Shri
Kailash Chand and another Vs. SH. Dharam Dass [2004] Insc 625 (7 October 2004)
Arijit Pasayat & C.K. Thakker
O R D E R The present appeal is filed against the judgment and order dated November 27, 2001 passed by the High Court of Himachal Pradesh, Shimla in Civil Revision
No. 35 of 1999. By the said order, a single Judge of the High Court of Himachal
Pradesh dismissed the eviction petition filed by the landlord reversing order
of ejectment passed by the Rent Controller, Shimla and confirmed by the Appellate
Authority (II), Shimla.
The appellant herein is the owner of a building being House No. 108,
Anandele, Shimla ('suit premises' for short). He let the first floor of the
suit premises to the respondent. The landlord filed an eviction petition against
the tenant in respect of the first floor of the building in November, 1980. The
petition was allowed by the Rent Controller by an order dated October 31, 1984. The tenant preferred an appeal and challenged the decree of eviction. On
September 17, 1986, however, a compromise was arrived at between the parties.
On the basis of the said compromise, the tenant agreed to vacate the first
floor in favour of the landlord and was inducted as tenant of the ground floor
of the same building.
According to the landlord, at the relevant time he was staying all alone in
Shimla. Subsequently, however, his wife had also shifted from village Panhoi to
Shimla. Moreover, the landlord wanted to get his child educated at Shimla where
best facilities for studies are available. He, therefore, filed eviction
petition against the tenant.
The Rent Controller, Shimla, by an order dated January 20, 1993, held that the landlord wanted the premises for his bona fide occupation and accordingly an
order of eviction was passed. Being aggrieved by the said order, the tenant
preferred an appeal which was dismissed by the Appellate Authority (II),
Shimla, by an order dated November 30, 1998. The aggrieved tenant carried the
matter to the High Court by filing Civil Revision 35 of 1999. According to the
landlord, a new ground which was never raised before the courts below was put
forth by the tenant contending that the eviction petition filed by the landlord
was not maintainable in view of third proviso to sub-section (1) of Section 14
of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to
as 'the Act'). Section 14 of the Act provides for eviction of tenants in
certain cases on certain grounds. Sub-section (3) deals with cases of
requirement of building premises by the landlord. The relevant part of
sub-section (3) reads as under :
"(3) A landlord may apply to the Controller for an order directing the
tenant to put the landlord in possession (a) in the case of a residential
building, if (i) he requires it for his own occupation :
xxxxx xxxxxxx xxxxxx xxxxx xxxxx xxxxxxx xxxxxx xxxxx Provided further that
where the landlord has obtained possession of any building or rented land under
the provisions of clause (a) or clause (b) he shall not be entitled to apply
again under the said clause for the possession of any other building of the
same class or rented land :" It was contended on behalf of the tenant
before the High Court that since the landlord had obtained possession of the
first floor earlier he was not entitled to apply again. The petition,
therefore, was not maintainable and was liable to be dismissed on that ground
alone.
The High Court upheld the contention relying on a decision of this Court in
Molar Mal (dead) through LRs. vs. M/s. Kay Iron Works (Pvt.) Ltd., [2000 (4)
SCC 285].
A two-Judge Bench of this Court in Molar Mal had an occasion to consider a
similar provision in Haryana Urban (Control of Rent and eviction) Act, 1973
(hereinafter referred to as "the Haryana Act"). Proviso to Section
13(3)(b) of the Haryana Act also creates an embargo on the landlord from
seeking eviction of the tenant if he had earlier obtained eviction of other
tenants under the said provison.
Considering the ambit and scope of the provision, the Bench observed :
"On behalf of the landlord, it is next contended that the proviso does
not apply to the facts of this case, since on the date of filing of the present
eviction petition, the landlord had not obtained possession of any other
tenanted premises. Subsequent possession obtained by it would not be an embargo
for the landlord to claim possession of the present petition-scheduled
premises. Elaborating this argument on behalf of the landlord, it is contended
that if on the date of filing of the eviction petition, a landlord has not by
then obtained possession of any other premises, then the proviso would not be a
bar for the landlord to file an eviction petition and obtain possession of
another premises, even though during the pendency of the petition, he obtains
possession of other premises. The landlord wants us to give a literal meaning
to the words "entitled to apply again" found in the proviso. If we
give such a meaning to the words "entitled to apply again" without
taking into consideration the object and scheme of the Act, the proviso may
give an impression that the embargo incorporated in that proviso would be
applicable only at the stage of filing of the eviction petition. But such an
interpretation will run counter to the very scheme of the Act. It goes without
saying that the Haryana Urban (Control of Rent and Eviction) Act, 1973 like any
other similar Act in other States in India is an enactment which controls the
fixation of rent and eviction of the tenants from rented premises to which the
Act is applicable. This Act controls the right of a landlord to seek eviction
of tenanted premises, it restricts the right of a landlord to seek eviction on
those grounds mentioned in the Act. As a matter of fact, a landlord can seek
eviction only the grounds enumerated under the Act and on no other grounds.
This is clear from the language of Section 13(1) of the Act which in specific
terms says that a tenant in possession of a building or rented land shall not
be evicted therefrom except in accordance with the provisions "of this section".
Section 13 enumerates various grounds on which a landlord can seek
possession. This right is further restricted if the landlord has obtained
possession of similar premises under the same provisions of law by the proviso.
Now the question is whether the bar under the proviso is applicable only to the
filing of an application or it is a bar on the right of the landlord. If the
interpretation suggested by the landlord is accepted then the bar will be on
the application by the landlord and not on his right to evict. This, in our
opinion, will not be the correct interpretation of the proviso. A careful
perusal of the various provisos found in sub- section (3) of Section 13 of the
Act clearly shows that the legislature intended to further restrict the right
of a landlord to seek eviction under the clauses mentioned in that sub-section
apart from the restrictions imposed in Section 13 of the Act. For example, if
the landlord is seeking eviction of a tenant on the ground that the same is
required for the use of his son then, in view of the proviso applicable to that
sub-section, he can seek eviction of the premises only once. Similarly, if the
landlord is seeking eviction for his own occupation under Section 13(3)(b) of
the Act then by virtue of the proviso applicable to that sub-section, the
landlord can seek such eviction only once in regard to the premises of the same
nature. Therefore, in our opinion, the bar imposed by the proviso is in fact a
bar on the right of the landlord to seek actual eviction and not confined to
the filing of the application for eviction. On behalf of the landlord, it is
contended that while interpreting a statute the courts should apply the rule of
literal construction and if it is so interpreted then the wording of the
proviso would show that the restriction imposed by the proviso is restricted to
the stage of filing of the application for eviction only. We agree with this
contention of the landlord that normally the courts will have to follow the
rule of literal construction which rule enjoins the court to take the words as
used by the legislature and to give it the meaning which naturally implies.
But, there is an exception to this rule. That exception comes into play when
application of literal construction of the words in the statute leads to
absurdity, inconsistency or when it is shown that the legal context in which
the words are used or by reading the statute as a whole, it requires a
different meaning. In our opinion, if the expression "entitled to apply
again" is given its literal meaning, it would defeat the very object for
which the legislature has incorporated that proviso in the Act inasmuch as the
object of that proviso can be defeated by a landlord who has more than one
tenanted premises by filing multiple applications simultaneously for eviction
and thereafter obtain possession of all those premises without the bar of the
proviso being applicable to him. We are of the opinion that this could not have
been the purpose for which the proviso is included in the Act. If such an interpretation
is given then the various provisos found in sub-section (3) of Section 13 would
become otiose and the very object of the enactment would be defeated.
Any such interpretation, in our opinion, would lead to absurdity. Therefore,
we have no hesitation in interpreting the proviso to mean that the restrict
contemplated under that proviso extends even up to the stage when the court or
the tribunal is considering the case of the landlord for actual eviction and is
not confined to the stage of filing of eviction petition only." The
attention of the Court was invited to two decisions of the High Court of Punjab
and Haryana in (i) Brij Lal Puri v. Muni Lal [AIR 1979 P&H 132] and (ii)
Jagir Singh v. Jagdish Pal Sagar [1980 (1) RCR 494 (P&H)], wherein the High
Court held that the proviso does not lay down that if the entire building which
is needed by a landlord for his personal use, is occupied by more than one
tenant, he or she cannot take out proceeding against other tenants after having
evicted one. It was further observed; "The object of this proviso is that
a landlord should not be allowed to seek unreasonable ejectment of tenants from
independent buildings if he has already succeeded in evicting a tenant from the
building which is sufficient for his personal occupation." Observing that
the law was not correctly laid down by the High Court, the two-Judge Bench
proceeded to state;
"Based on the above-cited two judgments of the High Court it is
contended that the landlord in the instant case is seeking eviction of a part
of the premises owned by it which is leased to the present appellant.
Eviction of the three other tenants referred to hereinabove was from the
premises which are parts of the same premises, therefore, in view of the above
judgment the bar under the proviso is not applicable.
We find it difficult to accept this argument of the landlord also. From the
language of the proviso we do not find any support for this argument of the
appellant or to the conclusions arrived at by the High Court in the
above-referred judgments. The proviso does not make any such distinction
between a landlord seeking possession of the premises held by more than one
tenant occupying the same building or the tenants occupying different
independent buildings under the same landlord.
As we have observed, the object of the proviso like any other provisions of
the Act, is to further restrict the right of the landlord to seek eviction; if
that be so, we do not find any justification in reading into the proviso
something as conferring a larger right on the landlord to evict more than one
tenant if those tenants are occupying different parts of the same premises.
Therefore, we are of the opinion that the view expressed by the High Court
in the above-referred case does not lay down the correct law. Consequently, the
argument of the landlord based on the said judgment is also rejected."
Before us, the learned counsel for the respondent-tenant contended that the
point is finally concluded by this Court in Molar Mal. Since the appellant-landlord
has already obtained possession in previous proceeding from the
respondent-tenant, bar of third proviso to sub-section (3) of Section 14 of the
Act got attracted and he was not entitled to apply again under sub-section (3)
of Section 14 of the Act for possession of the ground floor occupied by the
tenant. The High Court was, therefore, right and wholly justified in dismissing
the petition.
Learned counsel for the landlord, on the other hand, strenuously argued that
the landlord has not got possession as contended by the tenant. Pursuant to the
compromise arrived at between the parties, the landlord obtained possession of
first floor, but in lieu thereof, he allowed the tenant occupy the ground
floor.
Thus, it was not a case of obtaining of possession. It was submitted that
third proviso to Section 14(3) of the Act would not apply to such compromise
and exchange of premises so as to deprive the right of the landlord to get
eviction of tenant on the ground of bona fide requirement. It was also urged
that what is contemplated by the third proviso to Section 14(3) of the Act is
that a landlord on the "self- same grounds" is not entitled to apply
again for possession of any other building, if he has obtained possession from
the tenant. But if the circumstances have changed or his need is increased, the
bar has no application and the petition for eviction of tenant will be
maintainable and the case has to be decided on its own merits. It was also
contended that if the interpretation sought to be suggested by the tenant is
accepted irrespective of need and requirement by the landlord that the petition
would not be held maintainable, the provision should be held arbitrary,
unreasonable and ultra vires.
In support of the above contentions, the learned counsel drew our attention
to the following decisions : Food Corporation of India v. New India Assurance
Co. Ltd. & Others, [1994 (3) SCC 324], K.S. Sundararaju Chettiar v. M.R.
Ramachandra Naidu, [1994 (5) SCC 14], State of Punjab & Another v. Khan
Chand, [1974 (2) SCR 768], Bhatia International v. Bulk Trading S.A. &
Another, [2002 (4) SCC 105], Rakesh Wadhawan & Others v. Jagdamba
industrial Corporation & Others, [2002 (5) SCC 440]; Suraj Mal v.
Radheyshyam [1988 (3) SCC 18].
Having considered the rival contentions of the parties, in our opinion,
prima facie the submission of the landlord deserves serious consideration. In
our opinion, it may be possible for the landlord to argue that in the facts and
circumstances of the case, it may not be said that the landlord has obtained
possession of a building or premises falling within the mischief of third
proviso to Section 14(3) of the Act. Again, the third proviso to Section 14(3)
of the Act may apply to the facts which were before the court when the suit/application
was decided by the court/authority and the landlord has obtained possession of
a building or a part thereof. But if the circumstances have changed and the
necessity increases, it may be possible for the landlord to apply under
sub-section (3) of Section 14 of the Act on the ground of bona fide
requirement. To such a situation, third proviso to Section 14(3) of the Act may
not prohibit him from approaching a competent court/authority. It appears to
us, as observed by the High Court of Punjab and Haryana in two cases referred
to above, that the object of the proviso is to restrict the landlord from
seeking unreasonable ejectment of tenants. If he was successful in evicting a
tenant from a building and his personal requirement is fulfilled or satisfied,
he cannot invoke Section 14(3) of the Act again. But if the requirement still
continues or the circumstances are different, the third proviso to Section
14(3) of the Act has no application. The submission of the learned counsel that
if the third proviso to Section 14(3) of the Act is not interpreted reasonably
as submitted by him, it may have to be tested on the touch stone of Article 14
cannot be said to be totally ill-founded.
In view of the aforesaid, in our view a fresh look is necessary on the
provision, so that the grey areas noticed by us earlier may be creased out. It
is, therefore, appropriate that the matter be placed for consideration of the
question by a Bench of three Judges.
Accordingly, we direct the Registry to place the papers before Hon'ble the
Chief Justice of India for taking an appropriate action.
Ordered accordingly.
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