S.N. Shankar, J.
(1) This order will dispose of S.A.Os. 51 of 1971 and S.A.O. 20 of 1972, both filed under section 39 of the Delhi Rent Control Act, 1958 (hereafter called 'the Act').
(2) The appellant in S.A.O. 51 of 1971 is the tenant in occupation of flat No. 17-B, Municipal No: PR/I 7, Sujan Singh Park, New Delhi. He occupied the flat as tenant of Sir Sobha Singh (P) Ltd., respondent to this appeal. The tenant was employed in the State Bank of India. In 1964 he was transferred to Bombay. In January, 1969, an application for his eviction under clause (h) of proviso to sub-section (1) of Section 14 of the Act was filed on the ground that he had acquired vacant possession of and had been allotted a residence. Certain other grounds for eviction were also urged but no controversy in regard to them now survives. The tenant contested the application. He also contended that the application on behalf of the landlord which is a limited Company had not been filed by a duly authorised person. The learned Additional Rent Controller by order dated February 28, 1970, accepted the application and granted an order of eviction, amongst others, on the ground that the tenant had acquired or been allotted a residence at Bombay. Aggrieved from this, the tenant filed an appeal to the Tribunal. By order dated January 27, 1971, the Tribunal dismissed the appeal and held that the tenant had been allotted a residence at Bombay and that he had thereafter taken a house on lease there and this fully satisfied the requirements of clause (h) of proviso to sub-section (1) of Section 14. The tenant filed second appeal in this Court against the order of the Tribunal.
(3) Respondent in S.A.O. 20 of 1972 is also a tenant of Sir Sobha Singh & Sons (P) Ltd., in respect of flat No. 81-G, Municipal No. P.R. 81, Sujan Singh Park, New Delhi. He is also employed in the State Bank of India. On January 25, 1969, the appellant landlord filed an application for his eviction on the ground, namely, that he had acquired or had been allotted another residence. The other grounds for eviction urged in the application are not relevant for purposes of this appeal. The learned Additional Rent Controller, by order dated April 23, 1970, accepted the application on the ground that the tenant had been allotted another residence at Hyderabad where he had been transferred and, thereforee, was liable to eviction. The tenant filed an appeal before the Tribunal which was accepted by order dated October 21, 1971. The Tribunal held was of no consequence and did not entitle the landlord to an order for eviction because it was proved that the father of the tenant who was a member of the family continued to occupy the premises at Delhi. Against this order, the landlord has come up in second appeal to this Court.
(4) Both these appeals came up before Deshpande, J, Having regard to the divergent views expressed in certain cases decided by this Court, he referred the matter for decision by a larger bench.
(5) We have heard the learned counsel for the parties and in our view, having regard to the scheme of the Act, the reasonable construction to be put on clause (h) of the proviso to sub-section (1) of Section 14 is that the 'residence' envisaged in the clause is residence acquired, built or allotted to the tenant within the territory to which the Act applied.
(6) The Act was promulgated to provide for the control of rents and evictions in Delhi. According to sub-section (2) of Section I it extended to the areas included within the limits of New Delhi Municipal Committee and the Delhi Cantonment Board and to such urban areas within the limits of the Municipal Corporation of Delhi that may be specified in Schedule 1. The purpose of the enactment was to regulate eviction in territories to which the Act applied. With this end in view, Chapter Iii of the Act, while providing for control of evictions of tenants, enacted sub-section (1) of Section 14 which created an absolute bar against the granting of an order or decree for recovery of possession by the Controller or a court in respect of premises situated within the area to which the Act applied. This absolute bar was made subject to the provisions in clauses (a) to (1) of the proviso to sub-section (1). Clause (h) of these clauses operated to lift the bar if it was proved that the tenant had, whether before or after the commencement of this Act, built, acquired vacant possession of, or been allotted, a residence. Being a clause to the proviso to the main section it necessarily meant that the field of its operation was intended to be the same as that of the main section. When talking of the building, acquisition or allotment of a residence to the tenant it, thereforee, meant the building, acquisition or allotment of residence situated within the area to which Section 14 of the Act applied. In other words in enacting clause (h) the Legislature did not contemplate that the tenant would be liable to eviction if he acquired another premises situated in an area to which the Act did not apply.
(7) This intention of the Legislature, to our mind, is also borne out by the two separate provisions made in clauses (d) and (h) of the proviso. Clause (d) provides that where the premises is let to the tenant for use as a residence and neither he nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession, the bar of sub-section (1) of Section 14 will cease to operate and the tenant will be liable for eviction. While clause (h) lays down that he will not be entitled to the protection of the Act if he has built, acquired vacant possession of or been allotted another residence. Both the clauses include a case where the tenant has ceased to reside in the premises let out to him. But it would be idle to assume that the Legislature made two distinct provisions without intending one to be different from the other in its import. In our view, while in case of clause (d) the Legislature provided that if the tenant acquired another residence and shifted there and neither he nor any member of his family resided in the demised premises for a period of six months prior to the filing of the eviction petition he would be liable to eviction irrespective of the fact whether he shifted to a premises within the area to which the Act applied or to a premises situated outside it. In enacting clause (h), on the contrary, the intention of the Legislature was that it would be attracted only to a case where the tenant had built, acquired or been allotted a premises situated in an area to which the Act applied and in such a case the residence of the members of the family in the demised premises would be of no relevance.
(8) We further see nothing in the scheme of the Act or clause (h) to the proviso to sub-section (1) of Section 14 to indicate that the intention of the Legislature was that the tenant should not build, acquire or be allotted a residence anywhere in any part of India beyond the area to which the Act applied. On the contrary, we think that this could not be the intention of the Legislature because such a construction of clause (h) is likely to create great hardship to the tenant which would be contrary to the purpose for which the Act was promulgated. For an instance, take the case of a tenant gainfully employed in Delhi. He may be having a residential house in Calcutta which may fall vacant. On its being vacated, if clause (h) is interpreted in the wider sense to include all accommodation acquired by the tenant situated anywhere in India, a right of eviction will at once accrue to the landlord. The Legislature could not have intended that a tenant so placed should be dislodged. Likewise, there can be a case of a tenant residing for generations in Delhi in a rented house along with his aged parents but due to exigencies of service he may have to go out and acquire a residence at the station to which he is posted. The Legislature could certainly not have intended that such a tenant should suffer the consequence of eviction from his house in Delhi unless the case was covered by the explicit provisions of clause (d) to the proviso. We are, thereforee, of the view that the residence envisaged in clause (h) of proviso to sub-section (1) of Section 14 of the Act is the residence built, acquired or allotted to the tenant within the area to which the Act applied and not any residence situated outside this area.
(9) This question came up before this Court in Budh Ram Sharma v. Banwari Lal and another (1971 Rent Control Journal 828)(1) and it was held that a tenant is liable to eviction under Section 14(1)(h) of the Act only if it is proved that he has built, acquired vacant possession of, or been allotted, a residence within the area to which this Act extends.
(10) Certain cases taking a contrary view have also been brought to our notice. Kishan Chand Bhargava v. Hari Nath Rastogi (Civil Revision 303-D of 1958) decided by Circuit Bench of the Punjab High Court on October 31, 1961, was cited before us where it was held that if it was proved that the tenant had obtained a suitable residence even outside Delhi, clause (h) of sub-section (1) of Section 13 of the Delhi and Ajmer Rent Control Act, 1952 was satisfied and the tenant was liable to be evicted. Clause (h) as appearing in the 1952 Act is not identically the same as in the present Act. There what the Court had to see was whether the tenant had built, acquired vacant possession of, or been allotted a suitable residence. The word 'suitable' has been deleted in the present Act and this deletion is not insignificant. The Court under the present Act, thereforee, is not to look to the suitability or otherwise of the other accommodation and the landlord is entitled to an order for eviction as soon as he proves that another residence has been built, acquired by or allotted to the tenant. This case, thereforee, is of no assistance to us. We have also been referred to K. V. Singh Rajput v. Ramkali (S.A.O. 67 of 1968 decided on March 10, 1969). The view taken in this case was that if the tenant had acquired a residence, it was not material that the residence so acquired was at a place outside Delhi. The position was, however, subsequently clarified by the same learned Judge who decided this case. in Govindji Khera v. Padma Bhatia (1972 Rent Control Reporter 195) (2) and it was held that:
'INa case in which the tenant does not leave behind him any member of his family to continue to occupy the premises, it may be said that the whole of the need of the tenant to occupy the premises is satisfied by the occupation of the new residence by him even though such new residence may be outside Delhi. This is why the occupation of residence in Dalmia Nagar and in Jaipur by the tenants in the two cases decided by Dulat, J. and by me was held sufficient to attract proviso (h). It is only if the tenant or a member of his family continues to occupy the premises in Delhi even after the acquisition of another residence by him that the tenant can ask the court to consider whether the new residence acquired by him is such as to meet the same need which is met by the occupation of the premises by him.'
(11) In other words, it was observed in the judgment that if a tenant acquired a residence far away from the premises occupied by him then the tenant can legitimately continue to occupy the premises either by himself or by a member of his family and the court could come to the conclusion that the acquisition of such a residence was not such as to forfeit the protection of the tenant to the occupation of the premises and in such a case clause (h) of the proviso to sub-section (1) of Section 14 would not be attracted. This interpretation of clause (h) introduces an element of suitability of the residence built, acquired or allotted to the tenant-a concept which the Legislature in its wisdom has done away with in the present Act by omitting the word 'suitable' as qualifying the expression 'residence' used in clause (h) of the Act. We are not inclined, for this reason, to adopt the view taken in this case.
(12) For reasons aforesaid, our conclusion is that the tenant can be deprived of the protection afforded by clause (h) of the proviso only if it is proved that he has built, acquired or been allotted a residence situated in the area to which the Act extends.
(13) With this position in law, on the concurrent finding of fact that the tenants in both the cases on their transfer had acquired residence at places outside Delhi where this Act did not apply, we have no alternative but to hold that the protection afforded against eviction by clause (h) was available to both the tenants in the two appeals.
(14) It was also contended on behalf of the tenant in S.A.O. 51 of 1971 that the eviction application against him by the limited company had not been filed by a duly authorised person. In view of our conclusion, however, that the order of eviction cannot, for the aforesaid reasons, be sustained, we do not consider it necessary to go into this question.
(15) As a result of the above discussion, the appeal of the tenant in S.A.O. 51 of 1971 is accepted and the appeal of the landlord in S.A.O. 20 of 1972 is dismissed. Having regard to the circumstances of the cases, the parties are left to bear their own costs.