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S.P. Arora Vs. Ajit Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 169D of 1962
Judge
Reported inILR1970Delhi130
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantS.P. Arora
RespondentAjit Singh
Advocates: B.C. Misra,; M.C. Aggarwal,; G.N. Aggarwal and;
Cases ReferredWoman ShriniwasKini v. Rati Lal Bhagwandas
Excerpt:
delhi rent control act (1958) - section 14(1) provisio to clause (k) -- scope of--meant for benefit of landlord--waiver of.; the situation mentioned in clause (k) is the user of the premises by the tenant in a manner contrary to any condition imposed on the landlord by the government or the delhi development authority or the municipal corporation of delhi; while giving him a lease of the land on which the premises are situate. such an user would entail the forfeiture of the lease-hold right of the landlord in the land and, thereforee, provision is made in clause (k) enabling the landlord to evict the tenant in case of such an user with a view to protect the leasehold right of the lanlord. the provision in clause (k) is thus meant for his (landlord) benefit. it does not impose any.....t.v.r. tatachari, j. (1) this second appeal has been filedagainst the order of shri pritam singh pittar, rent controltribunal, delhi, dated 22/05/1962, in rent control appealno. 486 of 1961, dismissing the said 'appeal and confirming the order of shri b. l. mago, rent controller, delhi, dated 2 7/10/1961, whereby the rent controller dismissed the application filed by s. p. arora, appellant herein, under section 14(1)(c) and (k) of the delhi rent control act, 1958, prayingfor the evication of ajit singh, the respondent herein from thesuit premises.(2) on 6/05/1943, the father of the appellant herein obtained a perpetual lease (exhibit a-9) in respect of certain landfrom the delhi improvement trust. one of the terms ofthe lease was that the lessee should erect upon the said landwithin one.....
Judgment:

T.V.R. Tatachari, J.

(1) This Second Appeal has been filedagainst the order of Shri Pritam Singh Pittar, Rent ControlTribunal, Delhi, dated 22/05/1962, in Rent Control AppealNo. 486 of 1961, dismissing the said 'appeal and confirming the order of Shri B. L. Mago, Rent Controller, Delhi, dated 2 7/10/1961, whereby the Rent Controller dismissed the application filed by S. P. Arora, appellant herein, under section 14(1)(c) and (k) of the Delhi Rent Control Act, 1958, prayingfor the evication of Ajit Singh, the respondent herein from thesuit premises.

(2) On 6/05/1943, the father of the appellant herein obtained a perpetual lease (Exhibit A-9) in respect of certain landfrom the Delhi Improvement Trust. One of the terms ofthe lease was that the lessee should erect upon the said landwithin one year from the date of the lease and thereafter atall times during the terms of the lease maintain on the land agood and substantial residential house. Another term was thatthe lessee should not use the said land and the building thereon during the term of the lease for any other purpose than forthe purpose of residential use without the consent in writingof the Lesser, and it was stipulated that the lease shall becomevoid if the land is used for any purpose other than the purposefor which the lease was granted for being a purpose subsequently approved by the Lesser. The lease contained certain additional covenants, one of which was that no forfeiture or re-entryshall be effected for non-observance or non-performance of thecovenants in the lease until the Lesser has served on the lesseea notice in writing :

'(A)specifying the particular breach complainedof: and

(B)if the breach is capable of remedy, requiringthe lessee to remedy the breath, and the lessee failswithin a reasonable time from the date of service of thenotice to remedy the breach, if it is capable of remedy;and in the event of forfeiture or re-entry the Lesser mayin its discretion relieve against forfeiture on such termsand conditions as it thinks proper.'

(3) It was decited in the lease deed that the grant of the lease wasmade under the authority of the Crown, and that the provisions of the Crown Grants Act (XV of 1895) shall apply to thegrant.

(4) Thereafter, the appellant built a house on the land. In April,1951, the respondant herein took on rent the first floor of thehouse from the appellant herein for residential purposes, the rentbeing Rs. 110.00 per mensem. The rent was subsequently increased to Rs. 121.00 per mensern. In September, 1953, the respondent took on rent the ground floor also from the appellantfor a rent of Rs. 115.00 per mensern. According to the appellant.the ground floor was let out for residential purposes, whileaccording to the respondent the ground floor was let out forcommercial purposes. In April, 1954, the respondent obtainedconnection for electrical power, and in June, 1955, he obtaineda license for running a factory on the ground floor (vide Rw 2).If appears that the respondent began to run a factory knownas Bangson Electronic Industries on the ground floor.

(5) The Delhi Improvement Trust was succeeded by the DelhiDevelopment authority. The said Authority issued a notice(Exhibit A-1) on 11/09/1959, to the appellant inwhich it was stated that the appellant herein, as' a lessee of theplot of land, was entitled to use the land and the buildingthereon for the purpose of residential use only, that he. however, permitted the same to be used for purposes of a factorywhich was contrary to the terms of the lease, and that as thelease was liable to be determined for the breach of the termsof the lease, the appellant was required to discontinue the saiduse of the land and the building thereon, The appellant wasalso required to show cause why the lease be not determinedand the land together with the building be not re-entered uponwithout any compensation. The appellant sent a reply (ExhibitA-8) on 15/09/1959, stating that he let out the building in question to the respondent herein expressly and solely forresidential purposes only, that the building was being used asfactory without the appellant's authority, that he was sending anotice to the respondent-herein to remove the factory from the premises at once and that the authority may rest assured thatthe appellant would do everything possible to have the factoryremoved from the house. On the same date, the appellamt senta letter (Exhibit A-7) to the respondent stating that the ground floor was let out to him solely for residential purposes, that therespondent however was using the building for the purpose ofa factory known as Bangson Electronic Industries that the factoryshould be vacated within two weeks failing which legal actionFor ejectment would be taken against the respondent and thata copy of the notice issued by the Delhi Development Authoritywas enclosed wherefrom the respondent could notice that in caseof failure on his part very severe action was threatened by theAuthority. The respondent however does not admit the receiptof this letter. On 9/11/1959, the Authority againsent a letter (Exhibit A-5) to the appellant enquiring what legalaction was taken for the removal of the factory. The appellant thereupon sent through his lawyer a notice (Exhibit A-10)to the respondent on 20/11/1959, referring to theearliest letter (Exhibit A-7) dated 15/09/1959. Inthis letter the appellant pointed out that both the ground floorand the first floor were let out to the respondent for purposesof residence only, that the respondent was however using the premises for a factory a purpose other than that for which itwas let out, that the respondent was fully aware of the fact thatthe lease of the land under the said premises was given to theappellant on the express condition that the premises built onthe land would be used for the purposes of residence only thatthe said fact was brought to the notice of respondent by letter.dated 15/09/1959, sent along with a copy of the noticereceived from the Delhi Development Authority under a registeredA/D cover, that the respondent however, did not care to acknowledge the said letter and did not remove the factory, that theDelhi Development Authority had again sent a letter dated 1 9/11/1959, and a copy of the same was enclosed, and thatthe respondent should remove the factory and cease using the premises for a purpose other than that of residence failing whichaction would be taken for the ejectment of the respondent from the premises in a court of law. The receipt of this letter isadmitted by the respondent. He, however, did not remove thefactory, but is slated to have sent a reply on 7/12/1959,stating that the ground floor was let out-for commercial purposeand not for residential purpose,As the respondent did not remove the factory, the appellantherein filed an application on 15/11/1960, in theCourt of the Rent Controller, Delhi, under clauses (c) and (k)of the proviso to section 14(1) of the Delhi Rent Control Act,1958, praying for the eviction of the respondent from the ground floor on two grounds, viz.-

'(1)Because the tenant is using the premises .notwithstanding previous notice in a manner contrary to theconditions imposed on the landlord by the Lesser whilegranting him the lease of the land under the premiseslet; and

(2)because the premises were let after 9/06/1952 and the tenant is using them for a purpose otherthan for which they were let without obtaining theconsent of the landlord in writing.'

(6) The respondent contested the application and pleaded that the premises in dispute, i.e. the ground floor, was not rented forresidential purpose, that he had not used the premises in amanner contrary to the purpose lor which it was let out, thathe did not know the terms of the lease of the land on whichthe premises were situate, that he had been using the premisesin dispute as a factory from the start of the tenancy, and thatthe appellant herein had been receiving rent and had, thus waivedthe objection, if any, to the user of the ground floor for the purpose of a factory.

(7) The Rent Controller, by his his judgment, dated 27/10/1961, held that the ground floor was let out for the purpose ofusing the same as factory premises and not for the purpose ofresidence, and that, thereforee, there was no mis-user by the respondent within the meaning of clause (c) of the proviso tosub-section (1) of section 14 of the Delhi Rent Control Act,1958. As regards the second ground relied upon by the landlord, the learned Rent Controller relying upon a decision of theHigh Court of Punjab in Uma Kumari v. Jaswant Rai Chopra,1960 P.L.R. 460 heldQwas let outby the appellant herein to the respondent for the purpose of afactory and he himself committed the breach of the conditionof the lease between himself and the Delhi Development Authority, he could not now ask his tenant to quit or to change theuser, and that the respondent could not, thereforee, be ejected onthe ground specified in clause (k) of the proviso to sub-section(1) of section 14 of the Delhi Rent Control Act. In the result,the Rent Controller dismissed the application.

(8) Against that order, the appellant herein preferred an appeal,Rent Control Appeal No. 486 of 1961, to the Court of SriPritam Singh Pattar, Rent Control Tribunal. Delhi. By anorder, dated 22/05/1962 the Tribunal agreed with thedecision of the Rent Controller and dismissed the appeal. It isagainst that appellate order that the present second appeal hasbeen filed by the landlord, S. P. Arora.

(9) Shri B. C. Misra, learned counsel for the appellant contended firstly that the finding of the Rent Controller and the RentControl tribunal that there had been no misuse of the ground floor by the respondent within the meaning of clause (c) of theproviso to sub-section (1) of section 14 of the Delhi RentControl, Act, 1958, was based on conjectures and not on evidence and that both the Controller and the Tribunal erred inholding that the respondent was not liable to be evicted on theground specified in the aforesaid clause. Admittedly, the ground floor was let out to the respondent in September, 1953. Thecase of the appellant was that the ground floor was let out tothe respondent for the purpose of residence only, but that therespondent has been using the premises for a purpose other thanresidence without obtaining his permission to change the user.On the other hand, the case of the respondent was that the ground floor was let out for the purpose of running a factory and notfor the purpose of residence. The appellant, S. P. Arora, examined himself as A.W. 2. He stated in his evidence that a rentnote was got executed while letting out the ground floor, butthat note was not traceable. The respondent denied that suchrent note was ever written. The appellant admitted in his evidence that by the date on which the ground floor was let outthe respondent had already been in possession of the first floorof the house, which was leased to the respondent in April, 1951.He also admitted that there were four living rooms on the firstfloor besides a kitchen and a bath and a barsati on the secondfloor. The respondent deposed as R.W. 1, that at the lime of.getting the ground floor on rent, his family consisted of sevenmembers, including,' his four sisters, and that out of the sisters,one was married in January 1954. Referring to these circumstances, the Rent Controller observed that there did not appearto be any reason for the respondent to have taken on rent forresidential purpose the ground floor portion, which consists offour rooms, a kitchen, water closet and bath, when he was alreadyin possession of sufficient accommodation and that the versionof the respondent that he took the ground floor on rent for installing a factory appears to be true. The said observation cannot be regarded as a mere conjecture. It was a legitimate inference drawn from the circumstances mentioned above. Further, the respondent examined himself as R.W. 1 and stated thathe took the ground floor on rent in September, 1953, for installation of the factory, that the factory was installed in that verymonth, that in 1954 he got the. electric connection, that the factory was got registered by him in 1954 by the Municipality,and that the ground floor had been used as factory premisessince then. Gian Chand, a clerk in the Office of the ChiefInspector of Factories, was examined as R.W. 2 and he statedthat the license to run the factory in the premises in dispute wasissued to the respondent on 10/06/1955, and that thelicense was renewed every year. Pritam Singh; A.W. 3, andRoshan Lal, A.W. 4, who were neighbours, were examined aswitnesses on behalf of the appellant. Pritam Singh, who wasexamined on 23-10-1961, admitted that the respondent hadfixed his factory on the ground floor about seven years backand the factory had been working for the last seven years.Roshan Lal also stated in his examination-in-chief that the respondent had installed a factory on the ground floor. In hiscross-examination, he admitted that since the respondent tookover the ground floor on rent he installed machinery in the roomsand they have been working there. Bharat Singh Sharma, whocollects rent on behalf of the appellant, and who had been Realizing rent from the tenants of the appellant, was examined usA.W. 5. He stated in his evidence that he had been Realizing rentfrom the respondent from the year 1954, and that in 1956 hesaw the machinery being fixed in the room of the house in dispute. He modified the statement in his cross-examination bystating that the respondent never paid him rent, that the respondent was paying rent to Mr. Arora, who is the brother of theappellant, and that the said brother of the appellant visits Delhionce a year. Exhibits R1, R2 and R4 are receipts issued bythe said brother of the appellant. Electrical power connectionwas applied 'for by the respondent and exhibit R3 is the letterwritten by him in that connection. It was signed by Pritam SinghAW3 and Roshan Lal AW4. The evidence, thus, clearly discloses that the respondent had installed a factory in the ground floor shortly after the ground floor was taken on rent and thesame has been working since then under a license. On a consideration of the above facts and circumstances, the Rent Controller came to the conclusion that in view of the long use of the premises (ground floor) as factory premises, 'and in view of thefact that the appellant had been receiving rent without objection, it was reasonable to presume that the purpose of the lettingof the premises in dispute (ground floor) was not residence, butthe purpose was to use the premises as factory premises. Thelearned Rent Control Tribunal, on a consideration of the aforesaid facts and circumstances, agreed with the conclusion of theRent Controller and confirmed the same. The said conclusion of theRent Controller and the Tribunal cannot be regarded as basedon mere conjecture. It was based on the evidence onthe record and I am unable to see any legal infirmity in the saidconcurrent conclusion of the Rent Controller and the Tribunal.It follows that the ground floor was not used by the respondentfor a purpose other than that for which it was let out, and.therefore, the Tribunal and the Controller rightly held that therespondent was not liable to be evicted on the ground specifiedin clause (c) of the proviso to sub-section (1) of section 14 ofthe Delhi Rent Control Act, 1958.

'14. Protection of tenant against eviction.-(1) Notwithstanding anything to the contrary contained in any other law or contract no order ordecree for the recovery of possession of anypremises shall be made by any court or Controller in favor of the landlord against thetenant:Provided that the Controller may, on an application made to him in the prescribed manner,make an order for -the recovery of the premiseson one or more of the following grounds only.namely(c) that the tenant has used the premises fora purpose other than that for which they werelei-(i) if the premises have been let on or afterthe 9th day of June, 1952, without obtaining the consent in writing of the landlord;or(ii) if the premises have been let before thesaid date without obtaining his consent;(k) that the tenant has, notwithstanding previousnotice, used or dealt with the premises in amanner contrary to any condition imposed onthe landlord by the Government or the DelhiDevelopment Authority or the Municipal Corporation of Delhi while giving him a lease ofthe land on which the premises are situate.'

(10) In view of the finding that the appellant himself had let out thebuilding to the respondent for a commercial purpose which wasdifferent from the purpose for which the lease was granted, theRent Controller held that since the appellant had himself let outthe premises turn a purpose contrary to the condition in the original lease, and thus himself committed a breach of the conditionin the lease, he could not get the respondent-tenant ejectedunder section 14(1)(k) of the Rent Control Act. The RentControl Tribunal agreed with the said view of the Rent Controller. Both the Rent Controller and the tribunal relied upona decision of the High Court of Punjab in Lima Kumari v.Jaswant Rai Chopra, 1960 P.L.R. 460. In that case, the landlady, Uma Kumari, who had taken land on permanent lease from the Delhi Improvement Trust on condition that the premisesbuilt upon it would be used for business purposes, let out thesame for residential purposes. She subsequently sued for theejectment of the tenant on the ground that the tenant was usingthe premises in a manner contrary to the terms and conditionsof the permanent lease, and sought eviction under clause (k) ofthe proviso to sub-section (1) of section 13 of the Delhi &Ajmer; Rent Control Act, 1952, which was similar to clause (k)of the proviso to sub-section (1) of section 14 of the Delhi RentControl Act, 1958. The eviction sought for was decreed by thetrial Court. On appeal, the appellate Court allowed the appealand refused to grant eviction taking the view that the landlady, who herself had let out the premises in breach of the conditionin the original lease in respect of the land was estopped fromclaiming ejectment on the ground that the premises was being usedfor a purpose other than the one for which the land was leasedby the Trust. In a revision preferred by the landlady to the HighCourt, it was contended that the provision in the Rent ControlAct contained a clear prohibition against the use of the premises contrary to the condition imposed on the landlord by theDelhi Improvement Trust while giving; him the lease, that anyagreement between the land lady and the tenant in contraventionand disregarded of the said inhibition would be illegal and unenforceable under section 23 of the Contract Act, that the provisionin the Rent Control Act was based on public policy, and publicpolicy demands that a contravention of the express prohibitionshould not be allowed even though it was covenanted to by thelandlady and agreed upon between the parties, and that therecould be no waiver against a statute. Chopra, J. rejected thesaid contention as being fallacious and based upon a wrong hypothesis. The learned Judge pointed out that clause (k) of theproviso to section 13(1) of the Act did not prohibit a landlordfrom letting out the premises for a purpose different from thepurposes for which the land under the premises was originallygranted to him, that the clause merely provided for the protectionof a personal right of the landlord and was meant for his benefit,and that the landlord could, thereforee, waive the same and onceit was waived the landlord was estopped from enforcing that right.The learned Judge explained the position as follows:-

'ASI read it clause (K) of the proviso to section 13(1) of the Act does not contain any letting out ofthe premises by a landlord contrary to the term andcondition imposed on him by the Government or theDelhi Improvement Trust while giving him the lease.The clause merely contains a provision for the protection of a personal right of the landlord and is meantfor his benefit. The landlord is given the right to sue forejectment of the tenant and get him evicted if the tenant,in spite of notice, uses or deals with the premises contrary to the terms a(nd conditions of the lease by theGovernment. This right was refused to him by subsection (1) of section 13, but an exception to it wascreated by clause (k) of the proviso. The statutedoes not impose any duty or obligation on the landlordor the tenant; it merely imposes a penalty on thetenant and creates a right i(n the landlord, which hemay or may not exercise. There being no express prohibition in the Act, there was nothing wrong in theagreement being a personal one it could be waived bythe landlord. Once it is waived the landlord would beestopped from enforcing that right.'

(11) The learned Judge further pointed out an anomaly that wouldresult if the contention of the landlady was to be accepted, asfollows:-

'CLAUSES(b) and (c) of the proviso to section 13(1) of the Act laid down infer alias that the tenant can beevicted if he without obtaining the consent of the landlord, in writing after the commencement of the Act ororal prior to the commencement, uses or has used the premises for a purpose other than that for which theywere let. In the present case, the premise were let forresidential purposes and under the law the tenant wasliable to be evicted if he used the premises for any otherpurpose. There is nothing in the statute to bind thelandlord to give him consent to the use of the premisesfor business purposes. If the landlord refuses to givehis consent and the tenant uses the premises for businesspurposes he would be liable to be evicted because of theconversion of user. But if the tenant continues to usethe premises for a residential purpose for which theywere let he could, according to the interpretation placedon it by the counsel, still be liable to be evicted underclause (k) of the proviso. The anomaly would neverhave been intended by the legislature'.

(12) The learned Judge distinguished the decision in Woman ShriniwasKini v. Rati Lal Bhagwandas & Co., A.LR.1950 S.C. 089,on the ground that it was based upon the peculiar and specificprovisions in section 15 of the Bombay Rents, Hotel and LodgingHouse Rates Control Act, 57 of 1947, and that the said sectionclearly prohibited sub-letting and made it unlawful for a tenantto assign or to transfer his interest in the premises let out to him.

(13) It appears that the landlady, Uma Kumari, preferred an appealto the Supreme Court, viz. Civil Appeal No. 246 of 1961, againstthe decision of Chopra, J. The said appeal was dismissed by theSupreme Court on 16/02/1962, on the ground that nonotice as contemplated by clause (k) of the proviso to section 13(1) of the Delhi & Ajmer Rent Control Act, 1952, was givenin that case. In that view, their Lordships of the Supreme Courtdid not consider it necessary to decide whether the view ofChopra, J. that the landlady was estopped from claiming evictionunder clause (k) was correct or not, and observed as follows ;-

'WEhave come to the conclusion that for the purposes of disposal of this appeal, it is not necessary todecide whether the High Court's view that the landlordis estopped from claiming eviction under clause (k) inthe circumstances like those in the present case is corrector not.'

(14) The provision in clause (k) of the proviso to section 14(1) of the Delhi Rent Control Act, 1958, is similar to the provision inclause (k) of the proviso to section 13(1) of the Delhi & AjmerRent Control Act. 1952. and the reasoning in the decision ofChopra, J. applies to the present case also, as will be seenpresently.

(15) Section 14 occurs in Chapter Iii of the Act which is given theheading 'Control of Eviction of Tenants'. Section 14 as giventhe heading 'protection of tenant against eviction'. The saidcontrol and protection against eviction is provided by the generalprohibition in sub-section ( 1 ) against the making of an order ordecree by any court or Controller for the eviction of a tenant,notwithstanding any law or contract to the contrary. But, by theproviso to the sub-section, an exception to the said prohibitionwas provided by permitting the eviction of a tenant on any of thegrounds mentioned in the clauses to the proviso. In other words,the right of the landlord to evict the tenant which he may haveunder any law or contract has been preserved to him in the circumstances and situations mentioned in the clauses of the proviso tosub-section (1). The situation mentioned in clause (k) is theuser of the premises by the tenant in a manner contrary to anycondition imposed on the landlord by the Government or theDelhi Development Authority or the Municipal Corporation ofDelhi while giving him a lease of the land on which the premisesare situate. Such an user would, entail the forfeiture of the leasehold right of the landlord in the land, and, thereforee, provision ismade in clause (k) enabling the landlord to evict the tenant incase of such an user with a view to protect the lease-hold right ofthe landlord. The provision in clause (k) is thus meant for his(landlord's) benefit. It does not impose any duty or obligationon the landlord or the tenant. The landlord may or may notutilise the provision in the clause. As observed by Chopra, J., itmerely imposes a penalty on the tenant, and gives the landlord aright to evict the tenant, which he may or may not exercise. Theclause does not by itself prohibit the landlord from agreeing to anuser by the tenant in 'a manner which is contrary to any conditionin the lease deed for the land. The right to evict given byclause (k) being personal to and for the benefit of the landlord,it is open to him to waive the same and agree to an user by thetenant in a manner contrary to the condition in the lease for theland, taking a risk as regards the forfeiture of the lease by theLesser. As pointed out by Rajamannar, C.J. in S. Raja Chettyv. Jagannatha Das Air 1950 Mad 2840, it is a well established principle of law that-

'EVERYone has a right to waive and to agree to waivethe advantage of a law or a rule made solely for thebenefit and protection of the individual in his privatecapacity, which may be dispensed with without infringing any public right or public policy (Maxwell, 9th Edn.p. 389).'

(16) As already stated, by leasing out the premises for a purpose whichis contrary to the condition in the lease deed for the land, thelandlord is only committing a breach of a contractual term. Sofar as clause (k) of the proviso to section 14(1) of the Delhi RentControl Act is concerned, it does not expressly prohibit the landlord from entering into such a transaction. It only enables thelandlord to seek for the eviction of his tenant in a case in whichthe tenant uses the premises in a manner contrary to the conditionin the lease deed for the land on which the premises are situate.There is no express prohibition in clause (k) against the landlordcontracting out of it and waiving the advantage conferred uponhim by the clause. In so waiving the advantage, the landlordcannot be said to be infringing any public right or public policy.Once he so agrees and waives the right given to him under clause(k), he would be estopped from enforcing that right.

(17) It was argued by Shri Misra that to constitute 'an estoppel,there has to be a representation on the part of the landlord anda change of position by the tenant to his detriment relying uponthe representation. There is no force in the argument. Theagreement to an user by the tenant contrary to the conditions the lease deed for the land amounts to a representation that hewould not exercise his right to evict on the ground of such user,and when the tenant acts in pursuance thereof and changes hisposition by using the property in that manner incurring expensesin connection therewith, the principle of estoppel would beattracted and the landlord would be estopped from seeking toenforce the right to evict given to him under clause (k). Even If the principle of estoppel as such is not attracted, the principlethat the landlord cannot be allowed to approbate and reprobatewould apply, and the landlord would not be permitted to enforcethe aforesaid right to evict.

(18) The above view gains support from the fact that a view to thecontrary would lead to the anomalous position pointed out byChopra, J. In the present case, the ground floor was let out tothe respondent for commercial purposes. If the tenant uses theground floor for residential purposes, it would be user by him fora purpose other than that for which it was let within the meaningof clause (c) of the proviso to sub-section (1) of section 14, andthe respondent would be liable to be evicted by virtue of the saidclause. On the other hand, if he uses the ground floor for commercial purposes, he would be liable to be evicted under clause (k)of the proviso to sub-section (1) of section 14, if the contentionof Shri Misra is to be accepted. In other words, the respondentwould be liable to be evicted for both the kinds of user. Asobserved by Chopra, J. such an anomaly could never have beenintended by the legislature.

(19) Shri Misra 'also contended that the principle of estoppel cannotbe applied in view of the non-obstante clause, 'Notwithstandinganything to the contrary contained in any other law or contract'in sub-section (1) of section 14. This argument also cannot beaccepted. The non-obstante clause applies only to the provisionin sub-section (1) that no order or decree for the recovery ofpossession of any premises shall be made by any court or Controllerin favor of the landlord against a tenant. It does not apply tothe proviso which is an exception to the main provision in the subsection (1). A reading of the sub-section and the proviso showsthat it is laid down in the main provision in the sub-section generally that even if the landlord is entitled to the passing of an orderor decree for the recovery of possession of a premises from thetenant by virtue of any law or contract, no court or Controller shallpass such an order or decree in favor of the landlord. Then, anexception to the said general provision is made by the provisoenabling the Controller to pass an order or decree for eviction infavor of the landlord in the various circumstances and situationsset out in the clauses of the proviso. In considering the applicability of the provisions of any of the clauses of the proviso, thequestion of applying the non-obstante clause does not arise, as thenon-obstante clause does not qualify or apply to the clauses of theproviso.

(20) Another argument of Shri Misra was that if the contention ofthe respondent is to be accepted and the principle of estoppel isapplied to a case under clause (k) of the proviso to sub-section (1)of section 14, the said clause would become redundant as thelandlord can as well seek eviction under clause (c) of the saidproviso. I am unable to see how clause (k) would become redundant because of the provision in clause (c) of the proviso. Thetwo clauses (c) and (k) provide for two different situations.Clause (c) applies to all cases of user by the tenant other than theone for which the premises are let out to him by the landlord, whileclause (k) applies to the specific case where the land on which the premises are situate has been granted to the landlord subject tocertain condition regarding the user thereof, and the tenant usethe premises in a manner contrary to the said condition. Clause (c)is thus a general provision, while clause (k) is a special provisionapplicable to the specific kind of premises and user thereof mentioned in the clause. The provisions in the two clauses are notidentical. There is a clear distinction between the provisions inthe two clauses. While in cases covered by clause (c) the landlord can seek for eviction when the tenant uses the premises for apurpose different from the one for which the premises is let out tohim and there is no question of the landlord giving him an opportunity by notice to change his user, in cases covered by clause (k)the landlord is bound to give an opportunity by notice to the tenato change his user and conform to the conditions prescribed in theoriginal lease of the land to the landlord. The two provisionsthus operate in different situations, and no question of either ofthem being redundant can 'arise. Even if the facts of a case aresuch that they are covered by both the clauses, the provision inclause (K) alone would apply, because it .being a specific provision, would exclude the general provision in clause (c). Forinstance, there may be a case where the land is let out by theconcerned authority on condition that it should be used only forresidential purposes and the lessee also lets out the premises builtthereon to a tenant for residential purposes, but the tenant uses itfor non-residential purposes. In that case, it may be said that thelandlord, i.e. the lessee from the Authority, may seek eviction ofthe tenant from the premises, either under clause (c) 'as the tenantused the premises for a purpose other than that for which theywere let within the meaning of the said clause, or under clause (k)as the tenant used the premises in a manner contrary to the condition imposed on the landlord by the Authority within the meaningof clause (k) being in such a case the provision in clause (k),being a specific provision with its own requirements and procedure,prevails over and excludes the general provision in clause (c).Thus. there can be no conceivable occasion when either of themwould become redundant.

(21) Shri Misra also contended that there can be no estoppel againsta statute, viz. the provisions in clause (k) of the proviso to subsection (1) of section 14 of the Delhi Rent Control Act and section 3 of the Crown Grants Act, 15 of 1895. As alreadypointed out above, clause (k) of the proviso to section 14(1) ofthe Delhi Rent Control Act does not prohibit the landlord fromagreeing to an user by the tenant in a manner contrary to thecondition in the lease deed for the land taking a risk as regardsthe forfeiture of the lease by the Lesser-Authority. It merelyenables the landlord to seek eviction of the tenant if the tenantuses the premises in a manner contrary to the condition imposedupon the landlord in the lease deed for the land on which the premises are situate. If the landlord chooses, in breach of thecondition in the lease deed for the land, to let out the premises fora purpose which is contrary to the said condition, all that he doesthereby is to give up or waive the right conferred by the provisionin clause (k), which is meant for his own benefit. Such an actionof his cannot be regarded as one against the provision in clause(k), and there is, thereforee, no question of any estoppel against thestatute, viz. the provision in clause (k).

(22) As regards the provision in the Crown Grants Act, it is truethat it was recited in the lease deed (Exhibit A-9) that the grantof the lease was made under the Authority of the Crown, and thatthe provisions of the Crown Grants Act, 15 of 1895, shall applyto the grant. The said Act is now called the Government GrantsAct. The Act, as its preamble shows, was enacted as doubts hadarisen 'as to the extent and operation of the Transfer of PropertyAct, 1882, and as to the power of the Crown to impose limitationsand restrictions upon grants and other transfers of land made byit or under its authority', and it was expedient to remove suchdoubts. The Act contains only three sections. Section I containsthe title and the extent of the Act. Section 2 lays down that the Transfer of Property Act, 1882. shall not apply to any grant orother transfer of land or of any interest therein by or on behalf ofthe Crown or the Government. Section 3 merely provides thatthe Crown or the Government grants are to take effect accordingto their tenor, and runs as follows :-

'3.All provisions, restrictions, conditions andlimitations over contained in any such grant or transferas aforesaid shall be valid and take effect according totheir tenor, any rule of law, statute or enactment of thelegislature to the contrary notwithstanding.'

(23) The provision in section 3 only validates the provisions, restrictions. conditions and limitations contained in any grant or transferby the Crown or the Government. It does not contain any provision which prohibits the grantee. The prohibition is containedonly in the terms of the grant (lease deed). As already stated,one of the terms in the lease deed (Exhibit A-9) is that the lesseeshould not use the land and the building: thereon during the termof the lease for any other purpose than for the purpose of residential use without the consent in writing of the Lesser. But. thisprohibition is in the lease deed and not in 3 statute. It is just acontractual term and not a statutory prohibition. It is, thereforee,clear that no question of an estoppel against a statute arises whenthe lessee agrees to' let out the premises built on the land for anon-residential purpose, which would only be, if 'at all, a breachof the term of the contract. The transactio,n between the lesseeand his tenant, which is not prohibited by any statute, will be validas between the lessee and his tenant, though it may be invalid andnot binding as between the lessee and his Lesser-Authority (videAbdulla v.Mammod, 25 Mad 156.

(24) For the above reasons, it has to be held that the Rent ControlTribunal and the Rent Controller rightly decided that the respondent was not liable to be evicted on the ground mentioned inclause (k) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act. The second appeal, thereforee, fails andis dismissed. But, in the circumstances, the parties are directedto bear their own costs in this second appeal.


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