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Case Number

S.A.O No. 391A of 1979

Advocates

K.R.Gupta
Raj Kishan
S.N.Chopra

Judges

Avadh Behari Rohatgi, J.

Acts

S. 14(1) of the Delhi Rent Control Act, 1958 (the Act).
Sub-section (11) of Section 14. Sub-section (11)

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Smart Summary

Structured Summary of the Judgment (A.B. Rohatgi, J.)

Factual and Procedural Background

The appeal challenges an order of the Rent Control Tribunal dated 2 November 1979 affirming a controller's eviction order. The appellant, Prithvi Raj, was a tenant (Hind Book House) of ground-floor premises at No. 66 Babar Road, New Delhi, taken on lease from the respondent landlady, Nirmal Multani, on 15 April 1968 at an agreed rent of Rs. 750 per month. The lease described the demised premises as the ground floor hall; the tenant was given a limited right to keep a show window (6×9 feet) in the front verandah and to put up a signboard, but the lease expressly excluded the front room, verandah, bath room and front courtyard from the demised premises. Disputes arose soon after; the landlady served notices asking the tenant to stop "misuse" (sale of books was the admitted user). The land on which the house stood was under a perpetual lease from 1939 that limited use to "a residence".

The landlady filed an ejectment petition on 24 July 1969 on three grounds under the proviso to Section 14(1) of the Delhi Rent Control Act, 1958: (a) non‑payment of rent, (c) user for a purpose other than that for which premises were let, and (k) use contrary to a condition imposed on the landlord by Government authorities (the head lessor). The Additional Rent Controller (judgment 30 October 1976) ordered eviction under Sections 14(1)(a) and 14(1)(k), dismissing (c). The tenant appealed to the Rent Tribunal which, by its order on 2 November 1979, dismissed the appeal and affirmed eviction under (a) and (k) but imposed conditional terms by which the tenant might continue in the premises. Separate proceedings by the tenant for fixation of standard rent were dismissed by the controller but on appeal the tribunal fixed the standard rent at Rs. 532.30 effective 1 May 1973.

Legal Issues Presented

Whether the tenant is entitled to abatement of rent on account of being deprived of the right to place and use a show window in the verandah.
Whether the tenant can be evicted under clause (k) of the proviso to Section 14(1) of the Act because the admitted commercial user (sale of books) is contrary to conditions imposed on the landlord by the head lessor, and if so whether eviction must be immediate or whether Sub‑section (11) of Section 14 permits conditional orders allowing continued occupation on terms.
Whether the tribunal's order, which required the tenant to pay or deposit specified sums as past "misuse" and unauthorised construction charges and laid down staged future contingencies (including payment of further sums and removal of misuse), should be set aside or remitted to the controller for apportionment and fresh inquiry (including apportionment between landlord and tenant).

Arguments of the Parties

Appellant (Tenant) — Principal Arguments

Challenged tribunal's factual finding that the landlady did not prevent the fixing/use of the show window in the verandah; claimed he was deprived of the facility when the verandah was glazed and thus sought abatement of rent (controller had allowed Rs. 100/month abatement).
Contended that he should not be asked to pay charges for unauthorised coverage/construction which he asserts he did not make; willing to bear misuse charges but not construction charges.
Sought remittal to the controller to (1) determine properly the amount of misuse charges attributable to him excluding unauthorised coverage charges and (2) ascertain the terms on which the Land & Development Officer (L. & D.O.) would permit future commercial user (i.e., to have an inquiry and apportionment in presence of the authority).
Argued that any apportionment of compensation for past misuser should be done, and suggested sharing misuse charges fifty-fifty between landlord and tenant (as a submission to the tribunal).

Respondent (Landlady) — Principal Arguments

Contended that the tribunal's conditional order was unworkable, ambulatory and likely to produce further litigation; criticised the staged formula for being impractical and not final.
Affidavit submitted (later in the proceedings) that if the tenant vacated within a reasonable time she would not claim from him any charges payable to the Land & Development Officer for the period from commencement of tenancy until the date he vacates (subject to her rights to settle with the L. & D.O.).

Land & Development Officer (L. & D.O.) — Position Presented in the Record

Initially stated via written statement that the admitted commercial user was a "misuser" relative to the perpetual lease for residential use and that permanent regularisation of the breach did not arise.
Indicated that permanent condonation would not be given, but temporary regularisation might be considered if the lessee/lessor made proper application with an undertaking to remove breaches and paid additional charges for the period of breach.
Communicated terms (letter dated 6 February 1979) specifying substantial charges and conditions for temporary regularisation up to 14 July 1979, and later (letter dated 4 May 1979) provided a break-up of charges (total Rs. 48,360.23, with misuse charges approx. Rs. 19,000 up to 14 July 1979) and reiterated that unauthorised construction breaches could not be permanently regularised.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ved Rattan Brothers v. Janak Raj, 1979 R.L.R. Vol. 1, 401	Authoritative decision relied upon by counsel for the tenant on the abatement issue (referenced by the judge).	The judge observed the tenant had referred to this decision but held, on the facts and statutory scheme (standard rent fixation), that it was not open for the tenant to raise abatement after standard rent had been fixed; the judge applied his prior reasoning to reject the abatement plea in the present case.
Fakir Chand v. Ram Rattan, (1973) 1 SCC 572 : A.I.R. 1973 S.C. 921	Explains that clause (k) is based on public policy; indicates controller may apportion responsibility for breach between lessor and tenant when awarding compensation under Sub‑sec. (11).	The court relied on the observations in Fakir Chand regarding public policy and apportionment but declined to order a remand in this case. The judge interpreted the statute and authorities to conclude that remittal for apportionment was not advisable given the specific factual matrix and L. & D.O.'s stance.
Monk v. Warbey, (1935) 1 K.B. 75 (Greer L.J.)	Cited for the cautionary principle that selective observations in a long judgment should not be treated as the ratio decidendi.	The court invoked this caution to resist treating isolated observations (from higher court decisions) as binding ratio for every case; used to justify not treating prior remarks as mandating remittal here.

Court's Reasoning and Analysis

The court conducted a step-by-step analysis addressing first the abatement claim and then the clause (k) eviction question (including Sub‑section (11) of Section 14).

On Abatement of Rent

The court observed the tenant had appealed and separately sought fixation of standard rent; the tribunal fixed standard rent at Rs. 532.30 on 2 November 1979 after the controller's order which had granted an abatement of Rs. 100 per month. The judge held that once the standard rent is determined with regard to the circumstances of the case (S. 9 read with Ss. 6 and 7), the fixation is a complete answer to any further plea for abatement of rent that should have been raised in the standard rent proceedings. Thus the tenant cannot raise abatement after standard rent has been fixed.
The court noted the verandah was expressly excluded from the demised premises by the lease; abatement is available when a tenant is tortiously deprived of part of the demised premises, which did not apply because verandah was not part of the tenancy.
The tribunal had concurrent factual findings that the landlady did not prevent the tenant from fixing the show window and that space existed despite glazing; this finding of fact could not be disturbed in the second appeal. Thus on three independent grounds (standard rent fixation, verandah not part of demise, and concurrent factual finding) the abatement claim failed.

On Eviction under Clause (k) and Sub‑section (11)

Clause (k) targets user contrary to conditions imposed on the landlord by authorities (here, the head lessor/Government) and is informed by public policy (as explained in Fakir Chand). Sub‑section (11) conditions eviction upon the tenant complying with the condition imposed on the landlord or paying compensation to the authority as the controller may direct.
The controller, after hearing L. & D.O., found the L. & D.O. was not willing to condone the misuser permanently and that the admitted sale-of-books user breached the perpetual lease for residential use; the controller therefore ordered eviction but allowed six months for the tenant to stop the misuser failing which he must vacate.
On appeal the L. & D.O. offered temporary regularisation subject to substantial financial charges and an undertaking by the lessor to remove breaches by given dates (letter of 6 Feb 1979 and subsequent detailed break-up on 4 May 1979). The tribunal responded with a staged order: it required the tenant to pay or deposit specified sums for past misuse and unauthorised construction within one month and set out contingencies for future payments, removal of unauthorised construction, and eventual eviction if the L. & D.O. refused to condone breaches in future.
The judge analyzed whether the tribunal's staged conditional formula should be remitted for apportionment under Sub‑sec. (11). He acknowledged that the statute is silent as to mechanics, and that Fakir Chand indicates apportionment is possible; however, he declined remittal here for several reasons:
- There is no rigid rule that misuse cannot lead to eviction even if the landlord bears some blame; the Supreme Court decision does not mandate remittal in all such cases.
- The L. & D.O. was not willing to condone breaches permanently and had conditioned temporary regularisation on the lessor furnishing an undertaking to remove breaches — an undertaking she could not give unless the tenant vacated or cooperated, which he was unwilling to do.
- Apportionment of responsibility for past breaches is possible, but apportioning responsibility for future breaches is not practicable because the head lessor demanded cessation of misuse as a condition.
- The tribunal's formula was criticized as ambulatory and impractical by the landlady; a remand would likely lead to retrial and further disputes and was unnecessary in the circumstances.
- Crucially, the landlady filed an affidavit offering that, if the tenant vacated within a reasonable time, she would not claim from him any charges payable to the L. & D.O. for the period from commencement of tenancy until he vacated — a practical concession obviating the need for further apportionment litigation on past charges.
Given the L. & D.O.'s insistence on cessation of unauthorised use and refusal to grant permanent condonation, the judge concluded eviction was inevitable: the only effective remedy to secure compliance with the head lessor's condition (cessation of misuse) was to order eviction. Therefore he affirmed the controller's order of eviction subject to allowing the tenant six months to vacate.

Holding and Implications

Holding:

The appeal is DISMISSED. The court affirmed eviction under clause (k) of the proviso to Section 14(1) and Sub‑section (11) as applied. The tenant is allowed six months' time to vacate the premises. If the tenant vacates within six months, he will not be required to pay the charges imposed on the landlady by the Land & Development Officer (as per the landlady's affidavit). The tenant must continue to deposit the fixed standard rent (Rs. 532.30) with the Additional Controller every month in accordance with law. The parties are directed to bear their own costs.

Implications and Consequences:

Direct effect on the parties: the tenant must vacate within six months or face the operative eviction order; he must continue paying the fixed standard rent during the period and will be relieved (per landlady's affidavit accepted by the court) of payment of the L. & D.O. charges if he vacates within that period.
The court declined to remit the matter for a fresh apportionment inquiry despite authority suggesting controllers may apportion responsibility for breaches; the decision turned on the particular facts (L. & D.O.'s refusal to permanently condone misuse, impracticality of the tribunal's ambulatory formula, and the landlady's affidavit concession).
No new general rule or precedent was laid down; the order resolves the dispute on the particular facts and procedural posture of this case. The court explicitly declined to adopt a generalized approach that would invite unforeseen complications in future rent act cases.

Disposition: Appeal dismissed; six months granted to tenant to vacate; parties to bear their own costs.

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Prithvi Raj v. Nirmal Multani .

A.B Rohatgi, J.:— This is an appeal from the order of the rent control tribunal dated November 2, 1979.

2. The appellant Prithvi Raj is a tenant on the ground floor of house No. 66 Babar Road, New Delhi. He carries on business of sale of books under the name and style of Hind Book House. On April 15, 1968 he took the premises on rent from the landlady, Nirmal Multani, the respondent. A lease deed was executed. The rate of rent was agreed at Rs. 750/- per month. The tenant paid advance rent of 6½ months. In terms of the lease deed the premises let to the tenant consisted of the ground floor hall. In additional to this he was given the right to keep a shop window 6×9 feet in the front verandah for display of books. He was also allowed to put a sign board on the common wall. But it was expressly provided in the lease that front room, verandah, bath room and front court yard shall not form part of the demised premises. The tenant however was given the right of passage from the front and use of the verandah for the limited purpose of keeping a show window of 6 × 9 feet. Though the lease was for a period of 11 months with an option to the tenant to extend it for a further period of three years very soon disputes arose between the landlady and the tenant. She served three notices on the tenant requiring him to stop the misuser of the premises. The tenant was selling books in the premises. He is a bookseller by profession. The land on which the house stands was taken by the landlady from the Governor-General-in-Council in 193y for the purpose of residence. The perpetual lease dated 1st July, 1939 stipulates that “the lessee will not without such consent (of the lessor) as aforesaid use the said premises or permit the same to be used for any purpose other than that of a residence………………”

3. In her letters dated 13th October, 1968, 7th April 1969 and 23rd May, 1969 the landlady asked the tenant to stop the misuse of the premises. The tenant did not. On 24th July, 1969, the landlady brought an ejectment petition against the tenant. She pleaded three grounds of ejectment. One was non-payment of rent under clause (a) of the proviso to S. 14(1) of the Delhi Rent Control Act, 1958 (the Act). The second was under clause (c), namely, that the tenant was using the premises for a purpose other than that for which they were let without obtaining the consent of the landlady. The third was the ground under clause (k), namely:

“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 situated.”

4. The additional rent controller by judgment dated 30th October 1976 ordered the eviction of the tenant both under Section 14(1)(a) and (k) of the Act. Claim made under clause (c) he dismissed.

5. From the decision of the controller the tenant appealed to the rent tribunal. The tribunal by order dated 2nd November, 1979 dismissed the appeal. He affirmed the order of eviction on the grounds of clause (a) and clause (k). Though he too ordered eviction he however, imposed certain conditions on which it was possible for the tenant to continue to remain in the premises. I shall return to these conditions a little later.

6. It will be convenient here to refer to another proceedings between the parties. The tenant in his own turn made an application to the controller for determination of the standard rent. The controller dismissed his application on 30th October 1976. On appeal the tribunal by order dated 2nd November, 1979, fixed the standard rent at Rs. 532.30 with effect from May 1, 1973. Accepting that the premises were let for a commercial purpose the rent was reduced from the agreed rent of Rs. 750/- to Rs. 532-30. This was the outcome of these proceedings.

7. Counsel for the parties agree that in view of the determination of the standard rent at the figure of Rs. 532.30 the ground of non-payment of rent” under clause (a) of the proviso to S. 14 no longer survives. It is also not in dispute that the tenant cannot be evicted on the ground covered by clause (c). There is a concurrent finding that the premises were let to the tenant for sale of books. This being so, the landlady cannot complain that the tenant is using the premises for a purpose other than that for which they were let.

8. On appeal counsel for the tenant has raised two points. First is the question of abatement of rent. Second is the liability of the tenant regarding ejectment on the ground of clause (k), namely, that the admitted user of the premises is contrray to conditions imposed on the landlady by the Government of India while giving her a lease of the land on which the premises are situated.

9. On the question of abatement of rent the controversy centres round the right given to the tenant under the lease to fix a show window of 6×9 feet in the verandah. The case of the tenant is that he was deprived of this facility because the landlady soon after the commencement of the tenancy glazed the verandah and thereby prevented him from using the verandah for the purpose of show window. The controller found as a fact that the verandah had been closed. On this ground he allowed the tenant abatement in rent to the extent of Rs. 100/- per month. He held that the tenant had no right to suspend the payment of the entire rent. But he allowed him an adjustment of Rs. 100/- per month because the tenant could not display his books in the verandah.

10. On appeal the tribunal reversed this finding of the controller. On evidence he came to the conclusion that the landlady did not prevent the tenant from fixing the show case or from displaying the books outside the front verandah. He found as a fact that there was enough space for the tenant to fix the show window even though the verandah had been glazed.

11. Counsel for the tenant has challenged this finding of the tribunal. He has referred me to my decision in Ved Rattan Brothers v. Janak Raj, 1979 Rent Law Reporter vol. 1, 401. In my opinion, it is not open to the tenant to raise the question of abatement of rent. There are three reasons for this view. Firstly, the standard rent of the premises has now been fixed. This was done after the Controller's order of abatement. After the decision of the controller the tribunal fixed the standard rent at Rs. 532-30 on November 2, 1979. Under S. 9 of the Act the controller while fixing the standard rent has to have “regard to the provisions of S. 6 and S. 7 and the circumstances of the case.” At the time of the fixation of the standard rent it was for the tenant to raise the question that he was entitled to a further reduction of rent because he had been deprived of the right or privilege of fixing the show window in the verandah. If the controller or tribunal has to have regard to “the circumstances of the case”, he has to see the accommodation, amenities, rights, privileges of the tenant to which he is entitled and then fix the standard rent keeping everything in mind. This fixation of standard rent it appears to me is a complete answer to the plea of the abatement of rent. It was argued that standard rent is fixed with regard to the premises only and the question of or right to have the show window in the verandah cannot be gone into by the controller under Ss. 6, 7 or 9 of the Act. I do not agree. Once the standard rent has been determined it is no longer open to the tenant to say that he is entitled to a still further reduction in rent. These were independent proceedings launched by the tenant and it was his duty to agitate this question in those proceedings as it has a direct bearing on the question of rent.

12. In the second place, whatever may be the other rights of the tenant he is not entitled to abatement of rent because the verandah was not a part of his tenancy. It is expressly provided in the lease deed. The question of abatement of rent arises where a tenant is tortiously deprived of a portion of the demised premises. That the verandah is not a part of the demised premises cannot be disputed.

13. Thirdly there is a finding of fact by the tribunal that the landlady did not prevent the tenant from placing the show window in the verandah. In this second appeal this finding of fact cannot be disturbed. So I hold that the tenant is not entitled to abatement of rent.

14. The second question is: Whether an order for the eviction of the tenant can be made under clause (k) of the Act. Clause (k) I have already set out in an earlier part of this judgment. With the main clause it is necessary to read Sub-section (11) of Section 14. Sub-section (11) reads:

“No order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of the proviso to Sub-section (1), if the tenant, within such time as may be specified in this behalf by the controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.”

15. On clause (k) the controller and the tribunal are unanimous in holding that the tenant is liable to ejectment. The question remains whether he should be ordered to vacate forthwith or he can be allowed to continue to remain in the premises on terms and conditions, and if so what ought to be those terms and conditions. The controller adopted a straight forward approach. He found that the land and development officer who was summoned by him and who had filed his written statement on September 15, 1976, was not willing to regularise the breach of the lease permanently. That the admitted user of the premises for the sale of books is a breach of the terms of the lease no one will deny. The perpetual lease is expressly for the purpose of “a residence” and for no other purpose, Sale of books is a commercial purpose. On this ground the land and development officer submitted in the written statement that there was “misuser” of the property. The user of the property being in violation of the terms of the perpetual lease the landlady was asked to remove the breach failing which she was told that the right of re-entry will be exercised. In paragraph 3 the land and development officer stated:

“The question of regularising the breach permanently does not arise. However the Lessor may consider, if proper application is made by the lessee with an undertaking to remove the breaches and to pay the additional charges leviable for such a misuser that may be fixed for the period of breach, to postpone the right of re-entry till such time the breaches are finally removed.”

16. This was the stand of the land and development officer before the controller. The controller therefore posed the question: Can the breach be remedied permanently? He answered it in the nagative. He hold, to use his own words:

“The Land and Development Office is not willing to condone the misuser on payment of any compensation. Therefore there is no other option except the removal of misuser.’

17. He therefore ordered the eviction of he tenant on the ground of clause (k). He directed the tenant to stop the misuser within a period of six months and in case of his failure to do so to vacate the premises. This was the decision of the controller.

18. In appeal before the tribunal notice was again sent to the Land and Development Officer. He was asked to state if he was willing to condone the breaches in the house and if so on what terms. The Land and Development Office sent a letter dated 6th February 1979. In this letter the Land and Development Officer, Government of India, stated that the “lesson will be pleased to regularise the breaches temporarily upto 14th July, 1979 in the premises mentioned above provided you comply with the following terms and conditions in full in advance.” Thereafter he detailed the charges running into several thousands of rupees which he required the landlady to pay with interest if she was willing to the proposal made by the lessor. He also required the landlady to furnish “an undertaking to remove the breach by 14.7.1979 or beyond 14.7.1979″. The letter added “that if these conditions are not acceptable and the landlady is not prepared to give the undertaking and the amount demanded from her the lessor will take further action to reenter the premises under Clause (3) of the lease without any further reference.” It is made clear in this letter that the offer was not to amount to “a waiver for the recovery of the said damages which may in the discretion of the lessor be found payable by you beyond the dates mentioned by you for breaches existing hereinafter at site.”

19. The matter did not rest here. Another letter was addressed by the tribunal to the land and development officer. He was asked to state the charges only in respect of the portion of the Hind Book House and not with regard to the whole house. The land and development officer filed the reply on 4th May, 1979 stating the charges of misuser. This amount runs into Rs. 48,360.23 paise. Out of this amount the misuser charges are about Rs. 19,000/- or so upto July 14, 1979. The rest are charges for unauthorised coverage and construction. At the end of the letter this is what is said:

“The terms and conditions for temporary regularisation of breaches and misuser were previsously issued to the lessee through the court vide this office letter No. LIV/9/205-C/103/66/130 dated 6.2.1979 and this break up of the terms of the portion of the tenant is in continuation to the above referred letter. The breaches of unauthorised construction and misuse cannot be regularised permenantly.”

20. With these two letters before him the tribunal modified the order or eviction on clause (k) and imposed terms on the parties. He divided his order in three parts. The first part is about the past. The second about the furture. The third is about the last stage, namely, eviction of the tenant. That is the dead end. As for the past the tribunal said:

“I hence, dismiss the appeal and I hold that the ground of eviction covered by clause (k) shall be satisfied if the tenant pays to the landlady or deposits in court a sum of Rs. 20,578.65 p. as misuse charges for the period April 15, 1968 to July 14, 1979, within one month from today and also to the landlady or deposit in the court a sum of Rs. 27,781.58 as charges of the unauthorised constructions for the period April 15, 1968 to July 14, 1979 within one month from today or remove the misuser and construction within one month but in case of the failure of the tenant either to do so, then eviction order on the ground covered by clause (k) shall be deemed to have passed against the appellant.”

21. As regards the future he said:

“In case the Land & Development Officer imposes any future penalties for condoning the breaches in future and also for the unauthorised constructions, then the landlady shall inform the tenant about such amount of mischarges and demages charges for unauthorised constructions and the tenant in that case shall pay to the landlady such amounts as informed to the tenant by the landlady within one month from the date of such communication but in case of his failure either to pay such amount of penalties or to remove the unauthorised constructions or stop using the premises for commercial purposes within one month from the date of such communication then eviction order on the ground covered by clause (k) shall be deemed to have been passed against the tenant.”

22. Then he addressed himself to another contingency. He said:

“However, in case the L. & D.O decides not to condone the breaches with respect to misuse charges and also with respect to the unauthorised constructions in future then the landlady shall inform the tenant about such decision of the L. & D.O and the tenant in that case shall stop misusing the premises and shall also remove the unauthorised constructions but in case of his failure to do so, then eviction order on the ground of eviction covered by clauses (k) shall be deemed to have been passed against the tenant. But in case the landlady fails to apply to the L. & D.O to get the breaches regularised after receiving the amounts from the tenant, then eviction petition on the ground covered by clause (k) shall be deemed to have been dismissed.

23. This is a journey in stages. This formula was devised by the tribunal apparently with the object to protect the tenant and to allow him to remain in the premises as long as the L. & D.O was willing to accept misuse charges and charges for unauthorised construction. The tenant was to pay what was demanded from the landlady up to July 14, 1979. He was also to pay in future such amount as was demanded from her. In case the L. & D.O decided not to condone the breaches then the tenant was to vacate. This is the sum and substance of the tribunal's order.

24. Counsel for the tenant has attacked this part of the order requiring the tenant to pay Rs. 20,578.65 and Rs. 27,781.58 as misuse charges for unauthorised construction from April 16, 1968 to July 13, 1979. The tenant's complaint is that he has been asked to bear too heavy a burden. He said that he was willing to bear the charges for misuse. But he should not be called upon to pay charges for unauthorised coverage as he had not covered or constructed any part of the demised premises. Counsel submitted that the case should be remitted to the controller to find out two things: (1) What is the amount of misuse charges which the tenant should be properly asked to pay after excluding the charges of unauthorised coverage? and (2) What are the terms on which the L. & D.O was prepared to allow him to use the premises for commercial purpose in future? It was said that the question of apportionment of compensation be remitted for an inquiry and the tenant should be allowed to have his say on this matter. It is not disputed by the landlady's counsel that after the receipt of the second letter which was filed in the tribunal on May 4, 1979 the tribunal did not ask the parties to file their objections to the demand of the L. & D.O On this ground it is said that the question of compensation and its apportionment should be decided afresh and the controller should be asked to apportion the responsibility for the breach between the lessor and the tenant and this should be done in the presence of the L. & D.O Elaborating his argument further counsel said that such charges of misuse as have been levied ought to be shared fifty fifty by the landlady and the tenant. If these charges are revised and an excess amount is demanded then the excess should be borne by the tenant. He conceded that if the L. & D.O was not willing to condone the breaches then the tenant ought to be evicted.

25. The real question in this appeal is about the application of Sub-sec. (11). How should this proviso be given effect to? The Act is silent. It does not give us any guidance. How best to work out the policy of the legislature as embodied in clause (k) read with Sub-sec. (11) is entirely left to the tribunals. Clause (k) as has been held in Fakir Chand v. Ram Rattan, (1973) 1 SCC 572 : A.I.R 1973 S.C 921 is based on the principle of public policy. The policy of the legislature seems to be to put an end to unauthorised use of the leased lands…………”. For past breaches or such breaches as can be remedied permanently it will of course be unjust to evict the tenant. In that case the controller can award compensation to the three authorities named in the clause. Of course this has to be done in the presence of the authority so that the authority may be bound by the decision of the controller. Now the “Sub-section does not say who is to pay compensation, whether it is the landlord or the tenant. Apparently in awarding compensation the controller will have to apportion the responsibility for the breach between the lessor and the tenant” (Fakir Chand v. Ram Rattan, p. 924). Counsel for the tenant relies on these observations of the Supreme Court and says that the case should be remitted to the controller to find out the terms and conditions of the L. & D.O and to apportion the blame of misuse between the tenant and the landlady.

26. In my opinion, this course will not be advisable in this case. There is no inflexible rule that the tenant must never be evicted in case of misuse of property if the landlord is to be blamed for the improper induction of the tenant in the premises. Nor do I read the Supreme Court decision as laying down such a proposition. “It is always a little dangerous” as Greer L.J said in Monk v. Warbey (1935) I. K.B 75 “to pick out one or two observations from long judgment and treat them as if they necessarily afforded the ratio decidendi of the case.”

27. One thing is clear Forfeiture of the lease has to be avoided at all events. If misuse is persisted in, the head lessor can re-enter upon the premises and determine the head lease. This will be detrimental to the interests of both the landlady and the tenant. Now it appears from the letters of the L. & D.O that he is not prepared to condone the breaches permanently. On terms of temporary regularisation he is willing to allow the misuse and the unauthorised coverage. But this too is subject to one important condition, namely, that the landlady furnishes an undertaking for the removal of misuse. If she does not give such an undertaking the head lessor threatens to re-enter upon the premises. Now it is not in her power to give such an undertaking as is demanded from her. The reason is that the premises are in the possession of the tenant. And the tenant is not willing to vacate. He wants to continue on terms of payment of compensation to the L. &. D.O For past misuser it is possible to apportion the responsibility for the breach between the lessor and the tenant. But for future it is not possible to do so.

28. Counsel for the landlady criticised the order of the tribunal on several grounds. He said that the order is not workable. It is wholly ambulatory. It is not final inform. It is productive of further litigation. Every time a demand is made by the L. & D.O or conditions imposed the landlady must got in touch with the tenant. The tenant may pay. The tenant may not pay. Disputes are bound to arise. Whether such a form of the order is within the contemplation of the statute I need not decide. There are many cases which were never contemplated by the draftsman and any attempt to give an interpretation which will be generally applicable is sure to prove an obstacle in the way of doing justice in some unforseen case. It will be undesirable to give to the Rent Act any general construction which may give rise to many unforeseen complications. The Act leaves much to be worked out by the courts and tribunals. The tribunal in a desire to produce a workable and just solution devised a formula. It is certainly a make-shift arrangement. A patchwork produced with the best of intentions. The rules of formal logic were not applied with too great strictness. Apparently out of sympathy for the tenant the tribunal was willing to allow him to continue if he was prepared to pay the charges. Now the tenant is willing to continue. But he is not prepared to pay the charges demanded by the Land and Development Officer. He wants an inquiry into the whole matter in the presence of the authority both for the past as well as the future. This will mean a retrial of the whole case.

29. There is another reason why the exercise is not necessary in the circumstances of the case. The landlady has made an affidavit today that if the tenant vacates the premises within a reasonable time allowed by the court she will not claim from him any charges which may be payable to the land and development officer for the entire period from the commencement of the tenancy upto the time he vacates the premises. This is course, she says, is “without prejudice to my rights to deal or settle with the Land and Development Officer regarding regularisation of the breaches of the lease of the land……whether on payment of charges, if any, or otherwise to the said office.” This means that the tenant is not asked to share the responsibility for breach or misuse of the premises for the past. Nor for such period till he is allowed to vacate. This appears to me to be a just course. This was adopted by the Controller.

30. From the letters of the L. & D.O one thing is quite certain. That authority wants the misuser to stop. If that is so there is no point in allowing the tenant to continue. There is no purpose in asking the landlady to stand and wait till the last word comes from L. & D.O He has already indicated his terms. His terms do not confer on the tenant the much wished for status of irremovability. As the Supreme Court says:

“The authority may be prepared to accept conditions but might insist upon the cessation of the unauthorised use.”

31. In this case the authority, namely, the Government is not willing for a permanent condonation of misuse or to a change of user. In the end they insist upon the cessation of the unauthorised use. There is no option in such a case except to order eviction of the tenant. This was the decision of the controller. I too am of the same view. There is no question of complying with the condition imposed on the landlord in this case. The premises were let for commercial use. The tenant cannot change the user from commercial to residential. Such are not the terms of his tenancy. Not is he willing to take up residence as the premises were given to him for commercial use. He himself got the standard rent fixed as of a commercial premises. Regarding the amount of compensation the landlady is willing that if the tenant vacates the premises within a reasonable time he need not pay part of the compensation claimed by the land officer from her.

32. For these reasons the appeal is dismissed. The tenant is allowed six months time to vacate the premises. The tenant will not pay the charges imposed on the landlady if he vacates within the period of six months allowed by me. He will of course go on depositing the standard rent with the additional controller every month in accordance with law. The parties are left to bear their own costs.

33. Appeal dismissed.

Prithvi Raj v. Nirmal Multani .

Structured Summary of the Judgment (A.B. Rohatgi, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Tenant) — Principal Arguments

Respondent (Landlady) — Principal Arguments

Land & Development Officer (L. & D.O.) — Position Presented in the Record

Table of Precedents Cited

Court's Reasoning and Analysis

On Abatement of Rent

On Eviction under Clause (k) and Sub‑section (11)

Holding and Implications

Prithvi Raj v. Nirmal Multani .

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