Dr. M.
K. Salpekar Vs. Sunil Kumar Shamsunder Chaudhari & Ors [1988] INSC 219 (10 August 1988)
Sharma,
L.M. (J) Sharma, L.M. (J) Pathak, R.S. (Cj)
CITATION:
1988 AIR 1841 1988 SCR Supl. (2) 339 1988 SCC (4) 21 JT 1988 (3) 356 1988 SCALE
(2)666
ACT:
C.P.
& Berar Letting of Houses and Rent Control Order, 1949:Clause 13 (3)
(v)-Whether confined to only residential houses.
HEAD NOTE:
The
respondent-landlords submitted two separate applications before the Rent
Controller for permission to determine the tenancy of the appellant-tenant from
their portions of the premises on the ground that the tenant had built a large
house in the city and had thus secured alternative accommodation. The Rent
Controller allowed the prayer. A Single Judge of the High Court dismissed the
appellant's writ petition and his Letters Patent Appeal was also dismissed.
Before
this Court the appellant's main contention was that the provisions of clause l3
(3)(v) of the C.P. & Berar Letting of Houses and Rent Control Order, 1949
did not apply to non-residential buildings. The argument was that by the
addition of the Explanation to clause l3(3)(v), non- residential buildings have
been excluded from the purview of the sub-clause.
Dismissing
the appeals it was,
HELD:
(1) It cannot be reasonably suggested that by the addition of the Explanation,
which is confined to cases dealing with residential buildings, a
non-residential building is excluded even where the tenant leaves the area for
a period of four months and does not need the house.
[342G-H]
If the position in regard to the second category of cases remained unaffected,
the Explanation cannot be construed to narrow down the scope of the first
category of cases where the tenant secures alternative accommodation.[342H;
343A] (2) It is not possible to split the main sub-clause so as to apply it to
non-residential buildings where the tenant leaves the area for four months and
at the same time exclude it where he secures alternative accommodation as the
sub- clause deals with the two situations in the same language without making
any distinction. [343A-B] PG NO 339 PG NO 340 (3) The Explanation operates
within a very narrow area and does not cover the entire field governed by the
main sub-clause. By the use of the expression "shall be deemed" a
legal fiction has been employed for the purpose of including a particular
situation within the sweep of the sub-clause.
l343D]
(4) It cannot be legitimately suggested that since in the majority of other
States, similar provisions in the statutes on rent law are limited in operation
to residential buildings, the same must be presumed to be the intention of the
author of the Control Order. It is a question of policy to be adopted by the
different legislatures. [343G-H] Mansaram v. S. P. Pathak, [l984] 1 SCC 125
referred to.
ClVlL'
APPELLATE JURISDICTlON: Civil Appeal Nos.1584- 1585 of 1985.
From
the Judgment and Order dated 16.6.1984 of the Bombay High Court in L. P. A.
Nos. 76 and 77 of 1984.
V.A. Bobde,
A.G. Ratanapakrkhi, S.D. Mudaliar and Ms. Alanjit Chauhan for the Appellant.
U. R. Lalit
and A. K. Sanghi for the Respondents.
The
Judgment of the Court was delivered by SHARMA, J. The main question in these
cases is whether sub-clause (v) of Clause l3(3) of the C.P. & Berar Letting
of Houses and Rent Control Order, 1949, (hereinafter referred to as the Control
Order), applied to all buildings whether residential or non-residential or was
confined only to residential houses.
2. The
civil appeals have arisen out of two proceedings initiated by the owners of the
disputed premises for the eviction of the appellant-tenant on the ground that
he has secured alternative accommodation and, therefore, does not reasonably
need the house. The two premises are parts of the same building situate in Mahal
Chowk in the city of Nagpur, and belong to a family of which
the applicants respondents before this Court, are members.
The
appellant-tenant Dr. M.K. Salpekar, who is a renowned doctor of Nagpur, has been occupying the premises as
tenant for the purpose of his clinic since 1944. Admittedly he has built in Ramdaspeth,
PG NO 341 another part of the city, a large double storeyed house, and has let
out portions thereof to the State Forest Department for running its office. On
a partition amongst the members of the family of the owners of the Mahal
Building the premises in possession of the appellant-tenant was allotted to the
respondents in the two appeals, in parts and they started the present
proceedings by two separate applications for permission to determine the tenancy
of the appellant- tenant. The appellant defended the actions but the Rent
Controller allowed the prayer of the respondents. The order was confirmed in
appeal. The appellant moved the High Court under Article 226 of the
Constitution. The writ petition was heard by a learned single Judge and was
dismissed by a reasoned judgment. A Letters Patent Appeal was dismissed in limine.
The appellant then filed the present civil appeals by special leave.
3. The
necessary findings on the various issues involving facts were recorded in favour
of the respondents by the Rent Controller as well as the appellate court and
have been endorsed by the learned single Judge of the High Court.
4. Mr.
Bobde appearing in support of the appeals has contended that the provisions of
Clause 13(3)(v) quoted below, which are the basis for the impugned decision, do
not apply to non-residential buildings:
"13.(1)
No landlord shall, except with the previous written permission of the
Controller--- (a) give notice to a tenant determining the lease or determining
the lease if the lease is expressed to be determinable at his option; or
....................................................
(3) If
after hearing the parties the Controller is satisfied- (i)
..................................................
..................................................
(v) that
the tenant has secured alternative accommodation, or has left the area for a
continuous period of four months and does not reasonably need the house ;
PG NO
342 Explanation-For the purpose of this item the tenant shall be deemed to have
secured an alternative accommodation if he owns a residential house in the city
or town concerned and if such house is constructed on a site lying vacant on Ist
January 1951 or on a site made vacant on or after that date by demolition of
any structure standing on such site ; or (vi)
.................................................
.................................................
he
shall grant the landlord permission to give notice to determine the lease as
required by sub-clause (1)." The courts were, therefore, in grave error in
directing eviction of the appellant from the premises let out to him not for
the purpose of his residence but for running a clinic. The argument is that the
Explanation to the clause quoted above by referring to "a residential
house in the city or town concerned" makes it abundantly clear that the
clause cannot be applied to a non-residential house, for, a residential house
cannot be considered as alternative accommodation to a non-residential
building.
5. The
original Control Order did not include the Explanation; it was added later by
an amendment. Sub-clause (v) referred to "house" which by clause 2(3)
means building or part of a building, whether residential or non- residential,
and it cannot, therefore, be suggested that its application was limited to
residential buildings only. While introducing the Explanation, the main
sub-clause was left untouched. The substance of the argument addressed on
behalf of the appellant is that by the addition of the Explanation,
non-residential buildings have been excluded from the purview of the
sub-clause. We do not find any justification for this interpretation. The
'expression "house" used in the Control Order in the wider sense is
retained and envisages two situations in which the landlord becomes entitled to
possession, namely, (i) where the tenant secures alternative accommodation, and
(ii) where he leaves the area for a continuous period of four months. It cannot
be reasonably suggested that by the addition of the Explanation, which is
confined to cases dealing with residential buildings, a non- residential
building is excluded even where the tenant leaves the area for a period of four
months and does not need the house. If the position in regard to the second
category of cases remained unaffected, the Explanation cannot be construed to
narrow down the scope of the first category of cases where the tenant secures
alternative PG NO 343 accomodation. It is not possible to split the main sub-
clause so as to apply it to non-residential buildings where the tenant leaves
the area for four months and at the same time exclude it where he secures
alternative accommodation, as the sub-clause deals with the two situations in
the same language without making any distinction. A close look of the
Explanation will also show that unlike the main sub-clause it deals with only a
very limited class of cases where the tenant owns a residential house which was
constructed on a site lying vacant on 1. 1. 1951 or on a site which became
available on or after that date by demolition of any structure. Further, the
main sub-clause is not restricted to cases where the tenant is the owner of the
alternative building; it also applies where the tenant gets the alternative
accommodation in another capacity, e.g., under a lease, or acquires the right
of residence for life under a bequest. It is, therefore, manifest that the
Explanation operates within a very narrow area and does not cover the entire
field governed by the main-sub-clause. By the use of the expression "shall
be deemed" a legal fiction has been employed for the purpose of including
a particular situation within the sweep of the sub-clause. Without the
Explanation there was some scope for controversy about the precise meaning of
the expression "has secured" in the sub-clause, which by the
inclusive nature of the Explanation is set at rest.
6. Mr.
Bobde referred to several other State statutes on rent law to show that similar
provisions corresponding to those in sub-clause (v) are limited in operation to
residential buildings. it was urged that it should, in the circumstances, be
assumed that the State Government while making the present Control Order also
intended to limit the scope of the present sub-clause (v). There is no merit in
this argument either. The list of the different State Acts prepared by the
learned counsel itself shows that in four of them the corresponding provisions
are applicable to both residential as well as non-residential premises. In the
remaining Acts the relevant ground is restricted to residential buildings but
in clear and unambiguous terms in the body of the section itself. They are,
therefore, of no help to the appellant. Besides, it is a question of policy to
be adopted by the different legislatures, and it cannot be Iegitimately
suggested that since the majority of the State legislature have followed a
particular policy, the same must be presumed to be the intention of the author
of the Control Order in question before us. We, therefore, do not find any
merit in the argument of the appellant for restricting the application of
sub-clause (v) to residential buildings.
PG NO
344
7. Mr.
Bobde pressed two additional points. It is urged that the clause "and does
not reasonably need the house" applies as a necessary condition to both
categories of cases, that is, where the tenant secures alternative
accommodation as also where he has left the area for a period of four months,
and this the courts below have failed to appreciate. We do not agree. The
punctuation 'comma' in the subclause after "alternative
accommodation" and before the rest of the sentence indicates that the last
part of the sub-clause namely "and does not reasonably need the
house" governs only the part of the sub-clause. However, this controversy
is academic in nature because when a court is called upon to decide whether
another building available to the tenant can be treated as alternative
accommodation, it has to consider whether the other building is capable of
reasonably meeting the requirements of the tenant on his vacating the disputed
premises. The adjective "alternative'' by itself imports this as a
condition. And this aspect has been thoroughly gone into by the courts below
and necessary findings have been recorded against the appellant.
8. The
last ground uged is that since "Ramdaspeth' house was built several years
before the institution of the present proceedings. the applications should have
been dismissed on the ground of undue delay. Reliance has been placed on Mansaram
v. S.P. Pathak and others, [1984] 1 SCC 125. The learned counsel for the
respondents in his reply contended that an action for enforcing a right filed
within the period of limitation as fixed by law cannot be thrown out merely on
the ground of delay. He also relied on the evidence in the present case
indicating the special circumstances arising later justifying the belated
filing of the application. Following a partition in the family of the
landlord-respondents they became entitled to exclusive possession of the
respective portions of the premises which are subject-matter of the two cases.
The evidence also indicates that the appellant was in the process of retiring
from active practice and was attempting to establish his son, who is also a doctor,
in the premises in question. In that view there is no substance in the point
urged. The facts in which the decision in Mansaram's case was rendered clearly
indicate that it does not support the argument put forward on behalf of the
appellant and no aid therefrom can be taken. The case of the plaintiff, there,
was that the appellant-tenant had occupied the premises in question about 22
years earlier illegally and was, therefore, liable to eviction,out of which the
appeal before the Supreme Court arose was filed, there were numerous
proceedings between the original landlord and the tenant and this question
about the PG NO 345 illegal entry of the appellant had never been raised and it
was only after the death of the original landlord that a "total stranger"
had come forward to raise the issue and it was held that he was not entitled to
do so. The principle of waiver was clearly applicable. We, therefore, do not
find substance in any of the points urged on behalf of the appellant. The
appeals are accordingly dismissed with costs.
R.S.S.
Appeals dismissed.
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