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CASE NO.:

Appeal (civil) 390 of 2004

PETITIONER:

Kailash Chand & Anr.

RESPONDENT:

Dharam Dass

DATE OF JUDGMENT: 04/05/2005

BENCH:

CJI R.C. Lahoti, Y.K. Sabharwal & G.P. Mathur

JUDGMENT:

J U D G M E N T

R.C. Lahoti, CJI

An application seeking an order of eviction under Section

14 (3)(a) (i) of the Himachal Pradesh Urban Rent Control Act,

1987, hereinafter, the Act for short, was allowed by the Rent

Controller and the tenant was ordered to be evicted. The order

was maintained in appeal by the Appellate Authority. The High

Court has in exercise of revision jurisdiction set aside the order

of eviction. The aggrieved landlords have come up in appeal by

special leave.

It will be necessary to set out the relevant material facts in

order to appreciate the controversy arising for decision. The suit

premises are part of a double-storeyed building, bearing house

number 108, situated in the city of Shimla, where the Act is

applicable. The ground floor consists of one shop, one godown,

one store-room and one kitchen. The first floor consists of two

rooms, a kitchen, latrine and one verandah. The property

belonged to one Ramji Dass. The two appellants before us,

namely, Kailash Chand and Nokha Ram are real brothers. They

purchased the property from Ramji Dass. The exact date of

purchase is not known but it was sometime in the year 1980.

Ramji Dass was carrying on his own business on the ground floor

while the first floor was in occupation of the tenant, Dharam

Dass, the respondent herein. The appellants got vacant

possession of the ground floor from their vendors while the

tenant continued to be in occupation of the first floor which he

was holding on tenancy at a monthly rent of Rs.15/-.

Having purchased the premises, the landlords initiated

proceedings for the eviction of the tenant from the first floor

premises by an application filed on 1.8.1980 before the Rent

Controller under the Himachal Pradesh Urban Rent Control Act,

1971 \026 the law as it was applicable then. The ground for eviction

was that the family of the appellants was living in miserable

conditions. On purchasing the building No. 108, appellant No. 2

commenced his commercial activity by opening a shop on the

ground floor of the building. He started using the godown for

the residence of himself along with his wife and two school going

children. One room was used as a store room and one room as

a kitchen. Before purchasing house No.108, appellant No. 1 was

living in a rented accommodation which he had to vacate

perforce as it was in a dilapidated condition and unsafe for

human habitation. Appellant No. 1 joined appellant No. 2 for

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residence. At night, he had to sleep in the shop. Appellant no.1

was of marriageable age but his marriage was not being

performed for want of living accommodation. The landlords

urged that the residential accommodation on the first floor in

occupation of the tenant was required by them to accommodate

their large family. The Rent Controller vide order dated

31.10.1984 allowed the landlords' application and directed the

respondent-tenant to be evicted.

The tenant preferred an appeal. During the pendency of

appeal before the Appellate Authority the parties entered into a

compromise which is recorded in the order dated 17.9.1986

passed by the Appellate Authority. The landlords agreed to

create a new tenancy in favour of tenant-respondent in respect

of a room, a kitchen and a passage on the ground floor of the

building with effect from 1.10.1986 on a monthly rent of Rs.30.

Appellant No.2 and his family members shifted to the first floor

accommodation which was in occupation of the tenant earlier.

The tenant entered into occupation of the ground floor, as per

the terms of the agreement, though the ground floor premises

were not fit for human residence as per the version of the

landlords itself.

On 1st March, 1988, the landlords filed another application

against the tenant-respondent seeking his eviction from the

ground floor accommodation in his possession. It was alleged in

the application that subsequent to the induction of respondent as

tenant in the ground floor, appellant No.1 was blessed with a

female child. It appears that this appellant was married during

the pendency of the earlier eviction proceedings. The family of

appellant No.1 was kept at village Panhoi i.e. away from Shimla

but then for the purpose of giving education to his child, the wife

of appellant no.1 and the child were shifted permanently to

Shimla in view of the educational facilities needed for the child

being available in the city. But the family of appellant no.1 was

residing in a rented residential accommodation where the rent

was being paid at the rate of Rs.225/- per month beside taxes.

The upper floor accommodation continued to be in occupation of

the family of appellant no.2. Looking at the number of members

in the family of appellant no.2 and the small size of

accommodation on the first floor which was already occupied by

the family of appellant No.2, the family of appellant no.1 could

not have been accommodated therein.

Vide Order dated 20.1.1993, the Rent Controller directed

tenant-respondent to be evicted. The tenant's appeal was

dismissed by the Appellate Authority. In Civil Revision preferred

by the tenant, the High Court has vide its Order dated November

27, 2001 allowed the Civil Revision and directed the eviction

petition to be dismissed. The High Court has placed reliance on

one of the provisos appended to sub-Section (3) of Section 14 of

the Act (called the 'third proviso' in this judgment) as noticed

hereinafter and the decision of this Court in Molar Mal (dead)

through L.Rs. v. M/s. Kay Iron Works (Pvt.) Ltd., (2000) 4

SCC 285. In the opinion of the High Court the landlords had

admittedly obtained the possession of another building (as

defined in Section 2 clause (b) of the Act) on the same ground of

bona fide requirement for his own occupation under Section

14(3)(a)(i) of the Act and as against this very tenant and,

therefore, the eviction petition filed by the landlords was not

maintainable even prima facie. The landlords have come up in

appeal by special leave.

The relevant part of sub-Section (3) of Section 14 of the

Act reads as under:

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"(3) A landlord may apply to the Controller for

an order directing the tenant to put the

landlord in possession :-

(a) in the case of a residential building, if -

(i) he requires it for his own occupation:

Provided that he is not occupying

another residential building owned by

him in the urban area concerned:

Provided further that he has not

vacated such a building without sufficient

cause within five years of the filing of the

application, in the said urban area;"

xxx xxx xxx

"Provided further that where the landlord

has obtained possession of any building

or rented land under the provisions of

clause (a) or clause (b), he shall not be

entitled to apply again under the said

clause for the possession of any other

building of the same class or rented

land."

The relevant proviso quoted hereinabove and which has

been relied on by the High Court, we will refer to as the third

proviso for the sake of convenience.

When the appeal came up for hearing before a two-Judge

Bench of this Court, reliance was placed on behalf of tenant

again on the case of Molar Mal (supra), as was done before the

High Court. The Bench felt the need of giving a fresh look at the

law laid down in Molar Mal's case and hence for the appeal

being heard by a three-Judge Bench inasmuch as Molar Mal's

case is a two-Judge Bench decision.

The two-Judge Bench has, in its referral order dated

October 7, 2004, for hearing by a Bench of three Judges, noted

two contentions advanced before it on behalf of the landlords.

First, the present case is not a case of obtaining possession.

Secondly, the landlords were not seeking eviction on the "self

same ground". If the circumstances have changed and the

necessity has increased, it may be possible and permissible for

the landlord to apply again under Sub-section (3) of Section 14

of the Act on the ground of bona fide requirement. The

requirement may continue to subsist or the circumstances may

have changed to a different state. In either case, the third

proviso to Section 14(3) of the Act would not apply. These are

the reasons which persuaded the learned two Judges to place

the matter for consideration by a Bench of three Judges.

In our opinion, the third proviso has no application to the

facts of the present case and this we say for two reasons. First,

the third proviso would apply when an order for eviction has

been passed under clause (a) or (b) and possession is obtained

by the landlord pursuant to that order. In this case, the parties

entered into a compromise and, therefore, an occasion for the

Appellate Authority passing an order for eviction did not arise.

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Secondly, by virtue of settlement arrived at between the parties,

the landlords did not obtain possession of the building; the

tenant shifted from one part of the building to another part of

the same building. The tenant did not 'vacate' the building.

'Vacate', normally, means to go away, to leave. (See \026 Surinder

Singh Sibia v. Vijay Kumar Sood, (1992) 1 SCC 70 para 2).

The landlord can be said to have obtained possession of any

building if the tenant has correspondingly vacated such building.

Such is not the case before us.

Molar Mal's case which has been relied on by the High

Court deals with a pari materia provision contained in the

Haryana Urban (Control of Rent) & Eviction Act, 1973. There the

plea taken by the tenant in his written statement was that the

landlord had filed other petitions against other tenants alleging

personal requirement and during the pendency of the eviction

petition in question he had obtained possession of building and

lands from three other tenants and hence the landlord's plea for

the tenant's eviction was not maintainable, in view of the third

proviso. The contention of the landlord was that the possession

from other tenants was obtained during the pendency of the

eviction petition and not on the date of filing of the eviction

petition and, therefore, the proviso did not apply. This

contention of the landlord was repelled by this Court observing

that the proviso needed to be interpreted keeping in view the

Legislative intent and not in a pedantic manner. Not the letter of

the law by assigning a literal meaning, but the purpose sought to

be achieved by the legislature had to be kept in view. This Court

opined that if the landlord had obtained possession of the

premises/land belonging to the same class of building or

tenanted land, wherefrom the eviction was being sought for in

the proceedings, then the applicability of the proviso would be

attracted. To record a finding in that regard, the case was

remanded to the trial court by framing an issue and allowing

liberty to the parties to adduce evidence. Molar Mal's case

(supra) does not deal with the situation like the one before us

nor does answer the question as is posed in the case before us.

In Molar Mal's case this Court has not expressed any opinion if

the applicability of the third proviso would be attracted if there

was no order of eviction pursuant to which the landlords came

into occupation of another residential building and what was

done, was only an exchange of accommodation by way of mutual

settlement and without intervention of the Court, though such

settlement was brought to the notice of the Court.

We find it difficult to accept the construction placed on the

third proviso, in para 14 of the judgment in Molar Mal's case.

In Rakesh Wadhawan and Ors v. Jagdamba Industrial

Corporation and Ors, (2002) 5 SCC 440, this Court has held

that a statute can never be exhaustive. Legislature is incapable

of contemplating all possible situations which may arise in future

litigation and in myriad circumstances. The scope is always

there for the Court to interpret the law with pragmatism and

consistently with the demands of varying situations. The

construction placed by the Court on statutory provisions has to

be meaningful. The legislative intent has to be found out and

effectuated. "Law is part of the social reality" (See - Law in the

Scientific Era by Justice Markandey Katju, 2000 Ed., p.33)

"Though Law and Justice are not synonymous terms they have a

close relationship, as pointed out by the American jurist Rawls.

Since one of the aims of the law is to provide order and peace in

society, and since order and peace cannot last long if it is based

on injustice, it follows that a legal system that can not meet the

demands of justice will not survive long. As Rawls says "Laws

and institutions no matter how efficient and well arranged, must

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be reformed or abolished if they are unjust"." (ibid, p.72).

Clearly law cannot be so interpreted as would cause oppression

or be unjust.

Life is not static and so the law cannot afford to be static.

The third proviso cannot be so interpreted as to restrict the right

conferred by sub-Section (3)(a)(i) on the landlord to be

exercisable only "once in a life time". The proviso has to be read

as providing a statutory expression of a situation which would

otherwise have been held to be mala fides of a requirement. A

landlord, having obtained possession of any building to satisfy a

requirement, cannot again and again plead the same set of

circumstances or similar circumstances for evicting tenants one

after other. That is what the third proviso aims at providing.

The proviso cannot be interpreted to mean that in spite of the

requirement having undergone a change or a new requirement

unrelated to the previous one having come into existence, the

landlord would yet be denied relief under sub-Section (3)(a)(i)

merely because at some point of time in the past he had

resorted to this provision for seeking an eviction. Such an

interpretation is too rigid an interpretation and would cause such

hardship to the landlord as the Legislature cannot be said to

have intended. The examples are available in decided cases and

two such are: Jagir Singh v. Jagdish Pal Sagar, 1980 (1)

R.C.R. 494 and Brij Lal Puri and Anr v. Smt. Muni Tandon,

AIR 1979 Punjab & Haryana 132.

In Jagir Singh's case there were five tenants on the

ground floor of the premises in dispute and the respondent filed

applications for ejectment against all the tenants simultaneously.

Orders of ejectment were passed against all the tenants. Four

tenants vacated; the fifth one took his battle to the Appellate

Court. The premises got vacated from the four tenants

consisted of five rooms out of which two were very small rooms

which can be used only as stores. The entire construction of the

house lay in two hundred square yards. The requirement of the

landlord was of the ground floor in its entirety and was found to

be bona fide as a matter of fact. The contention that the

landlord having evicted four other tenants cannot evict the fifth

tenant in spite of the proven requirement was rejected by the

High Court.

In Brij Lal Puri's case the interpretation placed by the

High Court on the third proviso in similar set of facts runs,

thus___

"A plain reading of the proviso mentioned

above shows that a landlord after getting one

building vacated, which can reasonably meet

his needs, cannot get another building

vacated. The proviso does not lay down that if

the entire building, which is needed by a

landlord for his personal use, is occupied by

more than one tenant, he or she cannot take

out eviction proceedings against the other

tenants after having evicted one. The object of

this proviso is that a landlord should not be

allowed to seek unreasonable ejectments of

tenants from independent buildings if he has

already succeeded in evicting a tenant from a

building which is sufficient for his personal

occupation."

In our opinion, the interpretation placed by the High Court

on the local law takes a practical, pragmatic, reasonable and

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balanced view of the law and deserves to be upheld. We find it

difficult to subscribe to the view taken in Molar Mal's case that

eviction of three other tenants from the premises which are part

of the same building, would disentitle the landlord from pursuing

the proceedings for eviction against yet another tenant in spite

of his requirement for possession over such part of the building

being found to be bona fide, subsisting and real.

Having held that third proviso is not attracted to the facts

and circumstances of the present case and, therefore, that

provisio cannot cause any dent in the entitlement of the

landlords to seek eviction of the tenant-respondent under

Section 14(3)(a)(i), it is still necessary to examine whether the

order for eviction passed by the Rent Controller and upheld by

the Appellate Authority could have been sustained by the High

Court.

Sub-Section (3)(a)(i) contemplates an order of eviction

being made against tenant in the case of a residential building if

the same was required by the landlord for his own occupation.

The two provisos appended to sub-clause (i) of clause (a) of sub-

section (3) of Section 14 place two restrictions on the right of

the landlord to seek eviction. These are :-

(i) the landlord must not be in occupation of another

residential building owned by him in the urban

area concerned;

(ii) the landlord having another residential building

of his own in the urban area concerned though

not in occupation thereof on the date of the filing

of the application, must not have vacated such a

building without sufficient cause within five years

of the date of the filing of the application.

In short, availability of another residential building of his

own in the same urban area would disentitle the landlord from

seeking eviction of the tenant on the ground of his requirement

for his own occupation if he is in occupation of such another

building or has vacated such another building within five years.

On a plain reading, the availability of another building by

reference to the first proviso disentitles the landlord from

seeking eviction if the building satisfies these tests: (i) it is

another building; (ii) it is residential in nature; (iii) it is in

occupation of landlord; (iv) it is owned by him; and (v) it is

situated in the same urban area in which another building in

occupation of the tenant is situated. The building referred to in

the second proviso, availability whereof disentitles the landlord

to seek eviction is not in occupation of the landlord. In all other

manner it has to be a building satisfying the tests as above, and

in addition, it must be a building vacated by landlord within five

years of the date of filing of the application and that too without

sufficient cause. The applicability of any of the two provisos

would not be attracted if the landlord is occupying or has

vacated another residential building which is rented or is not

owned by the landlord.

What is the scope of the first Proviso? Whether the

occupation by landlord of any other residential accommodation

of whatever nature, in abstract and without consideration of any

other relevant factor would be enough to attract the applicability

of the first Proviso and to deny the landlord his right to seek an

order of eviction against the tenant? In our opinion, the first

Proviso is not to be read in isolation. It has to be read along

with the principal provision to which it is appended. The ground

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for eviction in the case of a residential building is "he requires it

for his own occupation". If the pleadings and the evidence

adduced by the landlord do not make out a case of requirement,

there would be no question of the tenant being directed to put

the landlord in possession. Even on the requirement having

been proved, the landlord would be denied the order for

possession from the tenant because of his being in occupation of

'another residential building owned by him in the same urban

area'. The occupation of another residential building, to act in

denial of the landlord's right to evict the tenant to satisfy his

requirement, must have correlation with the requirement of the

landlord. To illustrate, another residential building in occupation

of the landlord may be crumbling, or may be in dilapidated

condition or may consist of very little residential space, say one

small room alone, which it would be misnomer to call availability

of a residential building in occupation of the landlord by any

stretch of imagination. The legislature could not have intended

such an absurd and unreasonable consequence to follow. In our

opinion, the first Proviso would come into play only if the

landlord is occupying another residential building of his own in

the same urban area and such building is considered by the

Court as reasonably enough and suitable to satisfy the proven

requirement of the landlord. Hence, the first Proviso would not

apply in the case before us. It is impractical and unreasonable

to hold that the accommodation which is already fully occupied

and actually in use of appellant No.2, though technically in

occupation of both the landlords can satisfy the requirement of

appellant No.1 and his family as well. Rightly the tenant has not

urged the plea that the landlord being in occupation of other

parts of the building excluding the portion in occupation of the

tenant would attract applicability of the first proviso so as to

disentitle the landlord from seeking his eviction on the ground of

requirement of appellant No. 1 who is actually living in a rented

house.

We have to see if the landlords' entitlement to evict the

tenant can be faulted by reference to the second proviso. For

two reasons we are of the opinion that the applicability of the

second proviso is also not attracted so as to disentitle the

landlord-appellants from seeking eviction of the tenant-

respondent. First, the landlords cannot be said to have 'vacated'

any building. It is not the case of the tenant, pleaded or proved,

that the accommodation which was given to the tenant by way

of settlement in the earlier round of litigation was in actual

occupation of the landlords. If the accommodation was non-

residential (though the tenant agreed to use it for his residence)

or was already and genuinely lying vacant as of no use to the

landlords and not deliberately or mala fide kept vacant to create

a false ground for eviction, it cannot be said that the landlords

had 'vacated' a residential building. It is for the tenant to raise

and substantiate the plea attracting applicability of the proviso

so as to disentitle the landlord from evicting him in spite of the

requirement having been proved. On the tenant having pleaded

and proved that the landlord has vacated another residential

building in the same urban area within five years of the filing of

the application, the onus will shift again on the landlord to either

rebut the plea or to prove sufficient cause for such vacating. In

the present case, there is complete lack of pleadings and

evidence so as to enable a finding of fact being recorded which

would attract applicability of the second proviso.

Secondly, 'sufficient cause' is also discernible from the

facts available on record in the present case. As held in

Surinder Singh Sibia's case (supra), 'Sufficient cause' "has

been construed liberally in keeping with its ordinary dictionary

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meaning as adequate or enough. That is, any justifiable reason

resulting in vacation has to be understood as sufficient cause.

For instance economic difficulty or financial stringency or family

reasons may compel a landlord to let out a building in his

occupation. So long as it is found to be genuine and bona fide it

would amount to vacating a building for sufficient cause and the

bar of second proviso stands lifted. In other words if the

vacation of the building was not a pretence or pretext the

proviso could not frustrate the right of landlord to approach the

Controller for necessary direction to tenant to hand over

possession to him."

The landlords were earlier litigating for eviction of the

tenant from the upper floor. In the first round of litigation, they

succeeded and yet the fruits of the decree were denied to them

on account of pendency of the appeal. They thought it proper to

shift the tenant from the first floor to the ground floor so as to

satisfy their own requirement as it existed on that date. The

tenant also agreed to occupy the ground floor for residence as

he was in dire need of some space to live though the premises

were not fit for human residence and could not be termed

'residential'. This is 'sufficient cause' within the meaning of the

second proviso. Circumstances changed. Subsequent events

took place. The family of appellant no.1 enlarged. A new

requirement came into existence which did not exist earlier. The

bona fides of such requirement of the landlords cannot be

doubted.

The expression 'his own occupation' as occurring in sub-

clause (i) of clause (a) of section (3) is not to be assigned a

narrow meaning. It has to be read liberally and given a practical

meaning. 'His own occupation' does not mean occupation by the

landlord alone and as an individual. The expressions "for his

own use" and "for occupation by himself" as occurring in two

other Rent Control Acts, have come up for the consideration of

this Court in Joginder Pal v. Naval Kishore Behal,

(2002) 5 SCC 397 and Dwarkaprasad v. Nirnajan and

Another, (2003) 4 SCC 549. It was held that the requirement

of members of family of the landlord or of the one who is

dependent on the landlord, is the landlord's own requirement.

Regard will be had to the social or socio-religious milieu and

practices prevalent in a particular section of society or a

particular region to which the landlord belongs, while

interpreting such expressions. The requirement of the family

members for residence is certainly the requirement by the

landlord for 'his own occupation'.

Undoubtedly, the Himachal Pradesh Urban Rent Control

Act, 1987 has been enacted for the purpose of providing for the

control of rents and evictions because of paucity of

accommodation in urban areas. The Rent Control Legislations,

generally aim at preventing rack-renting and resorting to

evictions by unscrupulous and greedy landlords, who take

advantage of the shortage in availability of accommodations in

cities and dictate their terms to the tenants and if they do not

follow the dictates, subject them to eviction. The Rent Control

Legislations are generally heavily loaded in favour of the tenants

and the provision dealing with which the courts at times lean in

favour of the landlords is the one which permits the landlord to

seek eviction of the tenant on the ground of requirement for his

own occupation, residential or non-residential. There are weak

amongst the tenants as also amongst the landlords. (See \026

Joginder Pal's case, supra, paras 9 and 32) Take the case of a

landlord knocking the doors of the court seeking its assistance

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for a roof over his head or for a reasonably comfortable living,

when he is himself either in a rented accommodation or

squeezing himself and his family members in a limited space,

while the tenant protected by the Rent Control Law is

comfortably occupying the premises of the landlord or a part

thereof. Provisions like Section 14(3)(a)(i) of the Act should be

so interpreted as to advance the cause of justice instructed by

the realties of life and practical wisdom. While the tenant needs

to be protected, the courts would not ordinarily deny the relief to

the landlord, who genuinely and bona fide requires the premises

in occupation of the tenant for occupation by himself or for the

members of his family, unless they feel convinced that the so-

called requirement of the landlord was a ruse for getting rid of

an inconvenient tenant or was otherwise mala fide and did not

fall within the four corners of the ground for eviction provided by

the law.

On a perusal of the pleadings and the findings arrived at

by the Rent Controller and the Appellate Authority (which

findings have not been dislodged by the High Court), the picture

which emerges may briefly be projected. The tenant was in

occupation of the upper floor of the building before and during

the first round of litigation. Through the compromise arrived at

during the pendency of the appeal, the tenant agreed to take

one room, one kitchen and one covered passage accommodation

situated on the ground floor under the new tenancy at a new

rate of rent with effect from 1.10.1986. The arrangement made

by the compromise having been implemented, the family of the

appellant No. 2 \026 one out of the two landlords, who are two

brothers, actually occupied the entire first floor and also a part of

the ground floor. The appellant no.2, who is the brother of

appellant No.1 herein and was impleaded as a performa

defendant before the Rent Controller and the Appellate

Authority, is running a shop on the ground floor and is also using

a portion of the ground floor as godown and staircase. The

upper floor accommodation consists of two rooms, one kitchen

and one open veranda which is being used by appellant No.2

with his family members namely his wife and three school going

children. Appellant No.1 is staying in a rented accommodation

for the reason that the wives of the two brothers not carrying on

well with each other to permit their living together and also on

account of paucity of accommodation. During the pendency of

the proceedings another female child was born to appellant No.1

and thus by the time the appeal came to be decided by the

Appellate Authority on 1.3.1988, appellant No.1 had two

children, as has been noted by the Appellate Authority.

As an upshot of the above discussion we hold that the High

Court was not right in applying third proviso to the facts of the

case and deny the relief of eviction to the appellants. The first

and the second proviso also do not come in the way of

appellants. Their case of requirement within the meaning of

Section 14(3)(a)(i) is fully made out.

The appeal is allowed. The order of the High Court is set

aside and that of the Rent Controller as upheld by the Appellate

Authority is restored. However, the tenant-respondent is

allowed time upto 31.8.2005 for vacating the suit premises and

delivering peaceful possession to the landlords, subject to filing

the usual undertaking before the Rent Controller within a period

of four weeks from today. The costs incurred by the landlords

shall be borne by the tenant-respondent throughout.