Inder
Mohan Lal Vs. Ramesh Khanna [1987] INSC 200 (4 August 1987)
MUKHARJI,
SABYASACHI (J) MUKHARJI, SABYASACHI (J) NATRAJAN, S. (J) CITATION: 1987 AIR
1986 1987 SCR (3) 765 1987 SCC (4) 1 JT 1987 (3) 246 1987 SCALE (2)196
CITATOR
INFO: F
1987 SC1996 (9,13) RF 1989 SC 162 (6) APL 1989 SC 458 (9,11) R 1990 SC 325 (18)
E 1990 SC1725 (19) RF 1991 SC1233 (5) R 1992 SC1555 (2,7,18)
ACT:
Delhi
Rent Control Act, 1958: s. 21--Requirements of--Permission to let out premises
for limited period--Validity of--Reason for landlord's non-requirement of
premises--Whether to be stated-Agreement in writing--Whether to be registered.
Practice
& Procedure: View taken by the High Court over a number of years----Should
normally be adhered to.
HEADNOTE:
The
appellant made an application before the Rent Controller on or about July 15,
1976 to let out the premises to the respondent for residential purposes for a
period of two years under s. 21 of the Delhi Rent Control Act, 1958 as he did
not require the premises for that period. The respondent agreed before the Rent
Controller to the above statement of the appellant and undertook to vacate the
premises after the expiry of two years from July 15, 1976. Accordingly, the
Rent Controller made an order allowing creation of a limited tenancy for a
period of two years from July 15, 1976. The respondent having refused to vacate
the premises after two years, the appellant filed an application under s. 21 on
behalf of himself and his family members claiming possession of the premises
for their bona fide need and use. The Rent Controller passed an eviction order
and the Appellate Tribunal upheld the same.
The
High Court allowing the appeal of the tenant-respondent held that the order
under s. 21 of the Act was a mindless order inasmuch as no reason had been
stated as to why the premises in question was not required for a limited
period, that it was not stated as to how the premises in question was dealt
with before creating the said tenancy and that there was no writing and no
lease registered after the permission was granted.
Allowing
the appeal by special leave, 766
HELD:
1.1 The permission granted by the Rent Controller under s. 21 of the Delhi Rent
Control Act was valid. The order permitting limited tenancy was not a mindless
order but one passed by him after taking the relevant facts into consideration.
[780D]
1.2
In order to attract s. 21 of the Act, it is necessary firstly that the landlord
must not require the premises either in whole or part for a particular period;
secondly, the landlord must obtain the permission of the Controller in the
prescribed manner; thirdly, letting of the whole or part of the premises must
be for residence, and fourthly such letting out must be for such period as may
be agreed in writing. These and these alone are the conditions which are
required to be fulfilled. [772G-773B]
1.3
Section 21 only gives sanction if the landlord makes a statement to the
satisfaction of the Court and the tenant accepts that the landlord does not
require the premises for a limited period. This statement of the landlord must
be bona fide. The purpose must be residence. There must not be any fraud or
collusion. There is a presumption of regularity. But it is open in particular
facts and circumstances of the case to prove to the satisfaction of the
executing court that there was collusion or conspiracy between the landlord and
the tenant and the landlord did not mean what he said or that it was a fraud or
that the tenant agreed because he was wholly unequal to the landlord. [776F-H]
1.4
In the instant case there was no permission previously. This was the first
letting. There was no evidence that when the landlord stated that he did not
require the premises in question for a particular period, he did not mean what he
said or that he made a false statement. There was no evidence at any stage that
the tenant did not under- stand what the landlord was stating or that he did
not accept what the landlord stated. There was no evidence that either the
tenant was in collusion or perpetrating any fraud with the landlord or the
tenant was unequal to the landlord in bargaining powers. There was thus no
evidence to show that the Controller did not apply his mind. [779F, 776H- 777B]
S.B. Noronah v. Prem Kumari Khanna, [1980] 1 S.C.R. 281; Nagindas Ramdass v.
Dalpatram Ichharam, [1974] 2 SCR 544; V.S. Rahi and another v. Smt. Ram
Chambeli, [1984] 2 SCR 290; J.R. Vohra v. India Export House Pvt. Ltd. and
another, [1985] 2 SCR 899 and Smt. Dhanwanti v. D.D. Gupta, [1986] 3 SCC 1, referred
to
2.
It is not necessary to state under s. 21 the reasons why the 767 landlord did
not require the premises in question for. any particular period. The landlord
or the tenant may be able to show that cogent reasons did exist or were within
the knowledge of the parties as to why the landlord did not require the whole
or a part of his premises for a specified period. [777BC, 782B]
3.
There is no presumption that in all cases the tenants are the weaker sections.
The presumption is, on the contrary, in favour of sanction. It is he who
challenges the statement and the admission of the landlord or the tenant who
has to establish facts. In the instant case the onus was on the tenant to show
that the sanction under s. 21 was a nullity. He did not make any attempt to
dislodge the presumption in favour of the permission. [777C, 779F]
4.1
An agreement in writing submitted along with the application under s. 21 of the
Act is really a proposed agreement. It comes into effect only after the grant
of permission. It does not require registration. [782CD] S.B. Noronah v. Prem
Kumari Khanna, [1981] 1 SCR 281, referred to.
Vijay
Kumar Bajaj v. Inder Sain Minocha, [1982] 2 Rent Control Reporter 392,
approved.
4.2
It has been consistently held by the Delhi High Court that s. 21 is a code by
itself, that the order of permission is itself an authority and that no lease
was necessary. This view has been acted upon for long and trans- actions have
been completed in the Union Territory on the basis of permission and it was never
doubted that there was any requirement of any lease or any agreement subsequent
to the order and the same required registration. The view taken by the High
Court over a number of years should normally be adhered to and not to be
disturbed. A different view would not only introduce an element of uncertainty
and confusion but it would also have the effect of unsettling transactions
which might have been entered into on the faith of those decisions. [780A-C]
Raj Narain Pandey and others v. Sant Prasad Tewari & others, [1973] 2 SCR
835 and Kasturi Lal v. Shiv Charan Das Mathur, [1976] 8 Rent Control Reporter
703, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 468 of 1987.
768
From the Judgment and Order dated 19.7. 1985 of the Delhi High Court in Second
Appeal No. 374 of 1980.
Madan
Bhatia, N.D.B. Raju and Vineet Kumar for the Appellant.
Dr.
L.M. Singhvi, K.B. Rohtagi, Praveen Jain and Baldev Atreya for the Respondent.
The
Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This appeal by
special leave is from the judgment and order of the High Court of Delhi dated
19th of July, 1985. The appellant had made an application on or about 15th of
July, 1976 before the Rent Controller to let out the premises for a period of
two years under section 21 of the Delhi Rent Control Act, 1958 (hereinafter
called 'the Rent Act'). The Rent Controller after recording the statements of
the appellant and the respondent made an order permitting creation of limited
tenancy only for a period of two years for residential purposes to which the
respondent had agreed upon. It may be material to refer to the fact that the
appellant in his application under section 21 of the Rent Act had stated as
follows:
"1
do not require the premises for a period of two years from 15.7.76. The purpose
of letting shall be residential only and the premises are shown in the site
plan Ex. A-1.
The
proposed agreement is Ex. A-2. Limited tenancy under section 21 of the Act may
be allowed to be created for the said period." The respondent agreed to
the aforesaid statement and stated as follows:
"I
have heard the statement of the petitioner and I accept it as correct. I have
no objection. I shall vacate the premises after the expiry of two years from
15.7.76. The purpose of letting shall be residential only".
Upon
this the Rent Controller passed the following order:
"This
is an application filed under section 21 of the Act for permission to create
limited tenancy for a period of two years from 15.7.76. The-purpose of letting
shall be 769 residential only and the premises is shown in the site plan Ex.
A-1. The proposed agreement is Ex. A-2. From the perusal of the statements of
the parties I am satisfied that as at present the petitioner does not require
the premises. Therefore, limited tenancy is al- lowed to be created for a
period of two years from 15.7.76." The appellant filed an application on
6th November, 1978 for eviction of the respondent as the respondent had refused
to vacate the premises in spite of his statement made before the Rent
Controller. The appellant filed an application on the said date under section
21 of the Rent Act on behalf of himself and his family members claiming
possession of the premises for their bona fide need and use. The appellant
contended that he (the appellant) was a retired official and was living in a
rented house while the respondent was a rich man doing business in jeweler and
also owning a house in Delhi. In the application made under section 21 of the
Rent Act the appellant had stated that the appellant owned a newly built house
in the New Friends Colony comprising of dining, drawing, three bed rooms with
attached bath rooms, a study room, family lounge and a garage. The appellant
had further stated that he did not require the premises for the personal
residence for a period of two years. The appellant had also stated in that
application, that the appellant had agreed to let it out to the respondent for
the first time on the terms and conditions set out in the proposed lease deed
for a period of two years. It was stated that the respondent had heard the statement
and recorded that he had no objection and would vacate the premises after
expiry of two years. Subsequently, when the second appeal was pending in the
Delhi High Court, the appellant had filed an application for early hearing in
which he had stated that when the construction of the house in question was
completed the appellant's father R.B. Nanak Chand, advocate, was old and alone
(the appellant's mother had died earlier and other brother and sister being
away from Delhi) and in view of his father's ailing health the appellant was
living with him in the rented premises at 4-Flag Staff Road, Delhi to look
after his old and ailing father. It was in those circum- stances that the
appellant had decided to let out the suit premises for a limited period of two
years only. It may be mentioned that the appellant's father died two months
after the Rent Controller had granted permission.
The
Rent Controller after hearing both the parties on the 4th of January, 1980
held, rejecting the contention of the respondent, that section 21 of the Rent
Act was not ultra vires. Furthermore, he was 770 satisfied that a limited
tenancy had been created and as such he granted permission for eviction.
Aggrieved by the aforesaid order the respondent preferred an appeal to the Rent
Control Appellate Tribunal. The Rent Control Appellate Tribunal upheld the
eviction order.
On
or about the 19th of July, 1985, being further aggrieved, the respondent
preferred a second appeal before the High Court of Delhi. The High Court of
Delhi by the impugned judgment allowed the appeal on the ground that there was
no ground stated in the application under section 21 of the Rent Act as to why
a limited tenancy was intended to be made. The High Court held that the order
under section 21 of the Rent Act was a mindless order inasmuch as the
respondent before it had not disclosed as to how the demised premises were
being dealt with before creating the said alleged tenancy and why the
respondent before it did not require the demised premises for the alleged
period of two years and as to why the same would be required by him after the
period of two years.
The
High Court relying on the decision in the case of S.B. Noronah v. Prem Kumari
Khanna, [1980] 1 S.C.R. 281, held that the order in question in this case was a
mindless order and in that view of the matter the order passed under section 21
of the Rent Act was not valid. The High Court was of the view that there was no
inquiry for the Controller to come to the conclusion on the basis of the
material that the premises for which the permission was sought for creating a
limited tenancy was in fact available for being let for a limited period only
and in the absence of that, this was a mindless order.
The
appellant has come up in appeal before this Court from the said decision.
The
question, therefore, that arises for consideration of this Court is whether in
view of the requirements of section 21 of the Rent Act, was the permission
invalid? The main points upon which the High Court has relied are: firstly, on
the materials put forward before the Rent Controller for sanction under section
21 of the Rent Act, no reason had been stated as to why the premises in
question was not required for a limited period; secondly, it was not stated as
to how the premises in question was dealt with; thirdly, the High Court was of
the view that there was no writing and no lease registered after the permission
was granted. So far as the second ground, namely, as to how the premises in
question was dealt with prior to the letting out in the 771 instant case the
High Court was obviously and factually incorrect. It was stated in the
application for permission that it was agreed to be let out 'for the first
time' and secondly, it was stated that the appellant owned 'newly built house'.
Therefore two facts were clearly stated namely, this was a 'newly built'
premises and further that there was no prior letting. In the aforesaid facts
and circum- stances of the case therefore, it cannot be denied that how the
premises in question was dealt with before the letting out had been clearly
stated.
It
is true however, that why the premises in question was stated by the appellant
not to be required for a limited period had not been 'specifically' stated at
the time of seeking permission under section 21 by the appellant. The appellant
had stated that he did not require the premises in question for a period of two
years. He had not stated as to why he did not require the said premises for the
said limit- ed period of two years. The question therefore is was it necessary
to seek a valid order under section 21 to state that reason and if permission
was granted on satisfaction of the Rent Controller on other conditions without
being satisfied as to why the landlord did not require the premises in dispute
for a limited period, the order would suffer from the vice of being a mindless
order. Such an order if other- wise the conditions are satisfied would not be
an invalid order. In order to determine that question it is necessary to bear
in mind the parameters and the purposes of section 21 of the Rent Act. The
Delhi Rent Control Act like other Rent Control Legislations had been passed to
provide for the control of rent and eviction. The Rent Acts all over the
country came in the Wake of partition and explosion of population in
metropolitan and new urban cities. There are acute shortages of accommodation.
Very often these shortages and the demand for accommodation led to rack-renting
as well as unreasonable eviction of the tenants. To meet that situation and to
facilitate proper letting the Rent Acts were passed all over the country
ensuring fair return to the landlords and giving the landlords the right of
eviction for limited purposes and at the same time protecting the tenant from
unreasonable eviction by the landlords. This led to a series of litigations
leading to long delays resulting specially in metropolitan cities like Delhi,
Calcutta and Bombay in reluctance of many landowners who had vacant premises
for letting out only for limited period either because of the family conditions
or official commitments as they did not require the premises immediately and at
the same time who were reluctant to part with the said premises on rent because
of the long delay and the procedure that had to be followed to recover
possession of those premises.
772
Section 21 of the Rent Act was an attempt to meet that reluctance. Section 14
of the Rent Act controls the eviction of tenants and gives protection to the
tenants against eviction. It stipulates that notwithstanding anything to the
contrary contained in any other law or contract, no order or decree for the
recovery of possession of any premises shall be made by any court or Controller
in favour of the landlord against a tenant unless certain specified conditions
were fulfilled. Those conditions were laid down in different sections and
provisos thereof. It is not necessary to set these out in detail. As mentioned
hereinbefore that led to a good deal of reluctance on the part of the landlords
to part with the possession of the premises in their occupation because of the
time and expenses consuming process involved for recovery of possession. In
order, therefore, to induce reluctant/potential landlords to create tenancies,
section 21 was enacted for the benefit of the capital city of Delhi.
This
is a new provision-the unique provision made for the metropolitan city of
Delhi. Section 21 of the Rent Act reads as follows:
"21.
Where a landlord does not require the whole or any part of any premises for a
particular period, and the landlord, after obtaining the permission of the
Controller in the prescribed manner, lets the whole of the premises or part
thereof as 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 not with standing anything contained in
section 14 or in any other law, the Controller may, on an application made to
him in this behalf by the landlord within such time as may be pre- scribed,
place the landlord in vacant possession of the premises or part thereof by
evicting the tenant and every other person who may be in occupation of such
premises." An analysis of this section makes it clear that in order to
attract section 21, the first condition is that the landlord does not require
the whole or part of any premises for a particular period. If that condition is
fulfilled then the said landlord after obtaining the permission of the
Controller in the prescribed manner lets 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 in any other law, the Controller may, on an application made to him in
this behalf by the landlord 773 within such time as may be prescribed, order
the eviction of the tenant. Therefore the first condition must be that the
landlord must not require the premises either in whole or part of any premises
for a particular period. Secondly, the landlord must obtain the permission of
the Controller in the prescribed manner. Thirdly, letting of the whole or part
of the premises must be for residence. Fourthly, such letting out must be for
such period as may be agreed in writing.
Therefore,
there must be an agreement in writing, there must be a permission of the
Controller for letting out for a limited period, the landlord must not require
the premises for a particular period and letting of the premises must be as a
residence. These and these alone are the conditions which are required to be
fulfilled.
In
Nagindas Ramdass v. Dalpatram Ichharam, [1974] 2 SCR 544,the question was
whether a compromise decree for eviction could be passed because the Rent Act
enjoined the eviction only on the satisfaction of the court. The respondent-landlord
in that case instituted a suit under the Bombay Rent Act, 1947 for possession
against the tenant on two grounds, namely, arrears in payment of rent and bona
fide requirement of the premises for personal use and occupation.
A
compromise decree was passed.1 When the appellant applied for execution of the
decree the tenant contended that the compromise decree had been passed by the
Rent Court without satisfying itself as to the existence of grounds of eviction
under the Act and hence being a nullity was not executable.
It
was held by this Court that the public policy permeating this Act was the
protection of tenants against unreasonable eviction. Construing the provisions
of sections 12, 13 and 28 of the Act in the light of the said policy, it should
be held that the Rent Court under the Act was not competent to pass a decree
for possession either in vitum or with the consent of the parties on a ground
which was de hors the Act or ultra vires the Act. The existence of one of the
statutory grounds mentioned in sections 12 and 13 was a sine qua non to the
exercise of jurisdiction by the Rent Court. Par- ties by their consent could
not confer jurisdiction on the Rent Court to do something which, according to
the legislative mandate, it could not do. But if at the time of the passing of
the decree there was some material before the Court on the basis of which the
Court could prima facie be satisfied about the existence of a statutory ground
for eviction, it would be presumed that the court was so satisfied and the
decree for eviction, though passed on the basis of the compromise would be
valid. Such material may be in the form of evidence recorded or produced or it
may partly or wholly be in the shape of express or implied admissions made in
the compromise agreement. Sarkaria, J. speaking for the 774 Court held that
admissions if true and clear were by far the best proof of the facts admitted
especially when these were judicial admissions admissible under section 58 of
the Evidence Act. In that case the Court found because of the admission to pay
the arrears of rent and mesne profits at the 'contractual rate and the
withdrawing of his application for fixation of standard rent, that there was no
dispute with regard to the amount of standard rent and there was an admission
that the rent was in arrears. The Court observed at pages 552 to 553 of the
report as follows:
"From
a conspectus of the cases cited at the bar, the principle that emerges is, that
if at the time of the passing of the decree, there was some material before the
Court, on the basis of which, the Court could be prima facie satisfied, about
the existence of a statutory ground for eviction, it will be presumed that the
Court was so satisfied and the decree for eviction, though apparently passed on
the basis of a compromise, would be valid. Such material may take the shape
either of evidence recorded or produced in the case, or, it may partly or
wholly be in the shape of an express or implied admission made in the
compromise agreement, itself. Admissions if true and clear are by far the best
proof of the facts admitted. Admissions in pleadings or judicial admissions,
admissible under s. 58 of the Evidence Act, made by the parties or their agents
at or before the hearing of the case, stand on a higher footing than
evidentiary admissions. The former class of admissions are fully binding on the
party that makes them and constitute a waiver of proof. They by them- selves
can be made the foundation of the rights of the parties. On the other hand,
evidentiary admissions which are receivable at the trial as evidence, are by
themselves, not conclusive. They can be shown to be wrong." The aforesaid
principle must be borne in mind in order to judge the invalidity of the order
passed under section 21 of the Act which was based on the statements made by
the appellant and the respondent. The facts of the case upon which great deal
of reliance was placed by the High Court in the judgment under appeal and upon
which the appellant relied very heavily are mentioned in the case of S.B.
Noronah v. Prem Kumari Khanna (supra). There this Court reiterated that section
21 of the Rent Act carved out a category for special treatment. While no
landlord could evict without compliance with sections 775 14, 19 and 20 of the
Act, a liberal eviction policy could not be said to under-lie in section 21.
The Court observed that the Parliament was 'presumably keen on maximising
accommodation available for letting, realising the scarcity crisis. One source
of such spare accommodation which is usually shy is potentially vacant building
or part thereof which the landlord is able to let out for a strictly limited
period provided he had some credible assurance that when he needed it he would
get it back. The law sought to persuade the owner of the premises available for
letting for a particular period by giving him a special assurance that at the
expiry of that period the appointed agency would place the landlord in vacant
possession. Section 21 confined the special remedy to letting for residential
uses only. Parliament had the wholesome fear that if the section were not
controlled by many conditions it might open the floodgates for wholesale
circumvention of the rent control legislations by ingenious landlords
exploiting the agonising need of houseless denizens.
Section
21 of the Act over-rides section 14 precisely because it was otherwise hedged
in with drastic limitations and safe guarded itself against landlords' abuses.
The first condition was that the landlord did not require the demised premises
'for a particular period' only. That meant that he must indicate to the
authority before which sanction was sought for letting what was the particular
period for which he could spare the accommodation. The Controller exercised an
important regulatory function on behalf of the community.
The
fact that a landlord and a potential tenant together apply, setting out the
formal ingredients of section 21, did not relieve the Controller from being
vigilant to inquire and satisfy himself about the requisites of the landlord's
non-requirement 'for a particular period' and the letting itself being 'as a
resident'. A fraud on the statute could not be permitted especially because of
the grave mischief that might be perpetrated in such event.
The
Court highlighted that it would be a terrible blow to the rent control law if
section 21 were freely permitted to subvert the scheme of section 14. Every
landlord would insist on a tenant going through the formal exercise of section
21, making ideal averments in terms of that section.
The
consequence would be that both the Civil Procedure Code which prescribed suits
for recovery of possession and the Delhi Rent Control Act which prescribed
grounds for eviction would be eclipsed by the pervasive operation of section
21.
Neither
grounds for eviction nor suits for eviction would thereafter be needed, and if
the landlord moved the Court for a mere warrant to place the landlord, through
the Court process, in vacant possession of the premises, he 776 would get it.
No court-fee, no decree, no execution petition, no termination of tenancy-wish
for possession and the Court was at your command. The Court observed that such
a horrendous situation would be the negation of the rule of law in this area.
When
the application under Section 21 is filed by the landlord and/or tenant the
Controller must satisfy himself by such inquiry as he may make, about the
compulsive requirements of that provision. If he makes a mindless order, the
Court. When challenged at the time of execution will go into the question as to
whether the twin conditions for sanction have really been fulfilled. Of course,
there will be a presumption in favour of the sanction being regular, but it
will still be open to a party to make out his case that in fact and in truth
the conditions which make for a valid sanction were not present.
The
sanction granted under section 21, if it has been procured by fraud and
collusion cannot withstand invalidity because, otherwise, high public policy
will be given as hostage to successful collusion. The doctrine of estoppels
cannot be invoked to render valid a proceeding which the legislature, has on
grounds, of public policy subjected to mandatory conditions which are shown to
be absent. As between un-equals the law steps in and as against statutes there
is no estoppel, especially where collusion and fraud are made out and high
purpose is involved.
Law
that non-performs stultifies the rule of law and hence the need for strict
compliance. Or else, the sanction is non-est. Collusion between the strong and
the weak cannot confer validity where the mandatory prescriptions of the law
are breached or betrayed.
An
analysis of this judgment which has been applied in the various cases would
indicate that section 21 only gives sanction if the landlord makes a statement
to the satisfaction of the court and the tenant accepts that the landlord does
not require the premises for a limited period; this statement of the landlord
must be bona fide. The purpose must be residence. There must not be any fraud
or collusion.
There
is a presumption of regularity. But it is open in particular facts and
circumstances of the case to prove to the satisfaction of the executing court
that there was collusion or conspiracy between the landlord and the tenant and
the landlord did not mean what he said or that it was a fraud or that the
tenant agreed because the tenant was wholly unequal to the landlord. In the
instant case none of these conditions were fulfilled. There is no evidence in
this case that when the landlord 777 stated that he did not require the
premises in question for a particular period, he did not mean what he stated or
that he made a false statement. There was no evidence in this case at any stage
that the tenant did not understand what the landlord was stating or that he did
not accept what the landlord stated. There was no evidence that either the
tenant was in collusion or perpetrating any fraud with the landlord or the
tenant was unequal to the landlord in bar- gaining powers. It is manifest that
there is no evidence to show that the Controller did not apply his mind. If
that is so then on the principle enunciated by this Court in Noronah's case,
this sanction cannot be challenged. It is not necessary to state under section
21 the reasons why the landlord did not require the premises in question for
any particular period. Nor is there any presumption that in all cases the
tenants are the weaker sections. The presumption is, on the contrary, in favour
of sanction, it is he who challenges-the statement and the admission of. the
landlord or the tenant who has to establish facts as indicated in Nagindas's
case.
In
V.S. Rahi and another v. Smt. Ram Chambeli, [1984] 2 SCR 290, this Court on the
facts found that the permission under section 21 of the Act had been obtained
by her on the basis of wrong statement, but for which the permission would not
have been accorded. These statements which were in the nature of half truths
were apparently made in order to make good the plea that there was only a
temporary necessity to lease out the building for a short period and that there
was a bona fide anticipation that there would be a pressing necessity to
reoccupy the premises at the end of the period.
which
were the two crucial factors governing an order under section 21 of the Act. It
was stated that the appellants, in that case, who were the weaker of the two
parties did not question the truth of the statements made by the respondent
,when the permission was granted. But such collusion, if any, between the two
unequal parties did not confer any sanctity on the transaction in question. The
observations of this Court in that case must be understood in the light of the
facts mentioned by this Court. It was found in Rahi's case that there were
wrong statements made by the appellant when he approached the Rent Controller.
It was admitted before this Court that it was a wrong statement. These were
mentioned in pages 295-296 of the Report. What was urged was that the
appellants being the tenants had colluded with the respondent. It was
reiterated by this Court, it is always open to the weaker of the two parties to
establish that the transaction was only a camouflage used to cover its true
nature. When one party could dominate over the will of the other, it would not
be a case of collusion but one of com- pulsion. The Court relied on the
observations of Lord Ellen borough in Smith v. Cuff, 778 [1817] 6 M & S 160
at 165 that it can never be predicted as paridelicto where one holds the rod
and the other bows to it. See the observations of this Court at pages 297 and
298 of the Report. There is no evidence in this case that there was any wrong
or incorrect statement made by the landlord nor is there any evidence that the
tenant-respondent herein was the weaker side of the bargain. In that view of
the matter the respondent cannot get much assistance from this decision of this
Court.
This
question was again considered by this Court in J.B. Vohra v. India Export House
Pvt. Ltd. and another, [1985] 2 S.C.R. 899 where Tulzapurkar, J. referring to
Noronah's case observed that section 21 carved out tenancies of particular
category for special treatment and provided a special proce- dure that would
ensure to the landlord vacant possession of the leased premises forthwith 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 pos- session and inviting his objections followed by an elaborate
inquiry in which evidence might have to be recorded would really frustrate that
object. It will be vitiated because it is procured by fraud practised by
landlord for creating a limited tenancy. If it is found that the initial order
granting permission to create limited tenancy was vitiated by fraud practised
by the appellant inasmuch as he had suppressed the fact that an earlier
application for such permission had been declined on the ground that premises
had been let out for commercial-cum-residential purposes and then there would
be no executable order pursuant to which any warrant for possession could be
issued under section 21 of the Act. In the instant case, there is no such
collusion and therefore, the principle of Noronah's case would not be
applicable. The ratio of that decision must be understood in its proper light.
Section
21 of the Rent Act was examined by this Court in Smt. Dhanwanti v. D.D. Gupta,
[1986] 3 S.C.C. 1. There was observed by Pathak, J. as the learned Chief
Justice then was, that it was possible for the owner of a premises, on looking
to the immediate future, to find that for certain reasons he was unable to
occupy the premises forthwith himself but that he may do so later in the not
very distant future. The mere fact that the owner has let out the premises
after obtaining permission under section 21 of the Act for a limited period,
and thereafter on the expiry of that period has found it necessary to obtain
permission to let out the premises again for another limited 779 period cannot
necessarily lead to the inference that from the very beginning the premises
were available for letting out indefinitely. The Rent Controller and the Rent
Control Tribunal should have examined the circumstances prevailing on each
occasion when an application was made under section
21.
It was observed that assumption would not be justified where there is no
positive material to indicate' that from the very beginning there was never any
intention on the part of the landlord to occupy the premises himself. There was
no such material in that case. On the contrary there was material showing that
the landlady had expectation that her son and his family would be in Delhi
after two years' period of tenancy. This is significant for the present issue.
There is nothing to show that the permission of the Rent Controller Was
obtained by practicing fraud or that it could be regarded as a nullity or that
material facts were concealed. The principle of that decision will apply much
more in this case. It is observed in that decision that it seems to have been
ignored altogether that it is perfectly possible for the owner of a premises,
on looking to the immediate future, to find that for certain reasons, he is
unable to occupy the premises forthwith himself but that he may do so later in
the not very distant future. It is not always that a man can plan his life
ahead with any degree of definiteness. Pre- vailing uncertainty in the
circumstances surrounding him may not permit clear-sighted vision into the
future. The circum- stances might justify his envisioning his need for the
premises two or three years later, and therefore applying for permission under
section 21 of the Act to let out the premises accordingly.
The
facts are more stronger and clearer in support of the instant case. Here there
was no permission previously.
This
was first letting out. There was nothing which indicated that any statement was
made which was incorrect. We are of the opinion that sanction under section 21
in the instant case was not a nullity. The onus was on the tenant to show that
it was so. He did not make any attempt to dislodge the presumption in favour of
the permission.
Learned
counsel for the appellant also stressed before us that section 21 of the Rent
Act was a complete code by itself. The order was under section 21 of the Rent
Act. No further question of lease or registered lease arose there after.
This
question has been settled by series of decisions of the Delhi High Court upon
which people have acted for long.
See
the decision in Kasturi Lal v. Shiv Charan Das Mathur, [1976] Rent Control
Reporter Vol. 8703 where at pages 708- 709, Misra, J. of the Delhi High Court
780 had clearly indicated numerous cases where it was held that section 21 was
a code by itself. The order of the permission is itself an authority; no lease
was necessary and if that is the state of law in Delhi, it is too late in the
day to hold otherwise. See the observations of this Court in Raj Narain Pandey
and others v. Sant Prasad Tewari & others, [1973] 2 S.C.R. 835, where this
Court observed that in the matter of the interpretation of a local statute, the
view taken by the High Court over a number of years should normally be adhered
to and not to be disturbed. A different view would not only introduce an
element of uncertainly and confusion but it would also have the effect of
unsettling transactions which might have been entered into on the faith of
those decisions. In Delhi transactions have been completed on the basis of
permission and it was never doubted that there was any requirement of any lease
or any agreement subsequent to the order and the same required registration.
It
must be observed that in Noronah's case there was no admission on oath nor was
there any question of registered lease.
Numerous
other decisions were cited before us but in the view we have taken on the two
basic points that the permission was valid and the order permitting limited
tenancy was not a mindless order but one passed after application of the mind
taking the two relevant facts under section 21 of the Act into consideration,
it is not necessary to discuss these decisions any further. In view of the fact
that section 21 is a code by itself, there was no question of any further
agreement in writing which has to be registered arises.
There
is no merit in the contention of the respondent.
There
is another aspect of the matter which has to be borne in mind. The tenant not
only failed to establish any fact impeaching the order, he waited for the full
term to take this point and did not contest when the permission was obtained on
a misrepresentation.
It
was submitted by Shri Bhatia that in Delhi most of the transactions have been
done under section 21 on the assumption that after order of the court no
further or separate document or lease was required to be executed or that such
document or lease had to be registered. It was submitted that numerous
transactions have taken place on that basis. It was urged that if it is now
found that is not the correct position and the correct position in law is that
there should be a lease containing the terms of the lease being for 11 months,
such enunciation of law should only be made applicable prospectively. Counsel
for the appellant contended that otherwise it would have disastrous consequences
of unsettling numerous decisions and unsettling many settled transactions
between the parties. He drew our attention to the decision of this Court in 1.
C. Golak Nath & others v. State of Punjab and another, [1967] 2 S.C.R.
762.
If
we had any doubt on the scope and ambit of section 21, we might have considered
this submission urged on behalf of the appellant provided we were sure,
factually that large number of transactions had been completed on the
assumption that no further lease was required after the permission under section
21. Our attention was also drawn to the decision of the Privy Council and the
observation of Lord Blanesburgh in the case of Dhanna Mal and others v. Rai
Bahadur Lala Moti Sagar, A.I.R. 1927 Privy Council 102. If we were inclined to
the view that section 21 was not a code by itself but required separate lease
to follow it up then perhaps we might have considered the effect of the
aforesaid decision and observations.
In
aid of the submission that in order to be entitled to eviction under section 14
of the Rent Act, the court had to be satisfied itself that the statutory ground
for eviction existed and that application of satisfaction of the court could
not be by-passed and circumvented by a compromise decree, reliance was placed
on certain observations on a decision in Ferozi Lal Jain v. Man Mal and
another, [1970] 3 S.C.C. 181. In view of the facts of the particular case, we
are of the opinion that it is not necessary to discuss the said decision in
detail. Numerous decisions of the Delhi High Court were placed before us in
support of or in respect of contentions of the parties specially in support of
contention that the Delhi Rent Act required a separate lease.
The
scope and ambit of the Delhi Rent Act after the decision of Noronah's case came
up for consideration before a division bench of the Delhi High Court in Vijay
Kumar Bajaj v. Inder Sain Minocha, [1982] 2 Rent Control Reporter 392. In that
decision, in the light of section 21, the following questions were posed:
(1)
Whether the permission under section 21 of the Act is invalid in view of Supreme
Court judgment in S.B. Noronah's case (supra), if reasons for not requiring the
premises by the landlord for a particular period are not disclosed in his
application or his statement before the Controller? (2) Whether before or after
permission execution of any agreement in writing to let the premises for the
fixed period is necessary, if so, whether such a document requires
registration? (3) Whether the proposed agreement of tenancy in writing sub- 782
mitted along with the application under Section 21 of the Act, in this appeal
required registration? The questions were answered by the High Court as
follows:
(1)
Not necessarily. The landlord or the tenant may be able to show that cogent
reasons did exist or were within the knowledge of the parties as to why the
landlord did not require the whole or a part of his premises for a specified
period.
(2)
No registration is necessary. The agreement in writing may be entered into
either before or after grant of permission.
(3)
An agreement in writing submitted along with the application under section 21
of the Act is really a proposed agreement. It comes into effect only after the
grant of permission under section 21 of the Act. It does not require
registration.
We
are in agreement with the views of the Delhi High Court.
Large
number of decisions of this Court were cited in support of the contention that
eviction decree passed in contravention of the statutory conditions or passed
without consideration whether the statutory conditions are fulfilled or not are
not binding and cannot be enforced. See Bahadur Singh and another v. Muni
Subrat Dass and another, [1969] 2 S.C.R. 432 and Kaushalya Devi and others v.
Shri K.L. Ban- sal, [1969] 2 S.C.R. 1048.
We
are, however, of the opinion that in view of the facts found in the instant
appeal before us, these decisions are not of any relevance.
Similarly,
our attention was drawn to the observations of this Court in Mansaram v. S.P.
Pathak and others, [1984] 1 S.C.R. 139 and State of Maharashtra v. Narsingrao
Gangaram Pimple, [1984] 1 S.C.R. 62 1, In the view we have taken and the real
controversy in this case, this contention is no longer open.
On
the unregistered lease question, our attention was drawn to a decision of the
Delhi High Court in Jagat Taran Berry v. Sardar Sant Singh, A.I.R. 1980 Delhi
7. As we have held that section 21 was a code by itself and no further document
was required, it is not necessary to pursue the matter any further.
783
Similarly, our attention was drawn to a division bench judgment of the Calcutta
High Court in the case of Ram Abatar Mahato v. Smt. Shanta Bala Dasi and
others, A.I.R.
1954
Calcutta 207 on the question of the terms and extent of section 107 of the
Transfer of Property Act and whether a document in performance of an agreement
had to be registered or not. As mentioned hereinbefore in the view we have
taken, it is not necessary for us to pursue this aspect any further as to the
question whether oral evidence should be introduced to explain the terms of a
document embodied in writing.
Our
attention was drawn to certain observations of this Court in State of Uttar
Pradesh v. Singhara Singh and others, [19641 4 S.C.R. 485 but the same are not
relevant for our consideration in the present controversy in the light in which
we have understood it. Equally same is the decision in respect of the
observations of Fazal Ali, J. of the Jammu and Kashmir High Court in Ishwar
Dutt and another v. Sunder Singh and others, A.I.R. [1961] J & K 45 and the
observations of this Court in Sri 5 Sita Maharani and others v. Chhedi Mahto
and others, A.I.R. [1955] S.C. 328.
In
the aforesaid light we are of the opinion that the High Court was in error in
the view it took in setting aside the decision in the second appeal. The appeal
is, therefore, allowed and the order and judgment of the High Court of Delhi
dated 19th of July, 1985 are set aside and the order and judgment of Rent
Control Tribunal dated 28th of August, 1980 are restored. The appellant is
entitled to the costs of this appeal.
P.S.S.
Appeal allowed.
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