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Kailash Kumar Dilwali Vs. B.S. Raizada - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 200 of 1968
Judge
Reported inAIR1973Delhi97; 8(1972)DLT267
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantKailash Kumar Dilwali
RespondentB.S. Raizada
Advocates: R.L. Tandon,; S.N. Chopra and; Ramesh Chandra, Advs
Cases ReferredR. V. N. Chandrasekara Chetty v. Kakumani Adikesavalue Chetty
Excerpt:
.....but the interest of the tenant of the premises is hardly a relevant consideration under clause (g). condition of the building as being not too bad is plea set up by the tenant in his own interest as he does not want to be distrurbed. jiwan lal which was based on a provision of law which required both the condition of the premises as well as the capability of the landlord for re-building to be proved. in fact, the landlord had studiously abstained from using the language of clause (f) of the proviso to section 14(1). he did not say that the premises 'have become unsafe or unfit for human habitation'.if the landlord wanted to carry out only repairs to the premises either to save his own property from deterioration or because he was directed to do so by a public authority under..........v. rameshwar nath, sons of these grounds of eviction arise because of wrongful acts done by the tenant. clauses (a) to (d),(h) and (j) are such grounds forming class (1). some other grounds exist for the benefit of the landlord even though the tenant has not done anything wrong. clauses (e), (g) and (i) are such grounds which form class (ii). under clauses (k) and (1) the landlord is required to act in respect of the premises not at his own instance but at the instance of a public authority and in public interest. these grounds, thereforee, form class (iii) as they do not fall into class (1) or class (ii). clause (f) may be covered either by class (iii) or class (11). if the repairs are to be carried out to the premises there under by the landlord in the interests of the tenant or of.....
Judgment:

V.S. Deshpande, J.

(1) By way of exceptions to sub-section (1) of section 14 of the Delhi. Rent Control Act. 1938 (hereinafter called the Act) protecting the tenant against eviction, clauses (a) to (1) of the proviso thereto set out the various grounds on which the landlord would be able to evict a tenant. As pointed out in paragraphs 30 and 31 of Batoo Mal v. Rameshwar Nath, sons of these grounds of eviction arise because of wrongful acts done by the tenant. Clauses (a) to (d),(h) and (j) are such grounds forming class (1). Some other grounds exist for the benefit of the landlord even though the tenant has not done anything wrong. Clauses (e), (g) and (i) are such grounds which form class (II). Under clauses (k) and (1) the landlord is required to act in respect of the premises not at his own instance but at the instance of a public authority and in public interest. These grounds, thereforee, form class (III) as they do not fall into class (1) or class (II). Clause (f) may be covered either by class (III) or class (11). If the repairs are to be carried out to the premises there under by the landlord in the interests of the tenant or of the public or in pursuance of any order of a public authority such as under sections 4 to 6 of the Slum Areas (Improvement and Clearance) Act, 1956, then it would fall under class (III). If on the other hand the landlord himself in order to safeguard his own property wants to effect the repairs, then this ground would fall in class (II).

(2) The application for eviction by the appellant landlord against the respondent tenant was filed on the following ground :-

'that the premises are required bona fide by the. petitioner landlord for the purpose of building or rebuilding. Such building or rebuiding cannot be carried out without the premises in question - being vacated. The proposed building or rebuilding will not radically alter the purpose for which the premises, was let to the respondent. The plans and the estimates of such reconstruction have been properly prepared and the necessary funds for the purpose are available with the petitioner The premises in question are very old and dilapidated and the structure is also of old style. The petitioner has to demolish the whole of the building and reconstruct a double storyed building on the said plot. The whole of the building has to be demolished and this cannot be done unless the respondent vacates the premises. The petitioner has got the plans sanctioned from the authorities concerned. '

(3) It is clear that the petition for eviction was based on clause (g) of the proviso to section 14(1) read with sub-section (8) of section 14 which lays down further conditions to be satisfied before which eviction could be ordered by the Controller there under.

(4) In defense the tenant, raised two contentions namely:-

(1)That the landlord is not the real owner of the premises and he has filed the petition for eviction in collusion with the previous landlord . and (2) The premises were not in a dilapated condition and did not require demolition. It was denied that the premises could not be reconstructed without the premises being vacated.

(5) The Controller held that the landlord had purchased the premises from the previous landlord and the tenant had paid rent to him. The tenant was, thereforee, estopped from disputing the title of the landlord. The landlord was not a benamidar for the previous landlord as had been contended by the tenant. He also found that it was not necessary that the premises should be hopelessly old. It was sufficient that the landlord wanted to build a modern house. This could not be done without the demolition of the existing premises. He, thereforee, ordered the eviction of the tenant under clause (g) of the proviso to section 14(1).

(6) The decision of the Controller was reversed by the Rent Control Tribunal on the following grounds, namely:-

(1)The transaction of sale between the previous landlord and the present one was not genuine and was made with some ulterior motive. This was not sufficient to defeat the petition for eviction but had some affect on the bonafides of the landlord in bringing the petition for eviction. (2) The previous landlord had given notices of eviction to the tenant but was unable to evict him. He, thereforee, sold the premises to the present landlord with a view to enable him to evict the tenant. For, the previous landlord was not possessed of sufficient funds to claim eviction of the tenant under clause (g). (3) The condition of the premises was specifically alleged by the respondent to be dilapidated and requiring demolition. But this was not proved. (4) The landlord had also said that he had no other reasonably suitable residential accommodation but this was also false and. fabricated plea. and (5) The premises are divisible into two patrs One part can be reconstructed when the tenant can shift to the other part and the other part can be reconstructed when the tenant shifts back to the former part.

(7) This second appeal by the landlord under section 39 of the Act raises a substantial question of law regarding the construction of clause (g) of the proviso to section 14(1) particularly as contrasted with clause (f) thereof. It would be useful, threfore, to read carefully these two clauses which are as under:-

'14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant : Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:- * * . * (f) that the premises have become unsafe or unfil. for human habitation and are required bona fide by the landlord for carrying out repairs which cannot be carried out without the premises being vacated; (g) that the premises are required bona fide by the landlord for the purpose of building or re-building or making thereto any substantial additions or alterations and that such building or re-building or addition or alteration cannot becarried out Without the premises being vacated.'

Sub-section (8) of section 14 is also relevant and is as follows:-

'no order for the recovery of possession of any premises shall be made on the ground specified in clause (g) of the proviso to sub-section (1), unless the Controller is satisfied that the proposed reconstruction will not radically alter the purpose for which the premises were let or that such radical alteration is in the public interest, and that plans and estimates of such reconstruction have been properly prepared and that necessary funds for the purpose are available with the landlord.'

(8) The requirements of sub-section (8) of section 14 have been held to have been complied with by the landlord by both the Controller and the Tribunal. For, the plan of the proposed reconstruction shows that though the new house would be double storeyed one while .the existing house is a single storeyed one, the ground floor will continue to be a residential house as it is at present though it will be designed on the modern style while the present house is comparatively of the old style. The plans and the estimates of reconstruction have been properly prepared and the landlord is in possession of the necessary funds for the reconstruction.

(9) The reason why the Tribunal decided against the .landlord, however, is that the landlord did not require the premises ' bona fide ' to be vacated by the tenant for re-building within the meaning of clause(g).lncomingto this conclusion, the Tribunal has not construed the language of clause (g) in its proper context. Rent Control legislation has evolved through the past few years and during this evolution has sharpened its language and formulation. In its earlier stages, section 13(3)(a) and (b) of the Patiala and East Punjab States Union Urban Rent Restriction Ordinance was worded as follows :-

'(3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession. * * * (iii) in the case of any building, if he requires it for there- erection of that building or for its replacement by another building, or for the erection of other building ; (b) The Controller shall, is he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller, and if the Controller is not so satisfied, he shall make an order rejecting the application ;'.

This provision was construed by the Supreme Court in Neta Ram v. Jiwan Lal. In doing so, the Court observed at page 630 as follows :-

'fthalspeaks not of the bona fides of the landlor but says,on the other hand, that the claim of the landlord that he requires the building turn reconstruction and re-erection must be bona fide, that is to say, honest in the circumstances............viz., that the houses reed reconstruction or that they (landlords) have the means to reconstruct them.'

The analysis of the bona fides by the Supreme Court was thus two fold, namely, (a) the condition of the house and (b) the desire and the ability of the landlord to reconstruct it.

(10) In later rent control legislations, we find that these two requirements were separated into two different grounds of eviction. It is essential thereforee, to emphasise the difference between the old provision considered in Net a Ram v Jiwan Lal combining the requirements of the condition of the house and the capacity of the landlord and the new provisions containing in clauses (f) and (g) of the proviso to section 14(1). Under clause (f) the necessity of ma.king mere repails is made a ground sufficient for the eviction of the tenant if the repairs cannot be carried out without the vacation of the premises. The reason is that the condition of the premises is ' unsafe or unfit for human habitation'. It is because the condition of the premises has reached the extreme degree of deterioration that even the making of repairs would justify eviction under clause (f). No question of a better economic use of the property or its development to increase its profitability to the landlord arises under clause (f). The main consideration is safety and health of the occupants and incidentally improvement of the premises. These considerations are based partly on public interest or on the interests of the tenants and partly on those of the landlords. For, poor tenants, particularly in slum areas, continue to live in premises even though they are unsafe or unfit for human habitation. The requirement under clause (f) is, thereforee, not mainty of the landlord but usually is either of the tenant or is in public interest.

(11) On the other hand, under clause (g) the requirement is entirely of the landlord. Such requirement is considered sufficient for the eviction of the tenant because it is in public interest that the landlord should be allowed to develop his property and make it more profitable directly to himself and indirectly to serve public interest thereby. Increase in the accommodation or modernising the plan of the building may give more profit to the landlord but would also serve the general interest. But the interest of the tenant of the premises is hardly a relevant consideration under clause (g). Condition of the building as being not too bad is plea set up by the tenant In his own interest as he does not want to be distrurbed. But the interest of the tenant is really to be considered under clause (a) but hardly under clause (g). It would obliterate the distinction between the two if the interest of the tenant is given importance not only under clause (f) but also under clause (g). Clause (j) of the proviso to section 21(1) of the Mysore Rent Control Act, 1961, corresponds to clause (g) of our Act while clause (k) of the Mysore Act corresponds to clause (f) of our Act. After these two requirements were thus separtely relegated to two separate clauses of the proviso, a petition for eviction of the landlord under clause (g) of the Act should be considered as concerned only with the requirement of the landlord for re-building the premises being bona fide. It cannot be taken to be concerned with the condition of the premises as that is a subject matter of clause (f).

(12) When, thereforee, the claim of a landlord for eviction of a tenant under clause (f) of the provision to section 21(1) of the Mysore Act came up for construction before the Supreme Court in Panchamal Narayan Shenoy v. Basthi Venkatesha Shenoy the decision of the Court was expectedlydifferent from the previous decision in Neta Ram v. Jiwan Lal which was based on a provision of law which required both the condition of the premises as well as the capability of the landlord for re-building to be proved. On the analogy of the reasoning in Neta Ram v. Jiwan Lal. it was argued by Shri Chagla before the Court at page 757 that the words reasonably and bona fide required by the landlord occurring in clause (j)of the proviso to section 21(1) of the Mysore Act must be interpretted to have reference to the condition of the building and that these words have no reference to any intention of the landlord. It was argued that the mere fact that the landlord may bona fide and reasonably entertain an idea of demolishing the building and rceonstructing the same with a view to putting the property to a more profitably use after construction will not satisfy the requirements of the said clause. According to the learned counsel, the condition of the building must be such that it was immediately necessary to demolish it. This argument was rejected by the Supreme Court in the following words : -

'the requirement contemplated under clause (j) of the proviso to sub-section (1) is that of the landlord and it does not have any reference to the condition of the building as such.'

At page 738, the Court further observed :-

'in considering the read enable and bona fide requirement of the landlord under this clause the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also after that may be taken into account in favor of the landlord. In our opinion, it is not necessary that the landlord should ; o further and establish under this clause that the condition of the building is such that it requires immediate demolition.. That the condition of the property may be such which requires immediate demolition is emphasized in clause (k)ofthe proviso. When such a species provision has been made in clause (k), the condition of the building cannot come into the picture nor could it have been dealt with again in clause (j). So the requirement under clause (j) is that of the landlord and cannot have any reference to the building.'

(13) The above reasoning fully applies to the present case. The pleading of the landlord was specifically couched in the language of clause (g). The learned Tribunal misconstrued the pleading to mean that the premises, according to the landlord, were 'in dilapidated condition and required demolition' . The learned Tribunal stated that the landlord specifically alleged the condition of the building as dangerous and dilapidated requiring demolition. In fact, the landlord had studiously abstained from using the language of clause (f) of the proviso to section 14(1). He did not say that the premises 'have become unsafe or unfit for human habitation'. If the landlord wanted to carry out only repairs to the premises either to save his own property from deterioration or because he was directed to do so by a public authority under the Slum Areas (Improvement and Clearance) Act, then he would be required to prove objectively the condition of the premises. His own Voltaireor capacity to make the repairs was not relevant. But the landlord did not file the petition under clause (f) at all. He did so under clause (g). He certainly pleaded that the premises were very old and dilapidated. But he did not say that this was the Cause why they had to be demolished as was misunderstood by the Tribunal. The reason for the demolition was the necessity of reconstruction. That necessity arose not only from the premises being old and dilapidated but also because they were ' of old style '. The landlord plans to demolish the old style one-storeyed house which is by no means a new house. The tenant himself had been residing in in it from 1942. The house was constructed some years before that time. As the landlord does not seek eviction of the tenant under clause (f) he does not have to prove that the premises were so old as to be unsafe or unfit for human habitation. On the contrary, it is the purpose of clause (g) to enable the landlord to improve and develope his properly further so as to make it more profitable to himself In the particular case, the accomodation on the ground floor would be increased and a new first floor would be built and both in the modern style. This enables the landlord to claim the benefit of clause (g).

(14) The learned Tribunal has not appreciated the difference between a sham cr bogus sale which is no sale at all and a real sale which may be with some ulterior motive. The finding of the Controller that the present landlord has bought the house from the previous landlord and that he was not a benamidar for his predecessor meant fiat the sale was a real one. This finding is not controverter by the Tribunal. The Tribunal merely said that the sale transaction was ' not genuine and was made with some ulterior motive '. This finding does not mean that the sale was not real. Further, the definition of' landlord ' in section 2(e) of the Act is ' a person who, for the time being is receiving or is entitled to receive, the rent of the premises'. It is irrelevant for this definition whether in fact such a person is also the owner of the property. The tenant had paid rent to this landlord and cannot dispute that he is the landlord vis-a-vis the tenant. The tenant is further estopped under section 116 of the Transfer of Property Act from disputing the title of the landlord, The mere fact that the present landlord paid only Rs. 30,000.00 to purchase the house from his predecessor and that these Rs. 30,000.00 - were also not paid in cash and were not withdrawn from the bank as had been stated by the landlord in the witness box does not mean that the previous landlord continues to be the owner of the house. Unless the previous landlord is the owner of the house, it cannot be argued that the present landlord is acting at the instance of his predecessor. The present landlord has the means to reconstruct the house. The previous landlord did not have the means and this is why he has sold the house to the present one. Even if it is assumed that there is some arrangement or understanding between the two (of which there is no proof on the record) still the ability to reconstruct the premises is to be viewed only in relation to the present landlord. There is, thereforee, no bearing of the fact that the house was bought by the present landlord either for a small consideration or for dubious consideration on the bona fides of the landlord under clause (g). The learned Tribunal was not justified in holding to the contrary.

(15) Similarly the fact that the previous landlord was unable to evict the tenant even after giving notices to him is also irrelevant, for, the fact cuts both ways. It was precisely because he was unable to evict the tenant that he sold the house to the present landlord, There is no proof that the previous landlord retained the ownership of the house and put up the present landlord merely as a camouflage. The observation of the Tribunal that the landlord's plea that he had no other reasonably suitable residential accomodation was false and fabricated is totally unwarranted. The landlord. made no such pleading and if he said so in the evidence, such proof was un-necessary to prove his claim under clause (g).

(16) Lastly, the two portions of the house are the main house and the garage and stores behind the house. These two can certainly be reconstructed one after the other. This does not mean that the tenant does not have to vacate that portion of the house which is under reconstruction at a time. On the contrary, the plan of reconstruction is that a basement is to be made under the ground floor, the height of the ground floor is to be reduced and a first floor is to be built on the top of it. While the existing house has got only old style rooms, the new plan will have a bigger dining-roorn etc. The life of the building will be longer if a wholly new building is constructed after demolition of the ground floor. There is no reason why the landlord should not prefer to build a construction which will have a longer life and submit himself to the disadvantage of keeping the existing ground floor and making a basement below it and a first floor above it and thus reduce the life of the building and also make a patch work with an old style ground floor and a new style basement and first floor. The tenant cannot, thereforee, continue to occupy either the main house or the back quarters at the the very time either of them is being reconstructed. Of course, during the reconstruction of the main house the tenant can go into the back quarters and again shift to the main house when the back quarters are reconstructed.

(17) None of the the reasons given by the learned Tribunal for reversing the decision of the Controller can, thereforee, stand scrutiny. On the contrary, the learned Tribunal has completely missed the meaning of clause (g). It has confused its meaning partly with clause (f) and partly with clause (e) by importing the considerations of the condition of the house and the landlord having other reasonably suitable residential accomodation without justification in construing clause (g). Provision similar to clause (g) are to be found in various other statutes passed by the State legislatures to control eviction and rents of tenants. These also have been construed in the way they have been construed by the Supreme Court in Panchamal v. Basti and by me above. Many of such decisions have been reviewed and the same con elusion reached by Venkatadri J. in R. V. N. Chandrasekara Chetty v. Kakumani Adikesavalue Chetty's Charities.

(18) The appeal is, thereforee, allowed. The order of the Rent Control Tribunal is set aside and that of the Controller is restored with the following further directions :-

(1)The tenant shall have the option to be given to the landlord in writing in tea days from now whether he wishes to shift to the back quarters during the reconstruction of the main house and promises to shift back to the main house to allow reconstruction of the back quarters. If he does not exercise this option, than he would be liable to be evicted totally from the whole of the premises. (2) The tenant shall vacate the premises, that is. either the main house or the whole of the premises by 1st of May 1972. (3) The landlord shall rebuild either the main house or the whole of the premises in six months. If the tenant elects to shift to the back quarters, then the tenant shall be shifted back to the main house after its reconstruction and the landlord shall have three more months to reconstruct the back quarters.

(19) The tenant shall inform in writing to the Controller within ten days from now whether be elects to be placed in occuption of the premises after the reconstruction. If the tenant so elects, the Controller shall place the tenant into the possession of the premises after the reconstruction as staled above,

(20) Lastly, if the landlord fails to complete the reconstruction within the time stated above or if he fails to place the tenant in occupation off the premises, the Controller may, on the application made to him in this behalf, order the landlord to place the tenant in occupation of the premises or to pay the tenant such compensation as the Controller thinks fit. In the circumstances, I make order as to costs.


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