S.P Arora v. Ajit Singh

T.V.R Tatachari, J.:— This Second Appeal has been filed against the order of Shri Pritam Singh Pittar, Rent Control Tribunal, Delhi, dated 22nd May, 1962, in Rent Control Appeal No. 486 of 1961, dismissing the said appeal and confirming the order of Shri B.L Mago, Rent Controller, Delhi, dated 27th October, 1961, whereby the Rent Controller dismissed the application filed by S.P Arora, appellant herein, under section 14(1)(c) and (k) of the Delhi Rent Control Act, 1958, praying for the evication of Ajit Singh, the respondent herein from the suit premises.

On 6th May, 1943, the father of the appellant herein obtained a perpetual lease (Exhibit A-9) in respect of certain land from the Delhi Improvement Trust. One of the terms of the lease was that the lessee should erect upon the said land within one year from the date of the lease and thereafter at all times during the terms of the lease maintain on the land a good and substantial residential house. Another term was that the lessee should not use the said land and the building thereon during the term of the lease for any other purpose than for the purpose of residential use without the consent in writing of the lessor, and it was stipulated that the lease shall become void if the land is used for any purpose other than the purpose for which the lease was granted for being a purpose subsequently approved by the lessor. The lease contained certain additional covenants, one of which was that no forfeiture or re-entry shall be effected for non-observance or non-performance of the covenants in the lease until the lessor has served on the lessee a notice in writing :

“(a) specifying the particular breach complained of; and

(b) if the breach is capable of remedy, requiring the lessee to remedy the breath, and the lessee fails within a reasonable time from the date of service of the notice to remedy the breach, if it is capable of remedy; and in the event of forfeiture or re-entry the lessor may in its discretion relieve against forfeiture on such terms and conditions as it thinks proper.”

It was decited in the lease deed that the grant of the lease was made under the authority of the Crown, and that the provisions of the Crown Grants Act (XV of 1895) shall apply to the grant.

Thereafter, the appellant built a house on the land. In April, 1951, the respondent herein took on rent the first floor of the house from the appellant herein for residential purposes, the rent being Rs. 110/- per mensem. The rent was subsequently increased to Rs. 121/- per mensem. In September, 1953, the respondent took on rent the ground floor also from the appellant for a rent of Rs. 115/- per mensem. According to the appellant, the ground floor was let out for residential purposes, while according to the respondent, the ground floor was let out for commercial purposes. In April, 1954, the respondent obtained connection for electrical power, and in June, 1955, he obtained a licence for running a factory on the groundfloor (vide RW 2). It appears that the respondent began to run a factory known as Bangson Electronic Industries on the ground floor.

The Delhi Improvement Trust was succeeded by the Delhi Development authority. The said Authority issued a notice (Exhibit A-1) on 11th September, 1959, to the appellant in which it was stated that the appellant herein, as a lessee of the plot of land was entitled to use the land and the building thereon for the purpose of residential use only, that he, however, permitted the same to be used for purposes of a factory which was contrary to the terms of the lease, and that as the lease was liable to be determined for the breach of the terms of the lease, the appellant was required to discontinue the said use of the land and the building thereon. The appellant was also required to show cause why the lease be not determined and the land together with the building be not re-entered upon without any compensation. The appellant sent a reply (Exhibit A-8) on 15th September, 1959, stating that he let out the building in question to the respondent herein expressly and solely for residential purposes only, that the building was being used as factory without the appellant's authority, that he was sending a notice to the respondent-herein to remove the factory from the premises at once and that the authority may rest assured that the appellant would do everything possible to have the factory removed from the house. On the same date, the appellant sent a letter (Exhibit A-7) to the respondent stating that the ground floor was let out to him solely for residential purposes, that the respondent however was using the building for the purpose of a factory known as Bangson Electronic Industries that the factory should be vacated within two weeks failing which legal action for ejectment would be taken against the respondent, and that a copy of the notice issued by the Delhi Development Authority was enclosed wherefrom the respondent could notice that in case of failure on his part very severe action was threatened by the Authority. The respondent, however does not admit the receipt of this letter. On 9th November 1959, the Authority again sent a letter (Exhibit A-5) to the appellant enquiring what legal action was taken for the removal of the factory. The appellant thereupon sent through his lawyer a notice (Exhibit A-10) to the respondent on 20th November, 1959, referring to the earliest letter (Exhibit A-7) dated 15th September, 1959. In this letter the appellant pointed out that both the ground floor and the first floor were let out to the respondent for purposes of residence only, that the respondent was however using the premises for a factory a purpose other than that for which it was let out, that the respondent was fully aware of the fact that the lease of the land under the said premises was given to the appellant on the express condition that the premises built on the land would be used for the purposes of residence only that the said fact was brought to the notice of respondent by letter, dated 15th September, 1959, sent along with a copy of the notice received from the Delhi Development Authority under a registered A/D cover, that the respondent, however, did not care to acknowledge the said letter and did not remove the factory, that the Delhi Development Authority had again sent a letter dated 19th November, 1959, and a copy of the same was enclosed, and that the respondent should remove the factory and cease using the premises for a purpose other than that of residence failing which action would be taken for the ejectment of the respondent from the premises in a court of law. The receipt of this letter is admitted by the respondent. He, however, did not remove the factory, but is stated to have sent a reply on 7th December, 1959, stating that the ground floor was let out-for commercial purpose and not for residential purpose.

As the respondent did not remove the factory, the appellant herein filed an application on 15th November, 1960, in the Court of the Rent Controller, Delhi, under clauses (c) and (k) of the proviso to section 14(1) of the Delhi Rent Control Act, 1958, praying for the eviction of the respondent from the ground floor on two grounds, viz.—

“ (1) Because the tenant is using the premises notwithstanding previous notice in a manner contrary to the conditions imposed on the landlord by the lessor while granting him the lease of the land under the premises let; and

(2) because the premises were let after 9th June, 1952 and the tenant is using them for a purpose other than for which they were let without obtaining the consent of the landlord in writing.”

The respondent contested the application and pleaded that the premises in dispute, i.e the ground floor, was not rented for residential purpose, that he had not used the premises in a manner contrary to the purpose for which it was let out, that he did not know the terms of the lease of the land on which the premises were situate, that he had been using the premises in dispute as a factory from the start of the tenancy, and that the appellant herein had been receiving rent and had, thus waived the objection, if any, to the user of the ground floor for the purpose of a factory.

The Rent Controller, by his judgment, dated 27th October, 1961, held that the ground floor was let out for the purpose of using the same as factory premises and not for the purpose of residence, and that, therefore, there was no mis-user by the respondent within the meaning of clause (c) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958. As regards the second ground relied upon by the landlord, the learned Rent Controller relying upon a decision of the High Court of Punjab in Uma Kumari v. Jaswant Rai Chopra, 1960 P.L.R 460(1) held that as the ground floor was let out by the appellant herein to the respondent for the purpose of a factory and he himself committed the breach of the condition of the lease between himself and the Delhi Development Authority, he could not now ask his tenant to quit or to change the user, and that the respondent could not, therefore, be ejected on the ground specified in clause (k) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act. In the result, the Rent Controller dismissed the application.

Against that order, the appellant herein preferred an appeal, Rent Control Appeal No. 486 of 1961, to the Court of Sri Pritam Singh Pattar, Rent Control Tribunal, Delhi. By an order, dated 22nd May, 1962 the Tribunal agreed with the decision of the Rent Controller and dismissed the appeal. It is against that appellate order that the present second appeal has been filed by the landlord, S.P Arora.

Shri B.C Misra, learned counsel for the appellant contended firstly that the finding of the Rent Controller and the Rent Control Tribunal that there had been no misuse of the ground floor by the respondent within the meaning of clause (c) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control, Act, 1958, was based on conjectures and not on evidence and that both the Controller and the Tribunal erred in holding that the respondent was not liable to be evicted on the ground specified in the aforesaid clause. Admittedly, the ground floor was let out to the respondent in September, 1953. The case of the appellant was that the ground floor was let out to the respondent for the purpose of residence only, but that the respondent has been using the premises for a purpose other than residence without obtaining his permission to change the user. On the other hand, the case of the respondent was that the ground floor was let out for the purpose of running a factory and not for the purpose of residence. The appellant, S.P Arora, examined himself as A.W 2. He stated in his evidence that a rent note was got executed while letting out the ground floor, but that note was not traceable. The respondent denied that such rent note was ever written. The appellant admitted in his evidence that by the date on which the ground floor was let out the respondent had already been in possession of the first floor of the house, which was leased to the respondent in April, 1951. He also admitted that there were four living rooms on the first floor besides a kitchen and a bath and a barsati on the second floor. The respondent deposed as R.W 1, that at the time of getting the ground floor on rent, his family consisted of seven members, including his four sisters, and that out of the sisters, one was married in January 1954. Referring to these circumstances, the Rent Controller observed that there did not appear to be any reason for the respondent to have taken on rent for residential purpose the ground floor portion, which consists of four rooms, a kitchen, water closet and bath, when he was already in possession of sufficient accommodation and that the version of the respondent that he took the ground floor on rent for installing a factory appears to be true. The said observation cannot be regarded as a mere conjecture. It was a legitimate inference drawn from the circumstances mentioned above. Further, the respondent examined himself as R.W 1 and stated that he took the ground floor on rent in September, 1953, for installation of the factory, that the factory was installed in that very month, that in 1954 he got the electric connection, that the factory was got registered by him in 1954 by the Muncipality, and that the ground floor had been used as factory premises since then. Gian Chand, a clerk in the Office of the Chief Inspector of Factories, was examined as R.W 2 and he stated that the licence to run the factory in the premises in dispute was issued to the respondent on 10th June, 1955, and that the licence was renewed every year. Pritam Singh, A.W 3, and Roshan Lal, A.W 4, who were neighbours, were examined as witnesses on behalf of the appellant. Pritam Singh, who was examined on 23-10-1961, admitted that the respondent had fixed his factory on the ground floor about seven years back and the factory had been working for the last seven years. Roshan Lal also stated in his examination-in-chief that the respondent had installed a factory on the ground floor. In his cross-examination, he admitted that since the respondent took over the ground floor on rent he installed machinery in the rooms and they have been working there. Bharat Singh Sharma, who collects rent on behalf of the appellant, and who had been realising rent from the tenants of the appellant, was examined as A.W 5. He stated in his evidence that he had been realising rent from the respondent from the year 1954, and that in 1956 he saw the machinery being fixed in the room of the house in dispute. He modified the statement in his cross-examination by stating that the respondent never paid him rent, that the respondent was paying rent to Mr. Arora, who is the brother of the appellant, and that the said brother of the appellant visits Delhi once a year. Exhibits Rl, R2 and R4 are receipts issued by the said brother of the appellant. Electrical power connection was applied for by the respondent, and exhibit R3 is the letter written by him in that connection. It was signed by Pritam Singh AW3 and Roshan Lal AW4. The evidence, thus, clearly discloses that the respondent had installed a factory in the ground floor shortly after the ground floor was taken on rent and the same has been working since then under a licence. On a consideration of the above facts and circumstances, the Rent Controller came to the conclusion that in view of the long use of the premises (ground floor) as factory premises, and in view of the fact that the appellant had been receiving rent without objection, it was reasonable to presume that the purpose of the letting of the premises in dispute (ground floor) was not residence, but the purpose was to use the premises as factory premises. The learned Rent Control Tribunal, on a consideration of the aforesaid facts and circumstances, agreed with the conclusion of the Rent Controller and confirmed the same. The said conclusion of the Rent Controller and the Tribunal cannot be regarded as based on mere conjecture. It was based on the evidence on the record and I am unable to see any legal infirmity in the said concurrent conclusion of the Rent Controller and the Tribunal. It follows that the ground floor was not used by the respondent for a purpose other than that for which it was let out, and, therefore, the Tribunal and the Controller rightly held that the respondent was not liable to be evicted on the ground specified in clause (c) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958.

The next contention of Shri Misra was that the Tribunal and the Controller erred in holding that the respondent was not liable to be ejected on the ground specified in clause (k) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act. As already stated, Exhibit A-9 is the original lease-deed under which the land on which the building in question was constructed was let out to the father of the appellant. One of the covenants in the lease deed was that the lease should not use the land and the building erected thereon for any other purpose than for the purpose of residential house without the consent in writing of the lessor, that the lease shall become void if the land of the building is used for any purpose other than the aforesaid purpose for which the lease was granted. The relevant provisions in section 14(1) of the Delhi Rent Control Act, 1958, are as follows :—

“14. Protection of tenant against eviction.—

(1) Notwithstanding anything to the contrary contained in any other law or contract no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against the tenant :

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of the premises on one or more of the following grounds only namely :—

. . . .

(c) that the tenant has used the premises for a purpose other than that for which they were let—

(i) if the premises have been let on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord; or

(ii) if the premises have been let before the said date without obtaining his consent;

. . . .

(k) that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate.”

In view of the finding that the appellant himself had let out the building to the respondent for a commercial purpose which was different from the purpose for which the lease was granted, the Rent Controller held that since the appellant had himself let out the premises for a purpose contrary to the condition in the original lease, and thus himself committed a breach of the condition in the lease, he could not get the respondent-tenant ejected under section 14(1)(k) of the Rent Control Act. The Rent Control Tribunal agreed with the said view of the Rent Controller. Both the Rent Controller and the tribunal relied upon a decision of the High Court of Punjab in Uma Kumari v. Jaswant Rai Chopra, 1960 P.L.R 460. In that case, the landlady, Uma Kumari, who had taken land on permanent lease from the Delhi Improvement Trust on condition that the premises built upon it would be used for business purposes, let out the same for residential purposes. She subsequently sued for the ejectment of the tenant on the ground that the tenant was using the premises in a manner contrary to the terms and conditions of the permanent lease, and sought eviction under clause (k) of the proviso to sub-section (1) of section 13 of the delhi & ajmer Rent Control Act, 1952, which was similar to clause (k) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958. The eviction sought for was decreed by the trial Court. On appeal, the appellate Court allowed the appeal and refused to grant eviction taking the view that the landlady who herself had let out the premises in breach of the condition in the original lease in respect of the land was estopped from claiming ejectment on the ground that the premises was being used for a purpose other than the one for which the land was leased by the Trust. In a revision preferred by the landlady to the High Court, it was contended that the provision in the Rent Control Act contained a clear prohibition against the use of the premises contrary to the condition imposed on the landlord by the Delhi Improvement Trust while giving him the lease, that any agreement between the land lady and the tenant in contravention and disregarded of the said inhibition would be illegal and unenforceable under section 23 of the Contract Act, that the provision in the Rent Control Act was based on public policy, and public policy demands that a contravention of the express prohibition should not be allowed even though it was covenanted to by the landlady and agreed upon between the parties, and that there could be no waiver against a statute. Chopra, J. rejected the said contention as being fallacious and based upon a wrong hypothesis. The learned Judge pointed out that clause (k) of the proviso to section 13(1) of the Act did not prohibit a landlord from letting out the premises for a purpose different from the purposes for which the land under the premises was originally granted to him, that the clause merely provided for the protection of a personal right of the landlord and was meant for his benefit, and that the landlord could, therefore, waive the same and once it was waived the landlord was estopped from enforcing that right. The learned Judge explained the position as follows :—

“As I read it clause (K) of the proviso to section 13(1) of the Act does not contain any letting out of the premises by a landlord contrary to the term and condition imposed on him by the Government or the Delhi Improvement Trust while giving him the lease. The clause merely contains a provision for the protection of a personal right of the landlord and is meant for his benefit. The landlord is given the right to sue for ejectment of the tenant and get him evicted if the tenant, in spite of notice, uses or deals with the premises contrary to the terms and conditions of the lease by the Government. This right was refused to him by sub-section (1) of section 13, but an exception to it was created by clause (k) of the proviso. The statute does not impose any duty or obligation on the landlord or the tenant; it merely imposes a penalty on the tenant and creates a right in the landlord, which he may or may not exercise. There being no express prohibition in the Act, there was nothing wrong in the agreement being a personal one it could be waived by the landlord. Once it is waived the landlord would be estopped from enforcing that right.”

The learned Judge further pointed out an anomaly that would result if the contention of the landlady was to be accepted, as follows :—

“Clauses (b) and (c) of the proviso to section 13(1) of the Act laid down inter alia that the tenant can be evicted if he without obtaining the consent of the landlord, in writing after the commencement of the Act or oral prior to the commencement, uses or has used the premises for a purpose other than that for which they were let. In the present case, the premise were let for residential purposes and under the law the tenant was liable to be evicted if he used the premises for any other purpose. There is nothing in the statute to bind the landlord to give him consent to the use of the premises for business purposes. If the landlord refuses to give his consent and the tenant uses the premises for business purposes he would be liable to be evicted because of the conversion of user. But if the tenant continues to use the premises for a residential purpose for which they were let he could, according to the interpretation placed on it by the counsel, still be liable to be evicted under clause (k) of the proviso. The anomaly would never have been intended by the legislature”.

The learned Judge distinguished the decision in Waman Shriniwas Kini v. Rati Lal Bhagwandas & Co., A.I.R 1950 S.C 689(2), on the ground that it was based upon the peculiar and specific provisions in section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 57 of 1947, and that the said section clearly prohibited sub-letting and made it unlawful for a tenant to assign or to transfer his interest in the premises let out to him.

It appears that the landlady, Uma Kumari, preferred an appeal to the Supreme Court, viz. Civil Appeal No. 246 of 1961, against the decision of Chopra, J. The said appeal was dismissed by the Supreme Court on 16th February, 1962, on the ground that no notice as contemplated by clause (k) of the proviso to section 13(1) of the delhi & ajmer Rent Control Act, 1952, was given in that case. In that view, their Lordships of the Supreme Court did not consider it necessary to decide whether the view of Chopra, J. that the landlady was estopped from claiming eviction under clause (k) was correct or not, and observed as follows :—

“We have come to the conclusion that for the purposes of disposal of this appeal, it is not necessary to decide whether the High Court's view that the landlord is estopped from claiming eviction under clause (k) in the circumstances like those in the present case is correct or not.”

The provision in clause (k) of the proviso to section 14(1) of the Delhi Rent Control Act, 1958, is similar to the provision in clause (k) of the proviso to section 13(1) of the delhi & ajmer Rent Control Act, 1952, and the reasoning in the decision of Chopra, J. applies to the present case also, as will be seen presently.

Section 14 occurs in Chapter III of the Act which is given the heading “Control of Eviction of Tenants”. Section 14 as given the heading “Protection of tenant against eviction”. The said control and protection against eviction is provided by the general prohibition in sub-section (1) against the making of an order or decree by any court or Controller for the eviction of a tenant, notwithstanding any law or contract to the contrary. But, by the proviso to the sub-section, an exception to the said prohibition was provided by permitting the eviction of a tenant on any of the grounds mentioned in the clauses to the proviso. In other words, the right of the landlord to evict the tenant which he may have under any law on contract has been preserved to him in the circumstances and situations mentioned in the clauses of the proviso to sub-section (1). The situation mentioned in clause (k) is the user of the premises by the tenant in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate. Such an user would entail the forfeiture of the leasehold right of the landlord in the land, and, therefore, provision is made in clause (k) enabling the landlord to evict the tenant in case of such an user with a view to protect the lease-hold right of the landlord. The provision in clause (k) is thus meant for his (landlord's) benefit. It does not impose any duty or obligation on the landlord or the tenant. The landlord may or may not utilise the provision in the clause. As observed by Chopra, J., it merely imposes a penalty on the tenant, and gives the landlord a right to evict the tenant, which he may or may not exercise. The clause does not by itself prohibit the landlord from agreeing to an user by the tenant in a manner which is contrary to any condition in the lease deed for the land. The right to evict given by clause (k) being personal to and for the benefit of the landlord, it is open to him to waive the same and agree to an user by the tenant in a manner contrary to the condition in the lease for the land, taking a risk as regards the forfeiture of the lease by the lessor. As pointed out by Rajamannar, C.J in S. Raja Chetty v. Jagannatha Das, A.I.R 1950 Madras 284(3), it is a well established principle of law that—

“every one has a right to waive and to agree to waive the advantage of a law or a rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy (Maxwell, 9th Edn. p. 389).”

As already stated, by leasing out the premises for a purpose which is contrary to the condition in the lease deed for the land, the landlord is only committing a breach of a contractual term. So far as clause (k) of the proviso to section 14(1) of the Delhi Rent Control Act is concerned, it does not expressly prohibit the landlord from entering into such a transaction. It only enables the landlord to seek for the eviction of his tenant in a case in which the tenant uses the premises in a manner contrary to the condition in the lease deed for the land on which the premises are situate. There is no express prohibition in clause (k) against the landlord contracting out of it and waiving the advantage conferred upon him by the clause. In so waiving the advantage, the landlord cannot be said to be infringing any public right or public policy. Once he so agrees and waives the right given to him under clause (k), he would be estopped from enforcing that right.

It was argued by Shri Misra that to constitute an estoppel, there has to be a representation on the part of the landlord and a change of position by the tenant to his detriment relying upon the representation. There is no force in the argument. The agreement to an user by the tenant contrary to the conditions in the lease deed for the land amounts to a representation that he would not exercise his right to evict on the ground of such user, and when the tenant acts in pursuance thereof and changes his position by using the property in that manner incurring expenses in connection therewith, the principle of estoppel would be attracted and the landlord would be estopped from seeking to enforce the right to evict given to him under clause (k). Even if the principle of estoppel as such is not attracted, the principle that the landlord cannot be allowed to approbate and reprobate would apply, and the landlord would not be permitted to enforce the aforesaid right to evict.

The above view gains support from the fact that a view to the contrary would lead to the anomalous position pointed out by Chopra, J. In the present case, the ground floor was let out to the respondent for commercial purposes. If the tenant uses the ground floor for residential purposes, it would be user by him for a purpose other than that for which it was let within the meaning of clause (c) of the proviso to sub-section (1) of section 14, and the respondent would be liable to be evicted by virtue of the said clause. On the other hand, if he uses the ground floor for commercial purposes, he would be liable to be evicted under clause (k) of the proviso to sub-section (1) of section 14, if the contention of Shri Misra is to be accepted. In other words, the respondent would be liable to be evicted for both the kinds of user. As observed by Chopra, J. such an anomaly could never have been intended by the legislature.

Shri Misra also contended that the principle of estoppel cannot be applied in view of the non-obstante clause, “Notwithstanding anything to the contrary contained in any other law or contract” in sub-section (1) of section 14. This argument also cannot be accepted. The non-obstante clause applies only to the provision in sub-section (1) that no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant. It does not apply to the proviso which is an exception to the main provision in the sub-section (1). A reading of the sub-section and the proviso shows that it is laid down in the main provision in the sub-section generally that even if the landlord is entitled to the passing of an order or decree for the recovery of possesion of a premises from the tenant by virtue of any law or contract, no court or Controller shall pass such an order or decree in favour of the landlord. Then, an exception to the said general provision is made by the proviso enabling the Controller to pass an order or decree for eviction in favour of the landlord in the various circumstances and situations set out in the clauses of the proviso. In considering the applicability of the provisions of any of the clauses of the proviso, the question of applying the non-obstante clause does not arise, as the non-obstante clause does not qualify or apply to the clauses of the proviso.

Another argument of Shri Misra was that if the contention of the respondent is to be accepted and the principle of estoppel is applied to a case under clause (k) of the proviso to sub-section (1) of section 14, the said clause would become redundant as the landlord can as well seek eviction under clause (c) of the said proviso. I am unable to see how clause (k) would become redundant because of the provision in clause (c) of the proviso. The two clauses (c) and (k) provide for two different situations. Clause (c) applies to all cases of user by the tenant other than the one for which the premises are let out to him by the landlord, while clause (k) applies to the specific case where the land on which the premises are situate has been granted to the landlord subject to certain condition regarding the user thereof, and the tenant use the premises in a manner contrary to the said condition. Clause (c) is thus a general provision, while clause (k) is a special provision applicable to the specific kind of premises and user thereof mentioned in the clause. The provisions in the two clauses are not identical. There is a clear distinction between the provisions in the two clauses. While in cases covered by clause (c) the landlord can seek for eviction when the tenant uses the premises for a purpose different from the one for which the premises is let out to him and there is no question of the landlord giving him an opportunity by notice to change his user, in cases covered by clause (k) the landlord is bound to give an opportunity by notice to the tenant to change his user and conform to the conditions prescribed in the original lease of the land to the landlord. The two provisions thus operate in different situations, and no question of either of them being redundant can arise. Even if the facts of a case are such that they are covered by both the clauses, the provision in clause (K) alone would apply, because it, being a specific provision, would exclude the general provision in clause (c). For instance, there may be a case where the land is let out by the concerned authority on condition that it should be used only for residential purposes and the lessee also lets out the premises built thereon to a tenant for residential purposes, but the tenant uses it for non-residential purposes. In that case, it may be said that the landlord, i.e the lessee from the Authority, may seek eviction of the tenant from the premises, either under clause (c) as the tenant used the premises for a purpose other than that for which they were let within the meaning of the said clause, or under clause (k) as the tenant used the premises in a manner contrary to the condition imposed on the landlord by the Authority within the meaning of clause (k) being in such a case the provision in clause (k), being a specific provision with its own requirements and procedure, prevails over and excludes the general provision in clause (c). Thus, there can be no conceivable occasion when either of them would become redundant.

Shri Misra also contended that there can be no estoppel against a statute viz. the provisions in clause (k) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act and section 3 of the Crown Grants Act, 15 of 1895, As already pointed out above, clause (k) of the proviso to section 14(1) of the Delhi Rent Control Act does not prohibit the landlord from agreeing to an user by the tenant in a manner contrary to the condition in the lease deed for the land taking a risk as regards the forfeiture of the lease by the lessor-Authority. It merely enables the landlord to seek eviction of the tenant if the tenant uses the premises in a manner contrary to the condition imposed upon the landlord in the lease deed for the land on which the premises are situate. If the landlord chooses, in breach of the condition in the lease deed for the land, to let out the premises for a purpose which is contrary to the said condition, all that he does thereby is to give up or waive the right conferred by the provision in clause (k), which is meant for his own benefit. Such an action of his cannot be regarded as one against the provision in clause (k), and there is, therefore, no question of any estoppel against the statute, viz. the provision in clause (k).

As regards the provision in the Crown Grants Act, it is true that it was recited in the lease deed (Exhibit A-9) that the grant of the lease was made under the Authority of the Crown, and that the provisions of the Crown Grants Act, 15 of 1895, shall apply to the grant. The said Act is now called the Government Grants Act. The Act, as its preamble shows, was enacted as doubts had arisen “as to the extent and operation of the Transfer of Property Act, 1882, and as to the power of the Crown to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority”, and it was expedient to remove such doubts. The Act contains only three sections. Section 1 contains the title and the extent of the Act. Section 2 lays down that the Transfer of Property Act, 1882, shall not apply to any grant or other transfer of land or of any interest therein by or on behalf of the Crown or the Government. Section 3 merely provides that the Crown or the Government grants are to take effect according to their tenor, and runs as follows :—

“3. All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the legislature to the contrary notwithstanding.”

The provision in section 3 only validates the provisions, restrictions, conditions and limitations contained in any grant or transfer by the Crown or the Government. It does not contain any provision which prohibits the grantee. The prohibition is contained only in the terms of the grant (lease deed). As already stated, one of the terms in the lease deed (Exhibit A-9) is that the lessee should not use the land and the building thereon during the term of the lease for any other purpose than for the purpose of residential use without the consent in writing of the lessor. But, this prohibition is in the lease deed and not in a statute. It is just a contractual term and not a statutory prohibition. It is, therefore, clear that no question of an estoppel against a statute arises when the lessee agrees to let out the premises built on the land for a non-residential purpose, which would only be, if at all, a breach of the term of the contract. The transaction between the lessee and his tenant, which is not prohibited by any statute, will be valid as between the lessee and his tenant, though it may be invalid and not binding as between the lessee and his lessor-Authority (vide Abdulla v. Mammod, ILR XXVI Madras 156) (4).

For the above reasons, it has to be held that the Rent Control Tribunal and the Rent Controller rightly decided that the respondent was not liable to be evicted on the ground mentioned in clause (k) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act. The second appeal, therefore, fails and is dismissed. But, in the circumstances, the parties are directed to bear their own costs in this second appeal.

A.N.K Appeal dismissed.