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Kanwal Kishore Chopra Vs. O.P. Diwedi and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revn. No. 719 of 1976
Judge
Reported inAIR1978Delhi53
ActsDelhi Rent Control Act, 1958 - Sections 2, 14(1) and 25-B
AppellantKanwal Kishore Chopra
RespondentO.P. Diwedi and anr.
Appellant Advocate R.P. Sharma, Adv
Respondent Advocate S.K. Datta and ; P.R. Monga, Advs.
Cases ReferredIn Jagdish Chand v. State of Pun. Jab
Excerpt:
.....in the world excepting the delhi development authority. the respondent has been placed in possession of the property and has been given a right to enjoy the same. under these circumstances, the respondent fully answers the description of a landlord owner occurring in clause (e) of the relevant proviso any other construction would defeat the very object and purpose of the rent act as well as the hire-purchase agreement......for himself and his own benefit and not for the benefit of another person is certainly the owner landlord.17. in the instant case, the petitioner herein is not a tenant of the delhi development authority and that authority does not claim or exercise any rights of ownership or landlord against the petitioner, so long as the. hire purchase agreement lasts. for all purposes the respondent herein who has inducted the petitioner is the landlord and owner of the property, since he is not holding it for the benefit of any other person. when the landlord is himself the owner of the property and no other person claims to be the owner or landlord of the property against the tenant, it is such a landlord who is entitled to claim eviction and would have to be treated as the owner for.....
Judgment:
ORDER

1. This civil revision has been filed under sub-see. (8) of S. 25-B of the Delhi Rent Control Act, 59 of 1958 as amended (hereinafter referred to as the Act). It has been filed by the tenant and is directed against the order of the Additional Controller dated 13th October, 1976 by which he has refused the petitioner leave to contest the eviction petition and has passed an order for eviction against the petitioner.

2. The material facts of the case are that the petitioner is a tenant of the respondent in respect of the premises in dispute. On 4th June, 1976 the respondent instituted a. petition for eviction on the ground of bona fide personal necessity specified in clause (e) of the proviso to sub-section (1) of S. 14 of the Act. The petition had to 13e tried according to the summary procedure prescribed by Section 25-B of the Act On service of the summons the petitioner filed an application f or leave to contest the eviction petition. The petitioner raised the following objection& (1) the notice was invalid; (2) the need of the landlord was not bona fide as he wanted to increase the rent; and (3) the landlord was not the owner of the property but the Delhi Development Authority was the owner. The Addl. Controller has refused the leave to contest the eviction petition and has in accordance with the provisions of law passed an order for eviction. Mr. R, P. Sharma, Advocate, appearing to support the petitioner, has assailed the -order and reiterated the aforesaid three contentions.

3. So far as the invalidity of the notice is concerned the plea raised was wholly vague -and no invalidity has been pointed out. As held in V. L. Kashyap v. R. P. Puri (1977) 1 Delhi 22: AIR 1977 Noc 205 the tenant is required to state facts, which will disentitle the landlord from obtaining eviction. Merely negative or vague pleas to put the landlord on proof are not enough, and if they are allowed to merit the grant of leave, the whole object of the summary procedure would be defeated. The first objection of the petitioner has no force and has rightly been rejected 'by the Addl. Controller.

4. So far as the second contention is concerned, it is again extremely vague and has been raised mala fide to gain time. This plea has rightly been rejected 'by the trial Controller and it does not entitle the petitioner to obtain leave to contest the eviction petition. The contention has no force and is rejected.

5. The question about the ownership of the premises is certainly of importance in the instant case. I would have been inclined to grant leave and set down the petition for trial on this issue, but for the fact that the question raised is only of law and no disputed question of fact is involved in the matter and so remand the Controller is unnecessary. I have heard the counsel for the parties at length and have perused the relevant record and am in a position to return a finding.

6. The material facts on this question are that the Delhi Development Authority had agreed to sell the property, which contains the premises in dispute to the respondent under a hire purchase agreement. The property had been sold under Delhi Development Authority (Management & Disposal of Housing Estates) Regulations. 1968 which had been framed under clause (1) of sub-see. (1) of S. 57 of the Delhi Development Act, 61 of 1957. The hire purchase agreement has got a statutory form, which is prescribed. It is admitted by both the parties that the statutory provisions have been complied with in the case and there is no disputed question of fact arising and so the question can be determined as a matter of law.

7. The scheme of the Regulations is that the property constructed by the Delhi Development Authority is intended to be conveyed to the parties on hire purchase basis. The rules and the procedure are prescribed. The agreements are entered into with the hirer and some part of the purchase money is paid by him instantly and the balance is paid in Installments extending over a period of 15 years (vide Regulations 8 and 10). The possession of the property is handed over to the hirer in accordance with Regulation 36. Regulations 51, 53 and 54 prescribe that during the hire purchase period the hirer shall remain the tenant of the Authority and shall have no other rights except that of tenancy and during this period he shall abide by the stipulated terms failing which they may be enforced by the Authority. It is further provided that the hirer shall cease to be a tenant and shall be the owner of the property only after the last Installment of hire purchase and all other dues have been paid by him to the Authority and the transfer of the property to him has been effected through a conveyance deed in the prescribed manner by the Authority and the common portions and common services have been transferred to the Agency through the conveyance deed executed in such form as may be prescribed by the Authority.

8. The above are the statutory provisions. The terms of the hire purchase tenancy agreement also n-fake it clear that the hirer holds the property as a tenant for the hire purchase period and he is bound to pay the rent. He is debarred from making or permitting to make any alteration or addition to the property without prior permission of the local authority concerned. Sub-clause (h) of Clause (2) of the hire purchase tenancy agreement provides that the hirer shall not sell, transfer, assign or otherwise part with the possession of the whole or any portion of the said out previous consent in writing to owner which it shall be entitled fuse in its absolute discretion. It is also provided that in the event of the being given, every such transfer, assignment of the property shall be only for remainder term of his tenancy and the permitted transferee or assignee as the case may be, shall be bound by all the terms and conditions contained therein and be answerable to the owner in all respects.

Sub-clauses (n), (o) and (p) provide that no provide that no claim can be brought against the interest of the hirer in the said property nevertheless the hirer thereby indemnifies the owner in respect of any such eventualities and that the hirer thereby absolves the owner from any liability in case of damage to or destruction of the said property as a consequence of any accident of whatever nature -and that it shall be the duty of the hirer to carry out the necessary repairs. The hirer is also authorized to nominate by writing under his hand during his lifetime the nominee whom he wishes to transfer his share or interest in the property including his rights in the future ownership of the flat in the event of his death and such nominations would ordinarily be accepted by the owner.

9. There is a schedule to the hire purchase tenancy agreement which contains the tenancy stipulations which provide that every stipulation is applicable to the hirer as well as every inmate of his property who shall be jointly and severally responsible for observing them. At the completion of the hire purchase agreement a provision is made for a deed of conveyance to be executed by the Authority in favor of the hirer. A form of this deed is also prescribed.

10. The aforesaid, provision show that the intention of the Delhi Development Authority is to convey the property absolutely to the party on payment, of price but the realisation of the price has been deferred by Installments spread over period. During this period the Authority retains complete legal power and authority as the owner of the property, but has made a binding contract of sale with the hirer which can be formally completed as soon as he performs his obligations. Till then the hirer is lowed the rights of a tenant but the tenant is given the possession of the property and has been given the fullest liberty to enjoy it in any way he likes. He is also given the liberty to transfer, assign or part with possession of the whole or any portion of the property, subject always to the condition that it is done with the previous written consent of the owner and U made in favor of a person who fulfillls the necessary qualifications.

The interest of the party in the property is also heritable. The powers and the control which the Delhi Development Authority exercises against the hirer party however; do not derogate from him rights and enjoyment of the party of the property as against the rest of the world. Shorn of the -legal technicalities it looks like a case of absolute sale with a deferred payment of price and the seller retaining, every possible right to annul the same in the event of default of payment of the price. But on payment of the full price, etc

there is nothing to defeat or delay the conveyance.

11. Whether such a hirer from the Delhi Development Authority constitutes an owner within the relevant clause of the Rent Act? clause (e) of the proviso to sub-see. (1) of S. 14 of the Act reads as follows:-

'that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him. if he is the owner thereof or' for any person for whose benefit the premises are held and that the landlord or such person has no other reasonable suitable residential accommodation.'

At this stage, it may be relevant to mention that the definition of landlord given in c). (e) - of S. 2 of the Act is very wide. It reads as follows:-

' 'landlord' means a -person who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a, trustee4 guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant.'

thereforee, the expression 'owner' used in clause (e) has been inserted to restrict the application of the definition of landlord when the landlord instituted a petition for recovery of possession on the ground specified in clause (e) while in other clauses the word 'owner' does not occur.

12. The word 'owner' has been construed by 1. D. Dua. C. J. (as he them was), in T. C. Rakhi v Snit. Usha Gujaral (1969) Delhi 9. The learned Judge observed as follows:-

'Whether or not this proviso has the effect of making Smt. Usha Gujral a fullfledged owner as against the Government I do not think the mere fact of Smt. Usha Gujral being a lessee from the Government of the site would take her out of the category of 'owner' within the contemplation of S. 14(1)(e) of the Act. The word 'owner' as used in this clause has to be construed in the background of the purpose and object of enacting it. The use of the word 'owner' in this clause seems to me to have been inspired by the definition of the word landlord as contained in S. 2(e) of the Act which is wide enough to include a person receiving or entitled to receive the rent of any premises on account of or on behalf of or for the benefit of any other person. Construed in the context in which the word 'owner, is used in clause (e), it seems to me to include all persons in the position of Smt. Usha Gujral, who have taken a long lease of, sites from the Government for the purpose of building houses thereon. The concept of ownership seems now to be eclipsed by its social and political significance and the idea of ownership in eases like the present, is one of the better right to be in possession and to obtain it. To accede to the contention raised by Shri Kapur would virtually nullify the effect of clause (e) and would render all such landlords remedyless against tenants however badly they may need the premises for their own personal residence. I do not think such a result was intended by the legislature and I repel the appellant's contention. I consider it proper before passing on to the next challenge to Point out that the word 'owner' as used in clause (e) in S. 14(1) does not postulate absolute ownership in the sense that he has an absolutely unrestricted right to deal with the property as he likes. Iv describe someone as owner, and perhaps even as an absolute owner of property is to say two things: it is to assert that his title to the property is indisputable and that he has all the rights of ownership allowed by the legal system In question. Rights of ownership may, thereforee, be limited by special provisions of law and I include in those Provisions ouch as are in force In New, Delhi According to Which citizens are granted long leases of sites for constructing building thereon. Now the Words of a statute though normally construed in their ordinary meaning, may contain inherent restrictions due to their subject-matter and object and the occasion on which they are used. They call for construction in the light of their context rather than in what may be either their strict etyrnological sense or their popular meaning apart from their ' context. See Halsbury's Laws of England

(Third Edition) Vol. 36, Paras 593 and 594. The meaning of the word 'owner, in el. (e) is influenced and controlled by its context and the appellants construction is unacceptable because it seems to be quite clearly contrary to the, reasonable operation of the statutory provision.'

In another decision, reported as Inder Singh v. Dr. Nanak Chand l969 Ren Cr 79, the learned Judge observed as follow:

'ownership as an interest, I recognised by law, consists of innumerable claims, privileges, powers and immunities with regard to the thing owned. The word 'owner' may, thereforee have varied meaning depending on the context ir which it is used. As used in clause (e) of the Proviso to S. 14(1) of the Act, I do not think it means that the person concerned must necessarily be the absolute owner of the site on which he has constructed a building which has been let out to the tenant he seeks to eject.,

13. The expression 'owner' consists of a bundle of rights, but various rights and interest may be vested in different persons, eg. mortgagor and morgagee, Lesser and lessee, or a tenant for life and remainderman. Absolute ownership is an aggregate of competent rights such as the right of possession, the right of enjoying the usufruct of land (see Inder Sen v. Naubat Singh (1885) 7 All 553.

14. In Jagdish Chand v. State of Pun. Jab,. : [1973]2SCR97 , the Supreme Court speaking through Ray J. (as he then was), observed that upon an auction of a building by the Government the -'Government ceased to be its owner although the entire consideration money had not been paid. In that case the tenancy provision provided that the transferee shall not be entitled to sell, mortgage or otherwise transfer any right, title or interest in the property until the amount had been paid in full. It was, thereforee, held that the Government had ceased to be the owner of the property although the entire -amount had not been paid.

15. In Stroud's Judicial Dictionary, Fourth Edition, 'owner, is defined as the 'owner' or 'proprietor' of a property in whom (with his or her assent) it is for the time being beneficially vested and who has the occupation or control, or usufruct of it, e.g. a lessee is during the term, the owner of the property demised. It is further stated that there can be more than one owner and a person who has a binding -contract for the sale to him of the property is entitled to describe himself as an owner in a contract of resale entered into by him.

16. Under the Rent Act, the word 'owner' occurring in clause (e) of the relevant proviso is not used in the sense of absolute owner. It is only used in contra-distinction with a1andlord as defined who is not an owner, but who holds the property for the benefit of another person. It is obvious that the word 'landlord' as defined includes a person who is receiving or is entitled to receive the rent of any premises whether on his own account or on account of or on behalf of or for the benefit of any other person. For the Purpose of imposing the obligations on the landlord the definition has been widened to include the agent, guardian, trustee or the receiver of the property. Such persons may not be entitled to obtain eviction on the ground specified in clause (e) for their own occupation. In order to obtain eviction, the petitioner must necessarily be the landlord as defined and be also an owner. A landlord as defined, who is holding the property for himself and his own benefit and not for the benefit of another person is certainly the owner landlord.

17. In the instant case, the petitioner herein is not a tenant of the Delhi Development Authority and that Authority does not claim or exercise any rights of ownership or landlord against the petitioner, so long as the. hire purchase agreement lasts. For all Purposes the respondent herein who has inducted the petitioner is the landlord and owner of the property, since he is not holding it for the benefit of any other person. When the landlord is himself the owner of the property and no other person claims to be the owner or landlord of the property against the tenant, it is such a landlord who is entitled to claim eviction and would have to be treated as the owner for purposes of clause (e). The mere fact that the rights of such an owner are circumscribed by any restrictions or conditions or are not absolute rights does not detract from his being an owner and does not clothe the tenant with a defense to a claim for eviction. As observed by Dua J. the word 'owner, in this provision is not synonymous with absolute owner. A lessee of the land is also the owner, although the paramount title may be in a position to dispossess such an owner on breach of the lease, yet he remains the owner and landlord as against the tenant.

18. In the instant case, the respondent has acquired a permanent, heritable and transferable interest in the property although it is subject to certain conditions and restrictions. The respondent has secured a binding contract of absolute sale of the property in his favor from the Delhi Development Authority and between the formal conveyance and his present rights only stand the volition of the respondent and the fulfillment of the conditions of contract by him. As soon as the full price has been paid (which the respondent is surely entitled to pay earlier) and some other specified conditions fulfillled, there is nothing in the hire-purchase -agreement to obstruct or defeat or delay the absolute conveyance of the 'property to the respondent. Such a person, in my opinion has a good title against everybody in the world excepting the Delhi Development Authority. The respondent has been placed in possession of the Property and has been given a right to enjoy the same. It appears to be intended for his own occupation, but -if he has let it out -and inducted a tenant, then there is no doubt that it is the respondent who is entitled to dispossess the Petitioner and occupy the premises himself. Under these circumstances, the respondent fully answers the description of a landlord owner occurring in clause (e) of the relevant proviso Any other construction would defeat the very object and purpose of the Rent Act as well as the hire-purchase agreement.

19. Consequently, 1 have no doubt that the last contention of the counsel for the petitioner has no force and the order of the Additional Controller is legally correct and does not call for interference. There is no merit in the revision and the same is dismissed with no order as to costs. The order for eviction will, however, not be executed till 31st May 1977.

20. Revision dismissed.


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