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Shri Kishan Vs. Mahabir Singh and Two ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 161 of 1971
Judge
Reported inILR1975Delhi575
ActsSlum Area (Improvement and Clearance) Act, 1956 - Sections 19(4)
AppellantShri Kishan
RespondentMahabir Singh and Two ors.
Advocates: S.S. Chadha,; D.D. Chawla and; Shyam Kishore, Advs
Cases ReferredC. R. Abrol v. Administrator
Excerpt:
.....of the court was as to whether the status of the sub-tenant, should be considered.; that the slum areas act purports to grant protection form eviction only to tenants. that being so, a sub-tenant, whether lawful or unlawful, does not appear to have been intended to be given any protection from eviction under the act.; also, that it would be immaterial so far as the consideration by the competent authority is concerned, whether the landlord makes the sub-tenant a party to his application under section 19 or not, and whether he prays for permission to evict both the tenant and the sub-tenant or the tenant only.; (ii) interpretation of statutes--when can two statutes be said to be in pari materia--delhi rent control act, 1958 & slum areas act.;that statutes are said to be in pari..........singh, financial commissioner, delhi administration, delhi, (2) competent authority under the slum areas (improvement and clearance) act, 1955, and (3) shri shyam kishore. (3) the appellants filed the aforesaid writ petition alleging that appellant 2 was the tenant in respect of the first and second floors of premises no. 3530, darya ganj, delhi, that the tenancy was created in july or august 1939, that appellant i was a lawful sub-tenant of the said two floors since the year 1939, the year of the alleged inception of the tenancy, and that appellant 2 had not been living in the said two floors since the year 1942-43. on march 14, 1961, the landlord (respondent 3) filed a petition no. 351 of 1961 before the 1st additional controller stating, inter alia, that appellant 2, without his.....
Judgment:

T.V.R. Tatachari, J.

(1) This Letters Patent Appeal has been filed by Shri Krishan and Dr. Hans Raj Dawar against the judgment of a learned single Judge of this Court, S. Rangarajan J., dated March 31, 1971, whereby the learned Judge dismissed Civil Writ Petition No. 1116 of 1970 filed by them.

(2) The respondents in this Letters Patent Appeal, who were also the respondents in the Writ Petition, are (1) Shri Mahabir Singh, Financial Commissioner, Delhi Administration, Delhi, (2) Competent Authority under the Slum Areas (Improvement and clearance) Act, 1955, and (3) Shri Shyam Kishore.

(3) The appellants filed the aforesaid Writ Petition alleging that appellant 2 was the tenant in respect of the first and second floors of premises No. 3530, Darya Ganj, Delhi, that the tenancy was created in July or August 1939, that appellant I was a lawful sub-tenant of the said two floors since the year 1939, the year of the alleged inception of the tenancy, and that appellant 2 had not been living in the said two floors since the year 1942-43. On March 14, 1961, the landlord (respondent 3) filed a petition No. 351 of 1961 before the 1st Additional Controller stating, inter alia, that appellant 2, without his written consent and permission, had sublet, assigned, or parted with the possession of the two floors to appellant I about two or three years ago, that he, the owner of the said floors, bona fide required the same for his own residence and for the residence of the members of his family dependent on him as he had no other reasonably suitable residential accommodation, and that in the circumstances an order for the eviction of the appellant from the two floors may be passed in his favor.

(4) By an order, dated August 22, 1962 (Annexure A-VI), the Additional Controller held that the landlord failed to establish that appellant 2 had unlawfully sublet the two floors to appellant I in-as-much as the subletting being in 1939 could not be said to be unlawful. in view of the provision in clause (b) of the proviso to Section 14 of the Delhi Rent Control Act, 1958, according to which it was only subletting, assigning or parting with possession which occurs after June 9, 1952, that would be unlawful, and that respondent 3 could not be said to require bona fide the premises for his occupation in-as-much as he had not been able to establish that he had no other reasonably suitable residential accommodation. The Additional Controller, thereforee, dismissed the petition.

(5) Against the said order, the landlord (respondent 3) filed an appeal, No. 335 of 1962, before the Rent Control Tribunal. In that appeal, the landlord did not contest the decision of the Controller on the ground of subletting. As regards the other ground of bona fide requirement, the Tribunal held that it was not proved at all by the landlord that the existing accommodation in his possession was not reasonably suitable, and that he could not, thereforee, be said to require bona fide the two floors of the premises in dispute. In that view, the said appeal was dismissed by the Tribunal by a judgment dated December 1, 1962 (Annexure A-VII).

(6) Against that appellant judgment, the landlord preferred a second appeal, S.A.O. No. 216-D of 1962, to the High Court. The said Second Appeal was dismissed on October 25, 1966, by R. S. Narula J. (as the learned Judge then was). In the Second Appeal also, the finding concerning subletting was not questioned, and only the finding of the Tribunal that the existing accommodation in the possession of the landlord could not be said to be reasonably suitable alternative accommodation, was impugned. The said finding of the Tribunal was however, affirmed by Narula J.

(7) The landlord filed subsequently on October 21, 1969, an application (Annexure A-I before the Competent Authority under Section 19 of the Slum Areas (Improvement and Clearance) Act, 1955 for permission to file eviction proceedings on the same two grounds of unlawful subletting and bona fide requirement for his own occupation, and on an additional ground that the tenant (appellant 2) had since acquired a new house and had been residing in the same. By an order (Annexure A-III), dated April 8, 1970, the Competent Authority dismissed the application holding that the concurrent findings of the three courts in the previous proceedings on the ground of unlawful subletting and personal bona fide requirement were binding between the parties and operated as rest judicata, and that the landlord had not produced any evidence to establish that the eviction of the appellants herein was in the interest of improvement and clearance of the slum area. The Competent Authority did not give a definite finding as regards the ground that the appellant 2 had since acquired a new house and had been residing therein.

(8) Against that order of the Competent Authority, the landlord preferred an appeal to the Financial Commissioner under Section 20 of the Slum Areas (Improvement and clearance) Act (here in after referred to as the 'Slum Areas Act'). By an order, dated July 14, 1970, the Financial Commissioner allowed the appeal. It was stated in the said order that a statement was made before the Financial commissioner on behalf of the landlord that his application before the Competent Authority and the resultant appeal had been filed to seek the eviction of appellant 2, Dr. Hans Raj, alone, that appellant I, Shri Kishan, was imp leaded only to meet the requirement of law, and that the landlord did not seek any relief vis-a-vis the said appellant I, Shri Kishan. As regards appellant 2, Dr. Hans Raj, it was contended before the Financial Commissioner on behalf of the landlord that under Section 19 of the Slum Areas Act it was only the eviction of a tenant that could be sought and, as such, it was only the status of appellant 2 Dr. Hans Raj and not the status of appellant I, Shri Kishan (sub-tenant), that was required to be determined in deciding the application under Section 19 of the Act. It was also contended that appellant I, Shri Kishan, who was the sub-tenant, had not served the landlord with the notice under Section 17 of the Rent Control Act, and that he could not, thereforee, claim the status of a tenant. It was further contended that appellant 2, Dr. Hans Raj, was admittedly no longer in occupation of the demised two floors, and had been residing in another premises, and that the Competent Authority should have, thereforee, had no hesitation in granting permission to institute proceedings for the eviction of appellant 2, (Dr. Hans Raj, from the said demised premises. It was also contended that the earlier findings regarding the grounds of unlawful subletting and bona fide requirement of the landlord could not operate as rest judicata in the application under Section 19 of the Slum Areas Act. The learned Financial Commissioner, accepting the said contentions, held that for purposes of Section 19 of the Slum Areas Act the status of Dr. Hans Raj only was relevant and the status of Shri Kishan was not relevant, that Dr. Hans Raj was a man of means and 'his eviction, if secured by the landlord, would not entail Dr. Hans Raj having to fend for alternative accommodation and thus entailing the possibility of creating another slum', and that the findings in the earlier proceedings did not operate as rest judicata in the proceedings under Section 19 of the Slum Areas Act. In that view, the learned Financial Commissioner allowed the appeal, set aside the order of the Competent Authority, and granted permission to the landlord to initiate proceedings for eviction of. appellant 2, Dr. Hans Raj, from the first and second floors of premises No. 3530, Darya Ganj, Delhi.

(9) Thereupon, the appellants herein (sub-tenant and tenant) filed Writ Petition, No. 1116 of 1970, in the High Court, praying that the order of the Financial Commissioner be quashed and the order of the Competent Authority be restored. The Writ Petition was heard by S. Rangarajan J. The questions that were urged for consideration before the learned Judge were (1) whether the term 'tenant' in Section 19(4) refers to or includes a sub-tenant in occupation of the premises in question, and (2) whether what was relevant for being considered under Section 19(4) of the Slum Areas Act in the present case was the status of only appellant 1, Shri Kishan, who was a sub-tenant in ocupation of the premises, but not of appellant 2, Dr. Hans Raj, who, though a tenant, was not in actual possession of the two floors in dispute. By his judgment, dated March 13, 1961, the learned Judge, on a consideration of the provisions of the Slum Areas Act and the decisions cited before him, did not give a definite finding on the question whether the Slum Areas Act and the Delhi Rent Control Act are in pan materia, held that the expression 'tenant' in Section 19(4) of the Slum Areas Act could not be said to include a sub-tenant, and that the view taken by the Financial Commissioner could not be said to be legally erroneous, although the matter was not entirely free from difficulty because of the omission in the Slum Areas Act to define the term 'tenant' for the purposes of the Act. In that view, the learned Judge dismissed the Writ Petition. It is against that judgment that the present Letters Patent Appeal has been filed by Shri Kishan and Dr. Hans Raj, the sub-tenant and the tenant respectively in respect of the first and second floors of premises No. 3530, Darya Ganj, Delhi.

(10) Shri S. S. Chadha, learned counsel for the appellants, contended before us that in considering the application under Section 19(4) of the Slum Areas Act, the Financial Commissioner ought to have taken into consideration the means of the sub-tenant (appellant 1) and determined whether alternative accommodation within his means would be available to him, if evicted, in-as-much as appellant I was a lawful sub-tenant and his eviction was prayed for in the application filed under Section 19(1) of the Slum Areas Act.

(11) As already stated, the sub-letting in favor of appellant I was some time in 1939 and the same was quite lawful in view of the provision in clause (b) of the proviso to Section 14 of the Delhi Rent Control Act, 1958, according to which only subletting or parting with possession which occurs after June 9, 1952, that would be unlawful, as held by the Competent Authority. This finding of the Competent Authority was not challenged either before the Tribunal or in the Second Appeal or before the Financial Commissioner or before Rangarajan J. In the present appeal also, Shri D. D. Chawla, learned counsel for the landlord, did not question the same before us. In fact, there cannot be any dispute about the said aspect in view of the clear provision in clause (b) of the proviso to Section 14 of the Delhi Rent Control Act. We have, thereforee, to proceed on the basis that appellant I was a lawful sub-tenant in respect of the first and second floors of the premises in question.

(12) The question then is whether the availability of alternative accommodation to such a lawful sub-tenant within his means, if evicted, has to be taken into consideration under Section 19(4) of the Slum Areas Act, when he has been made a party to the application under Section 19 and his eviction also has been prayed for. Section 19(4) of the Slum Areas Act reads as follows:

'INgranting or refusing to grant the permission under Subsection (3), the Competent Authority shall take into account the following factors, namely : (a) whether alternative accommodation within the means of the tenant would be available to him if he were evicted;

(B)whether eviction is in the interest of improvement and clearance of the Slum Areas;

(C)such other factors, if any, as may be prescribed.'

(13) In sub-section (4), the expression 'tenant' alone has been used, and the expression 'sub-tenant' has not been used. The expression 'tenant' has not been defined in the Slum Areas Act. In the Delhi and Ajmer Rent Control Act, 1952, the term 'tenant' was defined in Section 2(j) of the said Act. as including a 'sub-tenant'. Again, in the Delhi Rent Control Act, 1958, also the term 'tenant' has been defined in Section 2(1) as including a sub-tenant. Shri Chadha sought to argue that the Slum Areas Act and the Delhi Rent Control Act are in pari materia, and the definition of the expression 'tenant' in the latter Act has to be read Into the former Act. But, in our opinion, the Delhi Rent Control Act cannot be regarded as being in pari materia with the Slum Areas Act. As explained in 'Maxwell' on Interpreation of Statutes' (12th Edition), at page 66, statutes are said to be in pari materia when they deal with the same person or thing, or with the same class of persons or things, and it is not enough that they deal with a similar subject matter. In Craies on Statute Law, 6th Edition, at pages 133-34, it is stated as follows:

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

It is also stated as under:

'INthe American case of United Society v. Eagle bank, (1) Nosser J. said: Statutes are in pari materia which relate to the same person or thing or to the same class of persons or things. The word par must not be confounded with the word sinilis. It is used in opposition to it as in the expression 'magis paras aunt quam sinilis, intimating not likeness merely, but identity, It is a phrase applicable to the public statutes or general laws made at different times and in reference to the same subject.'

(14) In the case of the two Acts in question, namely, the Delhi Rent Control Act and the Slum Areas Act, even though they both contain provisions concerning landlords and tenants, the Slum Areas Act operates both in areas where the Delhi Rent Control Act is in force and in other areas where the Delhi Rent Control Act is not in force. This is clear from Section 1(2) of the Slum Areas Act according to which the said Act extends to all Union Territories except the Union, Territories of the Andaman and Nicobar Islands and the Laccadive, Minicoy and Amindive Islands. On the other hand, the Delhi Rent Control Act extends only to the areas included within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and to such urban areas within the municipal limits of the Municipal Corporation of Delhi as are specified in the First Schedule to the Act. Further, Section 19(1) of the Slum Areas Act deals with protection of a tenant from eviction from 'any building or land in a slum area', while the Delhi Rent Control Act deals with only 'premises' which has been defined in that Act as any building including, inter alia, garden, grounds and out-houses appertaining to such building. Further, as observed by Sarkar J, in Lakhmi Chand v. Kauran Devi, : [1966]2SCR544 , the Slum Areas Act is not concerned with the relations between landlords and tenants as such, and it does not purport to interfere directly with the ordinary contractual right of landlords and tenants either as to rents or as to recovery of possession, while the Delhi Rent Control Act does. Thus, the scope and extent as well as the subject-matter of the two Acts are not the same, and it cannot, thereforee, be said that the two Acts are in pari materia. Consequently, the definition of 'tenant' in the Delhi Rent Control Act cannot be read into the Slum. Areas Act, and the expression 'tenant' used in Section 19(4) of the Slum Areas Act cannot be held to include a 'sub-tenant' on the basis of the definition of the expression 'tenant' in the Delhi Rent Control Act.

(15) Shri Chadha next contended that apart from the definition of the expression 'tenant' in the Delhi Rent Control Act, and on a consideration of the object, the scheme and the provisions of the Slum Areas Act itself, the expression 'tenant' used in Section 19(4) of the Slum Areas Act should be regarded as including a lawful sub-tenant who is in occupation of the whole or a part of the demised premises, and as such the availability of alternative accommodation within his means should also be taken into consideration by the Competent Authority in considering an application for permission under Section 19(1) of the Slum Areas Act.

(16) The object of the Slum Areas Act is stated in the Preamble to the Act to be (i) to provide for the improvement and clearance of slum areas in certain union territories, and (ii) for the protection of tenants in such areas from eviction. The object of the Act is thus expressly confined to the protection of tenants in the slum areas.

(17) The scheme of the Act also, as can be gathered from a perusal of the various provisions therein, does not show that the Act is intended to give protection from eviction to any persons other than tenants in slum areas. The Act consists of seven Chapters. Chapter 1 contains preliminary provisions. Chapter Ii deals with declaration of slum areas. Chapter Iii deals with slum improvement. Chapter Iv contains provisions regarding slum clearance and re-development. Chapter V provides for acquisition of land. Chapter Vi, which is the only material chapter in the present context, provides expressly for the protection of tenants in slum areas from eviction. Chapter Vii contains various miscellaneous provisions.

(18) The expression 'occupier' has been used in some of the provisions of the Act, and the same has been defined in Section 2(f) of the Act as including

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

(B)an owner in occupation of or otherwise using his land or building;

(C)a rent free tenant of any land or building;

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

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

(19) The above definition contemplates 'occupier' as owner, tenant, or as licensee, and according to the said definition the liability for the payment may arise either as rent from a tenant or as damages from a trespasser. In other words, the person in occupation of the premises in question may be either a lawful tenant or an unlawful trespasser. Thus, the definition of 'occupier' in the Act appears to include a lawful or unlawful sub-tenant. Yet, even this extended or wide definition of the expression 'occupier' has been utilised only in the matter of recovery of expenses under Section 6 of the Act and no where else in the Act. However, it has to be noted that the expression 'occupier' has been used in a Chapter other than Chapter Vi which is the only Chapter which contains provision for protection from eviction. The said Chapter consists of only Section 19, and the expression 'tenant' alone has been used in it. The expression 'occupier' does not find a place in Section 19.

(20) Thus, the object, the scheme, and the provisions of the Act, show that the statute purports to grant protection from eviction only to tenants and an 'occupier' as such does not get any protection under the Act. That being so, a sub-tenant, whether lawful or unlawful, does not appear to have been intended to be given any protection from eviction under the Act. The mere fact that the sub-tenant is a lawful sub-tenant does not make any difference since, as held by Bhandari C.J. in Dr. Prem Nath v. Pt. Manmohan Nath, 1954 P.L.R. 427 a person becoming a sub-tenant of a tenant with the written consent of the landlord cannot be deemed to be a tenant under the landlord. Similarly, a person who became a sub-tenant prior to June 9, 1952, may be a lawful sub-tenant in the sense that the landlord cannot claim eviction of the tenant on the goround of sub-letting in view of the provision in clause (b) of the proviso to Section 14(1) of the Delhi Rent Control Act. But, the said person is just a sub-tenant, and is not a direct tenant under the landlord. Even if he had given a notice under Section 17 of the Delhi Rent Control Act, 1958, he would become a tenant under the landlord under Section 18 of the said Act only after an order for eviction is made against the tenant but not against him (sub-tenant). In the present case, we are told by Shri D. D. Chawla that no such notice under Section 17 had been given to the landlord by the sub-tenant. The contention of the learned counsel based on the object, the scheme and the provisions of the Act cannot, thereforee, be accepted.

(21) The next contention of Shri Chadha was that it is the grounds in the various clauses of the proviso to Section 14(1) of the Delhi Rent Control Act. that determine whether an order of eviction is to be passed against the tenant and the sub-tenant or only against the tenant, and that if the landlord applies under section 19 of the Slum Areas Act for eviction of both the tenant and the lawful sub-tenant. the Competent Authority has to consider the means of both, and, on the other hand, if the landlord prays for eviction of only the tenant, the Competent Authority need consider only the means of the tenant. We are unable to appreciate how the grounds under Section 14 of the Delhi Rent Control Act can be said to be of any relevance so far as an application under Section 19 of the Slum Areas Act is concerned. It has been held by a Division Bench of this Court, Hardayal Hardy and V. S. Deshpande JJ., in C. R. Abrol v. Administrator under the Slum Areas and others, 1970 R.C.R. 591 that it is entirely unnecessary for the landlord to plead any of the grounds in Section 14(1) of the Delhi Rent Control Act in an application under Section 19 of the Slum Areas Act, inasmuch as they are relevant only under the said Delhi Rent Control Act but are completely irrelevant under the Slum Areas Act, and that the Competent Authority is precluded from considering the said grounds. That being so, nothing would turn on the fact that the landlord applied for eviction of both the tenant and the sub-tenant. If we are right in our view that under Section 19(4) of the Slum Areas Act the Competent Authority is concerned only with the means of the tenant, it would be immaterial so far as the consideration by the Competent Authority is concerned, whether the landlord makes the sub-tenant a party to his application under Section 19 or not, and whether he prays for permission to evict both the tenant and the sub-tenant or the tenant only. Shri D. D. Chawla, learned counsel for the landlord, pointed out that though the landlord asked for permission to evict both the tenant and the sub-tenant in paragraphs 3 and 4(a) as well as in the prayer clause in his application under Section 19 of the Slum Areas Act, it was stated unequivcally on his behalf before the Financial Commissioner that he wanted permission to evict only the tenant, Dr. Hans Raj. This, in our opinion, has no consequence in the view taken by us above that whether the sub-tenant has been made a party or not and whether permission to evict him also has been asked by the landlord or not, the Competent Authority need consider only the means of the tenant under Section 19(4) of the Slum Areas Act.

(22) The last contention of Shri Chadha was that there are provisions in the Delhi Rent Control Act under which an order for eviction of the tenant could be executed against the sub-tenant, and that it is but just and fair that the means of the sub-tenant also should be taken into consideration as he himself might create a slum if evicted. This contention also has no force. If an order of eviction obtained against the tenant can be executed against the sub-tennant under the provisions of the Delhi Rent Control Act, such an action would only be by reason of the provisions of the statute. The said circumstance cannot, however, be a factor in deciding the question as to what should be taken into consideration by the Competent Authority under Section 19(4) of the Slum Areas Act, as Section 19(4) does not provide for the same. The question of any justice or fairness does not arise in view of the policy of the legislature in enacting the Slum Areas Act giving protection from eviction only to tenants and no other persons.

(23) For the foregoing reasons, we agree with the decision of the learned single Judge. The Letters Patent Appeal is, thereforee, dismissed, but in the circumstances without costs.


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