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Siri Kishan and anr. Vs. Mahabir Sing and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Writ No. 1116 of 1970
Judge
Reported inAIR1972Delhi196
ActsSlums Areas (Improvement and Clearance) Act, 1956 - Sections 19(4)
AppellantSiri Kishan and anr.
RespondentMahabir Sing and ors.
Appellant Advocate R.L. Aggarwal,; S.S. Chadha and; Amarjit Singh, Advs
Respondent Advocate D.D. Chawla, Adv.
Cases ReferredLord Hylton v. Heal.
Excerpt:
.....'subtenant' --whether included within the definition of tenant in section 2(1) --notice by sub-tenant to landlord under section 17 --effect of.; that a sub-tenant would be deemed to be a tenant within the meaning of the act only if the notice contemplated by section 17 of the act of 1958 had been given. unless such an eventuality happens there would be no scope for deeming a sub-tenant to be a tenant. ; that section 17 is meant to obviate the difficulty of having to decide whether a sub-tenancy was lawfully created if a sub-tenant had given notice of his sub-tenancy to his landlord he could, not be evicted by merely getting an order of eviction against the tenant alone if no such notice is given the order of eviction would be binding on him. - section 13: [altamas kabir & cyriac..........a landlord.'19. surely the sub-tenant does not in the absence of any privity between him and the landlord rent or lease the land or a house from a landlord.20. no principle or authority seems to really support shri r.l. aggarwal's contention that the expression tenant must be read, even in the absence of any particular definition to that effect, as including a 'sub-tenant'. he only sought to derive assistance from a few observations of mehar singh j. (as he then was) in ram kirpala v. jain sweitamma temple buildings 1965-67 pun lr. 481. on a close examination of that case, however, it does not seem to be of much assistance to the petitioners. what was really decided in that case was a question of limitation. one ram kirpal was one of the seven sub-tenants, there being two tenants. the.....
Judgment:
ORDER

1. The interesting question that arises for decision in this writ petition is whether a sub-tenant is also included within the meaning of the expression 'tenant' under Section 19(4) of the Slum Areas (Improvement and Clearance) Act 1956 (hereinafter referred to as the Act). Section 19(4) of the Act reads as follows:-

'In granting or refusing to grant the permission under sub-section (3), the Competent Authority shall take into account the following factors, namely:-

(a) whether alternative accommodation within the means of the tenant would be available to him if he was evicted:

(b)whether the eviction is in the interest of improvement and clearance of the slum areas:

(c) Such other factors, if any, as may be prescribed.'

2. The expression 'tenant', or even ' landlord', has not been defined by the said Act. Section 2(f) of the Act defines 'occupier' as including:

'(a) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable:

(b) an owner in occupation of or otherwise using his land or building:

(c) a rent-free tenant of any land or building:

(d) a licensee in occupation of any land or building; and

(e) any person who is liable to pay to the owner damages for the use and occupation of any land or building.'

Of the above five categories, clauses (a) and (c) would cover the case of tenant: the other three categories do not relate to tenants.

3. The expression 'owner' but not 'landlord', has been defined by Section 2(g) as including :

'any person who is receiving or is entitled to receive the rent of any building or land whether on his own account or on behalf of himself and others or as agent or trustee, or who would so receive the rent or be entitled to receive it if the building or land were let to a tenant.'

4. The preamble of the said Act mentions that it is one to provide for the improvement and clearance of slum areas in certain Union territories and for the protection of tenants in such areas from eviction. Chapter Ii, containing Section 3, merely provides for the declaration of slum areas by the Competent Authority, Chapter Iii comprising Sections 4 to 8 deals with slum improvement Chapter Iv containing Sections 9 to 11 deals with slum clearance and redevelopment Chapter V comprising Section 12 to 18 deals with the acquisition of land by the Central Government in order to enable the authority to execute works of improvement; there are separate provisions for determination and payment or apportionment of compensation, etc. Section 19 is in Chapter Vi, which provides for the protection of tenants in slum areas from eviction.

Section 20A and 20B introduced into the Statute by way of amendment. They specifically refer to 'tenants', while the former provides for restoration of possession of premises vacated by a tenant, the latter prescribes the liability of a tenant so placed in possession, after the execution of any work of improvement or after it has been re-erected. This will be according to the general law relating to the control of rents if such a law is enforced in the area where the building is situate and if there is no such law on a rate to be agreed upon between owner and the tenant. Section 21, which is also in Chapter Vi provides that the said Chapter shall not apply to or in relation to the eviction under any law or a tenant from any building in a slum area belonging to the Government the Delhi Development Authority or any local authority. The miscellaneous provisions, comprising Section 22 to 40 in Chapter Vii, are not relevant for the present purpose and need not be noticed.

5. Before discussing the respective contentions of both sides it would be helpful to notice that so far as the present premises (No. 3530. Netail Subhash Marg, consisting of two floors) are concerned the second petitioner (Dr. Hans Raj Dawar) had taken both the said floors on rent in 1939 from which time, it is stated, the first petitioner (his brother-in-law Siri Kishan) was also residing with him. The second petitioner is stated to have not been living in the premises since 1942-43.

6. In 1961, the owner (Shri Shyam Kishore, third respondent ) applied to eject the petitioners on the ground that the second petitioner had unlawfully sub-let assigned or otherwise parted with possession of the premises in dispute to the first petitioner and that the owner also required the same for his own occupation and for the members of his family dependent on him. By an order dated 22nd August 1962 the first Additional Rent Controller found that the third respondent had failed to establish that the petitioner No. 2 had unlawfully sub-let the premises in dispute to the first petitioner. According to Section 14(1)(b) of the Delhi Rent Control Act 1958 only subletting, assigning or parting with possession after 9th June 1952 was unlawful. The Additional Rent Controller found that the owner had not established that he required the premises bona fide for occupation by him and or the members of his family dependent on him. The appeal preferred by respondent No.3 to the Rent Control Tribunal was dismissed on 1st December 1962. The owner not contesting the decision of the Additional Rent Controller on the ground of subletting. Even in the second appeal (SAO No. 216 of 1962 (Delhi) ) the above said finding concerning subletting was not questioned. The ground of bona fide necessity was also rejected by this Court on 25th October. 1966.

7. The third respondent (landlord ) applied under Section 19 of the Act for permission to file eviction proceedings on the grounds noticed above. The said application was dismissed by the Competent Authority on the ground that Dr. Hansraj was not a tenant and that the landlord had failed to make out a prima facie case for eviction against the occupant. Siri Kishan, whom the said authority described as 'a lawful tenant.'

8. As against the said decision the third respondent filed an appeal to the Financial Commissioner who set aside the order of the Competent Authority and granted permission to evict holding inter aila, that the status of the tenant (second petitioner Dr. Hans Raj alone) was alone relevant. The said decision has now been impugned in this writ petition on the ground that what was relevant for being considered under Section 19(4) of the Act in this case was the status of the first petitioner (Siri Kishan) who was a subtenant in occupation of the premises, but not of Dr. Hans Raj who, though a tenant, was not in actual possession or the premises. It is in this context that it has become material to consider the above question whether the expression 'tenant' in Section 19(4) of the Act refers to or includes the 'sub-tenant' in occupation also.

9. It has been urged by Shri R.L. Aggarwal, learned counsel for the petitioner, that the Act should be read in part materia with the Delhi Rent Control Act 1958. In order to appreciate this contention it is necessary to notice the definition of 'tenant' in Section 2(1) of the Delhi Rent Control Act 1958 (hereinafter referred to as the Act of 1958).

''Tenant' means any person by whom or on whose account or behalf the rent of any premises is or but for a special contract would be, payable and includes a sub-tenant and also any person continuing in possession after the terminations of his tenancy but shall not include or decree for eviction has been made.'

10. The principle of part material is explained in 'Maxwell on Interpretation of Statutes' Twelfth Edition at page 66 in the following manner:

'Statutes are said to be in part materia when they deal with the same person or thing or class: it is not enough that they deal with a similar subject matter.'

R.V. Titterton (1895) 2 Q.B. 61 in addition to some other cases, has been cited in support of this proposition reference was made also to Craies on Statute Law. 6th Edition at pages 133-34. The passage referred to includes the following :

'Where Acts of Parliament are in pari materia that is to say, are so far related as to form a system or code of legislature, the rule as laid down by the twelve judges in Palmer's case. (1785-1 Leach 352) is that such Acts are to be taken together as forming one system and as interpreting and enforcing each other.

11. In the American case of United Society v. Eagle Bank (1829-7 Conn. 457) Hosmer J. said: 'Statutes are in pari materia which relate to the same person or thing or to the same class of person or things. The word par must not be confounded with the word similis. It is used in opposition to it. as in the expression magis pares sunt quam similes intimating not likeness merely but identity. It is a phrase applicable to the public statutes or general laws made at different times and in reference to the same subject.'

12. At page 135 there is a reference by Craies to the observations of Evershed Lj in Powell v. Cleland (1948) 1 K.B. 262: that the Rent Restriction Act could not be regarded as pari materia with the real property legislation.

13. A Full Bench consisting of five Judges of this High Court considered, in Bardu Ram v. Ram Chander, 0043/1972 : AIR1972Delhi34 the question whether a tenant against whom a decree for eviction had been obtained was a tenant within the meaning of Section 19 of the Slum Areas (Improvement and Clearance) Act 1956. The definition of 'tenant' under the Delhi Rent Control Act specifically states that the said expression would not including any person against whom an order or decree for eviction was made. The question of the two Acts being pari materia does not appear to have been specifically raised before the Full Bench which came to the conclusion, that having regard to the object of the Slum Areas (Improvement and Clearance) Act and despite the above said definition in Section 2(1) of the Act of 1958 even a tenant against whom a decree for eviction was obtained was entitled to the protection conferred by Section 19(4) of the Act. This was on the principle that the Court should lean in favor of a construction which sub-served and effectuated the dominant purpose of the legislature.

14. Shri D.D. Chawla learned counsel for the third respondent on the other hand however, urged that no not ice having been admittedly given concerning the creation of the sub-tenancy as required by Section 17 of the Act of 1958 and the sub-tenant himself not having paid any rent to the owner he was not entitled automatically to the protection conferred by Section 18 of the Act of 1958, a notice under Section 17 of the Act of 1958 being a condition precedent for claiming the status of a tenant. This contention is supported by a decision rendered by I.D. Dua C.J. (as he then was ) in Roshan Lal v. Smt. Bhagwati Devi 1969 Delhi Lt 261. It is needless to set out the relevant provisions of the Act of 1958 in this regard. There being no privity of an estate in the case of a sub-tenant and the owner (this was so held by the Judicial Committee of the Privy Council as early as in 1930 in Hansraj v. Bejoy Lal Seal and there also being no privity of contract between the owner (the third respondent) and the first petitioner in this case. Shri Chawla contends that the first petitioner could be deemed to be a tenant under Section 18 of the Act of 1958 only if the requisite notice contemplated by Section 17 had been given but not otherwise. For this reason alone the first petitioner could not claim to be a tenant holding directly under the landlord in respect of the premises in occupation, a status which he could achieve under Section 18 of the Act of 1958 only if requisite notice under Section 17 and been given.

15. In view of the above the first petitioner can claim the benefit of Section 19(4) of the Act only if the expression 'tenant' employed therein could be held to include a 'sub-tenant' also.

16. The scheme of the Act, as explained above even judging from its preamble is to protect 'tenants in areas declared to be slum from eviction.' The benefit of protection under Section 19(4) has been conferred only upon a 'tenant' and not upon any 'occupier' regardless of whether he is a tenant or not: if the latter was the case nothing would have been easier for the legislature than to employ the expression 'occupier' in Section 19(4) of the Act not only in Section 19 but in the provisions which were later added as Sections 20-A and 20-B vis-a-vis restoration of possession in the case of premises vacated by a tenant on the ground that it was required for executing any work of improvement or for re-erecting the building: only the expression 'tenant' has been employed.

17. Some of the provisions in Chapter Iii, particularly Section 6. concern themselves with occupiers. The expenses of maintenance works of improvement incurred by the Competent Authority of by any local authority which provides amenities, etc, shall be recoverable from the occupier or occupiers of the building as arrears of land revenue. This is sufficient to illustrate the distinction, which the Act makes, in the different contexts, between an 'occupier' and a 'tenant'. Nowhere does the Act expressly or by necessary intendment refer to a sub-tenant as being entitled to the protection under Section 19(4). Even in Section 21 which excludes from Chapter Vi a tenant of a building in a slum area belonging to the Government or any local authority there is no reference to a sub-tenant. Obviously it was not the intention of the legislature as expressed in Section 21 of the Act, that a sub-tenant should get the benefit of the protection under Section 19 from eviction regardless of whether it was a building belonging to the Government or a local authority, etc. But that only a tenant from any of them should be outside the purview of Chapter Vi Shri R.L. Aggarwal suggested that if the expression 'tenant' wherever it occurred either in Section 19(4) or in Section 21. Is interpreted as including a sub-tenant there will be no anomaly. But the important aspect for consideration is whether there is any warrant for reading the expression 'tenant' in Section 19(4) as including a sub-tenant. In the absence of any such definition in the said Act it seems to be that it would not be permissible to add words to a statute which are not there: to do so would be to legislate.

18. In order to get over the above difficulty Shri R.L. Aaggarwal, referred to the definition of the word 'tenant' in Webster's New International Dictionary Unabridged Page 2354. On a reading of all the meanings given therein there appears to be little support for the above contention. Among the meanings given is the following:-

'One who rents or leases (as land or a house) from a landlord.'

19. Surely the sub-tenant does not in the absence of any privity between him and the landlord rent or lease the land or a house from a landlord.

20. No principle or authority seems to really support Shri R.L. Aggarwal's contention that the expression tenant must be read, even in the absence of any particular definition to that effect, as including a 'sub-tenant'. He only sought to derive assistance from a few observations of Mehar Singh J. (as he then was) in Ram Kirpala v. Jain Sweitamma Temple Buildings 1965-67 Pun LR. 481. On a close examination of that case, however, it does not seem to be of much assistance to the petitioners. What was really decided in that case was a question of limitation. One Ram Kirpal was one of the seven sub-tenants, there being two tenants. The landlord had filed successive applications for eviction in which the name of Ram Kirpal had been left out. There was an amendment two years later, on 29th December 1958 and an execution application was made on 7th August 1962, which was more than three years from the date of the amendment but within three years from the date of the dismissal of Ram Kirpal's appeal. Ram Kirpal had filed an appeal against the order correcting and amending the original decree: he failed in that appeal on 25th August 1959.

According to Article 182 clauses (2) of the Limitation Act the final order was the date of the appellate order. In this view it was held that the execution application was within time and the above said view of the courts below was approved. This was by itself sufficient to dispose of the above case. The same result was said to flow even if a different approach was adopted. This was on the ground that according to sub-section (1) of Section 19 of the Act there was an absolute prohibition against a person who had obtained a decree for eviction except after getting permission from the Competent Authority and that the Competent Authority in that case had granted permission only on the 31st May 1962. It was in this context that the contention was put forward that Ram Kirpal (the appellant in that case before the High Court) was not a tenant under the two respondents in that case and thus Section 19 of the Act was not attracted. Dealing with this contention Mehar Singh J. observed as follows :-

'The eviction of Mohan Lal and Piare Lal tenants and with them of the appellant was sought under Section 13 of Act 38 of 1952 and Section 2 ( j ) of this Act while defining the word 'tenant' includes in it a sub-tenant. So that for the purpose of that suit the appellant was a tenant and it is in pursuance of that decree in that suit that permission has been sought by the two respondents to execute it under Section 19(1) of the Act 96 of 1956, so that for all these purposes the appellant is a tenant and the provision last mentioned directly applies to this case. It was imperative for the two respondents to seek permission under Section 19(1) of Act 96 of 1956 before they could execute the decree. I have already said that the permission to them was granted to execute it from May 31. 1962 and the execute application having been filed on August 7. 1962 is within time from any consideration.'

21. Even here it is seen that reference was made to the definition of 'tenant' under Section 2(j) of the then Act 38 of 1952.

22. Shri D.D.Chawla points out that the then definition of a tenant under Section 2 (j) of the Act of 1952 and the present definition under Section 2(1) of the Act of 1958 are different. It is needless to go further into the details of the difference in the definition of 'tenant' in the two enactments of 1952 and of 1958 because the question in the present form, as to whether the expression 'tenant' in Section 19(4) also includes a 'sub-tenant'. Did not really fall for consideration in that case: there was also no discussion on this aspect.

23. Some of the Acts concerning landlord and tenant in the United Kingdom have defined a tenant as including a sub-tenant. According to Section 15(3) of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 (vide the Rent Acts by R.E.Megarry. tenth Edition page 582) the effect of which was modified later by the Landlord and Tenant Act 1954, the sub-tenants to whom the premises or any parts thereof, were lawfully sub-let, were deemed to be the tenants of the landlord on the same terms as they would have held from the tenants if the tenancy had continued. Dealing with that Act Lord Rowlatt J. held in Lord Hylton v. Heal. 1921-2 Kb 438 that a sub-tenant was not a tenant within the meaning of Section 5 sub-section 1 (c) of the Act despite the definition of the tenant under Section 12 sub-section 1 (f) and (g) (1), including a sub-tenant in the expression 'Tenant' since the context in which the expression tenant occurred in Section 5 of Sub-section (1) (c) (1) meant the immediate tenant of the landlord but not of the sub-tenant Rowlatt J. no doubt recognised that throughout the Act the term tenant was, generally speaking, to be taken to include the original tenant and the subtenant:

The plaintiff (Lord Hylton) in that case had let out his house to Mrs, Besley, the tenancy being from year to year: on July 19, 1919, she had given a notice to quit on 19th March 1920; before the expiration of the notice she had sublet the house to the defendant (Heal) and the plaintiff (Lord Hylton) had re-let it to a new tenant from 25-3-1920. The defendant declined to go out and the plaintiff was faced with a claim by his new tenant for not giving possession. It was contended for the plaintiff that he was entitled to an order of possession under S.5 sub-s. (1) (c) (1) of the Act in question on the ground that the case was one which came within the words of the clause giving the landlord the right to apply for an order of possession by reason of what the landlord undertook to do on the basis of the tenant giving notice to quit. The question was decided on the footing that if it was a case of notice to quit having been given by the tenant within the meaning of the said clause the landlord would be entitled to apply for an order for possession. Setting aside the judgment of the Country Court Judge Rowlatt J. with whom Bailhache J. concurred observed that the word 'tenant' in S.5 (1) (c) of that Act should be under-stood in the more restricted sense of only referring to the immediate tenant. The judgment was, thereforee, given for the plaintiff.

24. It is thus seen that, even in cases where the expression 'tenant' is generally regarded or defined as including a sub-tenant. It has to be construed with reference to the context; in other words. If the context does not permit such a construction there will be no justification for including in the said expression 'tenant' a sub-tenant also by merely having recourse to how the said expression is generally under-stood.

25. Reverting to the definition of 'tenant' in Section 2(1) of the Act of 1958, a sub-tenant would be deemed to be a tenant within the meaning of that Act only if the notice contemplated by Section 17 of the Act of 1958 had been given. Unless such an eventuality happens there would be no scope for deeming a sub-tenant to be a tenant. Section 17 was meant to obviate the difficulty of having a decide whether a sub-tenancy was lawfully created. If a sub-tenant had given notice of his sub-tenancy to his landlord he could not be evicted by merely getting on order of eviction against the tenant alone; of eviction against the tenant alone; if no such notice is given the order of eviction would be binding on him. In other words, the landlord need not commence proceedings against the sub-tenant in order to recover possession unless such notice under Section 17 had been given; proceedings against the tenant alone would bind the sub-tenant if no such notice is given. If the construction sought to be adopted for the petitioners, that the expression 'tenant' in Section 19(4) of the Act includes a sub-tenant, were to be adopted it may not even square fully with the position as it obtains under the Act of 1958. For this reason also Shri D.D.Chawla contends that the construction sought to be placed on Section 19(4) of the Act on behalf of the petitioners cannot be adopted. I agree.

26. It is also possible to see from Section 20-B of the Act that in cases where a tenant is placed in possession after the execution of any work of improvement or after re-erection the rent for the building has to be determined in accordance with the provisions of that section; Section 20-B contemplates two possibilities:

(i) of the rent beings fixed according to the general law relating to control of rents or

(ii) if that is not the case, according to such rent as may be agreed upon between the owner and tenant.

This is some indication that the Act contemplated the possibility of its application to even areas where there was no law relating to control of rents.

27. The order of the Financial Commissioner. Delhi Administration, granting permission on the basis of the status of the tenant (second petitioner herein) and not of the sub-tenant (first petitioner herein) has not been shown to be legally erroneous. I am free to state that the matter is not entirely free from difficulty because of the omission even to define a tenant for the purpose of the Act.

28. The writ petition accordingly fails and is dismissed but in the circumstances without costs.

29. Petition dismissed.


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