Skip to content


K.D. Singh Vs. Hari Babu Kanwal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil R. Appeal No. 633 of 1978
Judge
Reported in16(1979)DLT131
ActsDelhi Rent Control Act, 1958 - Sections 14A
AppellantK.D. Singh
RespondentHari Babu Kanwal
Cases ReferredNihal Chand v. Kalyan Chand (at
Excerpt:
.....on ground that government asked landlord to vacate premises - basis of relief asked by respondent government circular giving government servants beneficial exception under section 14a - law changed by subsequent circular - benefit of special legislation meant to serve special purposes - once purpose modified impermissible in law for government servant to invoke section 14a - held, section 14a not available to government servants - petition allowed. - - various defenses were taken by the petitioner but he failed before the rent controller and has come up in this court in revision. as is well known section 14a was inserted by act 18 of 1976 w. the fallacy that the rent controller had failed into this by assuming that because the landlord was required in terms of circular of 14. 7...........has happened is that the government has taken a decision by which it will apply different rates of rent from government servant owing house in case such a government servant has his own house fetching rent beyond rs. 1000.00 per mensem. whether because of this requirement it may become hard for a government servant to occupy government accomodation and he may legitimately have a reason to ask for the vacation of the house occupied by his tenant, is a different matter because that would be a requirement to satisfy the test of bonafids need, if and when, such an eviction application is brought under clause (e) of proviso to section 14(1) of the act. once, thereforee, the revised circular of 14. 7. 1977 has one, the very basis on which the eviction application under section 14a of the act,.....
Judgment:

Rajender Sachar, J.

(1) This is a petition for revision against the order of the Rent Controller dated 31.7. 1978 by which he allowed the application of the respondent/landlord under Section 14A of the Delhi Rent Control Act (to be called the Act) and directed eviction of the petitioner/tenant.

(2) The respondent/landlord is a government servant. In February, 1977 he moved an application under section 14A of the Act for recovery of possession from the petitioner/tenant. Various defenses were taken by the petitioner but he failed before the Rent Controller and has come up in this court in revision.

(3) The only point argued before me by Mr. Ishwar Sahai the learned counsel for the petitioner is that Section 14A is no to nger applicable to the present case and threfore no relief can be given to the respondent/landlord. As is well known Section 14A was inserted by Act 18 of 1976 w. e. f. 1. 12. 1975 in the Act. This was done in pursuance of a circular which had been issued by the Government of India on 9. 9. 1975 by which it was decided that those Government servants who have built their houses at the place of their posting within the limits of any to cal or adjacent municipality shall be required to vacate the government accomodation allotted to them within three months from 1.10.1975. It was also provided that if they do not vacate the government accomodation, after that period they would be charged license fee at market rate. It is common ground that the respondent has been allotted and is occupying government accomodation. The normal license fee of that house is Rs. 63.70 p. per month. In terms of the circular of 9. 9. 1975 if the respondent had continued to occupy the government premises allotted to him he would be liable to pay Rs. 21.00 w.e.f. 1.1.1976 which was subsequently raised to Rs. 297.00 per month w.e.f. 1. 8 1976. Evidently after issuing of notification of 9. 9. 1975. Evidently after the issuing of must be provided for in order to make it possible for the government servants who have been allotted government accomodation, to obtain possession of their own houses. This was natural because otherwise having provided for a direction that they were not entitled to any allotment and also having provided for charging market rent it would have been unfair if the legislation had not came to the aid of the government servants, permitting them to obtain immediate possession of their own houses. This was the background in which Section 14A was incorporated and which specifically provided that where the landlord being a person in occupation of a residential premises allotted to him by the Central Government etc. 'Is required by or in pursuance of any general or special order made by the government or authority to vacate such residential accomodation, or in default to incur certian obligations. It is apparent that applicability of Section 14A is attracted only when there is order by Central Government or other authority which requires a person in occupation of the residential premises allotted by Central Government to vacate such residential accomodotion or in default to incur certain obligations. The condition precedent, thereforee, is that there must be a direction to vacate such residential accomodation and I repeat only if he defaults, will he incur certain obligations. At the time when this application was brought in February 1977 the circular of 9. 9.1975 held the field, unfortunately for the landlord this possition underwent change when the Central Government issued a revised circular dated 14. 7 1977 by which the orders contained in the earlier circular of 9. 9. 1975 were modified after re-consideration. By the said circular the government decided that w.e.f. 1. 6. 1977 the restrictions of allotment of accomodation to house owning officers should be modified making the house owning officials eligible for government accomodation. It was also decided that allotment of such accomodation to house owning officers will be on normal rent if the income from his own house does not exceed Rs 1,000.00 per mensem or half the market rent if the income exceeds Rs. 1,000.00 but does not exceed Rs. 2,000.00 per mensem and on full market rent if the income is above Rs. 2,000.00 per mensem. A vital change thus took place by the circular of 14. 7. 1977 namely that there is no direction to a person who owns a house, and who is in occupation of a residential premises allotted to him by the Central Government to vacate such residential accomodation. No doubt such a government servant who is in occupation of government residential accomodation is Realizing rent on his own house exceeding Rs. 1000.00 and Rs. 2000.00 will now have to pay more than the normal rent, going up to half or even full market rent. But what is of importance is that one of the essential conditions to satisfy Section 14A as held in 1978 SC 258 Nihal Chand v. Kalyan Chand (at page 264) namely that such a landlord must have been required to vacate such residential accomodation. That requirement is completely missing after the revised circular of 14. 7. 1977. All that has happened is that the government has taken a decision by which it will apply different rates of rent from government servant owing house in case such a government servant has his own house fetching rent beyond Rs. 1000.00 per mensem. Whether because of this requirement it may become hard for a government servant to occupy government accomodation and he may legitimately have a reason to ask for the vacation of the house occupied by his tenant, is a different matter because that would be a requirement to satisfy the test of bonafids need, if and when, such an eviction application is brought under clause (e) of proviso to Section 14(1) of the Act. Once, thereforee, the revised circular of 14. 7. 1977 has one, the very basis on which the eviction application under section 14A of the Act, of the respondent landlord was brought, has ceased to exist, and cannot avail him. The counsel for the respondent has, however, urged that this application for eviction was brought in February '1977 i.e. much earlier that the circular of 14.7. 1977 and thus a vested right has accrued to the respondent/landlord to bring the application and the only thing that the court has to see is the circulars prior to February 1977 and as on that date there was a direction to the respondent/landlord to vacate the premises, applicability of Section 14A must be held to be established. He strongly contended that it was not open to the court to to ok at subsequent events and defeat a party's vested rights which had accrued to him and referred to me in this connection to 1976 SC 49 Rameshwar and others v. Jot Ram and others. That authority does not help the respondent. In that case the tenant had applied under Section 18 of the Punjab Security of land Tenures Act for purchases of tenancy rights as they were tenants of a large land owner. They had also deposited the statutory deposit, the consequence of which is that the title to the property vests in the tenant on that date This was done in 1960. Subsequent to that the large land owner died leaving a number of sons and that the point was raised by his sons that as they had now become small land owners the right to purchase of the tenant no to nger existed This plea was rejected by the Supreme Court which held that as a right had accrued to the tenant to purchase the tenancy rights and as he had also paid the necessary deposit that vested right could not be taken away by the subsequent death of the large land owner. But it is relevant to note that in this very authority it was recognised that subsequent events can and have to be taken in moulding relief and reference was made approvingly to its earlier decision of 1975 SC 1409. That case was under the Rent Control Act. During the pendency the landlord had received another accomodation and High Court held that the landlord could not succeed on that ground. Objection was raised by the landlord that this event was subsequent to the institution of eviction proceedings and should not have been taken note of Rejecting this contention the court observed that if a fact, arising after the list has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be bling to events which stultify or render inept the decretal remedy. The court specifically again approved of follwing observations made in 1941 Federal Court page 5, that the courts in this country have in numerous cases recognised that in moulding the relief to be granted in a case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existenes after the decree appealed against,' equally 1978 SC 259 referred to by the respondent is of no avail to the landlord. All that was held in that case was that the government servant who retired had nevertheless a right to proceed under Section 14A because the right had accrued to him when he was in service i. e. on the date he was directed by a general order in September '1975 to vacate the government premises and the mere fact that he had retired subsequently would not affect the maintainability of his application. It is relevant to note that in the course of the Judgment in interpreting Section 14A it was specifically laid down that in order to obtain eviction, landlord must satisfy one of the essential conditions that he must have been required to vacate such residential accomodation or in default to incur certain obligation. It would be dear that this decision also lays down that the condition precedent for applicability of Section 14A is the requirement that a landlord must have been required to vacate such residential accomodation. Now the landlord in the present case did satisfy this condition when he brought the application for eviction in February' 1977. But when the Rent Controller was deciding this matter on 31. 7. 1978, circular of 14. 7. 1977 had made a vital difference 10. the situation. This circular was rightly taken note of by the Rent Controller, though he incorrectly held that the effect of this circular is that as the landlord is liable to pay penal license fee, the Section 14A of the Act continued to apply. The fallacy that the Rent Controller had failed into this by assuming that because the landlord was required in terms of circular of 14. 7. 1977 to pay more licenes fee in certain circumstances, than he would normally have to pay that, was sufficient to attract Section 14A of the Act. This is an erroneous interpretation. Section 14A cannot came into play unless it is first established that there is a general or special order directing such persons to vacate such residential accomodation. That is no to nger there after 14. 7. 1977. Counsel for the respondent however, urged that charging higher rental from the government servant should be read by implication as a direction to vacate such government accomodation. I cannot agree. There is a vast qualitative difference in a specific direction requiring the government srevant to vacate the premises and making him ineligible to retain any government accomodation and the present circular which accepts the eligibility, though at a higher rent. The argument that the penal rent may work so harsh that it would be proper in some cases for the landlord to ask for eviction of the tenant on that ground, may be relevant for proceeding under clause (e) of the proviso to Section 14A but is not relevant to the determination of the matter under Section 14A of the Act. The whole basis for asking for relief in the present proceedings was the circular of 9. 9. 1975 Admittedly the 14th of July 1977 circular has made a vital change. The counsel for the respondent asserted that the Court should ignore the subsequent circular of 14th July, 1977 and given relief only on the basis of circular of 9th of September 1975. This the Court cannot do. The law as it exists on the date when it is being asked to give relief, must be taken note of and applied. The law has changed and Section 14A has ceased 10 be available to the respondent/landlord. It must be realised that Section 14A was brought in only for a limited purpose to enable the government servants in getting immediate possession of their houses when they had been directed to vacate the government accomodation. This special legislation was meant to serve special purpose in pursuance of the circular of 9. 9. 1975. Once that purpose has been modified and the government has revised its decision and there is no direction to vacate such residential accomodation it is impermissible in law to allow a government servant to invoke Section 14A and frsutrate the beneficial aspect of the Rent Control legislation like Rent Control Act and also to permit Section 14A to be used in the circumstances for which it was never intended.

(4) Section 14A was an exception to the general pro-tenant bias of the legislation like the rent control legislation. Exceptions were made to provide for immediate possession only on the ground that government had asked the landlord to vacate the premises. No other requirement either of Transfer of Property Act or the proof of bonafide need was to be required. All these exceptions which were contrary to the main provision of the tenancy legislation like the Delhi Rent Control Act must cease to apply, the moment the government has revised its policy by issuing circular of July, 1977. As a matter of fact the latest circular should have been followed by a consequential amendment if not deletion of Section 14A of the Act. But slowness of action on that side is no reason for the courts to ignore the clear conclusion that Section 14A can no to nger be availed of by government servants.

(5) Another argument by the counsel for the respondent was that in pursuance of circular of 9.9. 1975 the government of India had made amendment to the Allotment of Government residences Rules 19A3 with effect from 1.1.1976, where after supplementary Rule 317-B-2 a new Rule 317-B-3 was added. By the sub-rule (2) on and from 1. 1. 1976 no officer shall be eligible for allotment of government residence under these rules if he or any other member of his family owns a house, he shall surrender the government residence in his occupation it also provided that where such an officer shall not surrender the government residence he shall be liable to pay certain damages as may be determined by the government from time to time. The counsel for the respondent's argument is that there has been no modification of the allotment of Government Residence Rules (General Pool in Delhi) pursuance to circular of 14. 7. 1977. Obviously as this point was not mentioned before the Rent Controller there is no discussion of that in the Rent Controller's Judgment Nor is the counsel for the petitioner in position to tell me about the position. Even if there is inadvertent delay in amending Rules, it is of no consequence. It is, however, relevant to note that the respondent consequence It is, however relevant to note that the respondent is not disputing that the rent that he is now paying @ Rs. 151.00 per month w.e.f. 1. 6. 1977 and Rs. 162.50 P. from 1. 4. 1978. It is also not disputed by the counsel for the respondent that this rate of rent is calculated in terms of the circular of 14. 7. 1977. It is also on record that market rent of the government accomodation occupied by the respondent/ landlord would be Rs. 281.00 per month which was later on raised to Rs. 297.00per month. Whether because of the unreasonable delays necessary change has not been made in the allotment of government residences rules is besides the point; the circular is a decision taken by the Executive authority and is being acted on and followed. The respondent/landlord is himself a beneficiary and taking advantage of this very circular in paying lesser rent than he would have to pay if the circular of 14. 7. 1977 was not effective in law. I must take it thereforee that whether a formal incorporation has been done in the rules or not the government is acting not in pursuance of the rules as amended on 1.1.1976 but in terms of the circular dated 14. 7. 1977 which incorporated the latest decision of the Government. This argument, thereforee, that reliance on 14. 7. 1977 circular cannot be placed as it is in conflict with the rules, is without any merit and contrary to facts and must be rejected. The result is that the petition must be allowed and the impugned order of the Rent Controller is set aside and the eviction application is hereby dismissed. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //