SIDHHARTH VIYAS vs. RAVI NATH MISRA .

1 REPORTABLE

CIVIL APPEAL NO. 10529 OF 2014 (ARISING OUT OF SLP (C) NO.11696 OF 2007) SRI SIDHHARTH VIYAS & ANR. …APPELLANTS VERSUS RAVI NATH MISRA & ORS. …RESPONDENTS J U D G M E N T ADARSH KUMAR GOEL J. 1. Leave granted. JUDGMENT 2. This appeal has been preferred against the Judgment and th Order dated 7 May, 2007 of the High Court of Judicature at Allahabad, Civil Side in Civil Miscellaneous Writ Petition No.47201 of 2002. 3. The question for consideration is whether Section 12(3) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short “the Act”) providing for ‘deemed vacancy’ is applicable to a situation where the tenant or a member of his family builds, acquires or otherwise gets a vacant building in Page 1 2 the area concerned after commencement of the tenancy but prior to application of the Act to the tenancy in question.

st w.e.f. 1 June, 1981 and was assessed for house tax for the first time st on 1 October, 1983. Under Section 2(2) of the Act, the Act which th otherwise came into force on 15 July, 1972, was not applicable to the building during ten years from the date on which its construction was completed. The construction is deemed to be completed, inter alia, on the date on which the first assessment of letting value is made by the local authority concerned, which in the present case st was 1 October, 1983. Thus, the Act became applicable to the th accommodation in question in the year 1983. On 7 June, 1987, the JUDGMENT tenant purchased another residential house bearing number 198 at Safipur-II, Kanpur Nagar. 5. The City Magistrate, Kanpur, in his capacity as Rent Controller, th vide Order dated 5 September, 2002, declared the premises in question to be vacant under Section 12(3) of the Act on account of purchase of residential house by the wife of the tenant in the year 1987. The tenant filed Civil Miscellaneous Writ Petition No.47201 of 2002 against the Order of the Rent Controller declaring the premises th in question to be vacant and also the subsequent order dated 30 Page 2 3 September, 2002 releasing the accommodation in favour of the landlord under Section 16 of the Act. The High Court accepted the

applicable. Reliance was placed on a Five-Judge Full Bench of the High Court in Mangi Lal vs. Additional District Judge & 1 others. . It is against the said Order that the present appeal has been preferred. 6. We have heard learned counsel for the parties. 7. The Act provides for the regulation of letting and rent and the eviction of tenants from certain classes of buildings situated in urban areas and for matters connected therewith. Reference to all the provisions of the Act may not be necessary for adjudication of JUDGMENT the issue involved, except to Section 12 which provides for deemed vacancy of a building in certain cases. Section 12(3) reads as follows : “12(1) …………. (2) ………….. (3) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to 1 (1980) Allahabad Rent Cases, 55 Page 3 4 have ceased to occupy the building under his tenancy: Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date. Explanation.--For the purposes of this sub- section-- (a) a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee; (b) the expression "any member of family", in relation to a tenant, shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant.” 8. Learned counsel for the appellant-landlord submits that under the scheme of the Act, the above provision should be interpreted to JUDGMENT mean that a tenant who has already acquired another residential building in the same city, is not entitled to protection against eviction even if such acquisition is before commencement or applicability of the Act, as the object of the Act is to protect a needy person and not a person who has already acquired another building. No doubt the expression “ builds or otherwise acquires in a vacant state or gets vacated ” may give an impression that the provision is applicable in respect of acquisition after the Act Page 4 5 becomes applicable, the context and the scheme of the Act clearly indicate that any acquisition of alternative accommodation by the

which purports to be more beneficial to the tenant in giving extra protection to the tenancy for one year from the date of commencement of the Act. The proviso clearly refers to a situation where the tenant had built the alternative accommodation before the commencement of the Act. The scope of proviso is always narrower than the main provision. He submitted that the Full Bench judgment has been wrongly relied upon by the High Court for the contrary view and if so read, the same does not lay down correct law. Reference has also been made to Judgments of this Court in JUDGMENT Goppumal vs. Thakurji Shriji Shriji Dwarakadheeshji & 2 another and Gajanan Dattatraya vs. Sherbanu Hasang Patel 3 & others which have been referred to in the Full Bench Judgment. 9. Learned counsel for the respondent-tenant opposed the above submission. According to him, on a plain reading, Section 12(3) can apply only if acquisition of alternative premises by the tenant is after the Act becomes applicable. In the present case, the Act became applicable only in the year 1993 and prior thereto, by virtue 2 (1969) 1 SCC 792 3 (1975) 2 SCC 668 Page 5 6 of Section 2(2), the building was exempted from the operation of the Act. He, thus, supports the view taken by the High Court.

the landlord on the one hand to recover possession of building let out to the tenant and of the tenant to be protected against arbitrary increase of rent or arbitrary eviction, when there is acute shortage of accommodation. Though, it is for the legislature to resolve such competing claims in terms of statutory provisions, while interpreting the provisions the object of the Act has to be kept in view by the Court. Unless otherwise provided, a tenant who has already acquired alternative accommodation is not intended to be protected by the Rent Act. JUDGMENT 4 12. In Joginder Pal vs. Naval Kishore Behal , this Court observed : “5. It will be useful to state the principles relevant for interpretation of a provision contained in a rent control law like the one with which we are dealing. The spurt of provincial rent control legislations is a necessary consequence of population explosion. In Prabhakaran Nair v. State of T.N. [(1987) 4 SCC 238] the Court noticed craving for a home — a natural human instinct, intensified by post-war migration of human beings en bloc place to place, the partition of the country and uprooting of the people from their hearth and home as vital 4 (2002) 5 SCC 397 Page 6 7

JUDGMENT Page 7 8

JUDGMENT the Court guarded against any artificial extension entailing stretching or straining of language so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. The Court warned that such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. In Kewal Singh v. Lajwanti [(1980) 1 SCC 290] this Court has observed, while the rent control legislation has given a number of facilities to the tenants, it should not be construed so as to destroy the limited relief which it seeks to give to the landlord also. For instance, one of the grounds for eviction which is Page 8 9

JUDGMENT 13. In Reserve Bank of India vs. Peerless General Finance & Page 9 10 5 Investment Co. Ltd. & others , it was observed :

JUDGMENT for it that the Court construed the expression “Prize Chit” in Srinivasa and we find no reason to depart from the Court’s construction.” 14. The Full Bench of the High Court in Mangi Lal (supra), rightly held that the grammar cannot control the interpretation of the provision which has to be read in the context. It will be appropriate 5 (1987) 1 SCC 424 Page 10 11 to reproduce relevant part of the said Judgment which is as follows :

45. Lord Denning put it very pithily in Seaford Count Estates Ltd. v. Asher (1949) 2 KB 281 as under: JUDGMENT “We do not sit here to pull the language of Parliament and of Ministers to pieces and make nonsense of it. That is an easy thing to do, and it is a thing to which Lawyers are too often prone. We sit here to find out the intention of Parliament and of Ministers and carry out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.” The Court’s function is to clarify the language so as to satisfy the legislative intent. 46. The word ‘has’ has been used in the Act in many other provision, e.g., Page 11 12 section 20 permits a suit for ejectment where the tenant ‘has sublet’. There the word ‘has’ may have a different significance, because of, inter-alia, its legislative history.” 15. Thus, in our view, mere use of present tense in Section 12(3) is not intended to limit the applicability of the provision to acquisition of accommodation by the tenant after the Rent Act becomes applicable. In the context, the provision also covers the situation where the tenant has acquired alternative accommodation before the applicability of the Rent Act. This view is further supported by the language of the proviso. The proviso clearly shows that the provision in question is not intended to be limited to a situation where alternative accommodation is acquired after the Act commences or becomes operative. The provision also covers a situation where the alternative accommodation is acquired prior to JUDGMENT that. The scope of proviso is narrower than the main provision. 16. In S. Sundaram Pillai & others vs. V.R. 6 Pattabiraman & others , it was observed: “27. The next question that arises for consideration is as to what is the scope of a proviso and what is the ambit of an Explanation either to a proviso or to any other statutory provision. We shall first take up the question of the nature, scope and extent of a proviso. The well established rule of interpretation of a proviso is that a proviso may have three separate functions. 6 (1985) 1 SCC 591 Page 12 13

29. Odgers in Construction of Deeds and Statutes (5th Edn.) while referring to the scope of a proviso mentioned the following ingredients: “p. 317. Provisos —These are clauses of exception or qualification in an Act, excepting something out of, or qualifying something in, the enactment which, but for the proviso, would be within it. p. 318. Though framed as a proviso, such a clause may exceptionally have the effect of a substantive enactment.” 30. Sarathi in Interpretation of Statutes at pages 294-295 has collected the following principles in regard to a proviso: JUDGMENT (a) When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject- matter of the proviso. (b) A proviso must be construed with reference to the preceding parts of the clause to which it is appended. (c) Where the proviso is directly Page 13 14

JUDGMENT 17. We, thus, hold that the view taken by the High Court that acquisition of alternative accommodation by the tenant, prior to enforcement of the Act, is not covered by Section 12(3) of the Act is not correct in law. The Full Bench Judgment, to the extent it supports the said view, also does not lay down correct law and will stand overruled. Page 14 15 18. Accordingly, we allow this appeal, set aside the impugned order passed by the High Court and restore the order passed by the Rent Controller. No costs. ………………………………………J. (T.S. THAKUR) ………………………………………J. (ADARSH KUMAR GOEL) ………………………………………J. (R. BANUMATHI) NEW DELHI NOVEMBER 25, 2014 JUDGMENT Page 15