant inasmuch as he had suppressed the fact that an earlier application
for such permission his been declined on the ground that premises had been let
out for commercial-cam- residential purposes and therefore, there Was no
executable order pursuant to which any warrant for possession could be issued
under s.21 of the Act and (b) that the issuance of a warrant for recovery of
possession on 6th July 1982 without notice to the tenant was erroneous in have
and in violation of principles of natural justice and such non issuance of
notice on the part of the Rent Controller had deprived the tenant of an
opportunity to prove his case of fraud. By this reply the appellant denied all
the allegations made in the Writ Peti 904 tion and particularly denied that the
premises were let out for commercial-cum-residential purposes or that
permission on the earlier occasion had been declined on that ground or that any
fraud was practised by him as alleged at the time when the order granting
permission was passed on 10th May 1979; it was asserted that the earlier
application for permission was not refused but was got with drawn for technical
defect. The appellant also disputed that anoints to the tenant Was contemplated
by s.21 of the Act before issuing the warrant for recovery of possession
thereunder;
he also pleaded that on the facts of the case
the respondents had ample opportunity to approach the Rent Controller to prove
their case of alleged fraud inasmuch as the appellant had issued two registered
notices to the respondents informing them that he was desirous of recovering
possession at the expiry of the lease period and as such though there was no
requirement of a notice in law, the principles of natural justice could be said
to have been substantially observed. By its judgment and order dated 18th
October 1982 the High Court allowed the writ petition, quashed the warrant of
possession issued by the Rent Controller and sent the matter back to him for
hearing and adjudicating upon the objections of the tenant to the issuance of
such warrant of possession and in the meanwhile it also directed that
possession be restored to the tenant.
In doing so the High Court took the view that
no warrant for recovery of possession under s.21 of the Act could be issued in
favour of the landlord without issuance of a notice to the tenant. It is this
view of the High Court that is being challenged before us by the appellant in
this appeal.
In support of the appeal the principal
contention of the counsel for the appellant has been that neither s.21 of the
Act nor any Rules framed thereunder require or contemplate the service of a
notice on the tenant before issuing the warrant of possession for the purpose
of putting the landlord in vacant possession of the leased premises at the
expiry of the limited period for which the tenancy has been permitted to be
created under the Rent Controller's order. Counsel submitted that s.21
postulates summary eviction of the tenant by a process which is really in the
nature of executing the earlier order creating a tenancy for a limited period
as no fresh eviction order is contemplated and that insistence upon a prior
notice to the tenant before issuing the warrant of possession followed by an
elaborate inquiry would defeat the very object or purposes for which s.21 has
been enacted and incorporated in the Act which, 905 as explained by this Court
in S.B. Noronah v. Prem Kumari Khanna,(l) is to afford an assurance to the landlord
that he will get back possession forthwith at the expiry of the fixed period of
tenancy but for which a landlord would never let out his premises and would
continue to keep them vacant even though he may not require the premises for a
fixed period. Counsel for the appellant pointed out that even under the Civil
Procedure Code no prior notice is required to be served on a judgment-debtor
when execution processes say for attachment and sale of his properties or even
for dispossessing him are taken within two years of the decree.
Counsel for the appellant, therefore, urged
that the High Court was ; error in taking the view that a warrant of possession
could not be issued in favour of the landlord without service of a prior notice
upon the tenant under C s.21, and according to him the decision in Noronaths
case (supra on which High Court has relied in this behalf is not on this point.
Counsel for the appellant further urged that even in a case where fraud is
alleged to have been practised by the landlord in obtaining the Rent
Controller's sanction for creating the limited tenancy the section does not
cast any duty or obligation upon the Rent Controller to invite a plea of fraud
from the tenant by issuing notice to him after the landlord has applied for recovery
of possession under that section Further the counsel pointed out that in the
facts of the instant case the fraud, if at all there was any, was known to the
tenant right from the time the limited tenancy was created under the Rent
Controller's order and the respondents could have approach the Rent Controller
to have the issue decided at any time during the three years period and in any
case at least immediately after the receipt of two registered letters from the
appellant's which were issue months ahead of the appellant's application for
recovery of possession under s.21. Counsel, therefore, urged both in law as
well as on the facts of the present case the service of a notice by the Rent
Controller upon the tenant before issuing warrant of possession was uncalled
for and not required and the High Court was in error in taking the view it did;
in any case the High Court was wrong in directing the restoration of possession
back to the respondents when the matter was remanded by it to the Rent
Controller for hearing and adjudicating upon the tenant's objection and the
appellant's possession need not have been disturbed pending such adjudication.
(1) [1980] I S.C.R. 281.
906 On the other hand counsel for the
respondents strongly sup ported the view taken by the High Court and in that
behalf relied upon this Court`s decision in the Noronah's case (supra) which
has the view that even at the execution stage it is open to the tenant to put
forward a case of fraud in the matter of obtain g Rent Controller's permission
at the initial stag, for creating a limited tenancy and the Rent controller is
bound to hold an inquiry when such a plea of fraud is put forward by the tenant
and according to counsel such inquiry into the, plea of fraud would not be
possible unless notice is served Upon the tenant before issuing the warrant of
possession .
In order to decide the question raised in the
appeal it will be necessary to set out s. 21 of the Act. The section ruts thus:
"21. Recovery of possession in case of
tenancies for limited period where a landlord does not require the whole or any
part of premises for a particular period, and the landlord, after obtaining the
permission of the Controller in the prescribed in the manner , let the whole of
the premises or part thereof as a residence 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 any other law the Controller may , on an application
mad to him in this behalf by the landlord within such time as may be
prescribed, place the landlord in vacant possession of the premise or part
thereof by evicting the tenant and every other person who may be in occupation
of such premises .
An analysis of the provision will show that
in regard to tenancies for limited period mentioned there in only two orders
are contemplated by the section: (i) an order by the Rent Controller
sanctioning or permitting the creation of 3 tenancy for a particular fixed
period only, and (ii) an order by the Rent Controller putting the landlord in
vacant possession of the leased premises by evicting the tenant and every other
occupier thereof at the expiry of that period. It is also clear that before
passing the first order the Rent Controller is required to satisfy himself that
the two conditions mentioned in the section are genuinely satisfied in every
907 case, namely, (a) that the landlord does not require the premises A 'for a
particular period' only and (b) that the letting itself is for residential
purposes and no other. The landlord's non-requirement of the premises for a
particular period may arise out of various circumstances; for instance, being
an Officer he may be going on some other assignment for a particular period or
being in occupation of official quarters he may have to vacate the same on his
retirement or having borrowed a loan for the construction he may desire to
clear it of before occupying the premises for his own use, etc. It cannot be
disputed that both the condition must be truly fulfilled and not by Way of any
make-belief before the Rent Controller grants his permission for the creation
of such limited toenails but once such laminated tenancy is properly created
the second order of putting the landlord in vacant possession of the leased
premises by evicting the tenant at the expiry of the fixed period to be passed
as matter of course because the tenant, in view of the non- obstinate clause
contained in the section, has no right or protection whatsoever under law to
continue the possession nor has he any defense to eviction and the section does
not Contemplate the passing of any order of eviction against the tenant before
issuing the warrant of possession in favour of the landlord. It is the clear
that the second order contemplated by the section is in the nature Or a process
in execution whereunder the landlord has to put in possession of the leased
premises by evicting the tenant and every occupant thereof, and no notice to
the tenant is contemplated before issuing the warrant of possession for putting
the landlord in possession As far as the Delhi Rent Control Rules 1956 framed
by the Central Government under section 56 of the Act are concerned there is
only one rule being Rule 5 which merely provides for period of limitation by
saying that every application for recovery of possession under sec. 21 shall be
made by the landlord within six months from the date of the expiry of the
period of tenancy and there is no rule requiring a notice being served upon the
tenant before the issuance Or warrant of possession to evict him.
Counsel for the respondents relied upon sec.
37 of the Act to canvas the contention the service of a prior notice Upon the
tenant before he is evicted would be necessary but that deals with the practice
and procedure required to be followed by the Rent Controller in proceedings
before him and it mainly provides that subject to any rules 908 That may be
made under the Act the Controller shall, while holding an inquiry in any
proceeding before him, follow as may b the practice and procedure of a court of
small causes, including the recording of evidence. In particular counsel relied
upon sub-sec. (1) of sec. 37 which provides that "no order which prejudicially
affects any person shall be made by the Controller under this Act without
giving him a reasonable opportunity of showing cause against the order proposed
to be made and until his objections, if any, and ,any evidence he may produce
in support of the same have been considered by the Controller." In our
view all that sub sec. (1) does is to incorporate a rule of natural justice,
namely, that an order prejudicially affecting a person shall not be made
without hearing him and considering his objections if any to the proposed
order. But an order can be said to affect a person prejudicially only if any
right of his would b affected adversely and as stated earlier in view of the
non-obstinate clause contained in sec. 21 the tenant on the expiry of the
limited period his no right or protection what so ever under any law to
continue in possession and as such the issuance of a warrant of possession
directing him to vacate the premises in his occupation cannot be regarded as
one which prejudicially affects him. Section 37 (1) therefore, cannot be
construed as requiring service of a prior notice upon the tenant before
issuance of a warrant of possession against him. In other words neither sec. 21
nor sec. 37 nor the Rules framed under the Act require service of any prior
notice upon the tenant before he is evicted and the order directing issuance of
warrant of possession under sec. 21, without prior notice to the tenant, for
the purpose of putting the landlord in possession of the leased premises at the
expiry of the limited tenancy cannot be regarded as illegal, invalid or
unwarranted.
The question at issue could also be
considered by having regard to the object or purpose with which section 21 has
been enacted and incorporated in the Act. It cannot be disputed that sec. 21
carves out tenancies of particular category for special treatment and the
raison d'etre of the provision has been explained by this Court in Noronah's
case (supra) in these words:
"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 a part 909 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
be come a statutory tenant and, even if bonafide 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 h will
return the building after the stipulated period. So the law has to make itself
credit-worthy. The long distance between institutions 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 a premise 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."
(Emphasis supplier).
It is thus clear that the object of
incorporated s. 21 in the Act is to provide a special procedure that will
ensure to the landlord vacant possession of the leased premises forthwith at
the expiry of the fixed period of tenancy but for which he would be shy to let
out his premises and would continue to keep them vacant even though he may not
require the premises for a fixed period. Moreover the assurance of getting
vacant possession forthwith is further strengthened by the provision that under
the warrant of possession not merely the tenant but every person who may be in
occupation is also to be evicted. If such is the avowed object of prescribing
the special procedure then service of a prior notice on the tenant upon receipt
of the landlord's application for recovery of possession and inviting his
objections followed by in elaborate enquiry in which evidence may have to be
recorded will really frustrate that object. In our view precisely for this
reason the scheme of sec. 21 and the connected relevant provisions do not
require service of a prior notice on the tenant before issuing the warrant of
possession against 910 him for putting the landlord in possession of the leased
premises, for, the law has to make itself credit worthy.
Strong reliance was placed by counsel for the
respondents on the decision of this Court in Noronah'.s case (supra) where
according to counsel a view has been taken that even at the second stage when
the landlord applies for recovery of possession under sec 21, the Rent
Controller must satisfy himself by such inquiry he may make about the compulsive
requirements of that provision that is to say, whether the twin conditions
requisite for granting, the permission for the creation Or limited tenancy had
been really fulfilled or not and counsel argued that no such inquiry would be
possible unless on receipt of landlord s application. for recovery of
possession a notice served is upon the tenant which would enable the tenant to
put forth a plea that at initial stage a mindless order granting, permission
ion for the creation of limited tenancy had been made with it the will
condition being really satisfied or that the said initial order granting
permission was the result of either fraud on the part of' the landlord or
collusion between the parties Counsel urged that a more ritulistic enforcement
the condition of' the permission udders sec. 21 or a mechanical grant of
permission thereunder would amount to subverting the whole effect-of sec. 21
and it is well settled fraud and collusion (especially collusion between two to
unequal the strong and the weak) will vitiate completely the permission so
granted and render it non-est. 'therefore, it would be the duty of the Rent
Controller to hear and adjudicate upon such pleas of the tenant before issuing
warrant of possession in favour of the landlord. At the outset we would like to
observe that in Noronah's case the question whether a prior notice is required
to be served upon the tenant before issuance of warrant of possession in favour
of the landlord under sec.
21, did not arise for consideration. It was a
case where upon receipt of landlord`s application for reconvey of possession
under the section the tenant raised pleas that the premises had been let out
for non-residential purposes and that the sanction or permission granted for
the creation of the limited tenancy was vitiated by fraud and collusion and the
question that arose for consideration was whether at that stage the Rent
Controller should consider those peas even when reside at the stage. In other
words all that the said case decided in that if such please by the tenant event
at the exception 911 stage (i.e. at the stage of passing the second order) the
Rent Controller should consider and adjudicate upon such pleas but the decision
is no authority for the proposition that upon receipt of landlord's application
for recovery of possession the Rent Controller must issue a notice to the
tenant inviting from him the pleas of fraud, collusion etc.
and hold an inquiry into such pleas before
issuing the warrant of possession in favour of the landlord; for there cannot
be a presumption that in very case there was a m re ritualistic observance of
the procedure contemplated while passing the initial order granting pertain or
that the Controls had passed a mindless order or that the order granting
permission was the result of either fraud on the part of the landlord or
collusion between the strong and the weak. In fact clean in Noronah case this
Court has observed that there will be a presumption in favour of the sanction
or permission being regular and if that be so, we fail to appreciate as to why
the Rent Controller should invite such pleas of fraud, collusion etc. at the
instance of the tenant by being required to serve a notice upon, him before
issuing the warrant of possession in favour of the landlord especially when the
scheme of sec. 21 and the connected relevant provisions do not require it.
what then is the remedy available to the
tenant in a case where there was in fact a mere ritualistic observance of the
procedure while granting permission for the creation of a l limited tenancy or
where such permission has procured by fraud practised by the landlord or was a
result of collusion between n the strong and the weak ? Must the tenant in
scull cases be unceremoniously evicted without his plea being inquired into ?
The answer is obviously in the negative. At the same time must he be permitted
to protract the delivery of possess on of the leased premises to the I Landlord
on a false plea of fraud or collusion or that there was a mechanical grant of
permission and thus defeat the very subject of the special procedure provided
for the benefit of the landlord in sec. 21 ? The answer must again be in the
negative. In our view these two competing claims must be harmonized and the-
solution lies not in insisting upon service of a prior notice on the tenant b
fore the issuance of the warrant of possession to evict him but by insisting
upon his approach the leant Controller during the currency of the limited
tenancy for adjudication of his pleas no sooner he discovers facts and
circumstances that tend to vitiate ab initio the initial grant of permission.
Either it is a mechanical grantor permission or it is procured by fraud
practised by the landlord or it is the result 912 of collusion between two
unequals but in each case there is no reason for the tenant to wait till the
landlord makes his application for recovery of possession after the expiry of
the fixed period under sec. 21 but there is every reason why the tenant should
make an i mediate approach to the Rent Controller to have his pleas adjudicated
by him as soon as facts and circumstances giving rise to such pleas come to his
knowledge or are discovered by him with due diligence.
The special procedure provided for the
benefit of the landlord in sec. 21 warrants such immediate approach on the part
of the tenant. Of course if the tenant aliunde comes to know about landlord's
application for recovery of possession and puts forth his plea of fraud or
collusion etc. at that stave the Rent Controller would inquire into such plea
but he may run the risk of getting it rejected as an afterthought. There is
however no need to imply any obligation on the part of the Rent Controller r to
serve a notice on the tenant inviting him to file his objections before issuing
the warrant of possession in favour of the landlord.
Having regard to the above discussion we are
clearly of the view that the High Court Was in error in taking the view that no
warrant for recovery of possession under sec. 21 could be issued without
serving a notice on the- tenant.
We hold that the Rent Controller's order
directing the issuance of warrant of possession in favour of the
appellant-landlord herein and the further proceedings of putting him in
position of the suit premises in pursuance thereof were valid and proper and
ought not to have been quashed by the High Court. However, since the High Court
has remanded the matter back to the Rent Controller for adjudication upon pleas
of the respondent tenant we not propose to interfere with that e the order and
the adjudication of the objections raised by the respondent- talent may be
proceeded with and decided in accordance with the law but on the facts of the
instant case there was no justification for the direction issued by the High
Court that pending such adjudication possession of the premises be restored to
the respondent-tenant. Admittedly in the instant case long before he applied
for recovery of possession under sec. 21 of the Act the appellant had sent two
registered notices to the registered notices calling upon it to vacate the,
premises as the period of the limited tenancy was about to expire and also
because he wanted the premises for his own use and occupation and nothing was
done by the respondents and it was only after the warrant of possession had
been executed and the landlord got possession of the premises 913 in question
that the respondent-company approached the High A Court by means of a Writ
Petition challenging the issuance of warrant of possession on the ground that
no prior notice- had been served upon him and that the first order granting
permission for limited tenancy was the result of fraud practised by the
landlord. Obviously the respondent-company has thought fit to raise the plea of
fraud belatedly. We, would therefore, quash that part of the High Cortege order
which directs restoration of possession of the suit premises to the
respondent-company during the i of the proceedings before the, Rent Controller
and direct that the appellant's possession of the suit premises which he has
secured in pursuance, of the warrant of possession shall not be disturbed till
the respondent-company objections and or pleas are finally decided. Since the
appeal substantially succeeds the respondents are directed to ply the, cost of
the appeal to appellants.
S.R. Appeal allowed.
Back
