Shadi Singh Vs. Rakha [1992] INSC 119 (23 April 1992)

Ramaswamy, K. Ramaswamy, K. Kasliwal, N.M. (J)

CITATION: 1994 AIR 800 1992 SCR (2) 726 1992 SCC (3) 55 JT 1992 (3) 152 1992 SCALE (1)918

ACT:

East Punjab Urban Rent Restriction Act, 1949:

Sections 13(3) (a) (iii), 13(4)-Tenant-Eviction of- Building unsafe and unfit for human habitation-Subsequently tenant effecting minor repairs making it fit for habitation- Permissibility of-Eviction order-Validity of.

HEAD NOTE:

The respondent landlord filed an application under section 13(3) (a) (iii) of the East Punjab Urban Rent Re- striction Act, 1949 for eviction of the appellant-tenant on the ground that the building was required for reconstruction since it became unsafe and unfit for human habitation. The rent Controller ordered eviction. On appeal, the District Court reversed the order of the Rent Controller and held that as the tenant had already carried out repairs, the shop became safe and habitable and therefore there was no need for eviction. On a Revision Application filed before it, the High Court, reversed it and restored the order of the Rent Controller. Though the High Court accepted the finding that the repairs effected by the tenant were not exhaustive, it took the view that without recourse to section 12 which stipulated that an application to be made to the Rent Con- troller to effect ordinary repairs, the tenant could not replace the fallen roof, and since a portion of the roof had fallen, the building became unfit for human habitation.

Aggrieved against the High Court's order the appellant has preferred the present appeal, contending that by the subsequent replacement of the roof by the appellant-tenant, the requirement of the building by the landlord for effecting repairs did not exist at all.

Allowing the appeal, this court,

HELD:

1.1 By subsequent replacement of the roof by the appellant, the requirement of the building to effect the repairs no longer subsisted. This subsequent event was rightly taken note of by the appellate authority 727 and the High Court took a narrow view of the matter and wrongly reversed the judgment of the appellate authority.

The High Court having accepted the finding of the appellate authority that the tenant effected repairs by replacing the fallen roof and made it safe and fit for habitation, the requirement of the building for the same purpose no longer subsisted. It is settled law that all the provisions should harmoniously be read together to give effect to them and should not be rendered otiose or surpluses. The requirement of the building would be both to carry out building work as per the developmental scheme of the named authorities or where the building needs repairs or reconstruction when the existing one became unfit and unsafe for human habitation.

Otherwise there is no power to the Controller to order eviction though the building became unsafe and unfit for human habitation. The word `requires' in section 13(3) (a)(iii) cannot be read in isolation, but in conjunction with sub-section (4) of section 13, which enjoins the land- lord, after effecting repairs or reconstruction or structur- al alteration and making it safe and fit for human habita- tion, to restitute the same to his erstwhile tenant. If he commits breach thereof, the Controller has been invested with the power to pass an order in that behalf. [730 G-H; 731 A-D]

1.2. In the instant case, there were five rooms in the building and the roof of one room alone had fallen and that the tenant had obtained orders of the Rent Controller under section 12, and thereafter the tenant replaced the roof. A tenant is under a statutory obligation to approach the Controller and seek and order for effecting repairs provided the landlord refuses or neglects to effect repairs. After the Rent Controller posses an order, the tenant acquires right to effect repairs. In that event he is entitled to recover costs thereof from the rent payable under section 108(f)of the Transfer of Property Act. Even in the absence of a contract, tenant has unilateral right to effect re- pairs, when the landlord neglects to effect repairs within a reasonable time; after notice the tenant has a right to effect the repairs and deduct the expenses with interest from the rent or otherwise recover it from the landlord.

The right is hedged with an obligation to get an order from the Rent Controller. [732 F-H; 733 A,B] Maharaj Jagat Bahadur Singh v. Badri Prasad Seth, [1962] Supp. 3 SCR 952 Piara Lal v. Kewal Krishan Chopra [1988] 3 SCC 51, relied on.

2.It is settled law that subsequent events can be taken note of and 728 the relief could be molded suitably. Therefore, the appel- late authority is well justified in its conclusion that the cause of action for eviction of the appellant no longer subsisted after the tenant effected repairs and replaced that part of the fallen roof and the order of eviction, thereafter became unnecessary. [733 H; 734 A, B] Hasmat Rai and Anr. v. Raghunath Prasad, [1981] 3 SCR 605; M/s. Variety Emporium v. V.R.M. Mohd. Ibrahim Naina, [1985] 2 SCR 102, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2945 of 1980.

From the Judgment and Order dated 19.9.1980 of the Punjab & Haryana High Court in Civil Revision No. 958 of 1975.

A.K. Goel for the Appellant.

S.M. Ashri for the Respondent.

The Judgment of the Court was delivered by K RAMASWAMY, J. The respondent, landlord, laid the application under s.13(3)(a)(iii) of the East Punjab Urban Rent Restriction Act, 1949, for short `the Act' for ejectment of the appellant from the demised premises alleging that the building required for reconstruction, since it became unsafe and unfit for human habitation. The rent Controller by his order dated March 5, 1973 directed eviction of the appellant. On appeal, the District Court (Appellate Authority) by judgment dated May 7, 1975 reversed it and held that as the appellant had already carried out repairs the shop became safe and habitable and so the need for ejectment no longer subsists. The eviction Petition was dismissed. The High Court of Punjab and Haryana by its judgment dated Sept. 19, 1980 in Civil Revision No.958 of 1975 allowed the revision and restored the order of the Rent Controller. Thus this appeal by special leave under Art.136 of the Constitution of India.

In the Petition, the respondent pleaded that the demised premises is a shop and most of the roof had already fallen and the remaining part may fall at any time; the flooring has given way and the walls were crumbling.

Therefore, the premises required reconstruction. The appellate authority, 729 as final court of fact, appreciated the evidence and held that the report of the Nazir Richpal Singh shows that out of five, two khanas (columns) of the roof had fallen down and that three require replacement of few batons. He also found that no portion of the wall had fallen down and that the appellant did not repair by any addition to the roof. The appellant had carried out replacement of that part of the roof which had fallen down and no more. It amounts to minor repairs and not reconstruction of the shop or structural alteration thereof. It pointed out that s.12 of the Act, gives right to a tenant to seek permission of the Controller to effect ordinary repairs but he has no right to effect reconstruction or structural alteration of the building.

The repairs effected by the appellant were not extensive.

The High Court accepted these findings. Nonetheless it took the view that the tenant, without talking recourse to s.12, cannot replace the fallen roof. The cause of action arose under s.13(3)(a)(iii) cannot be defeated by unilateral action of the appellant. After the back portion of the roof of the shop had fallen it had become unfit for human habita- tion. In that view the appellant was held liable to be evicted. Accordingly it allowed the revision.

The question is whether the High Court is right in law in reversing the judgment of the appellate authority.

Section 13 of the Act gives right to the landlord to seek eviction of a tenant. Clause a (iii) of sub-s(3) reads thus:

"In the case of any building or rented land, if he requires it to carry out any building work at the instance of the Govt. or local authority or any Improvement Trust under some improvement or devel- opment scheme or if it has become unsafe or unfit for human habitation." Sub-section (4) further obligates on effecting reconstruction or repairs that "where a landlord who has obtained possession of a building or rented land in pursu- ance of an order.....under sub-paragraph (iii) of paragraph (a), puts that building to any use or lets it to any tenant other than the tenant evicted from it, the tenant who has been evicted may apply to the Controller for an order di- recting that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly". Section 12 gives right to a tenant to effect necessary repairs, thus:

730 "If a landlord fails to make the necessary repairs to a building other than structural alterations, it shall be competent for the Controller to direct on application by the tenant, and after such inquiry as the Controller may think necessary, that such repairs may be made by the tenant, and that the cost thereof may be deducted from the rent which is payable by him."

The scheme of the Act in this behalf adumberates that it is the obligation of the landlord to keep the building in fit and habitable condition. It he fails to make the necessary repairs to the building other than reconstruction or structural alteration, the tenant has been given a right under s.12 to make an application to the Rent Controller, who after making such enquiry as he may think necessary, is empowered and shall be competent to pass an order directing the tenant to effect necessary repairs. The costs expended thereof may be deducted from the rent payable to the land- lord. The landlord, equally, is entitled under s.13(3)(a)(iii) to seek eviction of the tenant from any building if the landlord requires it to carry out building work pursuant to the notice issued by the Govt., local authorities or Improvement Trust under some improvement or development scheme or if it has become unsafe or unfit for human habitation. On reconstruction or effecting repairs by the landlord, he is enjoined to restitute the evicted tenant into possession of the building. Under sub-s. (4) of s.13 it shall be mandatory for the Rent Controller to make an order in that behalf, despite the landlord himself makes use of the building of lets it out to any other tenant and puts a new tenant in possession of the evicted building.

Shri Goel, learned counsel for the appellant with thorough preparation and neat presentation of the case, argued that on the date of filing an application for eviction the building was unsafe and unfit for human habitation due to fall of roof from two khanas. By subsequent replacement of them by the appellant, the requirement of the building to effect the repairs no longer subsisted. This subsequent event was rightly taken note of by appellate authority and the High Court took narrow view of the matter and wrongly reversed the judgment of the appellate authority. We find force in the contention. The High Court having accepted the finding of the appellate authority that the tenant effected repairs by replacing the fallen roof and made it safe and fit for habitation, the requirement of the building for the same purpose no longer subsisted. Whether the repairs 731 effected by the tenant at its own cost without taking recourse to s.12 would alter the situation? Our answer is no. It is settled law that all the provisions should harmoniously be read together to give effect to them and should not be rendered otiose or surpluses. It is difficult to give acceptance to the contention of Sri Harbans Lal, learned senior counsel for the respondent, that the verb `requires' in s.13(3)(a)(iii) would be applicable to the first part, namely to carry out any building work. It also would encompass of the building which became unsafe or unfit for human habitation. The requirement of the building would be both to carry out building work as per the developmental scheme of the named authorities or when the building needs repairs or reconstruction when the existing one became unfit and unsafe for human habitation. Otherwise there is no power to the Controller to order eviction though the build- ing became unsafe and unfit for human habitation. The word 1requires' cannot be read in isolation, but in conjunction with sub-s. (4) of s.13 Sub-section (4) which enjoins the landlord, after effecting repairs or reconstruction or structural alteration and making it safe and fit for human habitation, to restitute the same to his erstwhile tenant.

It he commits breach thereof, the Controller has been in- vested with the power to pass an order in that behalf. The acceptance of the respondent's contention that the require- ment of the building would be only for reconstruction or structural alteration but it would not apply when the build- ing became unsafe or unfit for human habitation, operates as an escape route to enforce compliance of sub-s.(4) of s.13 rendering the later clause otiose and the tenant though was evicted on that ground remains remediless. Such a construc- tion is impermissible.

In Maharaj Jagat Bahadur Singh v. Badri Prasad Seth, [1962] Supp.3 SCR 952 the respondent was running a cinema theatre known as Rivoli. The Municipal Commissioner Shimla noted some defects and directed the appellant to remove the defects in the theatre. The appellant sought for eviction of the respondent tenant on the ground that the building became unsafe and unfit for habitation. The Rent Controller directed eviction. The District Judge, on appeal, came to the conclusion that the appellant manipulated the notice to have the tenant evicted. The repairs could be effected without ejecting the tenant. On revision, the High Court confirmed it. This court on further appeal held that s.13(3)(a)(iii) of the Act attracted only when the building work is such that the landlord requires that the building be vacated by the tenant in order to carry out the work. In other words, the repairs needed are so extensive and funda- mental in character 732 that they cannot be carried out if the tenant remains in possession. Then only it can be said that the landlord requires the building to carry out the building work. On the facts in that case it was held that repairs to be ef- fected did no t requires eviction of the tenant. In Piara Lal v. Kewal Krishan Chopra, [1988] 3 SCC 51 the facts found were that out of five rooms only the roof of one room in the rear side had fallen down and needed replacement. An appli- cation under s.12 of the Act was filed and the order by the Rent Controller in that behalf was obtained. On those grounds the question arose whether s.13(3)(a)(iii) of the Act would get attracted. This court held thus:

"It is true that a roof of one of the rooms on the rear side had fallen down and required replacement but there was no evidence whatever that the building or a substantial portion of it was in a damaged condition and consequently the building as a whole had become unfit and unsafe for human habitation. Unless the evidence warranted an interference that the falling down of the roof in one room was fully indicative of the damaged and weak condition of the entire building and that the collapse of the roof was not a localised event, we fail to see how the High Court could have concluded that the entire building had become unsafe and unfit for human habitation. In fact, the appellant had replaced the roof only at a cost of about Rs. 200 and this could not have been of a serious or disquieting nature." It is true as contended by Shri Harbans Lal that in that case there were five rooms and the roof of one room alone had fallen and that the tenant had obtained orders of the Rent Controller under s.12, and thereafter the tenant replaced the roof. It is sought to be contended that by unilateral act of the tenant effecting repairs, the right of the landlord for eviction under s.13(3)(a)(iii) was frus- trated and it could not be permitted to be done. Normally it would be so. A tenant is under a statutory obligation to approach the Controller and seek an order for effecting repairs provided the landlord refuses or neglects to effect repairs. After the Rent Controller passes an order, the tenant acquires right to effect repairs. In that event he is entitled to recover costs thereof from the rent payable.

Under s.108(f) of the Transfer of Property Act, even in the 733 absence of a contract tenant has a unilateral right to effect repairs, when the landlord neglects to effect repairs within a reasonable time after notice the tenant has a right to effect repairs and deduct the expenses with interest from the rent or otherwise recover it from the landlord. Under the Act this right is hedged with an obligation to get an order from the Rent Controller.

There is a distinction between effecting repairs and in its guise to make structural alteration or to restructure the building. The tenant cannot effect structural alteration or reconstruct the building. It is the right of the landlord alone to exclusively have it done, unless of course, the landlord having had the tenant evicted from the building for that purpose and demolished the building and failed to reconstruct and redeliver possession thereof to the tenant.

In a given case if the tenant acts unilaterally and effects structural alterations or reconstruct the building, it itself may be a ground for eviction under the appropriate provision of the statute. No such allegation was made, nor an amendment to the pleading sought by the respondent in this behalf. A feeble attempt was made by Shri Harbans Lal to raiseo in the contention. In the absence of the pleading and the contentions raised in the courts below, we decline to permit the counsel to argue that point, since there is no factual pundation in that behalf. The test in each case is whether it is absolutely necessary to have the tenant evict- ed to carry out repairs or structural alteration for making the demised building safe and fit for human habitation.

Further it is to be asked whether the repairs are so funda- mental in character and extensive which cannot be carried out without evicting the tenant from the building or while the tenant remained in occupation. If the repairs could be carried out without disturbing the possession of the tenant, the need for eviction is mere a wish of the landlord or a ruse to have the tenant evicted. Take for instance, a build- ing, in which commercial activity having established good will, was taken possession of under s. 13(3)(a)(iii) and got no repairs effected but demolished and no reconstruction was made for a long time. Prolonged stoppage of business will have a deleterious effect on the goodwill and cripple the business of the tenant. each case on its own facts present its true colours. Its effect is to be visualised and consid- ered in its own perspective.

It is settled law that subsequent events can be taken note of and the relief would be moulded suitably, vide Hasmat Rai and Anr. v. Raghunath Prasad, [1981] 3 SCR 605 and M/s Variety Emporim v. V.R.M. Mohld. 734 Ibrahim Naina [1985] 2 SCR 102 at 110. Therefore, the appellate authority (District Court) is well justified in its conclusion that the cause of action for eviction of the appellant no longer subsisted after the tenant effected repairs and replaced that part of the fallen roof and the order of eviction, thereafter became unnecessary and wrong.

The appeal is accordingly allowed. The judgment of the High Court is set aside and that of the appellate authority is restored. Consequently eviction Petition stands dismissed. But in the circumstances parties are directed to bear their own costs.

G.N. Appeal allowed.

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