B.C. Misra, J.
(1) This second appeal under section 39 of the Delhi Rent Control Act, 59 of 1958 (hereinafter referred to as 'the Act'), has been tiled by the tenant against the order of the Rent Control Tribunal, dated 10th September, 1975 by which it has dismissed the appeal in liming and affirmed the order of the Additional Controller, dated with September, 1975 ordering the appellant to deliver possession of the premises in dispute to the respondent
(2) The material facts of the case are that the premises in dispute (Nos. 2672-73, Ward No. V, Roshanpura, Nai Sarak Delhi), belong to the respondent landlord. On 3rd April, 1972 the respondent landlord filed an application under section 21 of the Act for permission to let out the said premises for a period of two years with effect from ll the April, 1972. The appellant tenant filed a written statement admitting the contents of the application. The statements of the parties were recorded and the Controller by order dated 6th April, 1972 granted permission to let out the premises for a period of two years. The permission was granted for two years commencing from llth April, 1972 and expiring on 10th April, 1974 and the premises were let out for the same period, but the rent was charged from 1st April, 1972. On 4th April, 1974 the respondent landlord served a notice terminating the tenancy and having done so, he filed an application on 28th May, 1974 for issuance of warrant for delivery of possession of the premises in dispute. Its notice was issued to the appellant, who raised objections. The objections inter alia, were that the premises in dispute was really commercial and not residential and so they fell outside the purview of section 21 of the Act. It was also alleged that the shutters, 'tand' etc. had been put up in the premises which had in fact been used for business purposes. Another objection was that the rent for the period up to 10th October, 1974 had been paid and as such a new tenancy had been brought about. The Additional Controller after recording evidence of the parties held that as was evident from the proceedings to grant permission under section 21, the appellant before me had taken the disputed premises on rent for a limited period of two years for residential purposes alone and after having obtained such permission, it did not lie in his mouth to say that the same were let out for commercial purposes and since the letting purpose was residential, its subsequent use for commercial purpose was not material. The Additional Controller also repelled the contention that any separate writing was necessary for creation of the tenancy after obtaining the permission. Consquently, the objections were dismissed with costs and a warrant for delivery of possession was issued. Feeling aggrieved, the tenant appellant filed an appeal before the Tribunal. In this appeal. the main contention raised was the necessity of a further writing creating the tenancy after obtaining the permission of the Additional Controller. This did not prevail. It was also submitted that the landlord had accepted rent after the expiry of the period of tenancy, but this was within the period of six months allowed for applying for obtaining possession and as such the objection failed. The Tribunal followed the decision of Avadh Behari J. reported as Ashok Chopra v. Manmohan, 1975 Rlr, Note 64. and dismissed the appeal in liming.
(3) Mr. Harnam Dass, the learned counsel for the appellant has, in support of the appeal contended that (1) the premises were commercial and so section 21 of the Act did not apply ; (2) the legal requirements of the aforesaid provision had not been complied with, since there was no written agreement creating the tenancy after the grant of permission by the Controller ; and (3) the rent had been accepted by the landlord after the expriy of the period of two years and as such it had created a new tenancy.
(4) I have heard the counsel for the parties at considerable length and have carefully considered the matter. Section of the Act reads....This section came up for detailed consideration by me in Teja Singh v. D.K. Bakshi, Sao 214 of 1970, decided on 20th August, 1971. In this decision, I summarised my conclusions as follows :
(1)In the order granting permission under section 21 of the Act the Controller must specify the premises, the purpose of letting and the name of the tenant and the period of the tenancy fixed by him either by repeating them in the order by reference to the application.
(2)It is open to the Controller to record in the order, though it is not essential to do so, that on the expiry of the period of limited tenancy, the tenant shall deliver vacant possession of the premises to the landlord on his application moved within a period of six months.
(3)The Controller, however, will not record any order directly or indirectly approving the rate of rent or any other term of the tenancy.
(4)On the expiry of the period of tenaacy fixed by the Controller, the application for delivery of possession on behalf of the landlord must be filed within a period of six months and it should be registered and numbered as a miscellaneous application in the matter of proceedings under section 21 of the Act and not as an execution application.
(5)On receipt of the application, its notice should be issued to the tenant and he be heard in opposition, if any.
(6)No defense or objection should be entertained on behalf of the tenant challenging the legality or validity of the initial order of the Controller granting permission.
(7)The Controller should not entertain any other plea of the tenant about any agreement or event occurring during the continuance of the tenancy which involves a defense against eviction by invoking the provisions of section 14 of the Act or any other provision of law and has the effect of displacing the power of the Controller to dispossess the tenant in accordance with the provisions of section 21.
(8)Should the tenant plead any agreement or event occurring after the expiry of the period of tenancy as a bar to dispossession, the same is maintainable and ought to be tried and decided.
(9)The petition be decided expeditiously and warrants for delivery of possession should direct dispossession of the tenant and all persons occupying the premises in dispute.'
(5) Aforesaid conclusion No. 6 laid down that no defense or objection could be entertained on behalf of the tenant challenging the legality or validity of the final order of the Controller granting permission and No. 7 laid down that the Controller should not entertain any plea alleging any agreement or event occurring during the continuance of the limited tenancy which enables the tenant to claim protection under section 14 of the Act against eviction, thereby nullifying his obligation to vacate the premises on an order of the Controller passed under section 21 of the Act. In this I had, however, saved the rights of a tenant to plead any agreement or event occurring after the expiry of the period of limited tenancy fixed by the Controller, which could provide a defense against his dispossession. My learned brother, D.K. Kapur J. in 1.0. Refrigeration v. Santokh Singh, 1972 Rlr 135, held that a tenant was disentitled to go behind the order granting the permission. The facts of that case were that a permission of the Controller had been obtained for letting out the premises for a period of two years, on the expiry of which the landlord applied for eviction, which was opposed on the ground that the property had not been let for residence and that the permission of the Controller had been obtained by fraud. The learned Judge observed that the requirements of section 21 were very few and the landlord had to make the requisite application and obtain the permission and both the parties appeared before the Controller without any misrepresentation when the permission was obtained. The premises were let out for residence and so in view of Teja Singh's case, referred to above the tenant could not challenge the order or permission, but could only resist the eviction if he pleaded novation of contract which was not pleaded in that case.
(6) P.N. Khanna J. in R.M.L. Bhatnagar v. Inder Parkash 1974 Rcj 314, ==1974 R.L.R. 409 observed in paragraph 6 thus :
'SECTION 21 is designed to meet the problem of shortage of housing accommodation in Delhi. The landlord may not need the premises for a limited period. Section 21 permits him to lease it out during that period for being used by a tenant, who may need it for that period. Without this section, the landlord may prefer to keep the premises vacant and not let it out for if he lets it out, he may be prevented by the provisions of section 14 of of the Act from getting back vacant possession from the tenant, when he may need it.'
(7) The learned Judge further observed that having obtained possession of the premises as a tenant for a limited period with the permission of the Controller under section 21, the tenant had to vacate the premises on the expiry of the said period notwithstanding anything contained in section 14 of the Act.
(8) It is, thereforee, obvious that the provisions of section 21 of the Act come into play notwithstanding anything contained to the contrary in section 14 of the Act or any other law. The landlord in the present state of law was entitled to keep the premises vacant and not let it out to anybody for fear of the protection against eviction being given to the tenants by section 14 of the Act. Section 21 has carved out a special provision for such contingency to reduce the pressure of accom- modation in Delhi. The landlord is, thereforee, enabled to let out the premises to a tenant for limited period with the permission of the Controller in the sure hope to get back possession of the premises on the expiry of the period without any difficulty. But for this act of the landlord in obtaining permission of the Controller, the tenant could never enter into possession of the premises. If the tenant was not inclined to accept the said terms it was open to him to have a regular contract of tenancy governed by the other provisions of the Act and not forego his protection by agreeing to be inducted for a limited period of tenancy and be subject to vacate the premises on the expiry of the period notwithstanding any protection of provision of law to the contrary. I am of the view, having taken the advantage of being inducted into the premises in pursuance of the permission, he cannot be allowed to turn round and go behind the permission and urge that it was in any way invalid or that the premises let out to him were commercial and not residential. The tenant inducted for a limited period with the permission of the Controller granted under section 21 must find his rights subject to the provisions of section 21 of the Act and he cannot raise any plea which will have the effect of mullifying his obligations under section 21 and may confer upon him the protection granted by section 14 of the Act against eviction. The provisions of section 21 prevail notwithstanding anything contained in section 14 or any other law. Consequently, the appellant in the instant case cannot be allowed to urge that the premises let out to him were not residential or the permission obtained was invalid. Under the circumstances, the use of the premises by him as commercial although they had been let out to him for residential purpose even if true will not make the slightest difference. An analogous provision would throw light on the scheme of the Act. Under clause (e) of the proviso to sub-section (1) of section 14 of the Act the landlord is en- titled to obtain eviction on satisfying the con- ditions specified therein, provided the pre- mises had been let out for residential purposes. The statutory Explanationn provides that the premises let for residential purposes include any premises which having been let for use as a residence are, without the consent of the landlord, used incinentally for commercial or other purposes. This provision would indicate that if the premises are let out by the landlord for residence, then their use by the tenant contrary to the letting purpose cannot alter the character of the premises, nor pre- judice the rights of the landlord. In the ins- tant case, I hold that so long as the admitted tenancy sanctioned by the Controller lasts, the use of the premises by the tenant contrary to the letting purpose or the permission of the Controller cannot be relied upon by the tenant for shedding off his obligations to va- cate the premises on the expiry of the period of tenancy as prescribed by section 21 of the Act. The first contention of the learned counsel has no merit and is rejected.
(9) Mr. Harnam Dass, counsel for the ap- pellant, has next contended that assuming that he cannot challenge the initial order, he can still show that the landlord has subsequent to the obtaining of the permission not complied with the provisions of section 21 of the Act and that the letting ought to have been made subsequent to the obtaining of permission. In support of the submission the learned counsel relies on the following phrase and expres- sion occurring in section 21, namely, 'land- lord...... after obtaining the permission of the Controller......lets the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and tenant.' The contention is that the agreement of letting arrived at between the landlord and tenant must be in writing and must be subsequent to the obtaining of permission. In my opinion, the legal provi- sion does not concern itself with the time when the offer and acceptance, and the for- mation of the contract are made, but should the contract of tenancy become legally effec- tive from a date subsequent to or conditional upon the grant of permission, then it is subs- tantial compliance with the statutory provision and the agreement cannot be assailed on the ground that it had been negotiated or arrived at prior to the grant of permission. I was in- formed that my Lord, Tatachari C.J., has taken this view but the decision was not avail- able.
(10) Moreover, the expression 'agreed to in writing' governs the phrase ''for such period as may be' it has no relevance to the time of the letting of the premises. My reason is this: The formation of the contract of tenancy between the landlord and tenant is not really governed by the provisions of the Delhi Rent Control Act, but by the other provisions of law applicable to it, like the Contract Act, Transfer of Property Act, etc. More often than not, negotiation for contract would be made prior to the making of the application for permission, as the landlord not needing the premises temporarily may not be inclined to even ask for permission unless and until there is a prospective tenant who is ready and willing to have the premises for a limited tenancy in accordance with the provisions of section 21 of the Act. However, what has been emphasised by section 21 of the Act is that in a case where the landlord does not require the premises for a particular period, he must obtain permission of the Controller to let it out for a limited period on the expiry of which the tenant is bound to restore the possession notwithstanding the protection granted by section 14 of the Act or any other law. As a result of the permission granted by the Controller under the section, the tenant is liable to vacate the premises on the expiry of the limited period of tenancy without the protection of the other provisions of the Act, Since the obligation to deliver vacant possession of the premises on the expiry of the period of tenancy fixed by the Controller, is cast upon the tenant and follows upon the granting of the permission, it is essential that the tenant must know the limited nature of the tenancy and must agree that his tenancy is only limited for the period which the parties may actually agree upon not exceeding the period fixed by the Controller and this agreement by the tenant must, in order to obviate any dispute or doubt, be in writing. I am, thereforee of the view that the expression under consideration means that the writing which is to constitute an agreement between the landlord and tenant, as envisaged under section 21 of the Act, refers to the limitedness of the tenancy and the period of tenancy not exceeding the one fixed by the Controller. This agreement by the tenant can be simultaneous with or after the permission of the Controller. But, it must be clear beyond doubt that the tenant had agreed to the limited nature of the tenancy and the period for which he had to hold the property on the expiry of which he must vacate it in accordance with section 21 of the Act.
(11) On this construction of the statutory provision, the contention of the counsel for the appellant fails. The period of the tenancy had been clearly agreed to and the statements had been made by the appellant tenant as well as the landlord before the Controller and they constituted writing to fix the period of limited tenancy, which the tenant had accepted. as binding on him. The appellant tenant, thereforee, clearly knew that on the expiry of the said period he was liable to eviction without the availability of protection under section 14 of the Act or any other provision of law. This would clearly constitute a written agreement between the parties satisfying the provisions of law.
(12) In support, Mr. Harnam Dass has relied upon a decision of my learned brother, P.S. Safeer J. in Asa Nand vs. Gulab Rai, 1975 Rlr 175. The facts of that case were peculiar. My learned brother found that the application for eviction filed by the landlord on the expiry of the limited period of tenancy did not contain the necessary particulars and his lordship thereforee, remanded the case for fresh application under section 21 of the Act being filed containing the detailed allegations with regard to the writing executed between the landlord and tenant. The question about the formation of contract of tenancy taking place whether before or after the grant of permission did not arise for consideration before him. His lordship's observation on the subject are, thereforee, obiter. Even taking the obiter dicta into consideration, it is apparent from the decision that at the time of the granting of the permission even the statement of the tenant was not recorded and there was no evidence before his lordship with regard to the consent in writing of the tenant for the limited tenancy. Under the circumstances, the said decision does not lay down the proposition which has been contended to by the learned counsel for the appellant.
(13) My learned brother, Avadh Behari J. in Ashok v. Manmohan. 1975 Rlr (Note) 64, while deciding Cm 275/75 in Sao 18 of 1975 on 19th March, 1975, noticed the above mentioned judgment of P.S. Safeer J. in Asa Nand's case. His lordship observed that in that case the period for which the premises were purported to have been let was not specified and the Court came to the conclusion that the agreement for a specified period was essential before a tenancy for a limited period could be created. In this way Avadh Behari J. distinguised the case of Asa Nand as being confined to its own facts. Avadh Behari J. further observed that creation of tenancy under section 21 is a special feature and the permission of the Controller to create for a limited period distinguishes it from the ordinary tenancy and the provisions of section 21 are not subject to other laws and they prevail notwithstanding anything contained in section 14 or any other law and the same is self- contained. As a result, I find there is no substance in the contention of the counsel for the appellant and the same fails.
(14) The last contention of Mr. Harnam Dass is that the landlord had accepted rent after the expiry of the limited period of tenancy. The Tribunal below has found that this had indeed been accepted, but it was during the period of six months prescribed for moving the application for delivery of possession under section 21 of the Act and so it did not create a new tenancy. In my opinion, the mere acceptance of rent does not create a fresh contract of tenancy. In this context, reference may be made to a judgment of my learned brother, V.S. Deshpande J. in Rajkishen vs. Master Hoshiar Singh, 1970 Rcj 876, where his lordship observed in paragraph 9 as follows :
'INthose cases in which a tenant is protected by Rent Control legislation, the law itself prevents the presumption of waiver arising under section 113, for the landlord is not expected to suffer and allow the tenant to continue in possession without payment of any rent or damages for use and occupation of the premises to the landlord. It should be unfair to expect that the landlord should not accept any rent or damages for use and occupation of the premises even though the landlord has no right to evict the tenant, by merely terminating the contractual tenancy. The acceptance of the rent by the landlord from a tenant whose contractual tenancy is terminated but who, as a statutory tenant is protected by Rent Control legislation is, thereforee, explained by the inability of the landlord to evict the tenant under the ordinary law. Such acceptance of rent does not, thereforee, show an intention on the part of the landlord to treat the lease as subsisting.'
(15) Reference may also be made to the decisions of the Federal Court in Kai Khushroo Bezonjee Capadia v. Bai Jerabai Hirjibhoy Warden Air 1959 F.C. 124, and of Supreme Court in Ganga Dutta Muraka v. Kartik Chandra Dass (19 1) 3 Scr l13 where it was held that mere acceptance of rent by the landlord did not constitute his assent to the renewal of the tenancy, nor creation of a fresh contract of tenancy. The submission of the counsel is without any force and is rejected.
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