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Rattan Lal Vs. Vardesh Chander and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 43 of 1973
Judge
Reported inILR1975Delhi628
ActsDelhi Rent Control Act, 1958; Transfer of Property Act, 1882 - Sections 106
AppellantRattan Lal
RespondentVardesh Chander and ors.
Advocates: S.L. Bhatia,; K.L. Kohli,; I.S. Mathur,;
Cases ReferredNizamuddin v. Mamtozuddin.
Excerpt:
(i) tenancy - applicability of law - section 14 (1) of delhi rent control act, 1958 and section 111 of transfer of property act, 1882 - whether act of 1882 applicable in absence of act of 1958 - where provision of transfer of property act do not apply to any area or any transaction only principle embodied in it consistent with principle of equity, justice and good conscience would apply. (ii) breach of lease - section 111 of transfer of property act, 1882 - three condition must be satisfied before lease could be determined by forfeiture in case of breach of express condition - firstly there must be breach of express condition - secondly condition must entitle lesser to re-enter on such breach - thirdly lesser gives notice in writing to lessee of his intention to determine lease. - - .....h.l. anand, j.(1) this second appeal under section 39 of the delhi rent control act, 1958, hereinafter to be referred as 'the act' which came up before us on a reference by the learned single judge of this court, raises certain questions with regard to the extent to which the provisions of the transfer of property act would govern the relationship of landlord and tenant in the union territory of delhi before the latter act was extended to the said territory and the further question whether even after its extension, its operation is excluded by the provisions of the act in relation to tenancies, whether contractual or statutory, which are covered by the act.(2) the facts and circumstances leading to the appeal may be briefly stated. the premises in dispute were let out with effect from may.....
Judgment:

H.L. Anand, J.

(1) This Second Appeal under Section 39 of the Delhi Rent Control Act, 1958, hereinafter to be referred as 'the Act' which came up before us on a reference by the learned Single Judge of this Court, raises certain questions with regard to the extent to which the provisions of the Transfer of Property Act would govern the relationship of landlord and tenant in the Union Territory of Delhi before the latter Act was extended to the said territory and the further question whether even after its extension, its operation is excluded by the provisions of the Act in relation to tenancies, whether contractual or statutory, which are covered by the Act.

(2) The facts and circumstances leading to the appeal may be briefly stated. The premises in dispute were let out with effect from May 1, 1954 by a rent note, Ex. AW3/1, of May 19, 1954 by the first respondent the owner thereof, to the appellant. According to the rent note 'the tenancy was for a period of 'less than one year,' there was a covenant against sub-letting and in case the tenant committed breach of any of its terms, 'the landlord would be entitled to file an action for ejectment without an objection from the tenant.' The other respondents are the alleged sub-tenants, who have not contested the proceedings. The first respondent sought the eviction of the appellant from the aforesaid premises on grounds of unlawful sub-letting and acquisition by the appellant of other residential premises, being grounds covered by clauses (b) and (h) respectively of the proviso to sub-section (1) of Section 14 of the Act. Both the grounds of eviction prevailed with the Additional Rent Controller as well as the Rent Control Tribunal and this aspect of the matter, thereforee, is beyond controversy. In the application for eviction, the first respondent had stated against column 18 (b) of the application relating to notice that no notice was necessary. The appellant, thereforee, raised the question before the Additional Rent Controller that the application for eviction was not maintainable in the absence of a notice to quit before its institution. The objection was reiterated before Tribunal as indeed before the learned Single Judge and before us at the hearing of the Second Appeal. The objection was turned down both by the Additional Rent Controller and the Rent Control Tribunal though for different reasons. The Additional Rent Controller came to the conclusion that no notice was necessary because the tenancy was for a fixed period, had expired by efflux of time by virtue of clause (a) of Section 111 of Transfer of Property Act thereby obviating the necessity of a notice. The Tribunal, however, reversed this finding and held that the tenancy could not be said to have been for a fixed term and could not, thereforee, have been determined by efflux of time but came to an end on account of forfeiture of the lease by the appellant's act of unlawful sub-letting in terms of clause (g) of Section 111 of the Transfer of Property Act but that notice in writing to the lessee of the landlord's intention to determine the lease as required by the said clause, was not necessary as the Transfer of Property Act did not then apply to the Union Territory of Delhi and the said requirement not being based on any principle of equity, justice and good conscience, need not be complied with to avail of the forfeiture implying thereby that institution of action for ejectment on account of the breach was sufficient indication of the landlord's intention. Reliance was placed on the decision of the Supreme Court in Namdeo Lokman Lodhi(l).

(3) Before the learned Single Judge, it was contended on the authority of decision if the Supreme Court in the case of Raja Mohammad (2) and certain decisions of this Court and a decision of the Punjab High Court that even though the Transfer of Property Act did not then apply to Delhi, the principles embodied in Section 111(g) did being in consonance with the rules of equity, justice and good conscience and that it was still necessary for a reasonable notice in writing of the landlord's intention to re-enter being given to enable the landlord to avail of the forfeiture before an action for ejectment could be filed. It was also contended that on the terms of the lease, it could not be said that lease was not for a fixed term or that there was no provision for re-entry while the learned Judge did not express any opinion on the first question, his Lordship felt inclined to hold that where the tenancy was for a period of 'less than one year', it could be said to be indefinite or to be more than one year but having regard to certain decisions of this Court in which a contrary view has been taken, felt. impelled to recommend a reference of the matter to a larger Bench.

(4) Shri S. L. Bhatia, learned counsel for the appellant assailed before us the conclusion of the Tribunal, as indeed of the Addl. Rent Controller, on the question of the maintainability of the application and urged that the conclusion of the Additional Rent Controller that the application was maintainable in the absence of a notice to quit because the tenancy was for a fixed term and was determined by efflux of time, thereby obviating the necessity of a notice in view of the provisions of Section 111(a) of the Transfer of Property Act, was based on a misconstruction of the term of the lease particulary the recital in it that the tenancy was for 'less than one year'. Learned counsel assailed the conclusion of the Tribunal that the application was maintainable in spite of absence of a notice to quit because the tenancy was determined by forfeiture in that the tenant committed a breach of the express condition with regard to sub-letting and because there was an express term for re-entry. He further contended that even in respect of tenancies created prior to the extension of the Transfer of Property Act to the Union Territory of Delhi, the further condition laid down by clause (g) of Section 111 that the Lesser must give notice in writing to the lessee of his intention to determine the lease must be satisfied because the said requirement was consistent with the rule of equity, justice and good conscience as held by the Supreme Court in the case of Raja Mohammad (supra) (2). It was contended that-in view of the decision in the above case, the earlier decision of the Supreme Court in the case of Namdeo Lokman Lodhi (supra) (1) ceased to be good law. Learned counsel also contended that on a true construction of the lease deed, it must be held that there was no express term of re-entry and even the second condition for the application of clause (g) of Section 111 of the Transfer of Property Act had not been satisfied.

(5) Shri Ishwar Sahai, learned counsel for the first respondent on the other hand, argued that the lease in the present case for a term of 'not less than one year' must be construed as a lease by which I time had been limited within the meaning of clause (a) of Section 111 of the Transfer of Property Act and that by efflux of time, the lease stood determined obviating the necessity of , notice to quit; that in any event, the lease clearly provided for an express condition that the tenant would not sublet and admittedly there had been a breach of the condititon, the lease stood determined by forfeiture in terms of clause (g) of Section 111 of the Transfer of Property Act by virtue of the provisions in the lease entitling the landlord to re-enter. Learned counsel further contended that the technical rule in Section 111(g) of notice in writing to the lessee of the landlord's intention to determine the lease was not in consonance with the principles of equity, justice, and good conscience and the filling of the application by the landlord was sufficient notice of such an intention. Learned counsel relied on the decision of the Supreme Court in the case of Namdeo Lokman Lodhi (supra) (1) and argued that in that case, the Supreme Court was directly concerned with the question of notice regarding the intention of the Lesser to determine the lease on forfeiture and sought to distinguish the later decision of the Supreme Court in the case of Raja Mohammad (supra) (2) on the ground that the later case wia.s concerned with disclaimer, and the question whether notice need be given in writing or not was not considered. Learned counsel strenuously argued that in any event, both the decisions expressed the unanimous view that before the extension of the Transfer of Property Act to an area it was only such provision of the Act that would apply which were consistent with rules of equity, justice and good conscience and that the Supreme Court had ruled in the case of Namdeo Lokman Lodhi (supra) (1) in no uncertain terms that there being no requirement in English law of a written notice to the lessee of the intention of the Lesser to determine the lease on forfeiture, the provision of a notice would not be considered as being consistent with the rules of equity, justice and good conscience and that, as in England, the filing of the action by the Lesser based on the breach was sufficient notice of indication of such an intention by the Lesser. Lastly, it was contended that the Act was a complete Code with regard to the entire gamut of relations between the landlord .and the tenant including the grounds on which the tenant may be ejected and the procedure in that behalf and that the Act would exclude the operation of the Transfer of Property Act where such Act is otherwise applicable or the principles embodying it, where it is not applicable, in respect of 'tenancies covered by the Act. Reliance was placed in support of this contention on a recent judgment of the Supreme Court in the case of Raval (3) and a faint suggestion was made that in view of the law laid down by the Supreme Court in that case, the earlier judgments of the Supreme Court laying down that the provisions or the principles of the Transfer of Property Act would be applicable to tenancies covered by the Act and, as indeed the numerous judgments of this Court following the aforesaid decision of the Supreme Court, have lost their binding force and vitality.

(6) For a proper appreciation of the contentions urged before us it would be necessary to examine certain provisions of the Transfer of Property Act as well as the scheme and certain provisions of the Act and the object underlying the latter as indeed similar enactments in force in the various States of India.

(7) The Transfer of Property Act was extended to the Union Territory of Delhi on December 1, 1962. Chapter V of this Act deals with leases of immovable property. Section 106 provides for the duration of certain leases in the absence of written contract or local usage, and, inter alia, provides that a lease of immovable property for any purpose other than for agricultural or manufacturing purposes ' shall be deemed to be a lease from month to month, terminable, on the part of either Lesser or lessee, by fifteen days' notice expiring with the end of a month of the tenancy'. It further provides that every notice of termination of tenancy must be 'in writing, signed by or on behalf of the person giving it, and (either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party). or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.' Section 107 provides for mode of making leases. Section 108 sets out the rights and liabilities of Lesser and lessee. Clause (q) of this Section sets out one of the liabilities of a lessee in the following terms : '108. (q) On the determination of the lease, the lessee is bound to put the Lesser into possession of the property.' Section 109 deals with the rights of Lesser while Section 110 deals with the computation of the period of the leases in different cases, Section 111 deals with determination of lease and clause (a) and (g) of that Section which are material for our present purpose are in the following terms: 111 A lease of immovable property determines- (a) by afflux of the time limited thereby : (g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that on breach thereof, the Lesser may re-enter, or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in : himself ; (or (3) the lessee is adjudicated an insolvent and the lease provides that the Lesser may re-enter on the happening of such event); and in (any of these cases) the Lesser or his transferee (gives notice in writing to the lease of) his his intention to determine the lease.' It may, however, be pointed out that before its amendment by the Transfer of Property (Amendment) Act, 1929 (20 of 1929), there was no provision in clause (g) of a notice in writing by the Lesser to the lessee of his intention to determine the lease and the relevant provision of clause (g) of Section 111 then stood as follows : 'does some act showing his intention to determine the lease.' By the amendment of 1929, the words 'gives notice in writing to the lessee of' were substituted for 'does some act showing'. Section 112 deals with waiver of forfeiture while Section 113 deals with waiver of notice to quit. Section 114 provides for relief against forfeiture for non-payment of rent while Section 114-A deals with relief against forfeiture in certain other cases. Section 115 deals with the effect of surrender and forfeiture on underleases. Section 116 deals with effect of holding over while Section 117 provides for exemption of leases for agricultural purpose.

(8) The Act, according to its preamble, was intended to provide for the control of rents and evictions and of rates of hotels and lodging houses and for the lease of vacant premises to Government, in certain cases in the Union Territory of Delhi. The expressions 'landlord' 'premises' and 'tenant' are defined by Section 2(e)(i) and (1) respectively. Chapter Ii contains provisions regarding rent including fixation of standard rent, increase in rent. Chapter Iii deals with evictions. Sub-section (1) of Section 14 contains the lion obstinate clause and is in the following terms ::

'Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant.'

This is followed by proviso to the sub-section which permits the Controller to make an order for recovery of possession of a premises on an application being made in that behalf in the prescribed manner on one or more of the grounds that are then set out in clauses (g) to (1). Clause (c) deals with sub-letting and is in the following terms : '14. (e) That the tenant has used the premises for a purpose other than that for which they were let :-- - (i) if the premises have been let on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord: or (ii) if the premises have been let before the said date without obtaining his consent.' Chapter Iv deals with deposit of rent while Chapter V deals with hotels and lodging houses. Chapter Vi deals with appointment of Controllers and their powers and functions as well as for appeals while Chapter Vii lays down special obligations of landlords and certain penalties. Chapter Viii contains miscellaneous provisions.

(9) As is well-known the Act is a part of the rent control legislation enacted in Delhi, as indeed in the rest of the country, to deal with an extraordinary situation that arose soon after the outbreak of the Second World War because of increasing pressure on urban immovable property- The situation was further aggravated in the years that followed on account of increasing population explosion and the influx of large number of displaced persons from the territories, now forming part of Pakistan, in the wake of the partition of India and the consequent pressure on land in urban areas. The rent control legislation throughout the country was intended to strike a reasonable balance between the requirements of the tenants for adequate protection against the aggressive designs of greedy landlords to evict the tenants or to increase the rates of rent to an exorbitant limit and the need to assure to the landlords, whose normal legal rights were sought to be restricted, the minimum right to receive the agreed rent, lawful increase of it and to evict the tenants who may be guilty of misconduct within certain circumscribed limits. These measures were continued after the promulgation of the Constitution of India with an even greater bias in favor of the tenants, who, by and large, represented the weaker segment of society as compared to the urban propertied class, as part of large scale social legislation having its genesis in the need to bring about social and economic justice through legislative action, inter alia, by the redistribution of wealth on an equitable basis, elimination of exploitation in all forms and establishment of a truly egalitarian social order.

(10) The questions that arise for consideration way now be considered in the aforesaid background.

(11) Whether the Act is a complete Code in itself dealing with the entire gamut of landlord-tenant relationship and would exclude the application of the provisions of the Transfer of Property Act, if otherwise applicable, or the principles incorporated in it, if not, in respect of tenancies covered by the Act, is the important question that must first be answered. This is so because if the question is answered in the affirmative nothing further survives for examination.

(12) After hearing learned counsel for the parties and after giving my earnest consideration to the broad scheme of the Act, the relevant provisions of the Transfer of Property Act and the object that was sought to be achieved by the Act and the various decisions touching the question, to which I would presently refer, it appears to me that the question must be answered in the negative.

(13) The Act, according to its preamble, which is a key to its true scope, was intended to provide for the control of 'rents and evictions' It was intended to deal with an extraordinary situation and gives statutory protection to the tenants against increase in rents and unreasonable evictions. The Act did not purport to consolidate the law relating to leases or to deal with the entire gamut of relationship between the landlords and tenants. As would be clear from its provisions it does not deal with leases, either the form or the manner in which the leases should be made or how they are to be determined and deals with only a limited aspect of the landlord-tenant relationship. It does not expressly or by necessary implication of the operation either of the preexisting laws or principles but provides additional statutory protection to the tenants while ensuring for the landlords certain limited rights even while restricting their rights under the ordinary law. It, thereforee, clearly supplements and does not supplant the existing law or the principles embodied in such laws. The non-obtains clause in subsection (1) of Section 14 which was strenuously relied upon on behalf of respondents as constituting the ouster of the operation of the Transfer of Property Act, was merely intended to ensure that the protection being given to the tenants against eviction by Section 14 would ensure 'notwithstanding anything to the contrary contained in any other law or contract' so that in spite of a law other than the provisions contained in the Act itself for example S. 21 which may entitle a landlord to evict a tenant or a contract which may similarly entitle the landlord to evict a tenant every order or decree for the recovery of possession must conform to the requirements of the Act, both in the matter of the form which could make it as also the reasons on which it may be founded. It is not possible to read in the said clause an ouster of the provision of the Transfer of Property Act. It is difficult to read in the clause an express or implied provision dispensing with the law relating to lease or superseding such laws or principles. The Act does not contain any provision as to how the leases would be made, the form in which they should be made, how the leases would be determined and these matters would have to be regulated either by the provisions of the Transfer of Property Act, where applicable, or by the principles embodied in it to the extent they are consistent with the rules of equity, justice and good conscience, if the said Act is not applicable to certain areas or the transactions. The statutory protection given by the Act comes into play only where the contractual protection comes to an end. Where, thereforee, a tenant is entitled to remain in occupation of a tenanted premises by virtue of the contract of lease, no further protection is necessary. The statutory protection provided by legislature comes in only where the contractual protection is withdrawn by the determination of the contract or of the lease by either of the modes known to law. The right of the landlord, thereforee, to evict a tenant on any of the grounds set out in proviso to sub-section (1) of Section 14 could not possibly come into play so long as the contract of tenancy subsists. It is implicit in the statutory protection against eviction that the tenant is liable to be evicted by virtue of the contract of lease under the ordinary law. The determination of the lease, thereforee, is a condition precedent to any action for the eviction of a tenant under Section 141(1) of the Act. Whether such a determination is to be regulated by the strict provisions of the Transfer of Property Act or of the principles embodied in it and whether all or any of those principles are or are not consistent with or in consonance with the principles of equity, justice and good conscience is a different matter which would be considered a little later. The Act leaves the operation of such provisions or principles, as the case may be, intact. The non-obstante clause is limited in it? operation to Section 14 of the Act, which deals with the grounds of eviction and would prevail over any contract or law which seeks to widen the scope of such grounds.

(14) Although there is an apparent confusion as to the true legal position of the impact of the rent control legislation in force in different territories of India on the pre-existing law relating to leases, I find on a closer examination and analysis of the decisions from Krishnamurthy (4) in 1949 to Raval (supra) (3) in 1974 that the conclusion arrived at by me above and the reasons for it are fully fortified by the course of judicial pronouncements audit would, thereforee, be useful to refer to these cases.

(15) In Krishnamurthy (supra) (4), a Division Bench of the Madras High Court held on the peculiar language of Section 7 of the Madras Buildings (Lease and Rent Control) Act, 1946 and its peculiar scheme that it excluded the operation of Section 111(h) of the Transfer of Property Act and that a notice to quit was not a necessary condition for an application for eviction, and with respect, rightly because Section 7, apart from the scheme of the Act, provided that 'a tenant in possession of a building shall not be evicted there from....... before the termination of the tenancy, except in accordance with the provisions of this section' and accordingly envisaged an application for eviction even before the termination of the tenancy thereby rendering the termination unnecessary for eviction. In Rai Brij Raj Krishna, (5) the Supreme Court held, negativing the contention that the scope of the protection given by Section Ii of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 must be extended with reference to the provisions of the Transfer of Property Act, that 'Section Ii is a self-contained section and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or not, and under what conditions he can be evicted. It clearly provides that a tenant is not liable to be evicted except on certain conditions, and one of the conditions laid down for the eviction of a month to month tenant is non-payment of rent'. The larger question if the Act was a complete Code for all matters aad would, thereforee, oust the operation of the Transfer of Property Act or the principles on which they were based was neither convassed nor considered. However, in Bawa Singh,(6) the Punjab High Court while dealing with the East Punjab Rent Restrictions Act, 1949, introduced a fresh line of thinking that the said Act was a complete Code by itself and superseded the provisions of the Transfer of Property Act, so as to obviate the necessity of a notice terminating the tenancy before seeking ejectment. This view was reiterated by the said Court in Hem Chand(7) while dealing with the Delhi and Ajmer Rent Control Act, 1952. Interestingly enough, in the later decision, support was sought from the decision of the Supreme Court in Rai Brij Raj Krishna (supra) (5), and with respect, without any justification because in that case, the Supreme Court was not concerned with the question if the notice to determine the tenancy or the termination of the tenancy was necessary before an application for eviction could be made and all that was pointed out in that case, with reference to the controversy before their Lordships, was that it was not open to go outside the Act to determine whether a tenant was liable to be evicted or not and as to the conditions under which it could be done. Considerable confusion was created because of the two Punjab High Court decisions because following these decisions it was understood in Delhi at one time that no notice terminating the tenancy was necessary with the result that hundreds of applications for ejectment under the Act were filed without terminating the tenancy. In Bhagwanddin (8) the question before the Supreme Court was if the notice terminating the tenancy was valid or not and the contention, that no notice was necessary in view of the provisions of Section 13(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 was negatived and it was held that it was incumbent upon the landlord to determine the contractual tenancy by a proper notice before he could file an action for ejectment under that Act that the Act did not create a new right in the landlord to evict the tenant; that the right to evict was dependent upon a proper termination of the tenancy; that the Act gave extra protection to the tenant which he can avail of after his tenancy was determined and that there was nothing in Section 12 of that Act which overrode the provisions of the Transfer of Property Act- It was further pointed out that the right to possession arose on the determination of the tenancy and the right to recover possession arose under the Act after the right to possession had arisen. The cases of Rai Brij Raj Krishna (supra) (5) and Hem Chand (supra) (7) were distinguished on the ground that the relevant provisions that fell for consideration in those cases contained non-obstante clause which was absent in Section 12 of the Bombay Act. Their Lordships, however, hastened to add with reference to the case of Hem Chand (supra) (7) that 'it is unnecessary for us to consider whether Shri Hem Chand's case was rightly decided or not'. It would be useful to bear in mind that in Rai Brij Raj Krishna (supra) (5). the broader proposition that the non-obstante clause in Section 11 of the Bihar Act made that Act a complete Code by itself was never convassed and the only question was whether the provisions of the Transfer of Property Act could be engrafted under the Bihar Act to extend the scope of statutory protection. The question if the provisions of, Section 106 or 111 of the Transfer of Property Act were ousted or if notice of termination was necessary were neither convassed nor considered. On the other hand in Hem Chand (supra) (7), the broader proposition had been convassed and had prevailed with the Punjab High Court. Both cases were, however, distinguished because the basis of the decision in the two cases, i.e., the existence of the non-obstante clauses did not exist in the case of Bhagwanddin (supra) (8). The observations of the Supreme Court in the case of Rai Brij Raj Krishna (supra) (5) were, thereforee, approved while that of Punjab High Court in Hem Chand (7) was neither approved nor disapproved but a veiled doubt was cast on its correctness when their Lordships observed that their Lordships were leaving the question if Hem Chand's case was rightly decided or not open. In spite of the clear verdict of the Supreme Court in the case of Bhagwanddin(S) (supra) the Punjab High Court still reiterated its earlier view in the later ease of Bhagwant,Singh(9) while dealing with Section 14 of the Act, with which we are concerned in the present appeal. Interesting enough, support was sought from the earlier decision of Hem Chand (supra) (7) which was considered to have received the stamp of approval of the Supreme Court because, according to the Punjab High Court, it was 'distinguished and not dissented from' by the Supreme Court in Bhagwanddin (supra) (9). The decision of the Supreme Court in Uma Kumari(10) was not followed as being earlier in point of time than in Bhagwanddin (supra) (9). In Uma Kumari (supra), the Supreme Court held, in the context of a controversy as to the right of a landlord to pursue his remedy under clause (k) of proviso to Section 13(1) of the Delhi and Ajmer Rent Control Act, 1952, that 'the landlord would of course have to comply with the conditions in s. 111 of the Transfer of Property Act (No- Iv of 1882) relating to determination of lease'. In Mangi Lal(ll) the Supreme Court while considering Section 4(a) of the Madhya Pradesh Accommodation Control Act, 1955, which is analogous to the provisions of Section 14(l)(a) of the Act, clearly laid down the necessity of determination of the contractual tenancy before filing any action for eviction under the rent control legislation unless there was a clear intention to the contrary as in the case of Krishnamurthy (supra) (4). In Abbashbhai (12) the Supreme Court while dealing with Section 12(1) of the Bombay Act followed its earlier decision in Bhagwanddin (supra) (9) and Shah J. who spoke for the Court observed that Section applied 'to a tenant who continues to remain in occupation after the contractual tenancy was determined; it does not grant a right to evict a contractual tenant without determination of the contractual tenancy.' Later in Manujendra Dutt, (13) Shelat, J. who spoke for the Court, while dealing with the Calcutta Tenancy Act, which contained the non-obstante clause, held that the non-obstante clause did not absolve the landlord from his obligation to terminate the tenancy before claiming vacant possession. It was further pointed out that on its true construction, the non-obstante clause meant 'that even where the contractual tenancy is properly terminated, notwithstanding the landlord's right to possession under the Transfer of Property Act or the contract of lease ' he cannot evict the tenant unless he satisfied anyone of the grounds set out in section 3'. Shelat, J. then proceeded to make certain general observations which became the subject-matter of controversy a little later in the case of Raval (supra) (3) and I will presently refer to it- The observations are as follows :

'Rent Acts are not ordinarily intended to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling, conferring no new rights of action but restricting the existing rights under the contract or under the general law.'

In the wake of these decisions, a change was brought about in the law in Delhi. The earlier view of the Punjab High Court, which was followed by the Delhi High Court, was dissented from and it was held that the termination of the tenancy was an essential condition for an application for eviction unless notice was not necessary by virtue of the provisions of Section 111 of the Transfer of Property Act with the result that hundreds of applications for ejectment filed on the basis of the earlier view without terminating the tenancies had to be thrown out. It only highlights the fragile legal thread by which hangs the destiny of a litigant and his cause in Court. True, man is mortal and so are his aspirations and frustrations, fortunes and misfortunes as well as disputes and causes, and must, thereforee, die with him. The vagaries of the law, however, would appear to have rendered the causes of the mortals in such cases more mortal than the man himself. The numerous applications that, thereforee, had to be killed because of what was discovered to be the true meaning of the law could be appropriately described as having fallen victim to infantile mortality and, thereforee, died before their time. This was realised and the true legal position was redeemed in Batto Mal(14) wherein a Division Bench of this Court while considering the effect of the non-obstante clia,use in the Act, held that in view of the various decisions referred to above, it could not be argued that Section 14(1) of the Act would have the effect of repealing or superseding the provisions of Section 106 of the Transfer of Property Act or that termination of the tenancy was not a pre-condition for an action for ejectment of a tenant. The apparent echo of uncertainty in this branch of the law was heard on cursory glance, in the decision in Raval (supra) (3) where the Supreme Court was concerned with the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. But the mist disappears on a closer examination of the majority decisions in that case. The question was whether the Madras Act controlled both contractual as well as statutory tenancies and was, thereforee, a complete Code enabling both the landlords and tenants to seek the benefit of fixation of fair rent, whether a contractual tenancy prevailed or had been terminated. Alagiriswami J. speaking for the Court observed that 'the Act provides for every contingency that is likely to arise in the relationship of landlord and tenant'. The contention raised on behalf of the appellants, on the basis of the decision of the Supreme Court in Bhagwanddin (supra) (9) and Manujendra Dutt (supra) (13), that the Madras Act, like the Rent Acts with which the Supreme Court was concerned in the earlier case, did not provide the landlord with additional rights which they did not possess under the contract of tenancy and that where there was a subsisting contract of tenancy it was not open to the landlord to take advantage of the provisions of the Rent Act to apply for fixation of fair rent at a figure higher than the contract rent was negatived by the majority decision on the ground that both the aforesaid cases dealt with 'eviction' and it had been held there that the provisions of the State Acts concerned were in addition to and not in derogation of the provisions of the Transfer of Property Act. While feeling under no obligation to consider whether the aforesaid two cases had been correctly decided, the majority decision expressed the view that the observations of a general nature made in Manujendra Dutt (supra) (13), extracted above, should not be held to apply to all Rent Acts irrespective of their schemes and provisions, and that the decision of the Madras High Court in Krishnamurthy (supra) (4), which was based on the peculiar language of Section 7 of the Madras Act, should not have been summarily dismissed as being contrary to the decision of the Supreme Court in Abbashbhai (supra) (12) and Mangi Lal (supra) (11), 'without examining the provisions of that Act'. It was then held that, having regard to the scheme of the Madras Act, it was intended to be a complete Code both in respect of contractual and statutory tenancies and that 'on some supposed general principles governing the Rent Acts it cannot be argued that such fixation can only be for the benefit of the tenants when the Act clearly lays down that both landlords and tenants can apply for fixation of fair rent.'

(16) The legal position as to the impact of the rent control legislation on the pre-existing law relating to leases may, thereforee, be said to have been crystallised with the decision of Raval (supra) (3) and may be safely summarised thus: By and large, the rent control legislation in India subject to the provisions of this particular legislation is restrictive and not enabling conferring no new right of action on the landlords but restricting the existing rights either under the contract of tenancy or under the general law relating to lea,ses. The statutory protection thus afforded to the tenants is not in substitution of the contractual protection but in addition to it. These legislative enactments, thereforee, ordinarily do not oust the operation of the Transfer of Property Act where it is applicable or the principles embodied in it, which are consistent with the rules of equity, justice and good conscience, where it is not. If, however, a certain rent control enactment had a complete scheme of itself and dealt with the entire gamut of relationship of landlord and tenant, it may be a complete Code by itself ousting the operation of the Transfer of Property Act or the principles embodied in it, as the case may be. Under the former category of cases, the non-obstante clause in the various Acts merely cannotes that even where the contractual tenancy was determined notwithstanding the landlord's right to possession under the Transfer of Property Act or the contract of lease, he could not evict the tenant unless the grounds envisaged by the Act for the ejectment of the tenant were satisfied. Where, however, the Act lays down the grounds on which a, tenant could be evicted or the circumstances in which it could be done, the scope of the protection could not be extended with reference to be provisions of the Transfer of Property Act. The propositions laid down by the Supreme Court in Rai Brij Raj Krishna (supra) (5), Bhagwanddin (supra) (8), Mangi Lal (supra) (16), Abbashbhai (supra) (12) and Manujendra Dutt (supra) (13), thereforee, still hold good. The observations of the Supreme Court in Raval (supra) that certain general observations of Shelat J. in Manujendra, Dutt (13) should not be held as applying to all Rent Acts and the further observations criticising the manner in which the decision of the Madras High Court in Krishnamurthy (supra (4) was brushed aside do not constitute any departure and could not, thereforee, be taken as, in , manner, affecting the vitality and the binding nature of the earlier decisions. Moreover, in Raval (supra) (3), the Supreme Court was concerned with the peculiar scheme of the Madras Act and that too with reference to the rights of landlords and tenants with regard to revision of rent during the subsistence of a contractual tenancy. 'The basic reasoning of the earlier decisions, to the extent they could be applied to the various Rent Acts, was left untouched. It thus follows that the Act is not a complete Code in itself in relation to the entire gamut of landlord-tenant relationship but lays down the conditions on which a, landlord would be entitled to eject a tenant who has lost the contractual protection. Where the Transfer of Property Act is applicable to a tenancy, it would regulate the relationship between the landlord and the tenant in so far as the provisions of that Act are not in consistent with the provisions of the Act and in case of inconsistency, the provisions of the Act would prevail. The right of the landlord to seek ejectment of a tenant under the Act subject to the condition laid down in the Act arises only after the tenant has ceased to be a contractual tenant on the determination of his tenancy by the various modes known to law. The conditions on which and the manner in which a tenancy may be determined would be regulated by the provisions of the Transfer of Property Act, if the said Act is applicable, otherwise by the principles embodied in it in so far as these principles are consistent with the rules of equity, justice and good conscience.

(17) In the present case, the provisions of the Transfer of Property Act had not been extended to Delhi during the material period and these provisions would, thereforee, not be applicable to the tenancy in question. It was not disputed before us that in view of this, only such of the principles embodied in the provisions of Sections 106 and 111 of the Transfer of Property Act would regulate the matter as could be held to be consistent with the rules of equity, justice and good conscience. It was also not disputed before us that even though the provision of Section 106 of the Transfer of Property Act laying down the manner in which a tenancy may be terminated are technical in character, in that, they require such termination, 'by fifteen days' notice expiring with the end of a month of the tenancy'. It would be consistent with the requirements of equity, justice and good conscience that a tenant has reasonable notice of termination even though it does not expire with the end of the month of tenancy. It was also not disputed that in the present case, no notice whatever was sent to the tenant of the application for eviction when the notice was sought to be justified on the ground that no such notice was necessary because the tenancy stood determined either by efflux of time limited thereby in terms of the principle embodied in Section 111(a) of the Transfer of Property Act or by forfeiture following the breach by the tenant of the express condition regarding sub-letting in terms of the principles embodied in Section 111(g) of the said Act.

(18) The next question that, thereforee, requires consideration is whether the principle embodied in clause (a) of Section 111 of the Transfer of Property Act was attracted. It was not disputed on behalf of the respondent that the mode of determination of tenancy by efflux of time limited thereby was consistent with the rules of equity, justice and good conscience. It was, however, disputed that it had any application to the facts of the present case because the tenancy, according to the rent note, Ex. AW3/1, being for 'less than one year could not be said that no time had been limited by It within the meaning of clause (a). It is obvious that clause (a) would have no application if the tenancy was for an indefinite period or no time had been limited by the lease. It is a common pattern adopted in Delhi as indeed other areas to have a lease for 'less than one year' with a view to save stamp duty as also to obviate the necessity of a registered instrument. Where the lease is, thereforee, for a .period of 'less than one year', can it be said that the lease limits the time for its operation? It appears to me that the requirement of clause (a) is satisfied only if a definite time limit is placed on the life of a lease so that on the expiry of the time, the lease is determined by efflux. Where, however, no point of time is fixed, the lease would really be for an indefinite period. It is true that the lease turn a,period of less than a year cannot be construed as being for a year or more than a year obviously because there is a limitation placed on it so that it cannot exceed that limitation. But that is a one sided limitation and does not provide for the point at which it terminates. In Bhagat Ram (15) a Division Bench of the Lahore High Court was concerned with the question it a lease for a period of less than one year could be considered as a lease by which time had been limited. It was held that the lease in such a case fixed no time at all, because no specific period less than one year within which the tenant could remain in occupation had been specified. The decision of the Allahabad High Court in Mangal Puri(16) was noticed. In that case, it had been held that a lease for less than one year meant a lease for some specified period which is less than 12 months. But it was pointed out that no period less than one year had been specified obviously because 'less than one year could not be construed as a specified period or as limiting a definite time. It was, thereforee, held that the expression 'less than one year' was so 'uncertain and ambiguous that they must be disregarded altogether.' The decision of the Lahore High Court was followed in Harbhajan Singh (17) and later in Joti Pershad(18) and Uttam Chand Shah(19). Learned counsel for the appellant was unable to cite any decision to the contrary or to marshal any principle of la,w that may point to the contrary and I, thereforee, see no reason to hold that the lease in the present case could be said to be for a time which was limited and was not for an indefinite period which was so uncertain and vague that it would convert the tenancy in effect to one from month to month. The contention of learned counsel for the appellant that the expression 'time limited' in clause (a) would be distinguishable from 'time fixed' or 'definite time' does not appear to be sustainable. The expression 'time limited' obviously implies that the lease must be for a definite period of time, it must be specified with certainty and precision so that for applying clause (a) of Section 111 of the Transfer of Property Act, the parties would know when such a lease would determine by efflux of such time. It could not, thereforee, be said that the lease in the present case stood determined by efflux of time so as to obviate the necessity of a reasonable notice terminating the tenancy though not necessarily conforming to the strict requirements of Section 106 of the Transfer of Property Act.

(19) The only other question that requires consideration is if the lease could be said to have been determined by forfeiture in terms of the principle embodied in clause (g) of Section 111 of the Transfer of Property Act so as to obviate the necessity of a notice of determination of tenancy in order to save the first respondent's application for ejectment. Clause (g) was sought to be attracted on the plea that the forfeiture was brought about by the breach by the appellant of the convenant against sub-letting and that the landlord could avail of it because the rent note contained a provision entitling the first respondent to re-enter on such breach. As would be apparent from the relevant portion of clause (g) of Section 111, three conditions must be satisfied before the lease could be determined by forfeiture in case of breach of a,n express condition. Firstly, there must be a breach of an express condition. Secondly, the condition must entitle the Lesser to re-enter on such breach and thirdly, the lesser 'gives notice in writing to the lessee of his intention to determine the lease.' It was not disputed before us that the rent note contained an express condition that the tenant would not sub-let the premises and that the tenant having committed a breach the first condition was, thereforee, satisfied. The satisfaction of the second condition would depend on the interpretation be placed on the language of the rent note. The rent note provides that in case of breach, the landlord would be entitled 'to seek ejectment of the tenant without any demur from him.' This is clearly a provision entitling the landlord to re-enter on breach, for if it is not, how can a, provision entitling the landlord to re-enter be made. The contention that the provision must entitle the landlord to re-enter without recourse to any process of law or that the provision must contain the unqualified language of clause (g) does not appear to me to be sustainable. Whatever be the language in which such a provision is couched, the right of re-entry could not be effected by the landlord without recourse to the process of law. The landlord is not entitled to take the law into his own hands and effect a forcible re-entry. The only way in which he can enforce the right of re-entry is to file an action for ejectment or in the case of Rent Control legislation, an application for ejectment to an appropriate authority. The provision, thereforee, which entitles the landlord to seek the ejectment of the tenant on breach without any demur from the tenant, to my mind, is a provision entitling the landlord to re-enter so as to satisfy the second requirement of clause (g).

(20) The main controversy, however, centered round the third condition and the question that requires consideration is whether the provision in clause (g) requiring notice in writing to the lessee of the landlord's intention to determine the lease could be said to be in consonance with the principles of equity, justice and good conscience. If it is, then it must be complied with. If it is not, no written notice indicating such an intention would be necessary so long as the landlord does some act which may indicate his intention to avail of the breach. This could be done even by any categorical act including the filing of the ejectment action or an application for ejectment in a case like the present. As has been pointed out above, before the Transfer of Property (Amendment) Act, 1929, the third condition merely required that the landlord 'does some act showing' his intention to determine the lease. This was, however, substituted by the said Amendment Act by 'gives notice in writing to the lessee of' his intention to determine the lease. While it was not disputed before us that the language of the clause as it stood before 1929 was clearly consistent with the principles of equity, justice and good conscience, parties were at variance as to whether the substituted language Was or was not consistent with such principles.

(21) It is by now well settled that where the provisions of the Transfer of Property Act do not apply to any area or to any transaction only such principles embodied in it would apply which can be said to be consistent with the principles of equity, justice and good conscience. The question that, thereforee, requires consideration is whether the aforesaid provision regarding notice in writing to the lessee of the landlord's intention to determine the lease could be said to be consistent with these principles. There has been some judicial controversy on the question. In Maharaja of Jeypore(20) the question before the Judicial Committee wa,s if the act of the tenant denying the landlord's title will work a forfeiture even though the transaction had taken place before the enforcement of the Transfer of Property Act. This is how their Lordships dealt with the question :

'They are directed by the several charters to proceed where the law is silent, in accordance with justice, equity, and good conscience, and the rules of English law as to forfeiture of tenancy may be held and have been held to be consonant with these principles and be applicable to India ; see Nizamuddin v. Mamtozuddin.'

It was further observed that: 'the rule of English law Is that a 'tenant will forfeit his holding if he denies his landlord's title in clear, unmistakable terms, whether by matter of record, or by certain matters in pais'. The Judicial Committee was, however, not concerned with the question if in case of disclaimer or for that matter of forfeiture, any notice in writing by the landlord indicating his intention to determine the leia,se was necessary or not. In tact the question could not have arisen because the Judicial Committee was dealing with the provisions of Section 111(g) of the Transfer of Property Act as it stood before 1929 when there was no provision regarding notice. The question whether the landlord had done some other act showing his intention to determine lease as envisaged by clause (g) also did not arise. In Namdeo Lokman Lodhi (supra) (1), the Supreme Court was concerned with the question if the provisions of Section 111(g) as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease was based on any principle of Justice, equity or good conscience. After an exhaustive review of the entire law, Mahajan J, who spoke for the Court, pointed out that .the Court should be very careful in applying statutory' provisions and the assistance of the Transfer of Property Act as a guide on matters which have been excluded from the purview of the Act by express words should not be invoked, unless the provisions of the Act embody principles of general application. It was held that it would be erroneous to suppose that every provision in the Transfer of Property Act and every amendment affected in it is necessarily based on principles of Justice, equity and good conscience and that it had to be seen in every case whether the particular provision of the Act relied upon restated a known rule of equity or whether it was merely a new rule laid down by the legislature without reference to any rule of equity and as to the true nature and character of the rule. It was accordingly held that the provision in Section 111(g) as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease was not based on any principle of justice, equity and good conscience and could not govern leases made prior to the coming into force of that Act or to leases executed prior to April 1, 1930 and that the rights and obligations under those leases have to be determined according to the rules of law prevailing at that time and that a tenant cannot by his unilateral act or by his own wrong act determine the lease unless the Lesser gives an indication by some unequivocal expression of intention on his part of taking advantage of the breach. It was also pointed out that under English law bringing of an action which corresponds to the institution of suit in India was itself an act which is definitely regarded as evidencing an intention on the part of the Lesser to determine a lease with regard to which there has been a breach of covenant entitling the Lesser to re-enter. The observations of the Madras High Court in Brahmayya(21) to the effect that the rules in Section 106 and in the other Sections (Sections 105 to 116) of the Transfer of Property Act were founded upon reason and equity and were the principles of English law and should be adopted as the statement of the law in India was described as 'formulated in too wide a language'. On an analysis of these provisions, it was pointed out, inter alia, that parts of Section 111 contain mere rule of procedure or rules of a technical nature which could not be s,aid to be based on any principle of equity. The contention raised on behalf of the appellant that the aforesaid decision of the Supreme Court would be considered as having lost its vitality or binding force in view of the later decision of the Supreme Court in Raja Mohammad (supra) (2) does not appear to be sustnable. The question before the Supreme Court in this case was if the plaintiff had incurred forfeiture of the leasehold interest by denying the title of the Government so as to justify the act of the latter in terminating the lease. The provisions of the Transfer of Property Act were not applicable to the area in question and an argument was raised that the principles embodied in Section 111(g) were equally applicable on the ground of the same being in consonance with justice, equity and good conscience, on the authority of the decision of the Judicial Committee in Maharaja of Jeypore (supra) (20). The contention prevailed and it was held that 'it was also clear law that permanent tenancies are within the rule and are liable to forfeiture if there is a disclaimer of the tenancy or a denial of the landlord's title.' The question ultimately turned on the construction of the statement filed on behalf of the appellant before the Land Acquisition Officer and if it amounted to a disclaimer or not. The Supreme Court in that case was, thereforee, concerned with the part of clause (g) of Section 111 which was consistent with the rule of English law which would render a tenancy liable to forfeiture if there was a disclaimer of the tenancy or a denial of the landlord's title. The observations of the Supreme Court, thereforee, that the principles embodied in Section 111(g) were equally applicable to tenancies to which the Act did not apply 'on the ground of the same being in consonance with justice, equity and good conscience' must, thereforee, be seen in the context of the controversy before the Supreme Court. The further question if the provision of Section 111(g) requiring a written notice indicating the intention of the landlord to determine the lease was also equally in consonance with such principles was neither raised nor considered. It is also significant to mention that in Maharaja of Jeypore (supra) (20), which was relied upon by the Supreme Court in support of the proposition, the Judicial Committee was concerned with provisions of Section 111(g) as they stood before the amendment of 1929, when as pointed out above, there was no provision for a written notice but all that was required was a definite indication of the landlord's intention to determine the tenancy on the forfeiture. The decision in Raja Mohammad (supra) (2) could not, thereforee, be either an authority for proposition that all the provisions of clause (g) of Section 111 are in consonance With the principles of equity, justice and good conscience including the technical rule with regard to written notice in case of forfeiture or be treated as having in any manner whittled down the law laid down by the Supreme Court in Namdeo Lokman Lodhi (supra) (1) or to have otherwise effected its vitality or binding force. On a closer examination, it becomes clear that there is unanimity in both the decisions on the basic question that where the Transfer of Property Act did not apply to an area or a transaction only such of the principles embodied in the Transfer of Property Act would govern the tenancy which are in consonance with justice, equity and good conscience. In the case of Namdeo Lokman Lodhi (supra) (1) the Supreme Court was directly concerned with the question if the requirement of written notice engrafted into the clause (g) by the amendment of 1929 was of a technical nature or could be said to be consistent with the English rule regarding forfeiture and thereforee, in consonance with the principles of justice, equity and good conscience and the question was clearly answered in the negative. Although the case of Namdeo Lokman (supra) (1) was not cited before the Supreme Court in Raja Mohammed (supra) (2), it is difficult to see in the latter judgment any departure from the principles laid down in the former. The Madras High Court had an occasion to consider the apparent conflict between the two decisions in Sakunthailammal(22) and arrived at the same conclusion. In Somati Parkash(23), a Division Bench of Punjab High Court held on the authority of Namdeo Lokman Lodhi (supra) (1) that the suit was not liable to fail for want of notice of landlord's intention to exercise the right of forfeiture.

(22) It must, thereforee, be held that the provision in clause (g) of Section 111 with regard to written notice to the tenant indicating the landlord's intention to determine the lease by forfeiture could not be said to be based on any principle of English Law or be said to be in consonance with any principle of equity, justice and good conscience and could not, thereforee, be attracted to forfeiture to which the provisions of the Transfer of Property Act would not apply. In such cases, the filing of the action by the landlord based on such a breach would be sufficient indication of the landlord's intention to avail of the forfeiture.

(23) In the result, the appeal fails and is hereby dismissed. The tenant would get three months time from today to deliver vacant possession. In the circumstances, there would be no order as to costs.


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