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PETITIONER:

SHADI SINGH

Vs.

RESPONDENT:

RAKHA

DATE OF JUDGMENT23/04/1992

BENCH:

RAMASWAMY, K.

BENCH:

RAMASWAMY, K.

KASLIWAL, N.M. (J)

CITATION:

1994 AIR 800 1992 SCR (2) 726

1992 SCC (3) 55 JT 1992 (3) 152

1992 SCALE (1)918

ACT:

East Punjab Urban Rent Restriction Act, 1949:

Sections 13(3) (a) (iii), 13(4)-Tenant-Eviction of-

Building unsafe and unfit for human habitation-Subsequently

tenant effecting minor repairs making it fit for habitation-

Permissibility of-Eviction order-Validity of.

HEADNOTE:

The respondent landlord filed an application under

section 13(3) (a) (iii) of the East Punjab Urban Rent Re-

striction Act, 1949 for eviction of the appellant-tenant on

the ground that the building was required for reconstruction

since it became unsafe and unfit for human habitation. The

rent Controller ordered eviction. On appeal, the District

Court reversed the order of the Rent Controller and held

that as the tenant had already carried out repairs, the shop

became safe and habitable and therefore there was no need

for eviction. On a Revision Application filed before it,

the High Court, reversed it and restored the order of the

Rent Controller. Though the High Court accepted the finding

that the repairs effected by the tenant were not exhaustive,

it took the view that without recourse to section 12 which

stipulated that an application to be made to the Rent Con-

troller to effect ordinary repairs, the tenant could not

replace the fallen roof, and since a portion of the roof had

fallen, the building became unfit for human habitation.

Aggrieved against the High Court's order the appellant

has preferred the present appeal, contending that by the

subsequent replacement of the roof by the appellant-tenant,

the requirement of the building by the landlord for

effecting repairs did not exist at all.

Allowing the appeal, this court,

HELD:1.1 By subsequent replacement of the roof by the

appellant, the requirement of the building to effect the

repairs no longer subsisted. This subsequent event was

rightly taken note of by the appellate authority

727

and the High Court took a narrow view of the matter and

wrongly reversed the judgment of the appellate authority.

The High Court having accepted the finding of the appellate

authority that the tenant effected repairs by replacing the

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fallen roof and made it safe and fit for habitation, the

requirement of the building for the same purpose no longer

subsisted. It is settled law that all the provisions should

harmoniously be read together to give effect to them and

should not be rendered otiose or surpluses. The requirement

of the building would be both to carry out building work as

per the developmental scheme of the named authorities or

where the building needs repairs or reconstruction when the

existing one became unfit and unsafe for human habitation.

Otherwise there is no power to the Controller to order

eviction though the building became unsafe and unfit for

human habitation. The word `requires' in section 13(3)

(a)(iii) cannot be read in isolation, but in conjunction

with sub-section (4) of section 13, which enjoins the land-

lord, after effecting repairs or reconstruction or structur-

al alteration and making it safe and fit for human habita-

tion, to restitute the same to his erstwhile tenant. If he

commits breach thereof, the Controller has been invested

with the power to pass an order in that behalf. [730 G-H;

731 A-D]

1.2. In the instant case, there were five rooms in the

building and the roof of one room alone had fallen and that

the tenant had obtained orders of the Rent Controller under

section 12, and thereafter the tenant replaced the roof. A

tenant is under a statutory obligation to approach the

Controller and seek and order for effecting repairs provided

the landlord refuses or neglects to effect repairs. After

the Rent Controller posses an order, the tenant acquires

right to effect repairs. In that event he is entitled to

recover costs thereof from the rent payable under section

108(f)of the Transfer of Property Act. Even in the absence

of a contract, tenant has unilateral right to effect re-

pairs, when the landlord neglects to effect repairs within a

reasonable time; after notice the tenant has a right to

effect the repairs and deduct the expenses with interest

from the rent or otherwise recover it from the landlord.

The right is hedged with an obligation to get an order from

the Rent Controller. [732 F-H; 733 A,B]

Maharaj Jagat Bahadur Singh v. Badri Prasad Seth,

[1962] Supp. 3 SCR 952 Piara Lal v. Kewal Krishan Chopra

[1988] 3 SCC 51, relied on.

2.It is settled law that subsequent events can be taken

note of and

728

the relief could be molded suitably. Therefore, the appel-

late authority is well justified in its conclusion that the

cause of action for eviction of the appellant no longer

subsisted after the tenant effected repairs and replaced

that part of the fallen roof and the order of eviction,

thereafter became unnecessary. [733 H; 734 A, B]

Hasmat Rai and Anr. v. Raghunath Prasad, [1981] 3 SCR

605; M/s. Variety Emporium v. V.R.M. Mohd. Ibrahim Naina,

[1985] 2 SCR 102, relied on.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2945 of

1980.

From the Judgment and Order dated 19.9.1980 of the

Punjab & Haryana High Court in Civil Revision No. 958 of

1975.

A.K. Goel for the Appellant.

S.M. Ashri for the Respondent.

The Judgment of the Court was delivered by

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K RAMASWAMY, J. The respondent, landlord, laid the

application under s.13(3)(a)(iii) of the East Punjab Urban

Rent Restriction Act, 1949, for short `the Act' for

ejectment of the appellant from the demised premises

alleging that the building required for reconstruction,

since it became unsafe and unfit for human habitation. The

rent Controller by his order dated March 5, 1973 directed

eviction of the appellant. On appeal, the District Court

(Appellate Authority) by judgment dated May 7, 1975 reversed

it and held that as the appellant had already carried out

repairs the shop became safe and habitable and so the need

for ejectment no longer subsists. The eviction Petition was

dismissed. The High Court of Punjab and Haryana by its

judgment dated Sept. 19, 1980 in Civil Revision No.958 of

1975 allowed the revision and restored the order of the Rent

Controller. Thus this appeal by special leave under Art.136

of the Constitution of India.

In the Petition, the respondent pleaded that the

demised premises is a shop and most of the roof had already

fallen and the remaining part may fall at any time; the

flooring has given way and the walls were crumbling.

Therefore, the premises required reconstruction. The

appellate authority,

729

as final court of fact, appreciated the evidence and held

that the report of the Nazir Richpal Singh shows that out of

five, two khanas (columns) of the roof had fallen down and

that three require replacement of few batons. He also found

that no portion of the wall had fallen down and that the

appellant did not repair by any addition to the roof. The

appellant had carried out replacement of that part of the

roof which had fallen down and no more. It amounts to minor

repairs and not reconstruction of the shop or structural

alteration thereof. It pointed out that s.12 of the Act,

gives right to a tenant to seek permission of the Controller

to effect ordinary repairs but he has no right to effect

reconstruction or structural alteration of the building.

The repairs effected by the appellant were not extensive.

The High Court accepted these findings. Nonetheless it took

the view that the tenant, without talking recourse to s.12,

cannot replace the fallen roof. The cause of action arose

under s.13(3)(a)(iii) cannot be defeated by unilateral

action of the appellant. After the back portion of the roof

of the shop had fallen it had become unfit for human habita-

tion. In that view the appellant was held liable to be

evicted. Accordingly it allowed the revision.

The question is whether the High Court is right in law

in reversing the judgment of the appellate authority.

Section 13 of the Act gives right to the landlord to seek

eviction of a tenant. Clause a (iii) of sub-s(3) reads

thus:

"In the case of any building or rented land, if he

requires it to carry out any building work at the

instance of the Govt. or local authority or any

Improvement Trust under some improvement or devel-

opment scheme or if it has become unsafe or unfit

for human habitation."

Sub-section (4) further obligates on effecting

reconstruction or repairs that "where a landlord who has

obtained possession of a building or rented land in pursu-

ance of an order.....under sub-paragraph (iii) of paragraph

(a), puts that building to any use or lets it to any tenant

other than the tenant evicted from it, the tenant who has

been evicted may apply to the Controller for an order di-

recting that he shall be restored to possession of such

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building or rented land and the Controller shall make an

order accordingly". Section 12 gives right to a tenant to

effect necessary repairs, thus:

730

"If a landlord fails to make the necessary repairs

to a building other than structural alterations, it

shall be competent for the Controller to direct on

application by the tenant, and after such inquiry

as the Controller may think necessary, that such

repairs may be made by the tenant, and that the

cost thereof may be deducted from the rent which

is payable by him."

The scheme of the Act in this behalf adumberates that

it is the obligation of the landlord to keep the building in

fit and habitable condition. It he fails to make the

necessary repairs to the building other than reconstruction

or structural alteration, the tenant has been given a right

under s.12 to make an application to the Rent Controller,

who after making such enquiry as he may think necessary, is

empowered and shall be competent to pass an order directing

the tenant to effect necessary repairs. The costs expended

thereof may be deducted from the rent payable to the land-

lord. The landlord, equally, is entitled under

s.13(3)(a)(iii) to seek eviction of the tenant from any

building if the landlord requires it to carry out building

work pursuant to the notice issued by the Govt., local

authorities or Improvement Trust under some improvement or

development scheme or if it has become unsafe or unfit for

human habitation. On reconstruction or effecting repairs by

the landlord, he is enjoined to restitute the evicted tenant

into possession of the building. Under sub-s. (4) of s.13

it shall be mandatory for the Rent Controller to make an

order in that behalf, despite the landlord himself makes use

of the building of lets it out to any other tenant and puts

a new tenant in possession of the evicted building.

Shri Goel, learned counsel for the appellant with

thorough preparation and neat presentation of the case,

argued that on the date of filing an application for

eviction the building was unsafe and unfit for human

habitation due to fall of roof from two khanas. By

subsequent replacement of them by the appellant, the

requirement of the building to effect the repairs no longer

subsisted. This subsequent event was rightly taken note of

by appellate authority and the High Court took narrow view

of the matter and wrongly reversed the judgment of the

appellate authority. We find force in the contention. The

High Court having accepted the finding of the appellate

authority that the tenant effected repairs by replacing the

fallen roof and made it safe and fit for habitation, the

requirement of the building for the same purpose no longer

subsisted. Whether the repairs

731

effected by the tenant at its own cost without taking

recourse to s.12 would alter the situation? Our answer is

no. It is settled law that all the provisions should

harmoniously be read together to give effect to them and

should not be rendered otiose or surpluses. It is difficult

to give acceptance to the contention of Sri Harbans Lal,

learned senior counsel for the respondent, that the verb

`requires' in s.13(3)(a)(iii) would be applicable to the

first part, namely to carry out any building work. It also

would encompass of the building which became unsafe or unfit

for human habitation. The requirement of the building would

be both to carry out building work as per the developmental

scheme of the named authorities or when the building needs

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repairs or reconstruction when the existing one became unfit

and unsafe for human habitation. Otherwise there is no

power to the Controller to order eviction though the build-

ing became unsafe and unfit for human habitation. The word

1requires' cannot be read in isolation, but in conjunction

with sub-s. (4) of s.13 Sub-section (4) which enjoins the

landlord, after effecting repairs or reconstruction or

structural alteration and making it safe and fit for human

habitation, to restitute the same to his erstwhile tenant.

It he commits breach thereof, the Controller has been in-

vested with the power to pass an order in that behalf. The

acceptance of the respondent's contention that the require-

ment of the building would be only for reconstruction or

structural alteration but it would not apply when the build-

ing became unsafe or unfit for human habitation, operates as

an escape route to enforce compliance of sub-s.(4) of s.13

rendering the later clause otiose and the tenant though was

evicted on that ground remains remediless. Such a construc-

tion is impermissible.

In Maharaj Jagat Bahadur Singh v. Badri Prasad Seth,

[1962] Supp.3 SCR 952 the respondent was running a cinema

theatre known as Rivoli. The Municipal Commissioner Shimla

noted some defects and directed the appellant to remove the

defects in the theatre. The appellant sought for eviction

of the respondent tenant on the ground that the building

became unsafe and unfit for habitation. The Rent Controller

directed eviction. The District Judge, on appeal, came to

the conclusion that the appellant manipulated the notice to

have the tenant evicted. The repairs could be effected

without ejecting the tenant. On revision, the High Court

confirmed it. This court on further appeal held that

s.13(3)(a)(iii) of the Act attracted only when the building

work is such that the landlord requires that the building be

vacated by the tenant in order to carry out the work. In

other words, the repairs needed are so extensive and funda-

mental in character

732

that they cannot be carried out if the tenant remains in

possession. Then only it can be said that the landlord

requires the building to carry out the building work. On

the facts in that case it was held that repairs to be ef-

fected did no t requires eviction of the tenant. In Piara

Lal v. Kewal Krishan Chopra, [1988] 3 SCC 51 the facts found

were that out of five rooms only the roof of one room in the

rear side had fallen down and needed replacement. An appli-

cation under s.12 of the Act was filed and the order by the

Rent Controller in that behalf was obtained. On those

grounds the question arose whether s.13(3)(a)(iii) of the

Act would get attracted. This court held thus:

"It is true that a roof of one of the rooms

on the rear side had fallen down and required

replacement but there was no evidence whatever that

the building or a substantial portion of it was in

a damaged condition and consequently the building

as a whole had become unfit and unsafe for human

habitation. Unless the evidence warranted an

interference that the falling down of the roof in

one room was fully indicative of the damaged and

weak condition of the entire building and that the

collapse of the roof was not a localised

event, we fail to see how the High Court could

have concluded that the entire building had become

unsafe and unfit for human habitation. In fact,

the appellant had replaced the roof only at a cost

of about Rs. 200 and this could not have been of a

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serious or disquieting nature."

It is true as contended by Shri Harbans Lal that in

that case there were five rooms and the roof of one room

alone had fallen and that the tenant had obtained orders of

the Rent Controller under s.12, and thereafter the tenant

replaced the roof. It is sought to be contended that by

unilateral act of the tenant effecting repairs, the right of

the landlord for eviction under s.13(3)(a)(iii) was frus-

trated and it could not be permitted to be done. Normally it

would be so. A tenant is under a statutory obligation to

approach the Controller and seek an order for effecting

repairs provided the landlord refuses or neglects to effect

repairs. After the Rent Controller passes an order, the

tenant acquires right to effect repairs. In that event he is

entitled to recover costs thereof from the rent payable.

Under s.108(f) of the Transfer of Property Act, even in the

733

absence of a contract tenant has a unilateral right to

effect repairs, when the landlord neglects to effect repairs

within a reasonable time after notice the tenant has a right

to effect repairs and deduct the expenses with interest from

the rent or otherwise recover it from the landlord. Under

the Act this right is hedged with an obligation to get an

order from the Rent Controller.

There is a distinction between effecting repairs and in

its guise to make structural alteration or to restructure

the building. The tenant cannot effect structural alteration

or reconstruct the building. It is the right of the landlord

alone to exclusively have it done, unless of course, the

landlord having had the tenant evicted from the building for

that purpose and demolished the building and failed to

reconstruct and redeliver possession thereof to the tenant.

In a given case if the tenant acts unilaterally and effects

structural alterations or reconstruct the building, it

itself may be a ground for eviction under the appropriate

provision of the statute. No such allegation was made, nor

an amendment to the pleading sought by the respondent in

this behalf. A feeble attempt was made by Shri Harbans Lal

to raiseo in the contention. In the absence of the pleading

and the contentions raised in the courts below, we decline

to permit the counsel to argue that point, since there is no

factual pundation in that behalf. The test in each case is

whether it is absolutely necessary to have the tenant evict-

ed to carry out repairs or structural alteration for making

the demised building safe and fit for human habitation.

Further it is to be asked whether the repairs are so funda-

mental in character and extensive which cannot be carried

out without evicting the tenant from the building or while

the tenant remained in occupation. If the repairs could be

carried out without disturbing the possession of the tenant,

the need for eviction is mere a wish of the landlord or a

ruse to have the tenant evicted. Take for instance, a build-

ing, in which commercial activity having established good

will, was taken possession of under s. 13(3)(a)(iii) and got

no repairs effected but demolished and no reconstruction was

made for a long time. Prolonged stoppage of business will

have a deleterious effect on the goodwill and cripple the

business of the tenant. each case on its own facts present

its true colours. Its effect is to be visualised and consid-

ered in its own perspective.

It is settled law that subsequent events can be taken

note of and the relief would be moulded suitably, vide

Hasmat Rai and Anr. v. Raghunath Prasad, [1981] 3 SCR 605

and M/s Variety Emporim v. V.R.M. Mohld.

734

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Ibrahim Naina [1985] 2 SCR 102 at 110. Therefore, the

appellate authority (District Court) is well justified in

its conclusion that the cause of action for eviction of the

appellant no longer subsisted after the tenant effected

repairs and replaced that part of the fallen roof and the

order of eviction, thereafter became unnecessary and wrong.

The appeal is accordingly allowed. The judgment of the

High Court is set aside and that of the appellate authority

is restored. Consequently eviction Petition stands

dismissed. But in the circumstances parties are directed to

bear their own costs.

G.N. Appeal allowed.

735