S.P. Jain Vs. Krishna Mohan Gupta
& Ors [1986] INSC 256 (4 December 1986)
MUKHARJI, SABYASACHI (J) MUKHARJI, SABYASACHI
(J) SINGH, K.N. (J)
CITATION: 1987 AIR 222 1987 SCR (1) 411 1987
SCC (1) 191 JT 1986 979 1986 SCALE (2)931
CITATOR INFO: RF 1991 SC 686 (17)
ACT:
U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972, ss. 24A, 24B and 24C--Landlord Government
Servant--Directed to vacate government accommodation--Landlord in possession of
ground floor of his own house-Whether entitled to evict tenant in summary
proceedings 'dwelling house'--Meaning of..
Words & Phrases--'Dwelling House--Meaning
of.
HEADNOTE:
The U.P. Urban Buildings (Regulation of
Letting, Rent & Eviction) Act of 1972 was amended in 1976 and Chapter IV A
was added. Section 24A, s. 24B and s. 24C are contained in the said Chapter.
They provide for summary trim of eviction petitions in certain circumstances.
By a Notification dated 17th February,' 1982 issued under s.3 of the
Cantonments (Extension of Rent Control Laws) Act of 1957, the Government
extended to all the cantonments in the State of Uttar Pradesh the provisions of
the Rent Act.
The appellant--a government servant, was in
occupation of the government accommodation at Meerut. He was also owner of a house
situated in the cantonment area in Meerut. The house-had a ground floor and a
first floor with common bathroom and latrine situated on the ground floor. It
had also a common courtyard and a common entrance. The ground floor of the
house was in his possession while the first floor had been let out to the
respondent-tenant.
Pursuant to a notice received by the
appellant-landlord to vacate the government quarter, he filed an eviction
petition against the respondent-tenant in respect of the first floor of the
premises under s. 24 C of the U.P. Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 on 14th December, 1979. The respondent-tenant contested
the application on the ground that the appellant-landlord had two residential
houses--one in which he was living and the other in which the respondent-tenant
was living and since the appellant-landlord was in possession of a residential
accommodation, he had no right to get another residential accommodation vacated
from the tenant under the provisions of s. 24B or 24C of the said Act. The
Delegated Authority 412 allowed the petition by its order dated 17th August,
1981 and its order was confirmed in revision by the Additional District Judge.
Aggrieved by the order of the Additional
District Judge, the respondent tenant moved the High Court under Article 226 of
the Constitution. It was contended by the respondenttenant before the High
Court that (i) Chapter IV A had been applied to the Cantonment areas on a
subsequent date, i.e.
27th February, 1982, the Act being not
applicable to the accommodation in question in November, 1979 when the application
under s.24B of the Act was filed by the respondent and as such the same was
liable to be dismissed; and (ii) that as the appellant-landlord was living in
the ground floor of the said house, petition under s.24B was not maintainable.
The High Court upheld the second contention of the respondent-tenant and set
aside the order of eviction without deciding the question as to whether the Act
would apply to buildings constructed and situated within the cantonment limit.
Dismissing the appeal, this Court,
HELD: 1(i) The whole purpose behind s.24A or
s.14A of the Delhi Rent Control Act, 1958 which are in parimateria is that when
a landlord or a person who is in occupation of a government accommodation and
has to leave that accommodation and yet he has residential building in the area
in his own name or in the name of any member of his family, then such a person
or landlord will have a right accrued to him to recover immediate possession of
the building let out by him. The rationale behind these provisions or similar
provisions is that when a government servant lets out his house and is without
residential premises then if he is the owner of any residential building either
in his name or in the name of any member of his family then he has a right to
ask for immediate recovery of the said residential building. It is an urgency
provision to help the government servant to have residential accommodation
vacated if he is obliged to vacate his governmental residential accommodation.
The proviso to s.24B deals with the situation where the landlord has more than
one dwelling house, he will exercise a choice in respect of one. [420 E-F]
1(ii) Subs. (1) of s.24B uses the expression "if the landlord owns
residential building" and the proviso uses the expression "dwelling
houses". In the Act in question, however, there is no definition provided
except that 'building' is defined in clause (i) to s. 3 which is not relevant
for the present purpose. It is therefore necessary to determine what kind of a
residential building or dwelling house must a landlord possess to be entitled
to the urgency procedure of s. 24A to 24C of the Act to recover immediate
possession.
[420 G, H421 A] 2(i) Law should take
pragmatic view of the matter and respond to the 413 purpose for which it was
made and also take cognizance of the current capabilities of technology and
life-style of the community. The purpose of law provides a good guide to the
interpretation of the meaning of the Act. The legislative futility is to be
ruled out so long as interpretative possibility permits. [421 H-422 A] 2(ii) A
dwelling house means a building used or constructed or adapted to be used
wholly or principally for human habitation and dwelling house includes any part
of a house where that part is occupied separately as a dwelling house.
Therefore, to be a dwelling house or residential accommodation it must be
capable of being separately enjoyed and whether or not the premises in question
can be so enjoyed does not depend merely because that a portion cannot be
locked up independently or separately.
Busching Schmitz Private Ltd. v.P.T. Menghani
and Anr., [1977] 3 SCR 312, relied upon.
Stroud's "Judicial Dictionary."
Vol. 2 at page 858 (4th Edition); Corpus Juris Secundum Vol. 28 pages 604-605,
Words and Phrases legally defined, 2nd Edition, Vol. 2 page 127 and Black's Law
Dictionary 1979, 5th Edition page 454, referred to.
3. In order to determine whether two parts of
a building consist of one or more dwelling houses, the tests to be applied are;
(i) consider the building and see whether it constitutes a whole house or a
part of the house; (ii) if one part is reasonably needed for convenient and comfortable
occupation and enjoyment of the other part of the building then both the parts
of the building constitute one dwelling house and to arrive at this finding the
relevant factors to be taken in consideration are: (a) the situation; (b) entrance;
(c) the Municipal Number; (d) the nature of the construction; (e) inter
communication between the two parts;
(f) completeness and independence of each
unit; and (g) other relevant material circumstances. None of these taken singly
is decisive but the cumulative effect should be considered. [422 D-F] In the
instant case, after the death of the mother of the appellant the portion was
separately let out and a tenant used to occupy the said portion separately.
Therefore, in view of the fact that the premises can be enjoyed with common
facilities for dwelling purposes, it would constitute a separate and
independent dwelling houses and the High Court in the facts of the case was not
in error in holding that the two parts could be separately enjoyed. If the portion
in the occupation of the appellant could not separately dwelled in by the
appellant, it was only then that the extraordinary provisions of s. 24A, 24B
and 24C could be resorted to. Otherwise the owner or the landlord is entitled to
take recourse to other provisions of the Rent Act contending that the premises
in 414 question is reasonably required bona fide for the landlord's use but in
the situation like the present, the landlord was not entitled to take recourse
to the urgency provisions in s. 24A, 24B and 24C of the Act. [423 F-424 C] Jai
Singh Jairam Tvagi etc'. v. Mamanchand Ratilal Agarwal and Ors., [1980] 3 SCR
224, relied upon.
Sarwan Singh & Anr. v. Kasturi Lal,
[1977] 2 SCR 421, inapplicable.
Smt. V.L. Kashyap v. R.P. (Delhi), 1977 (1 )
Rent Control Reporter Vol. 9 page 449, S.S. Makhijaniv. V.K. Jotwani, 1977
Rajdhani Law Reporter 207, and Narain Khamman v. Parduman Kumar Jain, [1985] 1
SCR 1025, referred to.
4. The provisions of Chapter IV-A of the Act
would be applicable. When the order was, made in this case and the application
was filed the building in the cantonment area did not come within the ambit of
the Act in question. When, however, the revisional order was passed by the
Additional District Judge, the Act had come into operation and the building in
question was within the purview of the operation of the Act. [419 D-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1622 of 1985 From the Judgment and Order dated 26.9.1984 of the Allahabad High
Court in Writ Petition No. 5892 of 1983.
R.B. Mehrotra for the Appellant.
Raja Ram Agarwal, D.N. Mukharjee and M.M.
Kashtriya for the Respondents.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. In the administration of justice process often makes a
mockery of the purpose. This appeal is an example of the same.
This appeal by special leave arises out of
the judgment and order of the High Court of Allahabad dated 26th September,
1984. The question involved in this appeal is whether the appellant is entitled
to take advantage of the procedure under section 24-C of the U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction), Act, 1972 as amended from
time to time (hereinafter called the said Act) in respect of the First floor of
House No. 217-218 415 Machhli Bazar, Sadar, Meerut Cantonment, of which the
appellant is the owner and the landlord. The first floor of the said building
was in the tenancy of respondent No. 1 on a monthly rent of Rs. 60. The
appellant was at the relevant time posted as Superintendent, Military Farm,
Meerut Cantonment. In that capacity he was allotted Government quarter No. 47
belonging to the Union of India. On 8th November, 1979 he was given a notice to
vacate the Government quarter by the Deputy Assistant Director intimating that
since the appellant had his own house at Meerut Cantonment, he should vacate
the government quarter allotted to him by the order dated 8th August, 1979. In
view of that the appellant moved an application under section 24-C of the said
Act. It is the case of the appellant that he owns no other house except the one
involved in the present appeal. Section 24-B(1) of the said Act which gives the
right to move under section 24-C of the said Act provides as follows:
"S.24-B(1) Where a landlord who, being a
person in occupation of any residential public building is required, by, or in
pursuance of, any general or special order made by the Government or other
authority concerned, to vacate such building, or in default, to incur certain
obligations, on the ground that he owns, in the same city, municipality,
notified area or town area, a residential building either in his own name or in
the name of any member of his family, there shall accrue, on and from the date
of such order. to such landlord, a right to recover immediately possession of
any building let out by him:
Provided that nothing in this section shall
be construed as conferring a right on a landlord owning, in the same city,
municipality, notified area or town area, two or more dwelling houses, whether
in his own name or in the name of any member of his family, to recover the
possession of more than one dwelling house and it shall be lawful for such
landlord to indicate the dwelling house, possession of which he intends to
recover." In this appeal we are not concerned with other subsections and
other provisos of the said section.
The said application was contested by the
tenant on number of grounds including the ground that the accommodation in the
possession of the appellant was sufficient to accommodate his family members.
By an order dated 17th August, 1981, the application of the appellant was
allowed by the Delegated Authority. He held that the appellant was in the
government service and he was due to retire on 30th June, 1980 and he had moved
an application under the 416 provisions of section 24-B for getting his house
vacated and getting possession of the same. It was further held by him that in
this house there was a joint latrine which created difficulty for the
appellant. Therefore the appellant had prayed that the possession of the first
floor of the house in dispute should be delivered to him at an early date. On
this, notice having been given to the respondent, he stated in his counter that
the application was not maintainable and had further contended that the present
proceedings under section 24-C of the Act could not be taken, according to him,
because the appellant did not need any residential accommodation whereas the
tenant-objector and respondent in this case was a poor man and had no other
house.
It was contended before the Delegated
Authority that the applicant landlord had two residential houses--one in which
the appellant-landlord was living and the other in which the
respondent/tenant-objector was living. It was the submission of the
respondent-tenant that the appellant-landlord was in possession of residential
accommodation and as such he had no right to get another residential
accommodation vacated from the tenant. The Delegated Authority observed as follows:
"It is admitted by both the parties that
the entire house is one and in its first floor tenant is living and the ground
floor is in possession of the landlord. Both the portions of the house are
parts of one house and therefore there is no question of accepting it as a separate
residential unit particularly when the tenant-objector has himself in his own
affidavit and objections stated that the bath-room and the latrine is on the
ground floor i.e. it is situated in the portion of the landlord." It may
be stated that respondent-tenant had filed an affidavit showing his need. The
Delegated Authority who was the Addl. District Magistrate held by his order
dated 17th August, 1981 that the application of the appellant should be allowed
and there should be an order for eviction. There was an appeal from the said
order before the Additional District Judge. He, in his order, set out the facts
referred to hereinbefore. He also referred to a report dated 11th December,
1979 by the Inspector who supported the appellant's case. Before the appellate
authority two points were urged namely, that the application was not
maintainable under section 24-B or under section 24-C of the said Act, and
secondly that the accommodation in the occupation of the landlord was
sufficient for his need. The tenant-respondent contended before the learned
District Judge that as the landlord was already in occupation of the ground
floor of the house in question, he was not entitled to move an application
under the relevant sections. Reliance was placed on the definition of
'building' and the interpretation of the 'dwelling house'. It was contended on
behalf of the 417 landlord that the building as a whole had to be considered
and not in part. The Delegated Authority was unable to accept the contention
urged on behalf of the tenant and held that the building meant a single
structure and might be in occupation of more than one person. It has also been
held that the house having a common courtyard and a common entrance would be a
single house and a landlord should not be forced to live with an outsider or
with a person with whom he had no happy relations. The Appellate Authority held
that the building in question was just on the head of the portion of the ground
floor in occupation of the landlord. The tenant had to pass daily from the
courtyard on the ground floor in order to attend the call of nature.
It was contended that no eviction of the
landlord from the premises in his occupation had taken place but merely action
had been indicated. Therefore, recourse to section 24-B and section 24-C of the
Act was unwarranted. The learned District Judge was unable to accept those
contentions. He accordingly dismissed the revision application.
An application was moved under Article 226 of
the Constitution before the High Court and the High Court by the impugned
judgment and order has set aside the order of eviction. It held that the
building was situated within the Cantonment of Meerut. The U.P. Act No. 28 of
1976 added Chapter IV-A as to the question whether this Act would apply to
buildings constructed and situated within the cantonment limit, it was observed
that by the notification issued in exercise of the powers conferred by section
3 of the Cantonments, (Extension of Rent Control Laws) Act, 1957, the Central
Government had extended to all the cantonments in Uttar Pradesh the provisions
of the present Act in question as in force on the date of notification, and as
a result of the issuance of the said notification Chapter IV-A, became
applicable to the building in question, according to the High Court. It was,
however, urged before the High Court on behalf of the respondent that Chapter
IV-A had been applied to the Cantonment areas on a subsequent date, i.e. 27th
February, 1982, the Act being not applicable to the accommodation in question
in November, 1979 when the application under section 24-B of the Act was filed
by the respondent and as such the same was liable to be dismissed. It was,
however, conceded by respondent that the revision order had been passed by the
Additional District Judge on 27th April, 1983. It was therefore submitted that
the proper course in the circumstances of the instant case would have been to
send back the case for fresh decision. Reliance had been placed by the
appellant on the decision in the case of Jai Singh Jairam Tyagi etc. v.
Mamanchand Ratilal/Igarwal and Ors., [1980] 3 SCR 224. However, as the learned
judge felt that on the second point the respondent was entitled to succeed, he
did not decide this point taken in the writ petition by the respondent. The
second point urged before the learned judge was that as the appellant landlord
was living in 418 the ground floor of the said house, section 24-B was not
maintainable. The learned judge found 'that the central idea of conferring the
power on such a landlord to recover immediately possession was that he was
being evicted from his government quarter for residence. The learned judge
observed that the legislature did not want to leave such a person at the mercy
of the laws delay. Such a landlord was a class by himself and was entitled to
take summary proceedings. His case had to be urgently dealt with. But,
according to the High Court, if he had any house in the same, building then he
would not come within the purview of section 24-B of the Act. He was, however,
not without a remedy. He can take recourse to section 21(1A) of the said Act.
It was noted while chapter IV-A which incorporated section 24-B and 24-C
provided summary trial, the object of the two provisions namely section 21 on
the one hand and section 24-B and 24-C of the said Act on the other differ from
each other. In this connection reliance was placed on certain decisions of this
Court. After referring to certain decisions, it was held that the expression
"to recover immediately" indicated the ground where section 24-B
could be applied there, there was consequential urgency to recover the
possession of the building. According to the learned judge, there would be no
consequential urgency to recover if he was already in possession of a dwelling
house or where it could be made available to him at his choice. The High Court
accordingly allowed the application under article 226 and set aside the orders
of the delegated authority and the appellate authority.
Aggrieved by the said decision, the appellant
has come up to this Court.
Two questions, therefore, arise in this
appeal namely, firstly, whether the building with which we are concerned and
which is situated in Cantonment of Meerut would be governed by the provisions of
section 24-B and section 24-C of the Act, and secondly, whether in view of the
facts and circumstances found, have the grounds been made out under section
24~B of the Act for eviction of the respondent from the premises in question in
summary manner? It is not disputed that the building in question is within the
cantonment limits. In the Act of 1972 (Act No. 13 of 1972), there was an
amendment in 1976 and Chapter IVA was added by the U.P.
Act. No. 28 of 1976 with effect from 1976.
Section 24A, section 24-B and section 24-C are contained in the said chapter.
The said Amendment Act No. 28 of 1976 did not state whether the said chapter
would be applicable to buildings constructed and situated within the cantonment
limit. The first question posed before the High Court but not answered by it
was whether in view of the answer given to the second question, the provisions
of those sections would be applicable to the building in question.
By notification issued in the exercise of
section 3 of the Cantonments (Extension of Rent Control Laws) Act. 1957, the
Central Government had 419 extended to all the Cantonments in Uttar Pradesh the
provisions of the Act in question, as in force on the date of that
notification, in the State of U.P. The said notification being Notification No.
S.R.O. 259 was issued in exercise of the powers conferred by section 3 of the
said Act and in supersession of the notification of the Government of India in
the Ministry of Defence. The said Notification extended to all the Cantonments
in the State of Uttar Pradesh the Act (U.P. Act. No. 13 of 1972), as in force
on the date of the notification with certain modifications with which we are
not concerned. It was, therefore, contended that it could not have by virtue of
that notification introduced the provisions of Chapter IV-A of the said Act to
the Cantonment area which themselves were introduced by Amendment Act No. 28 of
1976. There was another notification dated 17th February, 1982 being
Notification No. S.R.O. 47.
The said notification was also issued under
section 3 of the aforesaid Act of 1957, mentioned hereinbefore and it stated
that in supression of the previous notification, the Government extended to all
the cantonments in the State of Uttar Pradesh the provisions of the Act, with
certain modifications with which we are not concerned in this case. The 1957
Act authorises the Government to issue the notification as contemplated
therein.
In the instant case, as noted hereinbefore,
the appellant had moved an application under section 24-C of the Act on 14th
December, 1979 in respect of the premises in question on receipt of notice to
quit the government premises in his occupation. The delegated authority made
the order of release on 17th August, 1981. There was a revision application and
it was disposed of by the Additional District Judge dismissing the revision on
27th April, 1983. Therefore when the order was made in this case and the application
was filed the building in the cantonment area did not come within the ambit of
the Act in question. When, however, the revisional order was passed by the
Additional District Judge, the Act had come into operation and the building. in
question was within the purview of the operation of the Act.
In view of the ratio of Jai Singh Jairam
Tvagi Etc. v. Mamanchand Ratilal Agarwal and Ors. (supra) it must be held that
the provisions of Chapter IVA of the Act would be applicable. The amending Act
was passed for the express purpose of saving decrees which had already been
passed.
Therefore action under section 24-C of the
Act in this case was justified. The High Court did not decide this point
because it was of the opinion that the second point which we shall note
presently, the High Court was in favour of the respondent. We are, however, of
the opinion that the first point urged on behalf of the respondent cannot be
accepted in view of the position in law as discussed hereinbefore. It was
submitted on behalf of the respondent that section 24-B gave substantive rights
to the appellant and section 24-C was the procedure for enforcing those
substantive rights.
Therefore, these were not only procedural 420
rights. Therefore, there was no question of retrospective operation to take
away vested fight. We are, however, of the opinion that it would be an exercise
in futility if the application is dismissed on this ground it can be fried
again and in view of the subsequent legislation as noted hereinbefore it was bound
to succeed on this point. In exercise of our discretionary power under article
136 of the Constitution it would not be proper to interfere in the facts and
circumstances of the case on this ground. In the premises in view of the ratio
of the decision of this Court in Jai Singh's case (supra) and reason mentioned
hereinbefore this contention urged on behalf of the respondent must be
rejected.
The second question which is the substantial
question in this appeal is, whether in view of the fact that respondent No. 3
was in occupation of the ground floor of premises No. 217-218 Machhli Bazar,
Sadar, Meerut Cantt. the first floor of which was in the tenancy of the
appellant, the application under section 24-B of the Act was maintainable? We
have noted the provisions of section 24-B of the Act. It may be mentioned that
section 24-A of the Act indicated that the provisions of Chapter IV-A or any
rule made thereunder shall have effect notwithstanding anything inconsistent
therewith contained elsewhere in the Act or in any other law for the time being
in force or in any contract (whether express or implied), custom or usage to
the contrary. The whole purpose behind section 24-A or section 14-A of the
Delhi Rent Control, 1958 which are in parimateria is that when a landlord or a
person is in occupation of a government accommodation and has to leave that
accommodation and yet he has residential building in the area in his own name
or in the name of any member of his family, then such a person or landlord will
have a right accrued to him to recover immediate possession of the building let
out by him. The rationale behind these provisions or similar provisions is that
when a government servant lets out his house and is without residential
premises then if he is the owner of any residential building either in his name
or in the name of any member of his family then he has a fight to ask for
immediate recovery of the said residential building. It is an urgency provision
to help the government servant to have residential accommodation vacated if he
is obliged to vacate his governmental residential accommodation. The proviso to
section 24-B deals with the situation where the landlord has more than one
dwelling house, he will exercise a choice in respect of one.
This is not the situation in the instant
case. But it may be noted that sub-section (1) of section 24-B uses the expression
'if the landlord owns residential building' and the proviso uses the expression
'dwelling houses'.
Our attention was drawn to the definition of
'building' and 'dwelling house' appearing in some Acts. In the Act in question,
however, there is no definition provided, except that 'building' is defined in
clause (i) to section 3 which is not relevant for our present purpose. It is therefore
necessary to 421 determine what kind of a residential building or dwelling
house must a landlord possess to be entitled to the urgency procedure of
section 24-A to 24-C of the Act to recover immediate possession. In this
connection it will be necessary to examine the type of 'building' in question
in this case. Counsel for the appellant drew our attention to section 3(i) and
he further drew our attention to section 12(4), section 16(1)(b), section
21(1), section 21(1-A) of the Act in aid of the submission that whenever the
legislature intended to mean part of the building the legislature has said so
expressly.
Sarwan Singh & Anr. v. Kasturi Lal,
[1977] 2 SCR 421 was dealing with the Slum Areas (Improvement and Clearance)
Act, 1956. Dealing with section 14A of the Delhi Rent Act, this Court observed
that section 14A provided that where the landlord who, being in occupation of
residential premises allotted to him by the Central Government, was required to
vacate such residential accommodation on the ground that he owns residential
accommodation within the Union Territory, there shall accrue to such a landlord
notwithstanding anything contained in any other law for the time being in force
fight to recover immediately possession of the premises. In view of the facts
in the case involved before us, where the landlord, the appellant was in
possession of a par1 of the building in question which could be considered in
certain circumstances to be a residential unit by itself, the observations made
in that decision are not relevant for the present purpose. In this case we are
concerned with the question whether the type of accommodation which was in the
possession of the landlord would constitute residential building or dwelling
unit in order to disentitle him to seek recourse to the urgency procedure of
section 24-A of the Act.
In Busching Schmitz Private Ltd. v. P.T.
Menghani and Anr., [1977] 3 SCR 312 section 14A of Delhi. Rent Control Act,,
1958 came up for consideration. This Court held in the said decision that
section 2(i) of the Delhi Act covered any building or part of the building
leased for use, residential, commercial or other. To attract section 14A of
that Act the landlord must be in occupation of residential premises allotted to
him by the Central Government. He must be required by order of that Government
to vacate the said residential accommodation. Residential premises are not only
plots which are let out for residential purposes not do all kinds of structures
where humans may manage to dwell are residential. Use or purpose of the letting
is no conclusive test. Whatever is suitable or adaptable for residential use,
even by making some changes. can be designated residential premises.
We are of the opinion that law should take
pragmatic view of the matter and respond to the purpose for which it was made
and also take cognizance of the current capabilities of technology and
life-style of the community. It is well settled that the purpose of law
provides a good guide to the interpretation of the 422 meaning of the Act. We
agree with the views of Justice Krishna Iyer in Busching Schmitz Private Ltd's
case (supra) that legislative futility is to be ruled out so long as
interpretative possibility permits. Residentiality depends for its sense on the
context and purpose of the statute of the project promoted.
Our attention was drawn to the decision of
the learned single judge of the Delhi High Court in Smt. V.L. Kashyap v. R.P.
Puri (Delhi), 1977 (1) Rent Control Reporter Vol. 9 page 449. The decision was
dealing with section 14A of the Delhi Rent Control Act, 1958 which is more or
less similar to section 24-A to 24-C of the Act under consideration. The
learned judge observed that in respect of exercise of fight under section 14A
of the Delhi Act, an important proviso had been inserted. It was with the
effect that fight of eviction under section 14A of the Delhi Act was confined
only to one dwelling house and the landlord has no right to recover possession
of more than one dwelling house in exercise of section 14A of the Delhi Act.
Reference has to be made to another decision under the Delhi Rent Control Act
by a learned single judge of the Delhi High Court in S.S. Makhijani v. V.K.
dotwani, 1977 Rajdhani Law Reporter 207. There the learned judge referred to
another decision and expressed concurrence with the said decision where it was
held that in order to determine whether two pans of a building consist of one
or more dwelling houses, the tests to be applied were thus: (1)consider the
building and see whether it constituted a whole house or a part of the house;
(2)if one part was reasonably needed for convenient and comfortable occupation
and enjoyment of the other part of the building then both the parts of the
building constituted one dwelling house within the meaning of proviso to
section 14A of Delhi Act.
To arrive at this finding, the learned judge
observed that the relevant factors to be taken into consideration were (a)the
situation; (b)entrance; (c)the Municipal Number; (d) the nature of the
construction; (e) inter communication between the two parts; (f)completeness
and independence of each unit; and (g) other relevant material circumstances.
None of these taken singly was decisive but
the cumulative effect should be considered. We are of the opinion that the
tests indicated above provide workable guide.
Stroud in his "Judicial Dictionary"
Vol. 2 at page 858 (4th Edition) noted that 'dwelling house' is obviously a
house with the super-added requirement that it is dwelt in or the dwellers in
which are absent only temporarily, having animus revertendi.
In this connection reference may be made to
the meaning of 'dwelling house' in Corpus Juris Secundum Vol, 28 pages 604-605
where dwelling place is mentioned. See also in this connection 'dwelling' or
'dwelling house' where it was mentioned that the term was not free from
ambiguity, multiple meanings and many definitions have been given. The meaning
must suit the purpose and 423 the idea behind the statute in question in a
particular case. For the meaning of 'dwelling house' it may be instructive to
refer to the Words and Phrases Legally Defined Second Edition, Volume2 page 127
wherein it has been mentioned, inter alia, that 'dwelling House' meant a
building used or constructed or adapted to be used wholly or principally for
human habitation and 'dwelling house' included any part of a house where that
part was occupied separately as a dwelling house.
Black's Law Dictionary 1979 Edn. (Fifth
Edition) page 454 defines 'Dwelling' as the house or other structure in which a
person or persons live.
Narain Khamman v. Parduman Kumar Jain, [1985]
1 SCR 1025, was dealing with section 14A of the Delhi Rent Control Act, 1958
which is more or less similar to the section involved in the present appeal. At
page 1032 of the report the position has been discussed. There it was observed
that if a person had, however, other premises which he owned either in his own
name or in the name of his wife or dependent child, which were available to him
for residential accommodation or into which he had already moved in, he could
not maintain an application under section 14A of the Delhi Rent Control Act.
We have considered the maps at Annexure 4 as
well as at page 108 of the Paper Book. It appears that there is a staircase in
the front which leads to the first floor and one need not go to the ground
floor. There are two latrines in ground floor. There is,; however, a common
passage and in Order to come down to that passage, one has to use another
staircase which is a common staircase. In this context the question is whether
the premises in question could be separately used. In our opinion, the High
Court in the facts of this case was not in error in holding that the two pans
could be separately enjoyed.
After 1962 the mother of the appellant
resided in the portion in the occupation of the landlord now used separately
and independently and the same is in occupation of the appellant and at that
time when the mother of the appellant was alive the appellant used to occupy
the said portion. In our opinion the conduct of the parties is relevant in considering
whether parts or portions of a building could be a dwelling house. It may also
be mentioned that after the death of the mother of the appellant the portion
was separately let out and a tenant used to occupy the said portion separately.
Here in the instant case, Shri Melhrotra, counsel for the appellant however,
stressed that in order to be a dwelling house or residential accommodation, it
must be capable of being separately enjoyed and separately locked up., is true
that without that facility, the concept of safe and separate dwelling gets
hampered. Yet in view of the fact that premises can be enjoyed with common
facilities for dwelling purposes would constitute a separate and independent
dwelling houses. It has to be borne 424 in mind that in this case the issue is
not whether the premises is sufficiently comfortable or whether the portion in
question was sufficiently comfortable for dwelling or residence of the
appellant or a party but the question is whether the house or the portion can
be separately considered to be dwelling. If the portion in the occupation of
the appellant could not be separately dwelled in by the appellant, it was only
then that the extra ordinary provisions of section 24A, 24-B and 24-C could be
resorted to. Otherwise the owner or the landlord is entitled to take recourse
to other provisions of Rent Act contending that the premises in question is
reasonably required bona fide for the landlord's use but in the situation like
the present the landlord was not entitled to take recourse to the urgency
provisions in section 24-A, 24-B and 24-C of the Act. In our opinion to be the
dwelling house or residential accommodation it must be capable of being
separately enjoyed and whether or not the premises in question can be so
enjoyed does not depend merely because that a portion cannot be locked up
independently or separately.
In that view of the matter, having regard to
the nature of the user, we are of the opinion that the High Court was right.
Therefore while we affirm the decision of the High Court, in terms of the
observations made by this Court in Busching Schmitz Private Ltd. v. P.T.
Menghani and Anr., (supra), we direct that the appellant if he so wants or
desires can make arrangements for separation of the two units and to this the
respondent-tenant would not be entitled to take any objection. This, however,
will not prevent the appellant to seek eviction by other provisions of the Act
or by any other appropriate legal proceeding if he is otherwise entitled to.
In the premises this appeal fails with the
aforesaid observations. In the facts and in the circumstances of this case, the
parties will pay and bear their own costs.
M.L.A. Appeal dismissed.
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