SMT. YAMUNA MALOO v. ANAND SWARUP

Citation: [1990] 1 S.C.R. 715

Court: Supreme Court of India

Bench: RANGANATH MISRA, M.M. PUNCHHI, K. RAMASWAMY

Case summary

If he makes a mindless order, the Court, when challenged at the time of execution, will go into the question as to whether the twin conditions . This is an appeal by the landlady whose application for being put in possession of the premises on the expiry of a limited tenancy...

Judgment text

The Judgment of the Court was delivered by RANGANATH MISRA, J. Special Leave granted. This is an appeal by the landlady whose application for being put in possession of the premises on the expiry of a limited tenancy of two years under section 21 of the Delhi Rent Control Act (hereinafter referred to as 'the Act') has been dismissed by the Rent Controller, . J the Rent Control Tribunal and the High Court. On 30th September, 1976, the appellant-landlady and the respondent-tenant appeared before Shri M. A. Khan, Additional Rent Contr:iller for creation of a tenancy under s. 21 of the Act. The Additional Rent Controller recorded the statements of both the landlady ----.. / and the prospective tenant and made the following order: "Having regard to the facts stated in the petition and the statement of the parties made above permission under sec- : tion 21 of the Delhi Rent Control Act is granted to Smt. Yamuna Maloo applicant to let out ground floor of her ~ premises No.

B-2/104, Safdarjung Enclave, New Delhi comprising of drawing cum dining hall, two bed rooms with '· attached bath room, kitchen, parking place and a small T lawn delineated in the enclosed plan Ex. AI, to Mr. Anand Swarup respondent for residential purposes for a limited period of two years with effect from 1. 10. 76. " After the expiry of the two year period, when the respondent did not vacate the premises, the landlady moved the Rent Controller for issuance of warrant of possession to which the tenant filed his objection. The Additional Rent Controller entertained the objection and dismissed the landlady's petition for being put into possession. Thereupon the landlady moved the Rent Control Tribunal in appeal and when she failed before it, a second appeal was filed before the High Court which was dismissed in limine. [1990) 1 S. C. R. The Controller relied upon the judgment of this Court in S. B. y '"" Noronah v. Prem Kumari Khanna, [1980) 1 S. C. R.

281 and came to I hold: "I have carefully gone through the execution application, the objections, the evidence on record, the original file in which the permission was granted and have heard the learned counsel for parties. I am of the view that the order ... dated 30. 9. 75 granting permission was not in accordance with law and that the applicant/petitioner is not entitled to obtain possession of the premises in dispute under section 21 of the Delhi Rent Control Act. " - Noronah's case had stated: "Of course, there will be presumption in favour of the sanction being regular, but it will still be open to a party to make out his case that in fact and in truth the conditions which make for a valid sanction were not present. " It is interesting to note that by the time the appellant's appeal came up for hearing before the Tribunal, Shri M. A.

Khan who as an Additional Rent Controller had approved the tenancy by his order dated 30th September, 1976, on being judicially satisfied that the tenancy under s. 21 of the Act could be created had become the Rent Control Tribunal. He noticed this fact in his appellate order dated 11th April, 1986, by stating: "In this appeal, the validity and executability of the order dt. 30. 9. 76 is disputed which was passed by me as Addi. Rent Controller. Since there is no other Rent Control Tribunal, therefore, in exigency of the situation I have no option but to proceed to decide this appeal. " He concluded: "The appellant in the application and in her statement did not give the reason for letting out the premises for two years only. She even did not give the reason in application for recovery of possessfon. In reply to the objection of the respondent, she states that she was residing in Vasant Vihar at a house which was allotted to her husband by the employer.

There was no possibility of her vacating the said house and shifting to the disputed premises. The first floor . • of the disputed premises was also let out by her to another tenant for a limited period. She did not disclose that she intended to create a limited tenancy in respect of the first floor also. Further the premises were let after an advertisement of 'to let' in Hindustan Times dt. 25. 9. 76. It is conceded that in the advertisement it was not specified that the premises were available for letting for two years only. All these facts proved that the appellant did not require the premises for occupation after two years and that these pre- ' mises could have been let out for an indefinite period. She . made a wrong statement before the court. She also concealed the material facts from the court. She obtained the permission from the court under section 21 by playing fraud.

The order passed under section 21 is therefore invalid and in execution thereof, the respondent cannot be evicted. '' We have already said that the second appeal was dismissed in limine. Lengthy arguments were advanced at the hearing in support of the respective stands. Counsel for the landlady argued that the Additional Rent Controller should not have entertained the objection of the tenant to the execution of the eviction order as the same had not been filed during the currency of the tenancy; it was further argued that some of the considerations which weighed with the Rent Control Tribunal were not at all relevant for judging the bona fides and genuineness of actions taken on 30th of September, 1976, at the time of creation of the ·tenancy. On the side of the tenant, the contentions which had prevailed with the Additional Rent Controller and the Rent Control Tribunal were reiterated.

Section 14 of the Act deals with a normal tenancy and protects the tenant against unreasonable eviction. Section 21 of the Act, on the other hand, places the tenant outside the purview of s. 14 and provides for an order of eviction at the time of creation of the tenancy. There is a purpose behind enacting s. 21 of the Act. The Legislature considered it appropriate that should a landlord not need his residential premises for a period, instead of keeping the same vacant the same could be availahle for a tenant's use on being let out for a limited period condi- tional upon the tenant's surrendering possession as soon as the tenancy terminates by efflux of time and the need of the landlord revives. The conditions to be fulfilled at the time of creation of such a tenancy are three, namely, (i) the landlord would not require the premises for a particular period, (ii) the Controller must be satisfied about that position, and (iii) the tenant agrees to vacate at the end of the period.

In Noronah's case, supra, a two-Judge Bench dealt with this question. This Court then said: "We must notice that section 21 runs counter to the general scheme and, therefore, must be restricted severely to its narrow sphere. Secondly, we must place accent on every condition which attracts the section and if any one of them is absent the section cannot apply and, therefore, cannot ~... :. arm the landlord with a resistless eviction process. Thirdly, · we must realise that the whole effect of section 14 can be subverted by ritualistic enforcement of the conditions of sanction under section 21 or mechanical grant of sanction therein. Section 21 overrides section 14 precisely because it is otherwise hedged in with drastic limitations and safeguards itself against landlords' abuses. Y' It is true that the judgment of this Court which is dated August 16, 1979, was not in existence when Shri Khan sanctioned the tenancy but the law then in force was not different.

In fact, the orders out of which that appeal arose had also taken the same view. This Court in Noronah's case further said: "When an application under section 21 is filed by the land- '( lord and/or tenant, the Controller must satisfy himself by such inquiry as he may make, about the compulsive requirements of that provision. If he makes a mindless order, the Court, when challenged at the time of execution, will go into the question as to whether the twin conditions ... for sanction have really been fulfilled. " A three-Judge Bench of this Court in J. R. Vohra v. India Export ~. House Pvt. Ltd. & Anr. , I1985] 2 SCR 899 was examining the requirement of . notice to the tenant when at the expiry of the period of tenancy the landlord had applied for being put in possession. While so examining that question this Court approved the following observations in Noronah's case: "Parliament was presumably keen on mru validity of the permission under s.

21 of the Act came up for considcra- 1 tion. Noronah's case was also referred to. In paragraph 15 of the judgment this Court pointed out that there is nothing in this decision to support the respondent-tenant's contention in that appeal that the scope of enquiry is wider permitting determination of the landlord's bona fide need of the premises as if such a ground for eviction specified . ins. 14 of the Act was required to be proved. Extending the enquiry to that field would indeed be against the express prohibition enacted in s. 21 of the Act. Referring to Vohra's case, the latest judgment indicates: "It is obvious from the decision in J. R. Vohra's case that the tenant is expected to raise such a plea during currency of the limited tenancy and on such a plea being raised by the tenant enquiry into it is contemplated. Even though it is -'-. not expressly said in Vohra's case, it is implicit that on such an application being made by the tenant requiring adjudi- .

cation by the Controller, it is the Controller's obligation to issue notice of the same to the landlord and then to make the adjudication with opportunity to both sides to prove their respective contentions. Both in Vohra's case and in Shiv Chander Kapoor's case though not arising for determination in either, it has been stated while laying down the rule that proceeding to challenge limited tenancy has to be taken during the currency of the tenancy, an objection filed by the tenant could be looked into is indeed an obiter. We would like to make it clear that the rule having been stated to the contrary in Vohra's case, there was indeed no warrant to indicate the contra situation. Perhaps to meet the eventuality which might arise in a particular case, neither r of the two Benches of this Court wanted to close the avenue of enquiry ' totally, and that is why in both the cases decided by coordinate Benches the exception has also been indicated.

It must be understood on the authority of the said two decisions and our judgment now that if . the tenant has objection to raise to the validity of the limited tenancy it has to be done prior to the lapse of the lease and not as a defence to the landlord's application for being put into possession. We would like to reiterate that even if such an exercise is available that must be taken to be very limited and made applicable to exceptional situations. Unless the tenant is able to satisfy the Controller that he had no opportunity at all to know the facts earlier and had come to be aware of them only then, should such an objection be entertained. A On the application of those tests to the present facts we must hold that the belated objections of the tenant should not have been entertained and prayer for possession made by the landlady after the limited tenancy ran out should have beengranted.

The appeal is allowed; the decisions of the Controller, Rent B Control Tribunal and the High Court are reversed and the landlady is directed to be put into possession of the premises by 31st of March, 1 1990. The appellant would be entitled to her costs in the proceedings throughout. Hearing fee is assessed at Rs. 2,000. G. N. Appeal allowed. ( ' )