B.R.
Mehta Vs. Smt. Atma Devi & Ors [1987] INSC 238 (2 September 1987)
MUKHARJI,
SABYASACHI (J) MUKHARJI, SABYASACHI (J) OZA, G.L. (J)
CITATION:
1987 AIR 2220 1987 SCR (3)1184 1987 SCC (4) 183 JT 1987 (3) 474 1987 SCALE
(2)436
ACT:
Delhi
Rent Control Act, 1958: Section 14(1)(h)--Allotment of house to wife---A
Government employee--Whether disentitles the husband to retain the tenanted
premises as tenant.
HEADNOTE:
The
premises in question had been let out in April, 1968 to the appellant at a
monthly rent of Rs.340 by the husband of respondent No. 1 and the father of
respondents Nos. 2 to
8.
In July, 1977 the landlord filed an eviction petition against the appellant on
the ground of bona fide requirement. In September, 1978 appellant's wife was
allotted a Government quarter due to her employment as a teacher In the
Government school. In March, 1986 the first respondent filed a petition before
the Rent Controller that the wife of the appellant having been allotted a
residential quarter came within the mischief of clause (h) of Section 14(1) of
the Act and was, therefore, liable for eviction.
The
appellant contended that he had not acquired any house and that the quarter in
question was allotted to his wife on joint allotment basis on compassionate
grounds and that the same had been surrendered and, therefore, the appellant
was not liable to be evicted. It was further contended that the allotted
accommodation could not be treated as alternative accommodation for the
appellant and his family.
The
Additional Rent Controller held that having regard to the provisions of law, as
the tenant had acquired vacant possession for residence, he became disentitled
to retain the premises in question and, therefore, passed an order of eviction.
The
Rent Control Tribunal dismissed the appeal of the appellant. The High Court
rejected the second appeal.
In
the appeal to this Court, the question for consideration was: whether under
clause (h) of Section 14(1) of the Act allotment of a house to the wife, who
was a Government employee, in all circumstances disentitled the tenant to
retain the tenanted premises.
1185
Allowing the appeal, this Court,
HELD:
1. The premises in question which the wife occupied was indisputably not the
matrimonial home. The husband would not, therefore, have any statutory or legal
right against the Government to use and enjoy the allotted premises to the wife
of the tenant because of her job. The tenant cannot be made to lose his tenancy
because of the wife acquiring possession of a flat or allotment of a flat
because of her official duties over which the husband has no right or domain or
occupation. [1194C-D]
2.1
The purpose of the Delhi Rent Control Act is to control rents and evictions; in
other words, to control unreasonable evictions and to ensure that in an
atmosphere of acute shortage of accommodation, there is proper enjoyment of
available spaces by those who want and deserve. [1189G-H]
2.2
Unless acquisition of a premises or allotment of a premises or a part of a
premises by the tenant in which he has domain which he can reasonably and
alternatively use as substitute for the place he is using in the tenancy, it
cannot lead to forfeiture of his right to occupy his tenanted premises. The
case would be otherwise, however, if a tenant comes into possession of a
premises or is allotted a piece of residence or acquires vacant possession of
the premises then such a tenant cannot prevent, if other conditions are
fulfilled under Section 14(1)(h) of the Act being liable to forfeiture of his
tenancy. [1190B-C]
2.3
Tenancy is a right vested in the tenant. The main purpose of the Act is the
protection of tenants from eviction. The various provisos to sub-section (1) of
section 14 laid down the exception to this rule. The intention of the
Legislature in divesting the tenant of his right was based upon the fact that
the tenant had legally acquired another residence as of right. There is no law
according to which husband and wife could be deemed to be one person. [1191E-F]
2.4
The acquisition of other residence must be by the tenant himself before proviso
(h) of sub-s. (1) of section 14 of the Act would apply. [1191D]
2.5
If a wife or husband acquires a property and the other spouse if he/she is the
tenant, has a legal right by virtue of such acquisition and stay there, then
only can such acquisition or allotment of premises would disentitle or attract
the provisions of cl. (h) of section 14(1) of the Act, otherwise the whole
purpose would be defeated. That is the rationale behind the scheme. [1191F-G]
1186
2.6
From the fact that the wife of the tenant was allotted a temporary Government
accommodation, it cannot be said that there was admission by virtue of which
the tenant could lose his tenancy that the wife has acquired a house which is
available to the husband over which the husband has a domain which could be a
substitute to the tenanted premises. This fact of acquisition or allotment of
fiat in the name of wife (which incidentally she has lost having given up the
job) can be in certain circumstances a factor in judging the bona fide needs of
the landlord; but the same indisputably cannot be any ground to evict the
tenant on the ground that he has acquired vacant possession or allotted
residence in terms of cl. (h) of section 14(1). [1192E-F, 1193A-B]
3.
The rights, if any, of the parties in the eviction petition on the ground of
bona fide need of the landlord will not in any manner be prejudicially
affected. [1194F] [In England the rights of the spouses to the matrimonial home
are now governed by the provisions of the Matrimonial Homes Act, 1967. Where
one spouse is entitled to occupy a dwelling house by virtue of any estate or
interest or contract or by virtue of any enactment giving him or her the right
to remain in occupation, and the other spouse is not so entitled, then the
spouse not so entitled has the certain rights (known as "rights of
occupation"), that is to say, if in occupation, a right not to be evicted
or excluded from the dwelling house or any part of it by the other spouse except
with the leave of the court given by an order; if not in occupation, a right
with the leave of the court so given to enter into and occupy the dwelling
house. [1193D-G] Such rights are not granted in India. But with the change of
situation and complex problems arising, it is high time to give the wife or the
spouse a right of occupation in a truly matrimonial home, in case of marriage
breaking up or in case of strained relationship between the husband and the
wife.] [1193G] Prem Chand and another v. Sher Singh, [1981] Delhi Rent Judgment
287; Smt. Revti Devi v. Kishan Lal, [1970] All India Rent Control Journal 418;
Phiroze Bamanji Desai v. Chandrakant M. Patel and others, [1974] 3 SCR 267;
Galanan Dattatraya v. Sherbanu Hosang Patel and others, [1976] 1 SCR 535 and Halsbury's
Laws of England, Fourth Edition, Vol. 22 page 650, referred to.
Civil
Appellate Jurisdiction: Civil Appeal No. 1170 of 1987.
1187
From the Judgment and Order dated 6.4. 1987 of the Delhi High Court in S.A.O.
No. 71 of 1987.
Mr.
Soli J. Sorabjee, Dr. Roxna Swamy and Bharat Sangal for the Appellant. A.B.
Rohtagi and Miss Bina Gupta for the Respondents.
The
Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. What is the true
meaning of the expression 'tenant has before or after the commencement of the
Act, built, acquired vacant possession of, or been allotted, a residence' in
terms of clause (h) of Section 14(1) of the Delhi Rent Control Act, 1958
(hereinafter called 'the Act') is the question raised in this appeal in the
backdrop of interesting set of facts. This is an appeal by the tenant against
the judgment and order dated 6th April, 1987 of the Delhi High Court. To the
facts first, however, we must go to appreciate the point. The appellant was at
all material times since 1968 a tenant of the ground floor of premises No.
2/14, Kalkaji Extention, New Delhi.
The
premises had been let out in April, 1968 to the appellant at a monthly rent of
Rs.340 per month by one Shri R.N. Kurra, deceased husband of respondent No. 1
and father of respondents Nos. 2 to 8. The premises consist of two bed rooms,
one drawing room, one dining room, one kitchen, two bath rooms and court yard
at the back and porch in the front and one store and also one verandah. It is
the case of the appellant that originally the appellant had occupied these
alongwith his wife, his aged mother, his son, daughter, brother and
sister-in-law. However, the brother and sisterin-law have since moved out and
since 1979 the appellant's wife Smt. Santosh Raj was only staying with the family
off and on for short periods usually when the appellant was on tour. In the
meantime on or about 20th July, 1977 the landlord filed eviction petition
against the appellant on the ground of bona fide requirement. On or about 25th
September, 1978 the appellant's wife Smt. Santosh Raj was allotted Flat No. 93,
Sadiq Nagar, i.e., a government quarter was given to her due to her employment
as a teacher in the Government Girls Higher Secondary School No. III, Kalkaji,
New Delhi.
She
goes to live there leaving the rest of her family in the premises in dispute.
It is the case Of the appellant aS made out in appeal before us that one Shri
P.R. Arya and his family were asked to share with the appellant's wife on a
joint-allotment basis because it was not safe for a lady to live alone. The
case of the appellant was that the relationship between the appellant and his
wife Smt.
1188
Santosh Raj was not very good. There were differences of opinion. The appellant
wanted the wife to give up her job and concentrate on the upbringing of the
children. The lady was reluctant. She wanted to pursue her own avocation and
career. It is highlighted before us that in those circumstances the wife of
appellant had applied for government accommodation and had gone to live in the
said premises.
However,
by force of circumstances as the children have grown up and daughters became of
marriageable age she was induced to give up her job and allotment and she has
come back to the husband's premises being the premises in dispute. On 17th of
March, 1986 respondent No. 1 filed in the Court of the Rent Controller, Delhi a
petition on the ground that the wife of the appellant Smt. Santosh Raj had been
allotted on 25th of September, 1978 a residential quarter from the Directorate
of Education, Delhi by virtue of her employment in Government Girls Higher
Secondary School No.
III,
Kalkaji, New Delhi. The appellant therefore came within the mischief of clause
(h) of section 14(1) of the Act.
Written
statement was duly filed in which it was stated that appellant had not acquired
any house but that the landlord had tried to take advantage of the strained
relationship between the tenant and his wife. It was stated that the tenant had
strained relationship with his wife and on account of the same only she had
acquired a separate accommodation and started staying there and got her ration
card prepared at the same address but since the appellant had grown up children
and remained on touring job; therefore, in order to provide the required
protection and care, the wife of the appellant came to the house in question
temporarily.
It
was stated that this fact is well within the knowledge of the landlord and
other members of the family. It was denied that Smt. Santosh Raj., the tenant
had sublet the quarter No. 93. On the other hand it was apparent that the
department had allotted the house to the wife of the appellant alongwith one
other colleague jointly, who had now surrendered the same. It was further
stated that this joint allotment had been made to the appellant's wife on
compassionate grounds. The appellant was, therefore, not liable to be evicted
from the premises in question it was asserted. The case was proceeded under
section 37 of the Act. It was the contention of the appellant that he wanted to
substantiate by production of evidence both oral and documentary that the flat
allotted to his wife was on compassionate grounds in recognition of her special
need to live apart from him. It could not be an alternative accommodation for
the appellant and his family. It was further stated that the wife was allotted
Flat No. 93, Sadiq Nagar on 25th September, 1978. A few months later, the
appellant's wife was all alone in the flat and felt the need for some company,
and she arranged one of her colleagues Mrs. P.R Arya alongwith her 1189 family
should come to stay with her in this flat. Mrs.
Arya's
husband Mr. P.R. Arya was entitled to such accommodation in his own right as a
teacher in Government Boys Higher Secondary School, Hari Nagar Ashram, New
Delhi and accordingly the appellant's wife arranged to have the flat jointly
allotted to herself and Mr. P.R. Arya. Mr. P.R. Arya with his family entered
the flat on or about 28th April, 1979 and continued to share the flat with the
appellant's wife for three years only. In 1982 they moved out of the flat and
since then the appellant's wife has continued in the flat.
In
1978 when she first occupied the flat, the appellant's wife had a separate
ration card giving the flat as her address and had drawn ration on that basis
and not with her family in the suit premises. It was further stated that the
appellant should have been permitted to adduce evidence both oral and
documentary on all the above facts. But the learned Additional Rent Controller directed
that no evidence need be necessary as the matter could be decided on admitted
facts.
In
view of the provisions of law as the tenant had acquired vacant possession for
residence became disentitled to retain the premises in question, he, therefore,
passed an order of eviction.
Aggrieved
by the aforesaid order the appellant went up in appeal being R.C.A. No. 957 of
1986. The learned Rent Control Tribunal negative the appellant's plea that he
should have been allowed to produce evidence in support of his averment of
strained relations with his wife and that on account of these strained
relations he could not in any way avail of the allotment of the flat to his
wife. The Rent Control Tribunal dismissed the appeal of the appellant.
Being
aggrieved thereby the appellant approached the High Court in second appeal. The
High Court by its impugned judgment dated 6th of April, 1987 summarily rejected
the appeal. Being further aggrieved the appellant has come up to this Court as
mentioned hereinbefore.
The
short question is whether under clause (h) of Section 14(1) of the Act
allotment of a house to a wife who is a Government employee in all
circumstances disentitled the tenant to retain the tenanted premises. We are
unable to accept the view of the Delhi High Court. We have noted the
provisions. The purpose of the Act is to control rents and eviction, in other
words, to control unreasonable evictions and to ensure that in an atmosphere of
acute shortage of accommodation, there is proper enjoyment of available spaces
by those who want and deserve. In other words, to ensure that there is no
unreasonable and unnecessary spaces in the hands of one tenant and 1190 other
tenants and landlords' need of occupation of spaces remains unsatisfied; clause
(h) of Section 14(1) is an attempt in a way to ration out accommodation between
tenants and landlords. Looked at from that point of view unless acquisition of
a premises or a flat or allotment of a premises or part of a premises by the
tenant in which he has domain which he can reasonably and alternatively use as
a substitute for the place he is using in the tenancy it cannot lead to a
forfeiture of his right to occupy his tenanted premises. The case would be
otherwise, however, if a tenant comes into possession of a premises or is
allotted a piece of residence or acquires vacant possession of the premises
then such a tenant cannot prevent, if other conditions are fulfilled under
section 14(1)(h) of the Act being liable to forfeiture of his tenancy. But
counsel for the respondent heavily relied on a decision of this Court in Prem
Chand and another v. Sher Singh, [1981] Delhi Rent Judgment 287. That was a
case under the Delhi Rent Control Act, 1958 and section 14(1)(h) of the Act
came up for consideration. The respondent-tenant was out of possession since
October 9. 1976. He was dispossessed during the pendency of the appeal before
the Rent Control Tribunal. The respondent's son was a business executive, who
was, at one time, allotted a flat by his employers. On December 12, 1980, the
respondent's wife purchased a flat at Saket from the Delhi Development
Authority, at a cost of about Rs. 1,20,000. The flat was available to the
respondent though his explanation is that it had been let out by his wife to
their son. The respondent thereafter has now no case to be put back in
possession of the flat in dispute. Chandrachud, C.J. delivering the judgment of
the Court observed that the Court had allowed the appellants to amend their
applications for possession by pleading that the respondent had acquired
possesion of a vacant residence within the meaning of section 14(1)(h) of the
Delhi Rent Control Act, 1958. Having considered the averments of the parties on
the point at issue it was held in that case that the respondent had through his
wife acquired vacant possession of a residence in Delhi and in that view of the
matter was held not entitled to retain old tenanted premises. Mr. Avadh Bihari
Rohtagi, learned counsel strenuously contended before us that this proposition
that acquisition of a flat by the wife was acquisition by the tenant and such
acquisition in all circumstances would be within the mischief of section
14(1)(h) of the Act and would disentitle the tenant to retain his flat in
question. We are unable to accept this reading of the said Act. The said
decision rested on the facts of that case. There in that case, this Court found
that the respondent's wife had purchased a flat in Saket and further found that
the flat was available to the respondent.
In
those circumstances it was held that there was acquisition of vacant possession
of a residence and as such section 14(1)(h) of the Act would 1191 be attracted.
It cannot however be laid down as a general proposition of law that acquisition
of flat by the wife in all circumstances would amount to acquisition of fiat by
the tenant. This position has been very properly highlighted in the decision of
the Delhi High Court in Smt. Revti Devi v. Kishan Lal, [1970] All India Rent
Control Journal 418 where Deshpandey, J. as the learned Chief Justice then was;
held that the mere occupation of a new residence by the tenant without any
legal right to do so would not be covered by proviso (h) to section 14(1) of
the Delhi Rent Control Act.
If
he goes to stay in the house of his wife, legally speaking, he has no right as
such to stay and can be turned out from the house at any time by its legal
owner, namely, the wife. There was no law according to which the husband and
the wife could be deemed to be one person. Therefore, where proviso (h) required
that the tenant himself should acquire vacant possession of another residence
before he can become liable to eviction, the effect of its language cannot be
whittled down by arguing that proviso (h) would apply even if it is not the
tenant himself but his wife or his other relation were to acquire such other
residence. Therefore, as a general proposition of law, the acquisition of other
residence must be by the tenant himself before proviso (h) to sub-s. (1) of s.
14 of the Act would apply. The learned Judge dealt with this and observed that
in construing the above provision, it has to be borne in mind that the scheme
of the Act had to be appreciated. Tenancy is a right vested in the tenant. The
main purpose of the Act is the protection of tenants from eviction. The various
provisos to subs (1) of s. 14 laid down the exception to this rule. The learned
Judge observed that when proviso (h) made tenant liable to eviction, its effect
was to divest the tenant of his right of tenancy. The intention of the legislature
in divesting the tenant of his right was based upon the fact that the tenant
had legally acquired another residence as of right.
There
is no law according to which husband and wife could be deemed to be one person.
Therefore, the correct position must be that if a wife or a husband acquires a
property and the other spouse if he/she is the tenant, has a legal right by
virtue of such acquisition and stay there, then only can such acquisition or
allotment of premises would disentitle or attract the provisions of cl. (h) of
section 14(1), otherwise the whole purpose would be defeated. In other words if
for all practical and real sense the tenant acquired, built or was allotted
another residence then his need for the old tenanted residence goes and the tenant
loses his right to retain his tenanted premises. That is the rationale behind
the scheme.
Dr.
Roxna Swamy drew our attention to the various aspects of the case where no
proper opportunity was given to the tenant to show that in fact the husband
would not and did not have any right at all to 1192 come to the premises
allotted to the wife which was taken because of the strained relation of the
husband and wife regarding the career of the wife. In such a house the husband
will not come, he will certainly have no legal right or access for either
staying or coming in the premises acquired by the wife. If it defeats the
husband's tenancy then it would be mockery of justice. Mr. Rohtagi tried to
submit that there was no evidence before the trial court as well the High Court
of the alleged strained relationship between the parties. What is necessary is
that unless there is a positive evidence, and here there is none, of
acquisition of property prima facie in the name of the tenant or allotment of
flat to the tenant, it cannot be said to have been acquired by or allotted to
some members of the tenant's family other than the wife. That cannot defeat the
tenant's right under clause (h) of section 14(1). If there is such an
acquisition by or on behalf of the tenant then the tenant and members of the
tenant's family would have dominion over the acquired residence. Such
acquisition would bring to the tenant the mischief of section 14(1)(h) of the
Act. In the case of this nature the appellate court had ample power in our
opinion to have taken additional evidence. Our attention was drawn to a
decision of the learned Single Judge in the case of Raj Kumar v. Vedprakash, [
1982] Jabalpur Law Journal 45 1. Our attention was drawn at the bar that a
judgment can be given on admission, that is to say, in this case that an
allotment had been made in favour of the wife or the tenant. Our attention was
drawn to Mulla's Code of Civil Procedure, Vol. II, 14th Edition page 1148 which
highlights that such oral admission must be definite and unambiguous and must
be satisfactorily established. In our opinion, from the fact that the wife of
the tenant was allotted a temporary Government accommodation, it cannot be said
that there was admission by virtue of which the 'tenant could lose his tenancy
that the wife has acquired a house which is available to the husband over which
the husband has a domain which could be a substitute to the tenanted premises.
In that view of the matter we are of the opinion that there was no admission at
all.
Our
attention was drawn to certain observations of Bhagwati, J., as the learned
Chief Justice then was, in Phiroze Bamanji Desai v. Chandrakant M. Patel and
others, [1974] 3 S.C.R. 267, where dealing with certain facts whether premises
given on a licence could be considered in considering the bona fide requirement
of the landlord to the allotment or acquisition. In our opinion, this principle
is wholly irrelevant for the point in controversy before this Court. We are not
concerned here whether there was ground for bona fide requirement of the
landlord for which a suit had been filed and which is pending 1193 appeal. This
fact of acquisition or allotment of flat in the name of wife (which
incidentally she has lost having given up her job) can be in certain circumstances
a factor in judging the bona fide needs of the landlord; but the same
indisputably cannot be any ground to evict the tenant on the ground that he has
acquired vacant possession or been allotted residence in terms of clause (h) of
section 14(1). Mr.
Rohtagi
drew our attention to certain observations of this Court in Gajanan Dattatraya
v. Sherbanu Hosang Patel and others, [1976] 1 S.C.R. 535, where this Court held
that the tenant's liability to eviction arises when the fact of unlawful
subletting is proved. The fact that subsequently the other tenant had left the
premises does not cure the mischief done. Mr. Rohtagi placing this decision
tried to urge before us that the allotment itself of a residence or acquisition
of a residence by the tenant or the wife of the tenant was sufficient to
attract clause (h) of section 14(1) of the Act. The fact that subsequently the
tenant had left the premises was irrelevant and did not affect the position.
It.was
further submitted that the tenant had acquired a premises or allotted a
residence which could be considered to be so in terms of clause (h) of section
14(1) but the flat in question allotted to the wife of the tenant could not by
any stretch of imagination be considered to be a matrimonial home. In England the
rights of the spouses be husband or wife to the matrimonial home are now
governed by the provisions of Matrimonial Homes Act, 1967. Halsbury's Laws of
England, Fourth Edition, Vol. 22 page 650 deals with the rights of occupation
in matrimonial home and paragraph 1047 deals with and provides that where one
spouse is entitled to occupy a dwelling house by virtue of any estate or
interest or contract or by virtue of any enactment giving him or her the right
to remain in occupation, and the other spouse is not so entitled, then the
spouse not so entitled has the certain rights (known as "rights of
occupation") that is to say if in occupation, a right not to be evicted or
excluded from the dwelling house or any part of it by the .other spouse except with
the leave of the court given by an order if not in occupation, a right with the
leave of the court so given to enter into and occupy the dwelling house. But
such rights are not granted in India though it may be that with change of
situation and complex problems arising it is high time to give the wife or the
spouse a right of occupation in a truly matrimonial home, in case of marriage
breaking up or in case of strained relationship between the husband and the
wife. We, however, cannot for the purpose of this case get much assistance from
the principle adumbrated in paragraph 1047 of Halsbury's Laws of England. In
England cases before 1968 established that occupation of the matrimonial home
by a tenant's wife after the tenant had left counts as occupation by the tenant
so as to preserve the 1194 statutory tenancy for as long as the marriage itself
subsists. In those circumstances in England the landlord could not properly be
granted an order for possession against the husband unless there were available
grounds for possession against both husband and wife. The tenant cannot abandon
his rights while his wife remains; nor can the landlord evict the wife even if
the tenant consents or purports to surrender his statutory tenancy. This is the
result of the case law in England and much social awareness and the case laws
have been given statutory expression in the Matrimonial Homes Act 1967. We have
no such law. The premises in question which the wife occupied was indisputably
not the matrimonial home. It is nobody's case. The husband would not,
therefore, have any statutory or legal right against the Government to use and
enjoy the allotted premises to the wife of the tenant because of her job.
Looked at from any point of view, the tenant cannot be made to lose his tenancy
because of wife acquiring possession of a flat or allotment of a flat because
of her official duties over which the husband has no right or domain or
occupation.
In
the premises we are unable to sustain the judgment under appeal. To complete
the story the wife of the tenant has resigned and has joined the husband at
2/14, Kalkaji Extension, New Delhi. We hope there will be no more strained
relationship in the family. Hereafter they will live happily provided the
landlord permits so. We shall try to ensure that they so permit.
The
appeal is allowed and the judgment and order of the High Court and the Courts
below are set aside. The eviction petition under section 14(1)(h) of the Delhi
Rent Control Act, 1958 is dismissed. In the facts and circumstances of the case
the parties will bear and pay their own costs.
This,
however, will not in any manner prejudice the fights, if any, of the parties in
the other eviction petition on the ground of bona fide need of the landlord
which we are told is still pending.
N.P.V.
Appeal allowed.
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