Harish
Tandon Vs. Addl. District Magistrate [1995] INSC 13 (5 January 1995)
Singh
N.P. (J) Singh N.P. (J) Sawant, P.B. Anand, A.S. (J)
CITATION:
1995 AIR 676 1995 SCC (1) 537 JT 1995 (1) 290 1995 SCALE (1)65
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by N.P SINGH, J.- This appeal has been
filed against an order dated 21-9-1992
passed by the Allahabad High Court on a writ petition filed on behalf of
Respondents 5 to 7. By the impugned order, the High Court has 540 quashed
orders dated 13-8-1981 and 18-11-1981 passed by the Rent Controller declaring a
vacancy under Section 12(2) read with Section 12(4) of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to
as 'the Act').
2.The
dispute is in respect of a shop bearing Municipal No. 24-34 situated at Mahatma
Gandhi Marg, Civil Lines Market, Allahabad. In the year 1937, the shop was let out to late Sheobux Roy by the
grandfather of the appellant.
The
said Sheobux Roy started a business in the name and style of "M/s B.N. Rama
& Co." Sheobux Roy died on 3-2-1941 leaving behind five sons namely Khush
Bakht Roy, Sant Bux Roy, Sampat Roy, Ganpat Roy and Sheopat Roy. In the year
1943, there was a family partition amongst the sons of Sheobux Roy and the shop
in dispute fell to the share of Sampat Roy, Ganpat Roy and Sheopat Roy. The
other two sons ceased to have any interest or concern with the shop in
question. Sampat Roy, Ganpat Roy and Sheopat Roy were carrying on their
business in the name and style of "M/s B.N. Rama & Co." In the
year 1976, Ganpat Roy and his son Ramesh Roy constituted a new partnership firm
with one Swarup Kailash, son-in-law of Ganpat Roy under the name and style of
"M/s B.N. Rama & Co. (Textiles)" for carrying on the business in
textile, in the premises in question. In the year 1979, the appellant filed
suit for eviction of the respondent-tenants (hereinafter referred to as
"the respondents") on the ground that there was a sub-letting of the
premises by induction of Swarup Kailash, the son-in-law of Ganpat Roy as a
partner for carrying on the business in the shop in dispute.
3.In
March 1981, one Ramesh Nath Kapur and Radhey Shyam filed an application for
allotment of the said premises to them, on the ground that there was a deemed vacancy
of the premises. The Rent Controller and Eviction Officer by his order dated 13-8-1981 held that there was a deemed vacancy in respect of
the said premises and he directed that the said vacancy be notified. A petition
was filed by the respondents on 11-9-1981 making prayer to recall the aforesaid order dated 13-8-1981 and to give them permission to file objections and
to contest the proceedings. That petition was allowed by the Rent Controller
and Eviction Officer by his order dated 13-9-1981. The Rent Controller and Eviction
Officer by his order dated 18-11-1981 negatived
the contention of the respondents that there was no deemed vacancy in respect
of the premises in question. Thereafter a writ application was filed on behalf
of the respondents which was dismissed by the High Court saying that it was not
maintainable. The respondents filed a special leave petition before this Court
against the aforesaid order of the High Court. This Court allowed their appeal
on 29-3- 1985 and directed the High Court to re-hear the writ petition filed by
the respondents on merits. It was further said by this Court that pending
disposal of the writ petition before the High Court, there shall be a stay of
further proceedings in respect of the allotment of the premises in question and
the respondents shall not be dispossessed from the same.
4.The
writ petition, aforesaid, was ultimately allowed by the impugned order dated
21-9-1992 by the High Court on the finding that after the death 541 of Sheobux
Roy on 3-2-1941, his sons became tenants-in- common and not joint tenants. As
such for any contravention made by Ganpat Roy one of the sons of Sheobux Roy by
inducting his son-in-law as a partner of the firm shall not result in deemed
vacancy of the whole premises under the provisions of the Act. It is this
finding which has been put in issue before us.
5.In
order to appreciate the controversy, it is necessary to refer to certain
provisions of the Act. Section 3(g) defines 'family':
"3.
(g) 'family', in relation to a landlord or tenant of a building" means,
his or her- (i) spouse, (ii)male lineal descendants, (iii)such parents,
grandparents and any unmarried or widowed or divorced or judicially separated
daughter or daughter of a male lineal descendant, as may have been normally
residing with him or her, and includes, in relation to a landlord, any female
having a legal right of residence in that building;" Section 12 of the Act
prescribes the conditions under which deemed vacancy shall occur. The relevant
part thereof is as follows:
"12.
Deemed vacancy of building in certain cases.- (1) A landlord or tenant of a
building shall be deemed to have ceased to occupy the building or a part
thereof if- (a) he has substantially removed his effects therefrom, or (b) he
has allowed it to be occupied by any person who is not a member of his family,
or (c) in the case of a residential building, he as well as members of his
family have taken up residence, not being temporary residence, elsewhere.
(2) Inthe
case of non-residential building, where a tenant carrying on business in the
building admits a person who is not a member of his family as a partner or a
new partner, as the case may be, the tenant shall be deemed to have ceased to
occupy the building.
(3)In
the case of a residential building, if the tenant or any member of his family
builds or otherwise acquires in a vacant state or gets vacated a residential
building in the same city, municipality, notified area or town area in which
the building under tenancy is situate, he shall be deemed to have ceased to
occupy the building under his tenancy:
Provided
that if the tenant or any member of his family had built any such residential
building before the date of commencement of this Act, then such tenant shall be
deemed to have ceased to occupy the building under his tenancy upon the
expiration of a period of one year from the said date.
Explanation.-
For the purposes of this sub-section- 542 (a) a person shall be deemed to have
otherwise acquired a building, if he is occupying a public building for
residential purposes as a tenant, allottee or licensee;
(b) the
expression 'any member of family', in relation to a tenant, shall not include a
person who has neither been normally residing with nor is wholly dependent on
such tenant.
(4)Any
building or part which a landlord or tenant has ceased to occupy within the
meaning of sub-section (1), or sub-section (2), or subsection (3), sub-section
(3-A) or sub- section (3-B), shall, for the purposes of this Chapter, be deemed
to be vacant." In view of sub-section (2) of Section 12, in case of
non-residential building, if the tenant admits a person who is not a member of
his family as a partner, the tenant shall be deemed to have ceased to occupy
the building and by virtue of sub-section (4) of Section 12, such building
shall be deemed to be vacated.
6.
Section 25 enjoins that no tenant shall sub-let the building under his tenancy
and it also prescribes as to what shall amount to a deemed subletting:
"
25. Prohibition of sub-letting.- (1) No tenant shall sub-let the whole of the
building under his tenancy.
(2)The
tenant may with the permission in writing of the landlord and of the District
Magistrate, sub-let a part of the building.
Explanation.-
For the purposes of this section- (i) where the tenant ceases, within the
meaning of clause (b) of sub-section (1) or sub-section (2) of Section 12, to
occupy the building or any part thereof, he shall be deemed to have sublet that
building or part;
(ii)lodging
a person in a hotel or a lodging house shall not amount to sub-letting."
7. In
view of Explanation (i) to Section 25, where the tenant is deemed to have
ceased to occupy the building under sub-section (2) of Section 12 aforesaid, he
shall be deemed to have sub-let that building or part thereof. Once a tenant
carrying on business in a non-residential building, admits a person who is not
a member of his family as a partner, the said tenant shall be deemed to have
ceased to occupy the building and by operation of the Explanation (i) of
Section 25, it shall be deemed that such tenant has sub- let that building or
part thereof, which shall be a ground for eviction of such tenant because of
Section 20(2)(e) which specifically says that a suit for eviction of a tenant
from building after determination of his tenancy may be instituted on the
ground "that the tenant has sub-let, in contravention of the provisions of
Section 25, or as the case may be, of the old Act the whole or any part of the
building".
8. It
may be mentioned that before this Court, there was no dispute in respect of the
facts stated above. It is an admitted position that the premises in question
were let out to Sheobux Roy who died in the year 1941 leaving 543 behind five
sons. Later only three of his sons Ganpat Roy, Sampat Roy and Sheopat Roy
carried on their business in the said premises. It is also admitted that in 19-8-1976, Ganpat Roy inducted his son-in-law, Swarup Kailash,
as one of the partners in the firm "M/s B.N. Rama & Co.
(Textiles)" for carrying on the business in textiles in the disputed
premises. The controversy between the parties is in respect of (i) as to
whether in the facts and circumstances of the case, there shall be a deemed
vacancy because of sub-section (2) and sub-section (4) of Section 12; (ii)
whether because of Explanation (i) of Section 25, it shall amount to sub-
letting within the meaning of Section 20(2)(e) a ground for eviction of the
respondents; (iii) even if it is held that because of the induction of Swarup Kailash
as a partner in the firm, which amounted to a sub-letting within the meaning of
Section 25 of the Act, whether the whole premises shall be deemed to be vacant.
9. It
cannot be disputed that a son-in-law shall not be deemed to be a member of the
family within the definition as given in the Act under Section 3(g). Section
12(2) says that in case of non-residential building, where tenant admits a
person who is not a member of his family as a partner, the tenant shall be
deemed to have ceased to occupy the building. By induction of Swarup Kailash,
the son-in- law of Ganpat Roy, as a partner in the firm, subsection (2) of
Section 12 is attracted.
10.
According to the learned counsel for the respondent- tenants, the object of
sub-section (2) is to exclude and restrict the unauthorised induction of persons
as partners in a firm with primary object to pass on the tenancy to such
persons after their induction. In other words, sub-section (2) of Section 12
imposes a restriction on the tenant in sub-letting the premises or part
thereof, by the device of inducting any person as a partner in the business. As
such, before it is held that the induction of Swarup Kailash amounted to
sub-letting of the premises, a finding has to be recorded that the object of
inducting Swarup Kailash as a partner of the firm was, to actually and
factually sub-let the premises to him. His induction as a partner was a design
and device to circumvent the consequence provided under Section 20(2)(e) ejectment
from the premises.
11. It
is true that the primary object of sub-section (2) of Section 12 appears to be
to check and restrict sub- letting of premises or part thereof by the original
tenant by inducting any person who is not a member of the family within the
meaning of the Act as a partner in the business.
But
the special feature of sub-section (2) of Section 12 is that there is a deeming
clause in the said sub-section. If the said sub-section had provided that where
a tenant carrying on business in the building admits a person who is not a
member of his family as a partner, it shall amount to sub-letting of the
premises, then there was scope for investigation and examination as to whether,
in the process of inducting such person as a partner in the business in fact
there has been a sub-letting of the premises. But sub- section (2) says in
clear and unambiguous words that once a person who is not a 544 member of the
family is admitted as a partner in the business by the tenant, "the tenant
shall be deemed to have ceased to occupy the building".
12.On
behalf of the respondents, it was urged that the expression 'deemed' occurring
in sub-sections (2) and (4) of Section 12 as well as in the Explanation (i) of
Section 25 should not be read as conclusive. It should be read as "deemed
until the contrary is proved". Reference was made to the cases Gray v.
Kerslake1; Robert Batcheller & Sons Ltd. v. Batcheller2 and Spencer v.
Kennedy3 where it was observed that if the word 'deemed' is held to be
conclusive, then it shall amount to imputing to the legislature the intention
of requiring the court to hold as a fact something directly contrary to the
true fact. It was also said that such deemed clauses should be read to mean as
required by the statute, until the contrary is proved.
13.The
role of a provision in a statute creating legal fiction is by now well settled.
When a statute creates a legal fiction saying that something shall be deemed to
have been done which in fact and truth has not been done, the court has to
examine and ascertain as to for what purpose and between what persons such a statutory
fiction is to be resorted to. Thereafter full effect has to be given to such
statutory fiction and it has to be carried to its logical conclusion. In the
well-known case of East End Dwellings Co. Ltd. v. Finsbury Borough Council4
Lord Asquith while dealing with the provisions of the Town and County Planning
Act, 1947, observed:
"If
you are bidden to treat an imaginary state of affairs as real, you must surely,
unless prohibited from doing so, also imagine as real the consequences and
incidents which, if the putative, state of affairs had in fact existed, must
inevitably have flowed from or accompanied it. ... The statute says that you
must imagine a certain state of affairs; it does not say that having done so,
you must cause or permit your imagination to boggle when it comes to the
inevitable corollaries of that state of affairs." That statement of law in
respect of a statutory fiction is being consistently followed by this Court.
Reference in this connection may be made to the case of State of Bombay v. Pandurang
Vinayak5. From the facts of that case it shall appear that Bombay Buildings
(Control on Erection) Ordinance, 1948 which was applicable to certain areas
mentioned in the schedule to it, was extended by a notification to all the
areas in the province in respect of buildings intended to be used for the
purposes of cinemas.
The
Ordinance was repealed and replaced by an Act which again extended to areas
mentioned in the schedule with power under sub-section (3) of Section 1 to
extend its operation to other areas. This Court held that the deemed clause in
Section 15 of the Act read with Section 25 of the Bombay General Clauses 1
(1957) 2 Dom LR (2nd Series) 225, 239 2 (1945) 1 Ch 169:(1945) 1 All ER 522:
114 LJ Ch 156 3 (1926) 1 Ch 125 : 1925 All ER Rep 135 : 95 LJ Ch 240 4 1952 AC
109 :(1951) 2 All ER 587 5 AIR 1953 SC 244: 1953 SCR 773 545 Act has to be
given full effect and the expression 'enactment' in the Act will cover the word
'Ordinance' occurring in the notification which had been issued. In that
connection it was said:
"The
corollary thus of declaring the provisions of Section 25, Bombay General
Clauses Act, applicable to the repeal of the ordinance and of deeming that
ordinance an enactment is that wherever the word ,ordinance' occurs in the
notification, that word has to be read as an enactment." 14.In the case of
Chief Inspector of Mines v. Karam Chand Thapar6 it was said:
"Were
these regulations in force on the alleged date of contravention? Certainly,
they were, in consequence of the provisions of Section 24 of the General
Clauses Act. The fact that these regulations were deemed to be regulations made
under the 1952 Act does not in any way affect the position that they were laws
in force on the alleged date of contravention. The argument that as they were
'regulations' under the 1952 Act in consequence of a deeming provision, they
were not laws in force on the alleged date of contravention is entirely
misconceived."
15. In
the case of J.K. Cotton Spinning and Weaving Mills Ltd. v. Union of India7 it
was said:
"It
is well settled that a deeming provision is an admission of the non-existence
of the fact deemed. Therefore, in view of the deeming provisions under
Explanations to Rules 9 and 49, although the goods which are produced or manufactured
at an intermediate stage and, thereafter, consumed or utilised in the
integrated process for the manufacture of another commodity is not actually
removed shall be construed and regarded as removed. The Legislature is quite
competent to enact a deeming provision for the purpose of assuming the
existence of a fact which does not really exist." 16.Recently in the case
of M. Venugopal v. Divisional Manager, Life Insurance Corpn. of India8 after
referring to the case of East End Dwellings Co. Ltd. v. Finsbury Borough
Council4 it was said that when one is bidden to treat an imaginary state of
affairs as real, he must surely, unless prohibited from doing so, also imagine
as real the consequences and incidents which, must inevitably have flowed.
17.When
sub-section (2) of Section 12 provides that whenever a tenant carrying on
business in a building admits a person, who is not a member of his family, as a
partner, the tenant shall be deemed to have ceased to occupy the building, full
effect has to be given to the mandate of the Legislature. There is no escape
from the conclusion that such tenant has ceased to occupy the building. No
discretion is left to the court to enquire or investigate as to what-was the
object of such tenant while inducting a person as partner who 6 AIR 1961 SC 838
:(1962) 1 SCR 9 7 1987 Supp SCC 350: 1988 SCC (Tax) 26: AIR 1988 SC 191 :
(1988) 1 SCR 700 8 (1994) 2 SCC 323 :1994 SCC (L&S) 664: (1994) 27 ATC 84:
JT (1994) 1 SC 281 546 was not the member of his family. It can be said that the
aforesaid statutory provision requires the court to come to the conclusion that
by the contravention made by the tenant, such tenant has ceased to occupy the
building. The framers of the Act have not stopped only at the stage of Section
12(2) but have further provided in Section 25, Explanation (i) another legal
fiction saying that where the tenant ceases to occupy the building within the
meaning of sub- section (2) of Section 12 "he shall be deemed to have sub-
let that building or part". In view of the three deeming clauses
introduced in sub-section (2) of Section 12, sub- section (4) of Section 12 and
Explanation (i) to Section 25, no scope has been left for the courts to examine
and consider the facts and circumstances of any particular case, as to what was
the object of admitting a person who is not the member of tile family, as
partner and as to whether, in fact, the premises or part thereof have been
sub-let to such person.
18.It
was then urged that if such strict interpretation is given to sub-section(2) of
Section 12, then similar interpretation should be given to Section12(1)(b) and
to Section 12(3) of the Act which prescribe other conditions under which the
tenant shall be deemed to have ceased to occupy the building under his tenancy.
It was pointed out that sub-section (1)(b) of Section 12 says that a landlord
or tenant of a building shall be deemed to have ceased to occupy the building
or a part thereof if he has allowed it to be occupied by any person who is not
a member of his family. According to the learned counsel for the respondents if
the daughter-in-law or son-in-law of the landlord or tenant comes to reside in
the building in occupation of such landlord or tenant, then it shall be deemed
to have ceased to be in occupation of such landlord or tenant, which shall lead
to an absurd result. Clause (b) of sub-section (1) of Section 12 shall not be
applicable to such occupation by daughter-in-law or son-in-law or even outsider
with the tenant himself. The words 'allowed' and 'occupy' are significant. The
landlord or the tenant, as the case may be, shall be deemed to have ceased to
occupy the building only if he has allowed it to be occupied by any person who
is not a member of his family. The words "allowed to be occupied"
indicate that the possession of such building has been given to a person who is
not a member of the family. It shall not be attracted when any person who is
not a member of the family resides in such building either along with the
landlord or the original tenant. If the landlord or the tenant allows any
person, who is not a member of the family within the meaning of the Act to
occupy the premises, with the object that such person shall occupy such
premises in his own rights, in that event, clause (b) of sub-section (1) of Section
12 shall be attracted.
19.So
far as sub-section (3) of Section 12 is concerned, it says that in case of
residential building, if the tenant or any member of his family builds or
otherwise acquires, in a vacant state or gets vacated a residential building in
the same city, municipality, notified area or town area, in which the building
under tenancy is situate, the tenant "shall be deemed to have ceased to
occupy the,building under his tenancy". It was submitted that if full
effect is given to the deeming clause, then in a house where the tenant was
living with his four sons, one of his sons getting any accommodation in the
same 547 city or town, the tenant along with his remaining three sons have to
be evicted which shall lead to an absurd result.
Although
we are not concerned in the present case with the scope of sub-section (3) of
Section 12, but in order to appreciate the submission made on behalf of the
respondents, we may point out that sub-section (3) of Section 12, does not
conceive that if one of the sons living with the tenant, who is not wholly
dependent on such tenant, acquires any other residential building in the same
city or town, then even the original tenant shall be deemed to have ceased to
occupy the building in question. This is apparent from Explanation (b) to said
subsection (3) which says:
"the
expression 'any member of family', in relation to a tenant, shall not include a
person who has neither been normally residing with nor is wholly dependent on
such tenant." In view of the explanation any member of the family
mentioned in subsection (3) shall not include a person who has neither been
normally residing with nor is wholly dependent on such tenant. As such, if a
son of the tenant who is not wholly dependent on such tenant acquires or gets
any residential building in the same city or town, there is no question of the
tenant deeming to have ceased to occupy the building under sub-section (3) of
Section 12.
20.
The Act with which we are concerned is a statute which purports to regulate the
relationship between the landlord and the tenant and in many respects contains
provisions for achieving that object which are different from the Transfer of
Property Act. As such it was open to the framers of the Act to look to the
interest of the tenant as well as the landlord and to prescribe conditions
under which the tenant can continue to occupy a building and having contravened
any of the conditions prescribed shall be deemed to have ceased to occupy the
building.
21. On
the question as to whether any contravention by Ganpat Roy, one of the heirs of
Sheobux Roy, will be a ground for eviction from the whole premises, the High
Court was of the opinion that after the death of Sheobux Roy, his five sons
became tenants in common and not joint tenants of the premises because of which
contravention by one of the tenants shall not be a ground for eviction, so far
the other co-tenants are concerned. In support of this finding, reliance was
placed by the High Court on a judgment of this Court in Mohd. Azeem v. Distt.
Judge9. From the facts of that case it appears that the original tenant had
died in 1969 leaving behind a widow, three sons and a daughter. In connection
with sub-section (3) of Section 12, after making reference to the Full Bench
judgment of Allahabad High Court it was said:
"The
Full Bench proceeded on the basis that the heirs become joint tenants and
answered the main problem by saying that if any member of the family of such
joint tenants built or acquired a house in vacant state the tenancy would be
deemed to have ceased. In framing these questions for reference and in
answering the referred questions, the definition of 'tenant' was lost sight of.
All the heirs as normally reside with the 9 (1985) 2 SCC 550: (1985) 3 SCR 906
548 deceased tenant in the building at the time of his death become tenants.
The definition does not warrant the view that all the heirs will become a body
of tenants to give rise to the concept of joint tenancy. Each heir satisfying
the further qualification in Section 3(a)(1) of the Act in his own right
becomes a tenant and when we come to Section 12(3) of the Act, the words 'the
tenant or any member of his family' will refer to the heir who has become a
tenant under the statutory definition and members of his family." However,
this Court in the case of H. C. Pandey v. G. C. Paul10 in connection with the
same Act said: (SCC p. 79, para 4) "It is now well settled that on the
death of the original tenant, subject to any provision to the contrary either negativing
or limiting the succession, the tenancy rights devolve on the heirs of the
deceased tenant. The incidence of the tenancy are the same as those enjoyed by
the original tenant. It is a single tenancy which devolves on the heirs.
There
is no division of the premises or of the rent payable therefor. That is the
position as between the landlord and the heirs of the deceased tenant. In other
words, the heirs succeed to the tenancy as joint tenants." 22.The
attention of the learned Judges constituting the Bench in the case of H. C. Pandey
v. G. C. Paull10 was not drawn to the view expressed in the case of Mohd. Azeem
v. Distt. Judge9. There appears to be an apparent conflict between the two
judgments. It was on that account that the present appeal was referred to a
Bench of three Judges.
According
to us, it is difficult to hold that after the death of the original tenant his
heirs become tenants-in- common and each one of the heirs shall be deemed to be
an independent tenant in his own right. This can be examined with reference to
Section 20(2) which contains the grounds on which a tenant can be evicted.
Clause (a) of Section 20(2) says that if the tenant is in arrears of rent for
not less than four months and has failed to pay the same to the landlord within
one month from the date of service upon him of a notice of demand, then that
shall be a ground on which the landlord can institute a suit for eviction. Take
a case where the original tenant who was paying the rent dies leaving behind
four sons. It need not be pointed out that after the death of the original
tenant, his heirs must be paying the rent jointly through one of his sons. Now
if there is a default as provided in clause (a) of sub-section (2) of Section
20 in respect of the payment of rent, each of the sons will take a stand that
he has not committed such default and it is only the other sons who have failed
to pay the rent. If the concept of heirs becoming independent tenants is to be
introduced, there should be a provision under the Act to the effect that each of
the heirs shall pay the proportionate rent and in default thereto such heir or
heirs alone shall be liable to be evicted. There is no scope for such division
of liability to pay the rent which was being paid by the original tenant, among
the heirs as against the landlord what the heirs do inter se, is their concern.
Similarly, so far as ground (b) of sub-section (2) 10 (1989) 3 SCC 77 549 of
Section 20, which says that if the tenant has wilfully caused or permitted to
be caused substantial damage to the building, then the tenant shall be liable
to be evicted;
again,
if one of the sons of the original deceased tenant wilfully causes substantial
damage to the building, the landlord cannot get possession of the premises from
the heirs of the deceased tenant since the damage was not caused by all of
them. Same will be the position in respect of clause (c) which is another
ground for eviction, i.e., the tenant has without the permission in writing of
the landlord made or permitted to be made, any such construction or structural
alteration in the building which is likely to diminish its value or utility or
to disfigure it. Even if the said ground is established by the landlord, he
cannot get possession of the building in which construction or structural
alterations have been made diminishing its value and utility, unless he
establishes that all the heirs of the deceased tenant had done so. Clause (d)
of sub-section (2) of Section 20 prescribes another ground for eviction that if
the tenant has without the consent in writing of the landlord, used it for a
purpose other than the purpose for which he was admitted to the tenancy of the
building or has been convicted under any law for the time being in force of an
offence of using the building or allowing it to be used for illegal or immoral
purposes; the landlord cannot get possession of the building unless he
establishes the said ground individually against all the heirs. We are of the
view that if it is held that after the death of the original tenant, each of
his heirs becomes independent tenant, then as a corollary it has also to be
held that after the death of the original tenant, the otherwise single tenancy
stands split up into several tenancies and the landlord can get possession of
the building only if he establishes one or the other ground mentioned in
sub-section (2) of Section 20 against each of the heirs of original tenant. One
of the well-settled rules of interpretation of statute is that it should be
interpreted in a manner which does not lead to an absurd situation.
23.It
appears to us, in the case of H.C. Pandey v. G.C. Paul10 it was rightly said by
this Court that after the death of the original tenant, subject to any
provision to the contrary, the tenancy rights devolve on the heirs of the
deceased tenants jointly. The incidence of the tenancy is the same as those
enjoyed by the original tenant. It is a single tenancy which devolves on the
heirs and there is no division of the premises or of the rent payable therefor
and the heirs succeed to the tenancy as joint tenants.
24.In
the case of Gian Devi Anand v. Jeevan Kumar11 the Constitution Bench of this
Court in connection with Delhi Rent Control Act, 1958 said: (SCC pp. 712-13, para
36) "The heirs of the deceased tenant in the absence of any provision in
the Rent Act to the contrary will step into the position of the deceased tenant
and all the rights and obligations of the deceased tenant including the
protection afforded to the deceased tenant under the Act will devolve on the
heirs of the deceased tenant. As the protection afforded by the 11 (1985)
2SCC683: 1985 Supp 1 SCR 1 550 Rent Act to a tenant after determination of the
tenancy and to his heirs on the death of such tenant is a creation of the Act
for the benefit of the tenants, it is open to the Legislature which provides
for such protection to make appropriate provisions in the Act with regard to
the nature and extent of the benefit and protection to be enjoyed and the
manner in which the same is to be enjoyed. If the Legislature makes any provision
in the Act limiting or restricting the benefit and the nature of the protection
to be enjoyed in a specified manner by any particular class of heirs of the
deceased tenant on any condition laid down being fulfilled, the benefit of the
protection has necessarily to be enjoyed on the fulfilment of the condition in
the manner and to the extent stipulated in the Act." 25.The framers of the
Act have clearly expressed their intention in Sections 12, 20 and 25 while
protecting the tenant from eviction except on the grounds mentioned in Section
20, that after the death of the original tenant his heirs will be deemed to be
holding the premises as joint tenants and for any breach committed by any of
such joint tenants, all the heirs of the original tenant have to suffer. They
cannot take a plea that unless the grounds for eviction mentioned in
sub-section (2) of Section 20 are established individually against each one of
them, they cannot be evicted from the premises in question.
26.It
was then submitted that although Swarup Kailash, the son-in-law of Ganpat Roy
may not be held to be a member of the family within the meaning of the
definition given in Section 3(g), nonetheless he shall be deemed to be a member
of the family as the expression 'family' is generally understood, and by
admitting a son-in-law or daughter-in-law as a partner, it shall not amount to
sub-letting within the meaning of the Act. It was pointed out that Section 3
opens with the words: "In this Act, unless the context otherwise requires"
and as such the definition of the family should not be strictly construed as
given in Section 3(g) and in the context of the present case a wider
interpretation to the expression 'family' should be given so as to include even
the sons-in-law and daughters-in-law. In this connection, reliance was placed
on the judgment of this Court in the case of Pushpa Devi V. Milkhi Raml2. As
has already been pointed out that in the Act with which we are concerned,
wherever the expression "member of the family" has been used, it is
consistent with the definition of 'family' given in Section 3(g) and there is
no scope for interpreting that expression in a different manner in connection
with sub-section (2) of Section 12 of the Act.
Once
the finding of the High Court that after the death of Sheobux Roy, his sons
became tenants-in-common instead of joint tenants, is reversed for the reasons
mentioned above, the result will be that it has to be held that because of the
admission of Swarup Kailash, the son-in-law of Ganpat Roy, as a partner in the
business, there has been a deemed vacancy of the premises within the meaning of
sub-sections (2) and (4) of Section 12 and it shall amount to sub- 12 (1990) 2
SCC 134 551 letting within the meaning of Section 25, Explanation (i), which is
a ground for eviction under sub-section 2(e) of Section 20 of the Act. The
judgment in Mohd. Azeem case9 does not lay down the correct law and on the
other hand we hold that H. C Pandey case 10 lays down the correct law.
27.In
the result, the appeal is allowed. The judgment of the High Court allowing the
writ petition of the respondent- tenants is set aside and the orders of the
Rent Controller and Eviction Officer are restored. In the circumstances of the
case, there shall be no order as to costs.
28.However,
respondents shall not be evicted from the premises in question up to 30-6-1995,
if they file usual undertaking before this Court within four weeks from today.
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