Full Judgment Text
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PETITIONER:
DR. M. K. SALPEKAR
Vs.
RESPONDENT:
SUNIL KUMAR SHAMSUNDER CHAUDHARI AND OTHERS
DATE OF JUDGMENT10/08/1988
BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
PATHAK, R.S. (CJ)
CITATION:
1988 AIR 1841 1988 SCR Supl. (2) 339
1988 SCC (4) 21 JT 1988 (3) 356
1988 SCALE (2)666
ACT:
C.P. & Berar Letting of Houses and Rent Control Order,
1949:Clause 13 (3) (v)-Whether confined to only residential
houses.
HEADNOTE:
The respondent-landlords submitted two separate
applications before the Rent Controller for permission to
determine the tenancy of the appellant-tenant from their
portions of the premises on the ground that the tenant had
built a large house in the city and had thus secured
alternative accommodation. The Rent Controller allowed the
prayer. A Single Judge of the High Court dismissed the
appellant’s writ petition and his Letters Patent Appeal was
also dismissed.
Before this Court the appellant’s main contention was
that the provisions of clause l3 (3)(v) of the C.P. & Berar
Letting of Houses and Rent Control Order, 1949 did not apply
to non-residential buildings. The argument was that by the
addition of the Explanation to clause l3(3)(v), non-
residential buildings have been excluded from the purview of
the sub-clause.
Dismissing the appeals it was,
HELD: (1) It cannot be reasonably suggested that by the
addition of the Explanation, which is confined to cases
dealing with residential buildings, a non-residential
building is excluded even where the tenant leaves the area
for a period of four months and does not need the house.
[342G-H]
If the position in regard to the second category of
cases remained unaffected, the Explanation cannot be
construed to narrow down the scope of the first category of
cases where the tenant secures alternative
accommodation.[342H; 343A]
(2) It is not possible to split the main sub-clause so
as to apply it to non-residential buildings where the tenant
leaves the area for four months and at the same time exclude
it where he secures alternative accommodation as the sub-
clause deals with the two situations in the same language
without making any distinction. [343A-B]
PG NO 339
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PG NO 340
(3) The Explanation operates within a very narrow area
and does not cover the entire field governed by the main
sub-clause. By the use of the expression "shall be deemed" a
legal fiction has been employed for the purpose of including
a particular situation within the sweep of the sub-clause.
l343D]
(4) It cannot be legitimately suggested that since in
the majority of other States, similar provisions in the
statutes on rent law are limited in operation to residential
buildings, the same must be presumed to be the intention of
the author of the Control Order. It is a question of policy
to be adopted by the different legislatures. [343G-H]
Mansaram v. S. P. Pathak, [l984] 1 SCC 125 referred to.
JUDGMENT:
ClVlL’ APPELLATE JURISDICTlON: Civil Appeal Nos.1584-
1585 of 1985.
From the Judgment and Order dated 16.6.1984 of the
Bombay High Court in L. P. A. Nos. 76 and 77 of 1984.
V.A. Bobde, A.G. Ratanapakrkhi, S.D. Mudaliar and Ms.
Alanjit Chauhan for the Appellant.
U. R. Lalit and A. K. Sanghi for the Respondents.
The Judgment of the Court was delivered by
SHARMA, J. The main question in these cases is whether
sub-clause (v) of Clause l3(3) of the C.P. & Berar Letting
of Houses and Rent Control Order, 1949, (hereinafter
referred to as the Control Order), applied to all buildings
whether residential or non-residential or was confined only
to residential houses.
2. The civil appeals have arisen out of two proceedings
initiated by the owners of the disputed premises for the
eviction of the appellant-tenant on the ground that he has
secured alternative accommodation and, therefore, does not
reasonably need the house. The two premises are parts of the
same building situate in Mahal Chowk in the city of Nagpur,
and belong to a family of which the applicants respondents
before this Court, are members. The appellant-tenant Dr.
M.K. Salpekar, who is a renowned doctor of Nagpur, has been
occupying the premises as tenant for the purpose of his
clinic since 1944. Admittedly he has built in Ramdaspeth,
PG NO 341
another part of the city, a large double storeyed house, and
has let out portions thereof to the State Forest Department
for running its office. On a partition amongst the members
of the family of the owners of the Mahal Building the
premises in possession of the appellant-tenant was allotted
to the respondents in the two appeals, in parts and they
started the present proceedings by two separate applications
for permission to determine the tenancy of the appellant-
tenant. The appellant defended the actions but the Rent
Controller allowed the prayer of the respondents. The order
was confirmed in appeal. The appellant moved the High Court
under Article 226 of the Constitution. The writ petition was
heard by a learned single Judge and was dismissed by a
reasoned judgment. A Letters Patent Appeal was dismissed in
limine. The appellant then filed the present civil appeals
by special leave.
3. The necessary findings on the various issues
involving facts were recorded in favour of the respondents
by the Rent Controller as well as the appellate court and
have been endorsed by the learned single Judge of the High
Court.
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4. Mr. Bobde appearing in support of the appeals has
contended that the provisions of Clause 13(3)(v) quoted
below, which are the basis for the impugned decision, do not
apply to non-residential buildings:
"13.(1) No landlord shall, except with the previous
written permission of the Controller---
(a) give notice to a tenant determining the lease or
determining the lease if the lease is expressed to be
determinable at his option; or
....................................................
(3) If after hearing the parties the Controller is
satisfied-
(i) ..................................................
..................................................
(v) that the tenant has secured alternative
accommodation, or has left the area for a continuous period
of four months and does not reasonably need the house ;
PG NO 342
Explanation-For the purpose of this item the tenant
shall be deemed to have secured an alternative accommodation
if he owns a residential house in the city or town concerned
and if such house is constructed on a site lying vacant on
Ist January 1951 or on a site made vacant on or after that
date by demolition of any structure standing on such site ;
or
(vi) .................................................
.................................................
he shall grant the landlord permission to give notice to
determine the lease as required by sub-clause (1)."
The courts were, therefore, in grave error in directing
eviction of the appellant from the premises let out to him
not for the purpose of his residence but for running a
clinic. The argument is that the Explanation to the clause
quoted above by referring to "a residential house in the
city or town concerned" makes it abundantly clear that the
clause cannot be applied to a non-residential house, for, a
residential house cannot be considered as alternative
accommodation to a non-residential building.
5. The original Control Order did not include the
Explanation; it was added later by an amendment. Sub-clause
(v) referred to "house" which by clause 2(3) means building
or part of a building, whether residential or non-
residential, and it cannot, therefore, be suggested that its
application was limited to residential buildings only. While
introducing the Explanation, the main sub-clause was left
untouched. The substance of the argument addressed on behalf
of the appellant is that by the addition of the Explanation,
non-residential buildings have been excluded from the
purview of the sub-clause. We do not find any justification
for this interpretation. The ’expression "house" used in the
Control Order in the wider sense is retained and envisages
two situations in which the landlord becomes entitled to
possession, namely, (i) where the tenant secures alternative
accommodation, and (ii) where he leaves the area for a
continuous period of four months. It cannot be reasonably
suggested that by the addition of the Explanation, which is
confined to cases dealing with residential buildings, a non-
residential building is excluded even where the tenant
leaves the area for a period of four months and does not
need the house. If the position in regard to the second
category of cases remained unaffected, the Explanation
cannot be construed to narrow down the scope of the first
category of cases where the tenant secures alternative
PG NO 343
accomodation. It is not possible to split the main sub-
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clause so as to apply it to non-residential buildings where
the tenant leaves the area for four months and at the same
time exclude it where he secures alternative accommodation,
as the sub-clause deals with the two situations in the same
language without making any distinction. A close look of the
Explanation will also show that unlike the main sub-clause
it deals with only a very limited class of cases where the
tenant owns a residential house which was constructed on a
site lying vacant on 1. 1. 1951 or on a site which became
available on or after that date by demolition of any
structure. Further, the main sub-clause is not restricted to
cases where the tenant is the owner of the alternative
building; it also applies where the tenant gets the
alternative accommodation in another capacity, e.g., under a
lease, or acquires the right of residence for life under a
bequest. It is, therefore, manifest that the Explanation
operates within a very narrow area and does not cover the
entire field governed by the main-sub-clause. By the use of
the expression "shall be deemed" a legal fiction has been
employed for the purpose of including a particular situation
within the sweep of the sub-clause. Without the Explanation
there was some scope for controversy about the precise
meaning of the expression "has secured" in the sub-clause,
which by the inclusive nature of the Explanation is set at
rest.
6. Mr. Bobde referred to several other State statutes on
rent law to show that similar provisions corresponding to
those in sub-clause (v) are limited in operation to
residential buildings. it was urged that it should, in the
circumstances, be assumed that the State Government while
making the present Control Order also intended to limit the
scope of the present sub-clause (v). There is no merit in
this argument either. The list of the different State Acts
prepared by the learned counsel itself shows that in four of
them the corresponding provisions are applicable to both
residential as well as non-residential premises. In the
remaining Acts the relevant ground is restricted to
residential buildings but in clear and unambiguous terms in
the body of the section itself. They are, therefore, of no
help to the appellant. Besides, it is a question of policy
to be adopted by the different legislatures, and it cannot
be Iegitimately suggested that since the majority of the
State legislature have followed a particular policy, the
same must be presumed to be the intention of the author of
the Control Order in question before us. We, therefore, do
not find any merit in the argument of the appellant for
restricting the application of sub-clause (v) to residential
buildings.
PG NO 344
7. Mr. Bobde pressed two additional points. It is urged
that the clause "and does not reasonably need the house"
applies as a necessary condition to both categories of
cases, that is, where the tenant secures alternative
accommodation as also where he has left the area for a
period of four months, and this the courts below have failed
to appreciate. We do not agree. The punctuation ’comma’ in
the subclause after "alternative accommodation" and before
the rest of the sentence indicates that the last part of the
sub-clause namely "and does not reasonably need the house"
governs only the part of the sub-clause. However, this
controversy is academic in nature because when a court is
called upon to decide whether another building available to
the tenant can be treated as alternative accommodation, it
has to consider whether the other building is capable of
reasonably meeting the requirements of the tenant on his
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vacating the disputed premises. The adjective "alternative’’
by itself imports this as a condition. And this aspect has
been thoroughly gone into by the courts below and necessary
findings have been recorded against the appellant.
8. The last ground uged is that since "Ramdaspeth’ house
was built several years before the institution of the
present proceedings. the applications should have been
dismissed on the ground of undue delay. Reliance has been
placed on Mansaram v. S.P. Pathak and others, [1984] 1 SCC
125. The learned counsel for the respondents in his reply
contended that an action for enforcing a right filed within
the period of limitation as fixed by law cannot be thrown
out merely on the ground of delay. He also relied on the
evidence in the present case indicating the special
circumstances arising later justifying the belated filing of
the application. Following a partition in the family of the
landlord-respondents they became entitled to exclusive
possession of the respective portions of the premises which
are subject-matter of the two cases. The evidence also
indicates that the appellant was in the process of retiring
from active practice and was attempting to establish his
son, who is also a doctor, in the premises in question. In
that view there is no substance in the point urged. The
facts in which the decision in Mansaram’s case was rendered
clearly indicate that it does not support the argument put
forward on behalf of the appellant and no aid therefrom can
be taken. The case of the plaintiff, there, was that the
appellant-tenant had occupied the premises in question
about 22 years earlier illegally and was, therefore, liable
to eviction,out of which the appeal before the Supreme Court
arose was filed, there were numerous proceedings between the
original landlord and the tenant and this question about the
PG NO 345
illegal entry of the appellant had never been raised and it
was only after the death of the original landlord that a
"total stranger" had come forward to raise the issue and it
was held that he was not entitled to do so. The principle of
waiver was clearly applicable. We, therefore, do not find
substance in any of the points urged on behalf of the
appellant. The appeals are accordingly dismissed with costs.
R.S.S. Appeals dismissed.