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Budhwant Kaur Vs. Som Nath - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 349 of 1972
Judge
Reported in18(1980)DLT249; 1981(2)DRJ53; 1980RLR686
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantBudhwant Kaur
RespondentSom Nath
Advocates: G.L. Rawal,; R.K. Makhija and; Alok Kumar, Advs
Cases ReferredPooran Chand v. Motilal
Excerpt:
.....control act, 1958- section 14(l)(e)--'required' bonafide means needed genuinely and honestly. rent controller has jurisdiction to scrutinise and assess whether the landlord has made out a case of need of the premises. - - undoubtedly, this objective assessment will vary from case to case depending upon the facts of each case and will have to be weighed by factors like (a) the number and relatable respective ages of those whose needs have to be considered, (b) needs as to old age and/or ill health, (c) the manner of living one is used to, (d) other special circumstances. thus, if the tenant succeeds in proving that the motive behind eviction proceedings is either to coerce the tenant into increasing rent or to let out the premises sooner or later on increased rent or to sell the..........of self, husband, 4 grown-up sons and 2 married daughters. controller allowed the petition. tenant appealed to tribunal who held that appellant had 7 rooms and her maximum requirement was of 5 rooms. she and husband required one room, 2 married sons required 2 rooms, 2 other sons required one room and the unmarried daughters needed one room. tribunal on the finding that appellant had sufficient accommodation accepted the appeal. landlady appealed to high court. during the pendency of appeal, tenant made an application that appellant had died and 2 unmarried daughters had been married and thus need had become less. in reply it was urged that one son has been married and the need had not become less] judgment para 8 onwards is : (2) counsel for the appellant has vehemently attacked.....
Judgment:

Harish Chandra, J.

(1) Appellant had sued for eviction claiming that she needed more accommodation for her family consisting of self, husband, 4 grown-up sons and 2 married daughters. Controller allowed the petition. Tenant appealed to Tribunal who held that appellant had 7 rooms and her maximum requirement was of 5 rooms. She and husband required one room, 2 married sons required 2 rooms, 2 other sons required one room and the unmarried daughters needed one room. Tribunal on the finding that appellant had sufficient accommodation accepted the appeal. Landlady appealed to High Court. During the pendency of appeal, tenant made an application that appellant had died and 2 unmarried daughters had been married and thus need had become less. In reply it was urged that one son has been married and the need had not become less] Judgment para 8 onwards is :

(2) Counsel for the appellant has vehemently attacked the finding of the Tribunal in the impugned judgment about the availability of suitable accommodation with the appellant and has stressed that it was not for the Tribunal to devise how the landlady should distribute available accommodation among her family members so as to accommodate each one of them. I am afraid there is no merit in this contention.

(3) The phrases (1) required bona fide and (2) reasonably suitable residential accommodation, occurring in Clause (e) of Section 14(1) have been the subject-matter of numerous judgments. 'Required bona fide', as the plain meaning of the two words suggest, means needed genuinely and honestly. The word 'required' necessarily imparts the element of 'need' as distinct and different from the element of desire. Desire being wholly subjective would belong to the domain and decision of the one who has the desire but need would open up the matter to an objective scrutiny. The mere ipsi dixit of the landlord would not do and the Controller gets from the use of the word 'required' the jurisdiction to assess whether the landlord has made out a case of need of the premises. Among other factors, it will involve a comparison between the accommodation at the disposal of the landlord and the premises occupied by the tenant and the pros and cons of the two, having regard to the circumstances of the landlord, (including dependent family members). In the objective assessment by the Controller, the need of the landlord, which may pass scrutiny, has to be a reasonable normal need and not a whimsical or fancy desire purporting to be and put out as a need. Undoubtedly, this objective assessment will vary from case to case depending upon the facts of each case and will have to be weighed by factors like (a) the number and relatable respective ages of those whose needs have to be considered, (b) needs as to old age and/or ill health, (c) the manner of living one is used to, (d) other special circumstances. In this objective assessment, the Controller is not to weigh in a fine scale each averment of need nor is he to be guided by the mere physical possibility of accommodating the numbers of heads into the numbers of rooms or to work out permutations and combinations for adjustment of such beads into such rooms as if what was being assessed was not the needs of living but merely the needs of existing. On the other hand, the Controller cannot be oblivious to the provision being in the nature of an exception to the rule, applicable only when the totality of circumstances wholly fit into the provision. After all, on his decision in favor of the landlord, one more tenant, for no fault of his, will be out on the road and though this does not enter as a factor for consideration, it certainly endows upon the Controller the need of a very balanced and considered approach.

(4) The word 'bona fide' in the clause takes out from the ambit of 'requirement', cases where an ulterior motive is discernible. Thus, if the tenant succeeds in proving that the motive behind eviction proceedings is either to coerce the tenant into increasing rent or to let out the premises sooner or later on increased rent or to sell the property at better price because it is vacant, i.e., a motive other than for occupation as a residence, the eviction petition must fail, without more. Here again, the Controller has to remember that it is a stock defense the tenants advance that the motive of the landlord is to increase the rent or is otherwise ulterior to the one permitted, and mere ipsi dixit of the tenant about it will not carry conviction.

(5) This brings me to the phrase, 'reasonably suitable residential accommodation'. The true meaning and scope of this phrase has already been discussed above while discussing the phrase 'required' or 'needs'. As aforesaid in assessing need, the Controller has necessarily to assess the suit ability of the accommodation at the disposal of the landlord because if such accommodation is reasonably suitable, the need of the landlord for the premises let out to the tenant does not arise and the two, i.e., need of the landlord and the availability of reasonably suitable residential accommodation has to be gone into as the two sides of the same coin, the consideration being intertwined as one.

(6) Applying the aforesaid principles I find no infirmity at all in the assessment of bona fide requirement and of reasonably suitable residential accommodation made by the learned Rent Control Tribunal.

(7) Besides it is noteworthy that whereas Section 38 provides an appeal against the orders of the Rent Controller and Section 39 provides for an appeal against the orders of the Tribunal, the right to these appeals has been taken away by Section 25B(8). The scope of judicial review of an order passed by the Rent Controller in proceedings under Section 25B is restricted to the High Court satisfying itself that an order made by the controller under Section 25B 'is according to law'. It may be recalled that a similar provision existed as Section 35(1) of the Delhi and Ajmer Rent Control Act, 1952. This provision was in the following words :

'THEHigh Court may, at any time, call for the record of any case under this Act for the purpose of satisfying itself that a decision made therein is according to law and may pass such order in relation thereto as it thinks fit.'

(8) The words in the aforesaid Section being pari materia with the words of the proviso to Section 25B(8), a judgment setting out the scope and ambit of judicial review under Section 35(1) would also determine the scope and ambit of judicial review under the aforesaid proviso. In Hari Shankar v. Rao Girdhari Lal A.I.R. 1963 S.C. 698, the Supreme Court had occasion to consider Section 35(1) of Delhi and Ajmer Rent Control Act, 1952. In para 7 & 8 the court observed :

(9) Para 7. 'The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law. Under Section 115 of the Code of Civil Procedure, the High Court's powers are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refused of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to jurisdiction and jurisdiction alone. In other Acts, the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit.

(10) The phrase 'according to law' refers to the adecision as a whole and is not to be equated to error of law or of fact simpliciter, It refers to the overall decision, which must be according to law which it would not be if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which Section 115 is limited. But it must not be over looked the section in spite of its apparent width of language where it confers a power on the High Court might think fit is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is 'according to law'. It stands to reason that if it was considered necessary that there should be a rehearing a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal.'

(11) The court recalled the judgment of Be aumont, C.J., in Bell & Company Limited v. Woman Hemraj 40 Bom L.R. 125: A.I.R. 1938 Bom 223 and observed that the exposition on the subject therein was most accurate. The quotation from the said judgment relied upon by the court is as follows :

'THEobject of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was according to law. The section does not enumerate the cases in which the court may interfere in revision, as does Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the court which made the order had no jurisdiction, or in which the court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the court comes to the conclusion that the unsuccessful party has not had a proper trial according. to law, then the court can interfere. But, in my opinion the court ought not to interfere merely because it thinks that possibly the judge who heard the case may have arrived at a conclusion the High Court would not have arrived at'.

(12) The matter came up to be considered again in Pooran Chand v. Motilal : AIR1964SC461 . The court observed :

'THEphrase 'according to law' refers to the decision as a whole, and is not to be equated to errors of law or of fact simpliciter. It refers to the overall decision, which must be according to law which it would not be, if there is a miscarriage of Justice due,. to a mistake of law. The section is thus framed to confer larger powers than the power to 'correct error of jurisdiction to which Section 115 (of the Code of Civil Procedure) is limited'.

(13) Looked at from this point of view also, I am satisfied that the impugned order is in accordance with law.


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