Aran B. Saharya, J.:— In this second appeal, under section 39 of the Delhi Rent Control Act, 1958, hereinafter referred to as ‘the Act’, arising out of an order of the Rent Control Tribunal dated 10th April 1986 affirming order of eviction of the appellant-tenant made by the Additional Rent Controller, Delhi under Section 14(I)(h) of the Act, the main question of law which has arisen is: whether clause (h) of the proviso to Sub-section (1) of Section 14 of the Act applies to residential premises let out to a company also.
2. The relevant facts lie within a narrow compass. The appellant is a public company having its registered office at Calcutta. The respondent let out his property No. 1 M-11, Greater Kailash No. II, New Delhi, hereinafter referred to as the demised premises, to the appellant on terms and conditions contained in a deed of lease executed between the parties on 17th January, 1980 Clause (II)(c) of the lease deed contains one of the lessee's covenants in the following terms:
“(C) To use the demised premises for residential purpose only.”
While in possession of the demised premises, the appellant has purchased a vacant residential house No. F-77 A, Green Park. New Delhi, hereinafter called the ‘acquired property’. The respondent raised this as a ground to seek eviction of the appellant under clause (h) of the proviso to Sub-section (1) of Section 14 of the Act. The appellant has pleaded in the written statement that it “is using the premises presently as a Guest House, and officers' Club as also for holding Company functions including officials get-together and conferences etc.”. It is contesting eviction on the plea, inter alia, that a company cannot reside; and that neither the demised premises is being actually used nor can the acquired property be used by it as “a residence”. After the pleadings were completed, the respondent made an application under Order XII Rule 6 of the Code Civil Procedure, 1908 praying for an order for eviction of the appellant on the basis of the admission that it has got vacant possession of the acquired property,
3. The Controller found, on the basis of the appellants' written Statement, that the appellant “does not deny that it has purchased property at F-66A, Green Park, New Delhi”. He found no merit in the contention that Section 14(1)(h) of the Act is applicable only to natural persons and not a company or other juristic persons. The plea raised on behalf of the appellant that the acquired property has to be demolished and rebuilt and as such it cannot be said to be available to the appellant as a residence was also rejected by the Controller. For want of specific denial of the pertinent facts averred in the eviction petition, the Controller passed an order of eviction against the appellant in respect of the demised premises under Section 14(1)(h). In appeal, the Tribunal confirmed the order made by Controller. The Tribunal also found that the appellant's intention to demolish the acquired property and to rebuild it “is of no consequence” inasmuch as “the residence house has been purchased by the appellant after becoming the tenant in the suit premises.” Consequently, the Tribunal dismissed the appeal by an order dated 10th April 1986, from which the present appeal has arisen.
4. The second appeal has come up for hearing before us as a learned single judge before whom it came up in normal course, was of the opinion that this is a fit case which should be heard by a larger bench as he felt that the following questions of law arise:
1. What is the true scope and ambit of Section 14(1)(h) of the Act and how far is it applicable to limited companies using premises for the purpose of housing its employees and officers?
2. Whether Section 14(1)(h) applies to cases where a limited company has obtained different premises to enable its different officers to use the premises for their residence?
3. Whether for the purpose of Section 14(1)(h) of the Act, it can be said that a limited company is residing in the premises which have been taken on rent for the purpose of residence of its officers?
Answer to these questions, in our opinion, will depend upon facts and circumstances of each case and on a finding on questions, interalia, whether the premises are really let to the company or to any particular officer of the company and whether such officer has an independent interest in the premises. However, after hearing learned counsel for the parties at length on these matters, we feel that it would be inappropriate in this case to specifically answer the questions envisaged by the learned single judge as it is not the case of either party that the premises were let for use as actual residence of the officers or of any particular officer of the appellant company. In our opinion, therefore, the basic question which really arises in this appeal is the one stated by us in para 1 above.
5. Mr. Kapur, learned counsel for the appellant, has contended: (1) that Clause (h) of the proviso to Sub-section (1) of Section 14 of the Act does not apply to the appellant as a company cannot reside or acquire ‘a residence,; (2) that the said clause applies only to such premises as are actually used by a tenant for his residence when he acquires another residence; and (3) that, neither the demised premises, let “for residential purposes” and indeed being used for housing the visiting guests of the company, nor the acquired property can be said to be ‘a residence’ of the tenant within the meaning of said Clause (h). Apart from these points, Mr Kapur has also urged that a loan of Rs. 5 lakh was taken by the landlord to build the first floor on the understanding that the landlord would, at no stage, seek eviction of the appellant from the demised premises on any grounds so long as the loan remained unadjusted, that this plea raised a triable issue of fact and therefore, an order of eviction of the appellant could not be made merely on the admission that the appellant has purchased the property at Green Park.
6. To support the first three points, Mr. Kapur has heavily relied upon three English decisions in Reidy v. Walker (1923) 2 K.B 266, Hiller v. United Dairies (London) Ltd., (1934) 1 KB. 57 and G.E Stevens (High Wycombe Ltd v. High Wycombe Corporation, (1962) 2 Q.B 547 According to him, only a natural person can actually occupy a dwelling home, or, in other words, “a residence”; a juristic entity is not capable of residing or having a residence; and ‘personal’ and ‘domestic’ quality noted in the English cases is equally a feature of the word “residence” in Clause (h) of Sub-section (1) of the Section 14 of the Act.
7. In each of the three English cases, a company was a tenant and the company sought protection from ejectment, on the plea that it was in possession of the premises through a care-taker, an agent, a servant, or, a manager, and that such constructive possession was protected under the Rent Act. This plea was rejected. In Reidy v. Walker (supra) Action, J. said: “To my mind……………it is clear that neither this company nor any other company can be described accurately as a tenant, who is “residing in a house” or who is in personal accupation or possession of the premises of which possession is sooght, still less that the house is the company's home.” Futther, Goddard, J. explained that the very idea of “dwelling” required “an essentially domestic quality'’. He went on to say “A company cannot reside in the sense which is necessary………because it can never acquire this domestic quality.” In Hiller v. United Dairies (London) Ltd. (supra) Lord Wright pointed out that the purpose of the Rent Act was to protect occupying tenants and not those who were incapable of occupation and he observed: “If the right………is………purely personal, I do not see how this right can be vicariously enjoyed or how the principle of dwelling in the premises by an agent can be admitted.” In the same case, Slesser, L.J said: “………it is impossible to say that a company such as this one can be a tenant.” After noting the observations of Goddard J. in the earlier case, he went on to say “………It is to my mind evident that this trading company cannot have that domestic quality, it cannot have a home, and it cannot in that sense reside”. Slesser LJ. noted what Lord Loreburn said in De Beers Consolidated Mines Ltd. v. Howe, (1906) AC. 455: “a company cannot eat or sleep”, He further observed “They cannot by the nature of things reside in a domestic sense, they cannot come or go to these particular premises and they are outside the Act.” In G.E Stevens Ltd v. High Wycombe Corporation (supra) Diplock J’. said: “………a company is in the very nature of things incapable of occupying a house as a private dwelling house, and it seems to be common sense that such an occupation by a company could not be by a Manager occupying on its behalf.”
8. At first sight, the above mentioned, decisions do appear to support the argument of Mr. Kapur but on closer scrutiny they are found to be distinguishable. The observations made in these cases are based upon the legislative policy in England to protect recovery of possession of “premises in certain cases.” These are the words used in the preamble of the Increase of Rent and Mortgage interest (Restrictions) Act, 1922. Section 12(2) of that Act indicates that it applies, to “a house or a part of a house let as a separate dwelling'’ and Section 5 protects “possession of any dwelling house”. In that context the courts in England have held that a company cannot be actually described as a tenant It is clear from these decisions that the test of dwelling house and actual, physical and personal occupation of a tenant and the domestic quality of occupation is applied, because of the protection restricted only to possession of a “dwelling house” under the Rent Act in England. The tenancy of a compary is, therefore, not protected by the Rent Act there. It is not so in India. Here, the Act applies generally to all “premises”. Section 2(i) defines “premises” to mean any building or part of a building which is let separately for use as a residence, or for commercial use or for any other purpose. Section 14(1) of the Act protects “possession of any premises'’ let to a tenant irrespective of the premises being residential, commercial or otherwise. Further, the concept of occupation of premises by a company through its employees and agents, in other word constructive possession is also envisaged in Rent Laws in India. This is clear from Dunlop Rubber Co (India) Ltd v. R. Dutta, ILR (1966) 2 Calcutta 119, B.M Lall v. Dunlop Rubber Co. AIR 1968 SC 175, H.C Sharma v. Lite Irisuarnce Corporation of India, 1969 RCJ 761, L I.C of India v. State of CAP. (1977) 2 RCR 50 (All) (DB) and Madan Mohan Lal v. P. Tandon (1981) 2 RCR 516. A company can be a tenant and its possession of premises is protected under the Act. The restricted concept of a dwelling place or an abode is too narrow and it does not fit into the wider and general concept of premises and the protection of actual as well as constructive possession envisaged under the Act. The said English decisions are, therefore, distinguishable.
9. Mr. Kapur has also contended, on the hasis of use of words such as ‘he’ and ‘his’ in various judgments of different courts in India. while dealing with elause (h) and similar provisions in other Acts, that the said clause applies only to living persons and not to corporate bodies. This argument ignores the fact that in each of those cases the tenant happened to be a living person, and, therefore, the courts referred to the tenant by use of the word ‘he’ and described the possession of such a tenant by the word ‘his’.
10. In Dunlop Rubber Co. (supra) in the context of Section 13(1)(f) of the West Bengal premises Tenancy Act, 1956, which envisages eviction of a tenant on the ground that the landlord required the premises for “his own occupation”, the Calcutta High Court held that use of the masculine terms ‘his’ in relation to a tenant includes artificial persons as the statute does not use anywhere any terms of the neuter gender but uses the masculine term in all places and that this ground is available to a company to evict its tenant. The three English cases cited by Mr. Kapur were relied upon in that case as well. While dealing with them, the Calcutta High Court also observed that these cases “are painly distinguishuble, having regard to the key-note, scope and purpose of the statutes, under which they were decided.”
11. Mr. Kapur has also relied upon three decisions of the Supreme Court, namely, Union of India v. Ladulal Jain. AIR 1963 SC 1681, Jeewani v. Kishan Chandra, AIR 1982 SC 3 and Bakhtawar Singh Bal Kishan v. Union of India (1988) 2 S.C.C 293 to contend that the word ‘residence’ means an ‘abode” and ‘to dwell’ permanently in an ‘actual physical sense.’ In the cases of Ladu lal Jain and Bakhtawar Singh Bal Kishan, the Court was dealing with Section 20 of the Code of Civil Procedure, 1908 which provides for suits to be instituted in courts within the local limits or jurisdiction where the defendant, inter alia, “actually and voluntarily resides” or personally works for gain. This expression, the Supreme Court explained cannot be appropriately applied to the case of the Government and that it necessarily refers to natural persons and not to legal entities. In Jeewanti v. Kishan Chandra (supra) also the Court construed the word ‘residence’ to determine the jurisdiction of the proper court in which a petition under Section 19 of the Hindu Marriage Act could be presented. It has, however, been pointed out: ‘The word ‘reside’ is by no means free from all ambiguity and is capable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found. It is capable of being understood in its ordinary sense of having one's own dwelling permanently as well as in its extended sense. In context of Section 19 of the Hindu Marriage Act, it is stated in the judgment that the word ‘resides’ must mean the actual place of residence and not a legal or constructive residence and that the word resides” is a flexible one and has many-shades of meaning, and must take its colour and content from the context in which it appears and cannot be read in isolation. These observation make it amply clear that the word ‘residence’ has to be construed, for the purpose of the present case, in the context in which it appears in clause (h) of Section 14(1) of the Act. The meaning and the explanation of this word in these two judgments of the Supreme Court, in the context in which this word has been discussed, is of no help and cannot improve the argument of Mr. Kapur.
12. In order to appreciate the proper effect of the phrase ‘a residence’ in the context of clause (h) of the proviso to Sub section (1) of Section 14, it is necessary to advert to the object, scheme and content of some of the relevant provisions of the Act in general and of this clause in particular.
13. The object of the Act is to provide, inter alia, for the control of rents and evictions in the Union Territory of Delhi. To achieve this object, provision is made regarding rent in Sections 4 to J 3 in chapter II and regarding control of eviction in Sections 14 to 25 in Chapter III of the Act. Since reference has to be made to some of these provisions, their relevant extracts (with Italics added) are set out hereunder:
“2. Definitions—In this Act, unless the context otherwise requires,:
……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………
(i) “Premises” means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use for any other purpose, and includes,—
(i) XXX
(ii) XXX
(1) “tenant” means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract would be, payable, and includes:
(i) a sub-tenant;
(ii) any person continuing in possession after the termination of his tenancy;
(iii) XXX
……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………
6. Standard rent,—(1) Subject to the provisions of Sub-section (2), “standard rent”, “in relation to any premises, means—
(A) in the case of residential premises—
(1) where such premises have been let out at any time before the 2nd day of June, 1944,—
(a) XXX
(b) XXX
(2) where such premises have been let out at any time on or after the 2nd day of June 1944,—
(a) XXX
(b) XXX
(B) in the cases of premises other than residential premises—
(1) where the premises have been let out at any time before the 2nd day of June 1944,
(2) where the premises have been let out at any time on or after the 2nd day of June, 1944,—
(a) XXX
(i) XX
(ii) XX
(b) XXX
(2) Notwithstanding anything contained in Sub-section (1),—
(a) in the case of any premises residential or not, constructed on or after the 2nd day of Juue 1951, but before the 9th June, 1955,—
(b) in the case of any premises, whether residential or not. constructed on or after the 9th day of June 1955, including premises constructed after the commencement of this Act, but before the commencement of the Delhi Rent Control (Amendment) Act, 1988,—
……………………………………………………………………………………………………………………………………………
(c) XXX
(3) For the, purposes of the section residential premises include premises let out for the purposes of a public hospital, an educational institution, a public library, reading room or orphange.
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 any court or Controller in favour of the landlord against a tenant;
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one more of the following grounds only, namely—
(a) XX
(b) that the tenant has, on or after the 9th day of June, 1952, sub-let assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;
(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;
(d) that the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof;
(e) that the premises let for residential purposes are reouired bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation;
Explanation.—For the purposes of this clause “premises let for residential purposes” include any premises which having been let for use as a residence are without the content of the landlord, used incidentally for commercial or other purposes;
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(h) that the tenant has, whether or after the commencement of this Act, acquired vacant possession of, or been allotted, a residence;
(Before the Act came into force in 1958 there was a similar provision made in Section 13(1)(h) of the Delhi And Ajmer Rent Control Act, 1952 (38 of 1952), hereinafter referred to as the old Act. In Section 14(I)(h) of the New Act, the only change that was made was that the word ‘suitable’ before the word ‘residence’ was, omitted).
(i) that the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and that the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment;
(j) XXX
(k) XXX
(l) XXX
14-A. Right to recover immediate possession of premises to accure to certain persons.—
(I) Where a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required by, or in pursuance of, any general or special order made by that Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations, on the ground that he owns, in the Union Territory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order, to such landlord, notwithstanding anyihing contained elsewhere in this Act or in any other law for the time-being in force or any contract (whether express or implied), custom or usage to the contrary, a right to recover immediate possession of any premises let out by him;
Provided that X
21. Recovery of possession in case of tenancies for limited period:—
(1) Where a landlord does not require the whole or any part of any premises for a particular period, and the landlord, after obtaining the permission of the Controller in the prescribed manner, lets the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant does not, on the expiry of the said period, vacate such premises, than, notwithstanding anything contained in Section 14 or in any other law, the Controller may, on an application made to him in this behalf by the landlord within such time as may be prescribed, place the landlord in vacant possession of the premises or part thereof by evicting the tenant and every other person who may be in occupation of such premises.
(2) While making an order under Sub-section (1), the Controller may award to the landlord such damages for the use or occupation of the premises at such rates as he considers proper in the circumstances of the case for the period from the date of such order till the date of actual vacation by the tenant.
22. Special provision for recovery of possession in certain cases:—
Where the landlord in respect of any premises is any company or other body corporate or any local authority or any public institution and the premises are required for the use of employees of such landlord or in the case of a public institution, for the furtherance of its activities, then, notwithstanding anything contained in Section 14 or any other law, the Controller may, on application made to him in this behalf by such landlord, place the landlord in vacant possession of such premises by evicting the tenant and every other person who may be in occupation thereof, if the Controller is satisfied—
(a) that the tenant to whom such premises were let for use as a residence at a time when he was in the service or employment of the landlord, has ceased to be in such service or employment; or
(b) that the tenant has acted in contravention of the terms, express or implied, under which he was authorised to occuy such premises; or
(c) that any other person is in unauthorised occupation of such premises; or
(d) that the premises are required bona fide by the public institution for the furtherance of its activities.
Explanation.—For the purposes of this section, “public institution” includes any educational institution, library, hospital and charitable dispensary, but does not include any such institution set up by any private trust.
25. Vacant possession to landlord.—
“Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of such premises, the order shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons therefrom:
Provided that nothing in this section shall apply to any person who has an independent title to such premises”.
Tenancy has its origin in contract. A ‘Lease’ as defined by Section 105 of the Transfer of Property Act, 1882, is a transfer of ‘a right to enjoy’ immovable property. Possession of the property is necessary for the enjoyment of that right to constitute a lease. The definition of ‘tenant’ in Section 2(1) of the Act includes a person continuing in possession even after the termination of his tenancy. Sub-section (1) of Section 14 incorporates the rule of irremovability of a tenant. The proviso to this Sub-section relaxes this rule and enables the controller, on an application made to him in the prescribed manner, to make an order for the recovery of the premises on one or more of the grounds specified in clauses (a) to (1) only. These clauses specify the circumstances and the conditions on which only order can be made against a tenant for recovery of possession of any premises. This provision for protection against eviction from tenanted premises has been made in the Act in Delhi and by various other Rent Acts in different States because of scarcity of accommodation and gradual high rise in rents due to various factors which place the landlords in a position to exploit the situation for unjustified personal gains to the serious detriment of the usually helpless tenants. By virtue of statutory provision made in the Rent Acts in India, a status of irremovability and an estate in the premises is created and despite the determination of the tenancy by afflux of time limited by the lease or otherwise, the tenant retains an interest in the premises. At the same time, these Acts also seek to safeguard legitimate interests of the landlords and seek to preserve social harmony and promote social justice. Gian Devi v. Jeevan Kumar, AIR 1985 SC 796.
15. The word “premises” is defined in Section 2(i) of the Act. In Gopal Dass v. Dr. S.K Bhardwaj, A.I.R 1963 SC 337, Gajendragadkar, J. speaking for the Supreme Court, has clearly expressed an opinion that this definition refers to ‘three kinds of user” which are “residence, commerce and any other purpose which necessarily must include residence and commerce combined.” The first of the three kinds premises is described in the said definition as “any building or part of a building which is ………… let separately for use as a residence.” The same word, residence’ is used in Section 2(i), in clauses (d), (e), (h) and (i) of the proviso to Sub-section (1) of Section 14 as also in Section 21 of the Act. Some of these provisions have been the subject matter of interpretation in various cases decided by the Supreme Court and by this Court. Some of them are Gopal Dass (supra), Kartar Singh v. Chaman Lal, AIR 1969 SC 1288, Hari Shankar v. Musaddi Lal, 1970 RCR 782, Madan Lal v. Indira Devi, 1987 RCJ 713, J.R Vohra v. Indira Export House Pvt. Ltd, AIR 1985 SC 475. In all these cases the word ‘residence’ has been understood to indicate premises let for residential purpose or residential premises as distinguished from premises let for commercial use or for any other purpose. Apart from these judicial pronouncements, the legislature itself has referred to such premises in the same sense in the Act. For example, in Section 6 principles for determination of standard rent are prescribed in clause (A) for ‘residential premises’ and in clause (B) for ‘premises other than residential premises’, and Sub-section (3), for the purposes of this section, provides that ‘residential premises’ include premises let out for the purposes of a public hospital, an educational institution, a public library, reading room or an orphanage also. Then clause (e) of proviso to sub-section (i) of section 14 uses the expression ‘residential purposes”. The ‘Explanation’, for the purposes of this clause, expressly includes in the expression “premises let for residential purposes” any premises which having been let for use as ‘a residence’ are, without the consent of the landlord, used incidentally for commercial or other purposes. Section 14 A uses the expression ‘residential premises’ and residential accommodation’ in respect of premises let for use as ‘a residence’. The legislature has used the phrase ‘a residence’ and the word ‘residence’ or ‘residential’ in respect of premises obviously to suit the sintax and the context at different places in the Act.
16. The phrase ‘a residence’ has been used in relation to ‘premises’ clause (h) of the proviso to Sub-section (1) of Section 14 and it has to be understood in the same sense as above discussed. Viewed in this sense, it becomes clear that the ground for eviction mentioned in clause (h) applies only to premises which are let for use as ‘a residence’ or, in other words, to let for commercial use or for any other purpose.
17. According to Mr. Kapur, use of the phrase ‘a residence’ in clause (h) indicates requirement of actual residence as a condition for attracting his clause. He has urged that the question in issue is not one about possession or occupation through officers by the company but it is regarding residence of the tenant. This, in our view, is the real falacy in the case of the appellant. The vital question is whether use of the phrase ‘a residence’ in clause (h) indicates the kind of the premises to which this clause applies or it indicates the actual manner of use of the premises to attract the liability of eviction on this ground. There is a fundamental difference between these two concepts. For the reasons discussed above, the former and not the latter concept is the levy to the interpretation of this clause in the context of Section 14 and in its setting in the Act. In this view of the matter it is unnecessary to discuss the plea of Mr. Kapur that possession or occupation are not synonymous with residence and that the mere user of the premises by the company cannot give rise to an inference that the premises is the company's own residence; nor is it necessary to deal with Balmukund Khatry v. Hari Narain, AIR 1949 Patna 31, Globe Theatres Ltd. v. Abdul Gani, AIR 1956 Mysore 57, R.P Mehta v. I.A Sheth, AIR 1964 SC 1676, and Kanan Devan Hills Co. Ltd. v. Commr. of Wealth Tax, W.B, 67 I.T.R 823 cited by him to support this argument. It may, however, be relevant to refer to Mrs. G.V Shukla v. Prabhu Ram Sukhram Dass Ojha, (1963) 65 P.L.R 256. Mr. Kapur relied upon this decision to contend that there is no question of constructive residence so far as the Act is concerned, and the requirement is that there has to be actual residence. It is pertinent to point out that in this case the Punjab High Court was called upon to deal with only Section 13(1)(d) of Deihi and Ajmer Rent Control Act, 1952 which is identical to clause (d) of Section 14(1) of the Act. A reference to that clause shows that it applies (i) to premises let for use as a residence, and (ii) if neither the tenant nor any member of his family has been “residing” therein for a period of six months, Mahajan, J., while dealing with the second part of this clause observed: “The statute does not use the word ‘occupation’. The word used is ‘residing’ and ‘reside’ according to the ordinary dictionary meaning is to dwell or to live in. As I have already said, one cannot constructively reside in a premises. The requirement is that there has to be actual residence.” The word ‘residing’ is found in the second part of clause (d). It is not there in clause (h) with which we are concerned. The phrase ‘a residence’ in the first part of clause (d) is also found in clause (h). In both these clauses, this phrase denotes the kind of premises to which these clauses apply. The concept of actual residence cannot be read into clause(h), or into any other provision of the Act, much less on the basis of this judgement, as suggested by Mr. Kapur.
18. However, in Sobha Singh v. Vinod Kumar 1975 RCJ 276 a learned single judge of this court appears to have imported the English concept of dwelling house into clause (h) merely because the legislature has used the word ‘residence’ in this clause whereas “in other clauses of the proviso to Section 14(1) the legislature has consistently used the expression ‘premises’.” With respect, we disapprove of this observation of the learned single judge. As already discussed earlier, clause (h) has to be read in the context of the proviso to Section 14(1). The word ‘premises’ in the proviso has to be read in the light of the definition thereof in Section 2(i) which uses the words ‘a residence’. The same expression has been used in clause (h). It has to be construed in the same sense and for the same purpose, that is, to distinguish residential premises or premises let for residential purpose from commercial or other premises. As such, in the context of clause (h), the word ‘residence’ or the phrase ‘a residence’ cannot be qualified to mean actual residence or a dwelling place or abode of a person. This aspect does not appear to have been placed before the learned single judge in Sobha Singh v. Vinod Kumar (supra). In any event, the question of applicability of clause (h) to a company was not involved in that case and we do not accept the suggestion of Mr. Kapur that the above mentioned observation was made to restrict the applicability of the said clause only to tenancy of a dwelling house.
19. Unlike the position in England, some of the provisions made in the Act postulate protection from eviction when residential premises are in actual possession of some person (s) other than the tenant himself to whom the premises are let. For instance, definition of a tenant includes some of the heirs of a deceased tenant, despite termination of his tenancy during his life time. Clause (d) of the proviso to Sub-section (1) of Section 14 is attracted ed only if neither the tenant nor any member of his family has been residing therein for a period of six months. Thus, it is clear that protection under the Act is much wider than that envisaged under the law in England.
20. In India, the Act applies to residential premises let out to a company also. Although the word “residence” in its strict sense, by itself, is inappropriate with regard to a company yet, for purposes of the Act, there is nothing inappropriate in a company entering into a lease in respect of premises let for use as a residence. Indeed, the appellant company did take the demised premises for residential purposes only, and it is fighting the present appeal to protect the possession of these very premises. In the context of clause (h), the use of the phrase ‘a residence’ does not appear to us to be a cogent reason for holding that this clause does not apply to a company.
21. Clause (h) manifests intention of the legislature to forfeit statutory protection in respect of premises let for use as a residence if the tenant has built, acquired vacant possession of, or been allotted another property of the same kind. The object of a clause like this is to restrict statutory protection to the tenancy of only one residential premises. This is clear from Shyam Sunder v. Khan Chand (1966) 2 D.L.T 223, Kali Kumar Sen v. Makhan Lal Biswas AIR 1969 Assam 66 (FB), Avinash Kaur v. Dr. Beli Ram, 1970 RCJ 995, and Ganpat Ram v. Smt. Gayatri Devi, AIR 1987 SC 2016. This provision has been made in view of paucity of residential premises in Delhi. As a policy it is intended to safeguard the legitimate interests of the landlord as also to cater to requirement of those persons in society who do not have even a place to live in and need residential accommodation on reasonable rent in Delhi. This purpose would be frustrated if the argument of Ms. Kapur were to be accepted.
22. Further, the question whether a tenant actually uses, misuses or does not use the premises as a residence may arise when recovery of possession of residential premises is sought under clause (c) or clause (d) of the proviso to Sub-section (1) of Section 14. This question is not relevant for the purpose of clause (h) However, one or more grounds specified in the proviso may apply to the facts of a given case and in some case grounds (c), (d) and (h) together may be attracted; but it is incorrect to say that clause (h) would apply only to premises actually used as a residence by a tenant.
23. The test of actual use as a residence, in respect of the premises from which eviction is sought or in respect of the acquired property, as suggested by Mr. Kapur, would lead to absurd results. For example, a tenant could vacate the hired premises or lock it and shift to the acquired place and contend that the premises let out to him are not in his actual use as a residence and, therefore, he cannot be evicted under clause (h). Similarly, applying the test to the acquired properly, even after acquiring vacant possession, the tenant may keep it locked or may use it for some other residential purpose (not as his actual residence), then also clause (h) would not apply. Such pleas could be raised by not only a company but also by a living being to whom residential premises are let out.
24. In Shyam Sunder v. Khem Chand (supra) clause (h) has been held to apply even to a case where a tenant genuinely needed the premises along with additional residential accommodation to cater to the growing need of his family. In that case, despite the acquired vacant possession of the additional accommodation being needed and in fact used as residence for the members of the family of the tenant, H.R Khanna, J. speaking for this court, rejected the argument that clause (h) was not attracted. It was held that the tenant should not have more than one premises for his residence; that it is for the tenant, when he takes a new place for his residence, to sec that it is sufficient for his needs; that having taken the vacant possession of new premises, he cannot refuse to vacate the earlier tenanted premises on the plea that the demised premises are not sufficient for his residence. It was held that the landlord was entitled to recovery of possession of the demised premises from the tenant under clause (h).
25. Likewise, the intention of the tenant to shift to the acquired, built or allotted place is immaterial. In Shrinivas v. Chandanben, AIR 1973 Gujarat 182, while dealing with a similar provision in the Bombay Rents Hotel and Lodging Houses Control Act 1947, it was observed that it is the decision of the court as regards the happening of the event contemplated in such a case which is determinative of the matter and not the intention of the tenant in bringing about the happening of that event. It was also pointed out that to import intention of the tenant as a necessary ingredient of such a clause would virtually leave the landlord to the vagaries of a tenant who having acquired vacant possession of a residence, would say that he had no intention to go to reside there. It has been apply pointed out in this case that the intention of the legislature in enacting such a provision is to see that residential premises are made available to those who are in actual need of them than those who acquire vacant possession of other residential premises.
26. Now, for the purpose of clause (h) it is not even relevant whether the acquired property is suitable substitute for the premises let for use as a residence. In the old act 38 of 1952 there used to be the word ‘suitable’ before the word ‘residence’. That word was omitted when the Act came into force in 1958.
27. In our opinion, intention of the tenant or his unilateral act to use or not to use the demised premises or the acquired property, or the later being a suitable alternative to or a substitute for the former, are not relevant factors to determine the applicability of clause (h). This clause is attracted to premises let for use as ‘a residence’, if the tenant has acquired vacant possession of ‘a residence’. The phrase ‘a residence’ has to be understood in the same sense in which it is used in the definition of ‘premises’, that is, to distinguish residential premises from the other two kinds of premises. In view of the difference in the concept of protected tenancy in English and in India, particularly in the Act with which we are concerned, it cannot be said that the ‘domestic’ or personal quality of ‘actual’ residence or a dwelling house noted in the English decisions is equally a feature of the phrase ‘a residence’ in clause (h).
28. The demised premises have been let for use “for residential purposes only”. The appellant has been using the premises ‘as a Guest House”. Thus, according to the appellant, it is using the demised premises for residential purposes in conformity with the terms of the lease. In this sense, it is apparent that a company can enjoy possession of residential premises even without actually using such premises in the strict sense as a residence. Likewise, it is possible for any natural person or persons, individually or collectively, as a Firm or as an Association, to use any premises for residential purposes without actually residing in the premises in the personal and physical sense. Mr. Kapur admits that residential premises let out to one or more natural persons (s) will be governed by clause (h) and it would not matter whether such a tenant is actually residing in the premises or not. Indeed, every such ‘premises’ and every such ‘tenant’ is equally and similarly governed by the various provisions like Section 2(i), Section 6, Section 14(1) proviso (b), (c), (d), (c), Section 21 and Section 25 of the Act. That being so, we are unable to appreciate why a juristic entity would stand on a different footing for the purpose of only clause (h) of the proviso of Sub-section (1) of Section 14 of the Act.
29. In our view, for the purposes of clause (h) it really makes no difference whether the demised premises or the acquired property is used by the tenant as actual residence or whether the tenant uses the premises for any other residential purpose or does not at all use either or both of them; nor does it make any difference whether the tenant is a juristic or a natural person. Sub-classification of a ‘tenant’ by differentiating between a natural and a juristic person, has no nexus with the object of the Act. Such a mini-classification is untenable in the context of clause (h) of the proviso to subsection (1) of section 14. This clause has to be read in the light of the definition of the word ‘premises’ in Section 2(i) of the Act. There is nothing repugnant in the subject or context of the Act which should prevent the inclusion of a company within clause (h). It is indeed essential to include a company which is generally more resourceful than a natural person, within clause (h) to effectively restrict protection under this clause to possession of only one residential premises and that too till the tenant has acqired vacant possession of, or been allotted another residential accommodation in Delhi. Otherwise, the object and the purpose of this clause would be defeated as a company could easily afford to take on rent any number of residential premises and thus deprive the really needy persons of a residence in Delhi.
30. The appellant has, admittedly acquired vacant possession of a residential house in Green Park. In ground (vii) of the Memorandum of Appeal, it is admitted that the demised premises and the acquired property “were used and intended to be used'’ for the same purpose which is stated in the said ground to be “for housing staff members”. In these circumstances, there can be no doubt that the appellant has ‘domain’ over the acquired property which the appellant can alternatively use as a substitute for the demised premises. The condition envisaged in B.R Mehta v. Atma Devi, AIR 1987 SC 2220 to attract clause (h) is satisfied in the present case.
31. So far as the officers of the company are concerned, Section 25 expressly provides that in case any order is made by the Controller for the recovery of possession of any premises, the order shall “be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons therefrom.” This provision applies to all persons who may be in occupation, which necessarily includes a care-taker, an agent, a manager, an officer, or a servant etc, who have no independent title to such premises.
32. The last plea of Mr. Kapur that the factual defence of the appellant, based upon an understanding that at no stage the landlord will seek eviction of appellant on any ground so long as the loan remains unadjusted, raises issues of fact which ought to be decided after trial, has also to be rejected. The learned Additional Controller and the Tribunal found no substance in this plea. This finding has not even been challenged in the grounds of appeal. In any event, this plea cannot be sustained in view of the opening words of Sub-section (1) of Section 14 which expressly override any agreement between the parties. In the face of this non-obstante provision, the appellant cannot claim trial or evade eviction, on the basis of the alleged understanding or agreement, if any, between the parties.
33. For the reasons above stated, it is found: (1) that the phrase ‘a residence’ used in clause (h) of the proviso to Sub-section (1) of Section 14 has to be read in the same sense in which it is used in Section 2(i) of the Act, that is, to indicate residential premises, and to distinguish the same from the other two kinds of premises; (2) that the English concept of ‘residence’, in the actual, personal, physical and domestic sense of dwelling, does not fit into the scheme of the various provisions made in the Act to control rents and evictions in Delhi, nor does it serve the object and purpose of the said clause (h) in the context of Section 14(1) of the Act; (3) that a limited company, just like any natural person (s), can enjoy possession of any premises let for use as ‘a residence'; it can be a ‘tenant’ in respect of such premises, and it is entitled to protection and is also liable to eviction under Section 14 of the Act; and (4) that there is nothing in the context of the said clause (h) to justify exclusion of a company from its ambit and any such interpretation would really undermine the object of this provision and upset the scheme of the Act. Therefore, we hold that Section 14(1) proviso (h) of the Act applies to all residential premises irrespective of whether such premisse are let to a company or to a natural person as a tenant.
34. Consequently, we uphold the order of the Tribunal and dismiss, the appeal with costs throughout.