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P.C. Badhwar Vs. Lajwanti Malik, Etc. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 289 of 1971
Judge
Reported inAIR1977Delhi63; ILR1976Delhi644
ActsDelhi Rent Control Act, 1958 - Sections 19 and 19(2)
AppellantP.C. Badhwar
RespondentLajwanti Malik, Etc.
Advocates: H.D. Triyogi,; Arun Kumar and; F.C. Bedi, Advs
Cases Referred and Wilson v. United Counties Bank Ltd.
Excerpt:
.....absence of actual loss, would have to be a substantial amount.; further, that one or two months rent as compensation is considered to be too small, while six months rent or more rent is too high and normally three months rent is regarded as reasonable good panacea to heal the scars in a dispute between the landlord and tenant, unless there be some special circumstances established on the record justifying the award of a higher or a lower amount as permitted by law.; accordingly (on fact of the case) that three months' rent be paid to the appellant tenant as compensation. - - clearly contravened the provisions of section 19(2) of the act. upon failure to obtain permission they cannot afford a valid excuse for the landlady to take the law in her own hands and commit flagrant breach..........of cases between the landlord and tenant, both as a. lawyer and as a judge, that one or two months rent as compensation is considered to be too small, while six months rent or more rent is too high and normally three months rent is regarded as reasonable and good panacea to heal the sears in a dispute between the landlord and tenant unless there be some special circumstances established on the record justifying the award of a higher or a lower amount as permitted by law. in the facts and circumstances of the case, i consider it reasonable that three months' rent, that is to say, rs. 1950 be paid to the appellant as compensation. this would incidentally also take into account the time the landlady would have been to conclude proceedings for eviction against the tenant on the ground of.....
Judgment:

B.C. Misra, J.

(1) This order will dispose of two second appeals (SAO 289 of 1972 and Sao 290 of 1971) both of which have been filed under section 39 of the Delhi Rent Control Act, 59 of 1958 (hereinafter referred to as 'the Act'), by the tenant appellant against the order of the Rent Control Tribunal dated 16th September, 1971, by which it has allowed the landlords appeal and dismissed the crossappeal which had been filed by the tenant. The order of the Additional Controller which was the subject matter of the appeal was dated 28th August, 1969, by which a sum of Rs. 5000 had been awarded as damages to the tenant. The Tribunal on appeal set aside the order and declined to award any demages.

(2) The material facts of the case are that P.C. Badhwar, appellant before me, was a tenant in respect of house No. C-203, defense Colony, New Delhi, on a rent of Rs. 650 per month under the respondent landlady on the material date. The premises had, however, been let out to the appellant on 16th November, 1962 by the husband of the respondent (who has since died). On 11th May, 1965 the landlady instituted a petition for eviction of the appellant from the said premises on the ground of bona fide personal necessity mentioned in clause (e) of the proviso to sub-section (1) of section 14 of the Act. This petition was tried and on 13th May, 1966, it was decided on a compromise between the parties, as a result of which two years time was allowed to the appellant to vacate the premises and an order for eviction on the ground of bona fide personal necessity was passed in favor of the respondent landlady against the appellant. The appellant, however, vacated the premises on 19th November, 1967, that is to say about six months earlier than the time allowed. Shortly afterwards, the respondent landlady, however, let out 2/3rd portion of the premises in dispute to some stranger on a rent of Rs. 600 per month. This was urged by the appellant to be contrary to the provisions of sub-section (2) of section 19 of the Act and he, filed an application on 4th April, 1968 for restitution of possession and claiming a sum of Rs. 10,000 as damages. The factum of the respondent landlady letting out the premises before the expiry of three years mentioned in section 19(2) of the Act has been established on the record and has not been disputed. It is also not disputed that the respondent landlady did not take permission of the Controller envisaged by the statutory provision, before letting out the premises again, while she had obtained eviction on the ground of hona fide personal necessity. She had, thereforee. clearly contravened the provisions of section 19(2) of the Act. The Additional Controller after recording the said finding, awarded a sum of Rs. 5000 as compensation to the appellant. Dissatisfied, both the parties appealed to the Tribunal. The Presiding Officer of the Tribunal affirmed the finding of the Additional Controller that the respondent landlady had let out the premises contrary to the provisions of section 19(2) of the Act. He, however, set aside the order of the Additional Controller awarding compensation. The reasons which weighed with the Tribunal arc that the finances of the landlady had been exhausted on lengthy litigation and the respondents were forced by circumstances to have a tenant for the living and that the husband of the landlady, who was employed as Aerodrome Officer at Dum Dum Airport, Calcutta had died in February, 1965 and then she shifted to Delhi along with her children and at that time she had two sons and two daughters who were minors and that she requested the tenant to vacate one or two rooms, but the tenant refused to do so and did not even pay the rent. Then the petition for eviction was filed. She Jet out a portion of the premises to one Mr. Pillai on a rent of Rs. 600 per month as she was obliged to do so, since the appellant had not even paid the arrears of rent due and that the respondent landlady needed only a portion of the premises for her residence and not the whole. The Tribunal found that the reletting of the premises by the landlady was bona fide. It further observed that although the respondent landlady had gained a benefit while letting out a portion of the premises to a new tenant, the appellant had not suffered any loss, as he had built his own house where he had shifted and so he had not suffered any monetary loss on account of the landlady obtaining the order of eviction. It was further observed that the appellant had nothing to lose by vacating the premises earlier than the time allowed and that he having constructed his own house was liable to be evicted under clause (h) of the proviso to sub-section (1) of section 14 of the Act and that was a question of time only and so the appellant was not suffering any loss or damages. Hence the Tribunal held that the appellant was not entitled to the award of any compensation. The Tribunal by the impunged order has disposed of two appeals against the same order of the Additional Controller, one filed by the tenant and the other by the respondent landlady. The learned counsel for the appellant lias challenged the legality and validity of the order of the Rent Control Tribunal in the instant appeals. Section 19 of the Act reads as follows :

'(1)Where a landlord recovers possession of any premises from the tenant in pursuance of an order made under clause (c) of the proviso to sub-section (1) of section 14, the landlord shall not, except with the permission of the Controller obtained in the prescribed manner, re-let the whole or any part of the premises within three years from the date of obtaining such possession, and in granting such permission, the Controller may direct the landlord to put such evicted tenant in possession of the premises.

(2)Where a landlord recovers possession of any premises as aforesaid and the premises arc not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession re-let to any person other than the evicted tenant without obtaining the permission of the Controller under sub-section ( 1 ) or the possession of such premises is transferred to another person for reasons which do not appear to the Controller to be bona fide, the Controller may, on an application made to him in this behalf by such evicted tenant within such time as may be prescribed, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit.'.

It is obvious from the plain reading of the provision that the law requires the landlord, who recovers possession of the tenanted premises from a tenant on the ground of bona fide personal necessity under clause (c) of the proviso to sub-section (1) of section 14 of the Act not to re-let the premises within the period of three years from the date of obtaining possession except with the permission of the Controller obtained in the prescribed manner. Sub-section (2) provides that if the landlord recovering possession of the premises fails to occupy the same within a period of two months or re-lets to any person other than the evicted tenant without obtaining the permission of the Controller or transfers to another person for reasons which do not appear to the Controller to be bona fide, the Controller may, on an application made to him in the- prescribed manner, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit.

(3) The word 'bona fide', in my opinion qualifies the expression 'or possession of such premises is transferred to another person fur reasons which do not appear to the Controller to be bona fide'. So far as re-letting is concerned, the bar is absolute and no question of bona fide arises and the landlord is prohibited from re-letting the whole or part of the premises for a period of three years, except with the previous permission of the Controller, which is to be granted on an application moved for the purpose in accordance with Rule 3 of the statutory Rules framed under the Act. The provision of law is very salutory. Under clause (e) of the proviso to sub-section (1) of section 14 of the Act, the landlord is entitled to obtain eviction on his showing to the satisfaction of the Controller that the bona fide needs the premises for residence of himself and members of his family. Often the defense is raised that the landlord does not need the premises bona fide, but his intention is to increase rent or let it out to another tenant on a higher rent. This defense is often met by reliance on the provisions which are now under consideration and should the landlord be found not to occupy the premises within two months or to let them out to transfer them within a period of three years without the permission of the Controller, then the tenant becomes entitled to obtain restitution of the possession of the premises, provided the tenant makes an application in accordance with the statutory Rules 4 within a period of six months from the date of cause of action. The existence of section 19 is thereforee, a wholesome, safeguard against the abuse of the right of the landlord to obtain eviction on the ground of bona fide personal necessity. Moreover, sub-section (3) of section 48 of the Act has prescribed that if any landlord relates or transfers whole or any part of the premises in contravention of the provisions of sub- section (1) or sub-section (2) of section 19, he shall be punishable with imprisonment for a term which may extend to three months or with fine or with both. This offence is triable by a Magistrate of the First Class who has been empowered to impose fine of more than Rs. 2000 under the Act, provided the complaint has been lodged within a period of three months from the date of the commission of the offence.

(4) This shows how zealously the parliament has safeguarded the interests of the tenant against the abuse of the right of the landlord and by making the breach of section 19, an offence and element of public interest has been introduced in the statute. In my opinion, the provision, of law is mandatory and does not admit of any exceptions, save as is ingrained in the statute. The respondent landlady has made a clean breast of her circumstances. She has admitted the re-letting of the premises and has shown her dire necessity of earning rent as income for her family. She has gone to the extent of submitting that she had originally needed only a part of the tenanted premises and not the whole, the possession of which obtained from the tenant. These circumstances do, in my opinion, not excuse the respondent landlady from obeying the provisions of law, though they could have sympathetically been taken into consideration by the Controller had she applied to him for permission to re-let. Upon failure to obtain permission they cannot afford a valid excuse for the landlady to take the law in her own hands and commit flagrant breach of section 19 of the Act. The Rent Control Tribunal has taken a lenient view, but I am unable to agree that no compensation is to be paid to the appellant.

(5) The order for eviction had been passed against the appellant tenant on 13th May, 1966 and normally he would have been entitled lo six months time to vacate the premises, but on compromise he took two years time which expired on 12th May, 1968, but he vacated the tenanted premises on 19th November, 1967 and shifted to his own house which he had constructed. The Tribunal in the impugned order has observed that on the construction of the house, the tenant was further liable to eviction on the grounds mentioned in clause (h) of the proviso to sub-section (1) of section 14 of the Act, but this proceeding would have taken sometime. Indeed the proceedings would have taken time, but it could not be less than three months that the landlady could obtain eviction on the ground mentioned in clause (h) of the relevant proviso. The Tribunal was thereforee, right in refusing restitution of possession, but ought to have awarded compensation and its order must be set aside.

(6) The Additional Controller had awarded a compensation of Rs. 5000.00 considering the benefit accrued to the respondent landlady by earlier vacation of the premises by the appellant. This was clearly contrary to law. As held in Pannalal Jankidas v. Mohanlal : [1950]1SCR979 and Rattan Lal v. Girdharilal, Air 1972 Del 11(2) the compensation is to be determined on account of the loss suffered by the injured party and not the benefit derived by the opponent. The appellant was well omitted to remain in possession of the premises for a period of six months more up to May, 1968 and during that period he could make a reasonable profit out of his own house or may not have spent any extra amount in early completion of the construction of his house. thereforee, although it is not necessary to order restitution and he has failed to prove any special damage, still a substantial amount by way of nominal damage must be awarded for breach of the statutory provision. As observed in Rookes v. Barnard and others, 1964 Ac 1129(3), it is necessary for the law to show that it cannot be broken with impunity.

(7) The question of quantum of compensation has engaged my careful attention. Section 19 gives the Controller the discretion to direct restitution or to pay to the tenant such compensation as the Controller thinks fit. Section 48(3), in a conviction by a Magistrate, makes provision for three months imprisonment or fine or both, Section 63 of the Indian Penal Code provides that where no sum is expressed lo which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive. There are other provisions in the Act which require compensation to be paid as the Controller may think fit, e.g. section 20. In section 27(5), the statute has, however, provided an amount of fine to be levied on the tenant which may extend to two months rent out of which compensation is to be paid to the landlord for false statement in an application for deposit of rent. Section 45 provides for compensation up to Rs. 50.00 for breach of section 45 of the Act.

(8) The appellant in the instant case was occupying the premises on a rent of Rs. 650.00 per month. I would thereforee, consider it reasonable that in the circumstances of she case a compensation amounting to a multiple of the rent must be paid to the appellant for his loss and injury arising out of the breach of the legal obligation by the respondents. In Brahmdco Narain Singh v. Members of the Notified Area Cimmittee : AIR1965Pat179 , the Division Bench of the High Court observed that breach of covenant under section 188(c) of the Transfer of Property Act entitled a lessee to claim damages and measure of compensation would depend upon the circumstances of the case. The burden of proof was on the plaintiff to show how much loss he had suffered, but when it was not possible to calculate accurately or in a reasonable manner the actual amount of loss incurred or when the plaintiff had not been able to prove the actual loss suffered, he would be entitled to recover nominal damages for a breach of contract and the court has to assess damages as best as it could on the materials available and should not decline to estimate them merely because the plaintiff could not adduce the best evidence. The court further observed that even in a case where nominal damages were only to be awarded, the extent of the same should be estimated with referenee to the facts and circumstances involved and the general principle to be borne in mind was that the injured party might be put in the same position as that he would have been if he had not sustained the wrong. Division Bench then following Rolin v. Steward, (1854) 14 C.B. 595 and Wilson v. United Counties Bank Ltd. (1920) Ac 102 held that nominal damages did not connote that a trifling amount was always to be assessed, but a substantial amount may be awarded as nominal damages.

(9) In the instant case, compensation has been ordered to be paid not lor breach of the contract, but for breach of statutory provision and even nominal damages in the absence of actual loss would have to be a substantial amount. I have found from a large experience of cases between the landlord and tenant, both as a. lawyer and as a Judge, that one or two months rent as compensation is considered to be too small, while six months rent or more rent is too high and normally three months rent is regarded as reasonable and good panacea to heal the sears in a dispute between the landlord and tenant unless there be some special circumstances established on the record justifying the award of a higher or a lower amount as permitted by law. In the facts and circumstances of the case, I consider it reasonable that three months' rent, that is to say, Rs. 1950 be paid to the appellant as compensation. This would incidentally also take into account the time the landlady would have been to conclude proceedings for eviction against the tenant on the ground of alternative accommodation mentioned in clause (h) of the proviso which fact had weighed with the Rent Control Tribunal.

(10) As a result, both the appeals arc allowed and in place of the order of the Rent Control Tribunal the order is substituted that the respondents will pay a sum of Rs. 1950 as compensation to the appellant with one set of costs of these appeals.

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