B.K.Khanna v. M.R.Batra

A.N. Grover, J.-

(2nd March 1966).-This appeal has arisen out of an application filed by the landlord who is practicing as an Advocate of the Supreme Court against the tenant for ejectment on the grounds that he had failed to pay arrears of rein since 1st June, 1959 in spite of service of notice of demand and that the existing accommodation was not reasonably suitable for his residence and that he required the premises in dispute which consist of three rooms on the first floor of a house at Shanker Road for the residence of himself and his family. The arrears of rent having been paid by the tenant in accordance with the provisions of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter called the Act), the only ground which remained available to the landlord was the second one which has been found against him by the Rent Controller as also the Rent Control Tribunal.

2. Mr. Bhagwat Dayal, learned counsel for the appellant, has given a resume of the facts which have not been disputed. The appellant, who was a displaced person, applied for allotment of Government accommodation in the year 1952.1953. in April 1953 he deposited a sum of Rs 16,500 for purchasing the house in question. On 14th January 1954 the Government sanctioned the sale in his favour. On 18th February 1954 the Housing and Rent Officer, Delhi directed the Circle Officer, Patel Nagar, New Delhi to hand over the possession of the house to the appellant (Exhibit p. 8). On 1st August 1958 the appellant let out the premises in dispute comprising three rooms kitchen, bath-room etc. On the first-floor to the respondent at a monthly rental of Rs. 130. The formal deed of conveyance as also the-lease deed were executed by the Chief Commissioner of Delhi in favour of the appellant on 14th April 1960. On 28th July, 1960 the appellant filed an application under Section 14 of the Act. It was stated inter alia in this application that the applicant had started practicing as an Advocate and. he also Wanted to write books since he had been doing so before. The ground-floor was wholly' inadequate for his needs for purposes of residence and office. He had a large family and his wife and one of his sons were residing permanently with him but he had five children and ten grand-children who come to pay visits to him and when any of them was transferred to Delhi he had to live with him and, therefore, the accommodation in his possession was wholly inadequate. The respondent pleaded the bar of Section 14(6) to the maintainability of the application. According to that revision, where a landlord had acquired any premises by transfer, no application for the recovery of possession of such premises shall lie under Sub-section (1) on the ground specified in clause (e) of the proviso thereto, unless a period 01 live years has elapsed from the date of the acquisition. he Rent Controller upheld the objection of the respondent that since the appellant acquired ownership of the suit-premises by means of the conveyance deed (Exhibit P. 4) dated 14th April 1960 he was debarred from see- king eviction under clause (e) of the proviso to Section 14(1). The Rent Controller was further of the opinion that the accommodation in the possession of the appellant could not be considered to be inadequate because he had two residential rooms available to him on the first-floor and that the only dependent members of his family residing with him were his wife and his son, aged 20, and that lie had been using the three rooms on the ground floor for his residence since 1957.

3. The Rent Control Tribunal, after referring to the documents produced by the appellant in the matter of acquisition of the property in dispute, said that there was no evidence to show as to when the sale had been sanctioned in his favour. According to it, the sale must be deemed to have been made in his favour on 14th April 1960 when the lease deed and the sale deed were executed. He agreed with the Rent Controller's view that the appellant was debarred under Section 14(6) from filing an application for ejectment under clause (e) of the proviso to Section 14(1) for a period of five years. On the other point of the bona fide requirement of the landlord the Rent Control Tribunal held that since the appellant intended to convert the existing residential accommodation in his possession into an office and library for the use of his clerk and clients, such a user was not permissible in law. In other words, if he wanted to start his practice in the premises in his possession wherein he resided, he could not get the premises in dispute vacated under the provision of clause (e) of the proviso to Section 14(1). The interpretation of the aforesaid provision by the Rent Control Tribunal may be reproduced in its own words:

“According to this clause (e) a landlord can get the premises vacated for residential purposes only if the existing accommodation for residence in his possession is not reasonably suitable. A landlord cannot obtain an ejectment order under this clause (e) if he wants to change the user of his residential premises for some other purpose”.

Mr. Bhagwat Dayal has assailed the view of the Rent Control Tribunal with regard to the interpretation of Section 14(6) and clause (e) of the proviso to Section 14(1) and the contentions that have been urged by both sides with regard to their scope and ambit do, in my opinion, raise substantial questions of law which can be examined by this Court in an appeal under Section 39 of the Act.

4. In V. N. Sarin v. Major Ajit Kumar Poplai, (1966) 68 PLR 164 D. Civil Appeal No. 468 of 1965 decided by the Supreme Court on 9th August 1965), the scope and ambit of Section 14(6) came up for consideration. In that case the question was whether partition of the coparcenary property among the coparceners could be said to b “acquisition by transfer” within the meaning of Section 14(6). The High Court had held that partition could not be regarded to be transfer within the meaning of the said Section. After referring to the history of the enactment, namely, the Act and Section 14(i) and Section 14(6), Gajendragadkar C. J., who delivered the judgment of the Court, examined the policy underlying the Section and the object intended to be achieved by it. It has been observed by him that the object which this provision is intended to achieve is to prevent transfers by landlords as a device to enable the purchasers to evict the tenants from the premises let out to hem. If a landlord was unable to make out a case for evicting his tenant under clause (e) of the proviso to Section 14(1) it was not unlikely that he may think of transferring the premises to a purchaser who would be able to make out such a case on his own behalf; and the legislature thought that if such a course was allowed to be adopted it would defeat the purpose of Section 14(1). After referring to the arguments of Mr. Purshottam that partition was “transfer” within the meaning of Section 14(6) and noticing the body of opininion in favour and against that contention, the learned Chief Justice said-

“In dealing with the present appeal, we propose to confine our decision to the narrow question which arises before us and that relates to the construction of Section 14(6). What Section 14(6) provides is that the purchaser should acquire the premises by transfer and that necessarily assumes that the title to the property which the purchaser acquires by transfer did not vest in him prior to such transfer. Having regard to the object intended to be achieved by this provision, we are not inclined to hold that a person who acquired property by partition can fail within the scope of its provision even thought the property which he acquired by partition did in a sense belong to him before such transfer. Where a property belongs to an undivided Hindu family and on partition it falls to the share of one of the copartners of the family, there is no doubt a change of the landlord of the said premises, but the said change is not of the same character as the change which is effected by transfer of premises to which Section 14(6) refers. In regard to cases falling under Section 14(6), a person who had no title to the premises and in that sense, was a stranger becomes a landlord by virtue of the transfer. In regard to a partition, the position is entirely different. When the appellant was inducted into the premises, the premises belonged to the undivided Hindu family consisting of respondent No. 1, his father and his brother. After partition, instead of the undivided Hindu family, respondent No. 1 alone had become landlord of the premises. We are satisfied that it would be unreasonable to hold that allotment of one parcel of property belonging to an undivided Hindu family to an individual coparcener as a result of partition is an acquisition of the said property by transfer by the said coparcener within the meaning of Section 14(6). In our opinion, the High Court was rig it in coming to the conclusion that Section 14(6) did not create a bar against the institution of the application by respondent No. 1 for evicting the appellant “

5. Mr. Bhagwat Dayal contends that the above observation can be applied appositely to the facts of the present case. It is pointed out by him that the Rent Control Tribunal was wrong in saying that there was no evidence to show as to when the sale was sanctioned in favour of the appellant inasmuch as in Exhibit P. 4 it is clearly mentioned that the Government of India had sanctioned the sale of the building to the purchaser by means of a letter dated 14th January 1954 According to him, it is further proved in it the appellant was in possession of the entire house of which the premise-, in dispute formed a part since 1954 and that he had even made certain additional constructions and alterations in the house. He was exercising all the incidents of an owner and he had let out the premises in dispute to the respondent in August 1958 and had become his landlord within the meaning of clause (e) of Section 2 of the Act. Even if the formal documents relating to sale etc. were not executed in favour of the appellant until April 1960 it could not be said that the formal transfer by means of the deed of conveyance was intended as a device to enable the appellant to evict the respondent, the prevention of which was regarded by their Lordships as the underlying policy and object of Section 14(6). Mr. Bhagwat Dayal urges that the position of the appellant was in no way worse and was indeed better than that of the member of an undivided Hindu family who on partition gets the property from which he seeks to evict the tenant. He says that in the present case there is not even a change of the landlord and at any rate, it cannot be said that such a change is effected by transfer of premises of the nature contemplated by Section 14(6). Now, it is significant that in the case decided by their Lordships he final view was expressed on the question whether partition of undivided Hindu family property was tantamount to transfer of property as understood in the Transfer of property Act or the Indian Registration Act. What their Lordships considered was the meaning of the word “transfer” as used in Section 14(6) and it is obvious that they did not equate the same with the connotation of that expression as applied in other branches of the law. The test which was laid appears to be that in regard to cases falling under Section 14(6) a person who had no title to the premises and in that sense was a stranger becomes a landlord by virtue of the transfer. That test was not satisfied in the ease decided by their Lordships nor can it be said to be satisfied in the present case. In fact, Mr. Bhagwat Dayal appears to be right in maintaining that the present case on its own facts is a stronger one for taking it out of the applicability of Section 14(6) according to the ratio of the decision in V. N. Sarin's case.

6. Mr. Bhagwat Dayal has also attempted to illustrate the background of the legislation of the type embodied in Section 14(6) by referring to two English decisions, viz., Epps. v. Rothnie, (1946) 1 All. ER 146 and Ember son v. Robinson, (1953) 2 All. ER 755. In the first case the provision of paragraph (h) of Schedule I to the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933 came up for consideration, according to which the Court had the power to make an order for the recovery of possession of the dwelling-house was reasonably required by the landlord (not being a landlord who had become landlord by purchasing the dwelling-house). Scoot L.J. delivering the judgment of the Court of Appeal observed that the object of the aforesaid provision was to protect a sitting tenant from having his house bought over his head and it had no application to a case where an unoccupied house was purchased after the statutory date and the owner thereafter let it. In the second case the plaintiff had entered into a contract with the vendors for the sale of a dwelling-house to which the Rent and Mortgage Interest Restrictions is (Amendment) Act, 1933, applied, and paid a deposit thereon. The contract provided that vacant possession of the premises should be given on payment of the balance of the purchase price and completion of the purchase. The plaintiff was called up for military service in August 1939. In November 1939 the vendors let the premises to the defendant. There was no completion until September 1945 when vendors confirmed the amount of the purchase price and the payment of the deposit and informed the plaintiff of the letting to, the defendant. The plaintiff then paid the balance of the purchase money and the transfer was completed. In an action by the plaintiff for possession of the premises the defendant contended that the plaintiff was a landlord who had become landlord by purchasing the dwelling house after 1st September 1939 within the meaning of para (h) of schedule I to which reference has already been made while discussing the previous case. It was held by the Court of Appeal that the completion which took place in September 1945 was a completion of the original contract, the plaintiff having waived his right under the original contract to demand vacant possession and tint the plaintiff became landlord when the contract of sale was signed in June 1939 and so he was not a landlord who had become landlord by purchasing the house after 1st September 1939.

According to Mr. Bhagwat Dayal, the decision of their Lordships in V.N. Sarin's case1 accepts and incorporates the view which prevailed with the English Courts and the object of Section 14(6) was to prevent a landlord by purchase or act of transfer from seeking recovery of possession on the ground of personal requirement. Even though the language employed in the English statute was different from the one employed in Section 14(6) but since that object and policy underlying Section 14(6) as elucidated by their Lordships appear to be the same it is not possible to agree with the contention of the learned counsel for the respondent that the language employed by Section 14(6) would make any difference. Moreover, a closer examination of the language of Section 14(6) itself shows that a person must become a landlord by acquisition of premises by transfer before this Sub-section would be attracted. It cannot be said that the appellant became a landlord by acquiring the premises by transfer. He was a landlord before the formal transfer was effected in his favour by the Government. Thus from whatever point of view the matter is looked at particularly in the light of the observations made in V.N. Sarin's case, there is no escape from the conclusion that Section 14(6) cannot stand in the way of the appellant for asking for recovery of possession of the premises in dispute under clause (e) of the proviso to Section 14(1),

7. On the second point the submission of Mr. Bhagwat Dayal is that the Rent Control Tribunal did not correctly understand the true scope and ambit of clause (e) of the proviso to Section 14(1). According to him, it is wholly immaterial that the landlord wishes to use the accommodation in his occupation in which he had hitherto been residing for professional and business purposes also. It is perfectly legitimate for him to do so and it has to be seen whether on his decision to start some profession or business sufficient or adequate accommodation would be left for residential purposes. Reliance has been placed on the decision of Falshaw C.J. in Gurcharan Smgh v. Mukanil Singh, CR No. 229-D 1959. (Civil Revision No. 229-D of 1959 decided on 1st February If 2). There, the round on which eviction was opposed by the tenant was that the landlord, a retired Government servant, who on his retirement required some additional income had sometime before the suit was instituted in 1967 converted part of the residential accommodation in his possession on the ground-floor in to four shops which he had leased to tenants It was contended that in these circumstances the requirement of the landlord was not bona fide. This contention was repelled by the observation that the word “bona fide” merely meant that the landlord must really want the premises in dispute for his own accommodation and that he was not pulling forward the claim for some ulterior purpose. The learned Chief Justice upheld the decision of the Courts below that at the time of the suit the landlord's requirement was bona fide. In Chattar Singh v. Messrs Jamboo Parshad, (1965) 67 PLR 87 an argument was raised before a Division Bench of this Court that if the owner of residential property was allowed to convert it into business promises and then allowed to claim that he had no sufficient residential accommodation for his personal residence, the very object of the East Punjab Urban Rent Restriction Act, 1949, would be defeated. Jindra Lal J. delivering the judgment of the Bench said that the provisions of Section 13 of that Act had to be read in conjunction with other provisions and in view of Section 13(3)(b) the Controller must be satisfied that the claim of the landlord was bona fide and if the Controller was not so satisfied, he would make an order rejecting the application. That was a salutary provision and in a given case if the Controller came to the conclusion that the claim of the landlord was not bona fide he could reject the application. It was held by the Bench that it was not competent for a Rent Controller not to order the eviction of tenants merely because the landlord had another building in his own occupation which bona fide being used by him for non-residential purposes resulting in his need for residential building. It could not be the intention of the statutory provisions to deprive a landlord of the legitimate use of his own building in the hands of the tenants and the rights of the tenants were sufficiently protected by the Act. Mr. Bhagwat Dayal has stressed the test, which the Courts have to follow in such cases, that the claim of the landlord must be bona fide and once it is found that this is so, ii is wholly immaterial whether he is using or has started using some other building or part of the same building for non-residential purposes resulting in his need for accommodation for personal residence. It seems to me that the Rent Control Tribunal was clearly in error in thinking that merely because the appellant wanted to use the accommodation in his possession for professional purposes he could “not claim the benefit of the provisions contained in clause (1) of the proviso (e) to Section 14(1) of the Act. It was this error which led to the conclusion at which the Rent Control Tribunal arrived upholding the decision of the Controller on the second point, namely, the requirement of the appellant on personal grounds. I cannot, therefore, accede to the submission of the learned counsel for the respondent that the finding of the Rent Control Tribunal with regard to personal need or requirement was one of fact and thus immune from challenge in second appeal.

8. It has been urged with a good deal of vehemence on behalf of the respondent and an affidavit has been sought to be placed on the record in that behalf that the wife of the appellant has since died and his sea Has finished his studies and he is married and is in service and is not residing with the appellant. The appellant admits that his wife has since died and his son is no longer residing with him but the reason which he gives is that he had to arrange for ms sons residence else where because of the scarcity of accommodation in his occupation. The appellant says that be is now fairly advanced in age and he does not wish to live alone and he wants his son along with his wife to live with him in the house which is his property. In this view of the matter the affidavit which has been filed by toe respondent can hardly be of much avail to him in the matter of deciding the genuine need of the appellant.

9. It has next been pointed out that according to the statement of the appellant he required one room for his library, two rooms for his staff, one room for his office and one room for the clients on toe ground floor and he intended to shift his residence to the first-floor. A look at toe plan (Exhibit P. 1), which has been filed, would show and it is not disputed that the two rooms on the first-floor which are not comprised in the tenancy premises do not have any separate bath or water closet and according to the appellant it is not possible for him to make use of these rooms for the residence either of himself or his married son who witness to stay with him. The rooms on the ground floor are three in front and one at the back and if the appellant has to use one room for his library, one for his staff, namely, the clerk and the stenographer, and one for himself, he will be left only with a small room for his son and daughter-in-law and for his daughters and grand-children who, he says, frequently come and stay with him. It has been suggested on behalf of the respondent that the two upper rooms can be used by the appellant for his clerk and stenographer, but then according to the appellant it would be most inconvenient for him to have his staff on the first-floor when his library etc. and the working office would be on the ground-floor. A good deal of emphasis has been laid on the statement of the appellant that he had not so far employed any stenographer or clerk but the explanation given on his behalf by his counsel is that he aid not have sufficient accommodation and, therefore, he had not employed them but that he fully intended to do so particularly which he wanted to devote a certain part of his time to writing books which he had been doing in the past. It is true that the difficulty in respect of, and paucity of, accommodation has to be taken into consideration qua the tenant also but if the landlord satisfies the requirement of clause (e) of the proviso to Section 14(1), it is not possible to see how the Rent Controller could decline to make an order for recovery of possession against the tenant. It is urged by the learned counsel for the respondent that the language employed therein is that the accommodation must be required for himself or for any member of his family dependent on him. It is said that the word “dependent” can mean only a person who depends for his livelihood on the landlord and who has no independent source of income. Although a good deal can be said against accepting such an interpretation of the word “dependent” it seems to me that in matters of the present kind the real emphasis has to be placed on the words “required bona fide” in Clause (e) of the provise to Section 14(1). If the appellant wishes to practise as an advocate and for that purpose has utilised a good deal of accommodation on the ground-floor for the purposes of office and for his clerk, stenographer etc., the sole question that call for determination is whether he requires bona fide the premises in dispute. In Shrimati Subhadran Devi v. Sunder Dass, (1964) 66 PLR 1214. Dua J. has said that the word ''requires” in the context of Section 13 of the East Punjab Urban Rent Restriction Act appears connote something less than absolute necessity considered in the limited back ground of the legal obligations of landlord. It does not mean mere wish and may be intended to contain, as has sometimes been described “to a certain extent an element of need”, but it scarcely would be correct to say that where accommodation in possession of the owner is somewhat inadequate for his requirements, he is debarred from making himself more comfortable in the premises owned by him, if he can show that he has a bona fide intention of occupying it. If a landlord is not seeking eviction on the false pretence of requiring additional accommodation with some collateral or oblique motive or for achieving some other ulterior purpose, his claim deserves to be upheld as bona fide. He has further observed that the law does not require the landlord to sacrifice his own comforts and requirements by way of personally using the premises merely because they are in the possession of a tenant. The Punjab Act does not aim at restricting or curtailing the landlord's requirements for personal use, if the claim is genuine and honest. The social customs, conventions and habits, usage's and practices of the society and other similar considerations also cannot be completely ignored. The learned Judge did not approve of the legalistic view which the appellate authority had taken in that case that if the married daughter or her children frequently come to stay with her widowed mother because of her old age, that factor could not be taken into account for considering the bona fide requirement of the owners.

10. The learned counsel for the respondent has not been able to show why the above view should not be followed. That view is based on principles which have consistently been accepted in this Court for a number of years, for instance, in Gauri Shanker v. Pribhu Daya, [Civil Revision No. 177-D of 1954 decided by G.D. Khosla J. (as he then was) on 26th April 1954] it was held that a landlord could not be debarred from making himself more comfortable in premises owned by him if he had a bona fide intention of occupying them. In that case since there was nothing whatever to show that the main object of the suit was to oust the petitioner and it was found that the plaintiff wanted to live in the premises himself, it was held that the conditions required by Section 9 of the Delhi and Ajmer-Merwara Rent Control Act, 1947 had been fulfilled and that the plaintiff was entitled to a decree for ejectment. In the latest pronouncement of a Division Bench of this Court in Roop Lal Mehra v. Shrimati Kamla Soni, (1966) 2 DLT 205 (DB) (1966) 68 PLR 146-D most of the tests mentioned above have been accepted and it has been Said with reference to Section 14(1)(e) that it is not intended to deprive a landlord of his bona fide desire, so long as that desire is confined within reasonable limits, judged from a practical and not fanciful point of view, to be more comfortable by occupying his own house. It is objective in the sense that the authorities under the Act have not been rendered powerless to pronounce dissatisfaction with the bona fides of the landlord's claim, provided they judge it from the point of view of the landlord. The law does not require a landlord to sacrifice his own comforts and requirements merely on the ground that the premises are with a tenant. Whether or not the alternate accommodation available to the landlord is suitable or not, must, therefore, be decided taking into account all relevant circumstances but the authorities must decide that matter in a broad common sense way. Keeping in view the entire facts and circumstances of the present case and in particular the absence of any such suggestion or allegation that the appellant is actuated by any ulterior motives in asking for the eviction of the respondent, I am satisfied that the premises in dispute are required bona fide by the appellant for occupation as a residence for himself and that he has no other reasonable residential accommodation.

11. Lastly mention may be made of on objection to the maintainability of the appeal on the ground of limitation. In view of the affidavit of the appellant as also of Mr. R. S. Narula (now on the Bench of this Court) through whom the appeal had originally been filed, the appeal must be held to be within time and at any rate, in view of what has been stated in those affidavits the delay, if any, is hereby condoned.

12. For all the reasons given above, this appeal is allowed and the orders of the Rent Controller and the Rent Control Tribunal are hereby jet aside and an order is made for the ejectment of the respondent from the premises in dispute. Keeping in view the nature of the points involved there will be no order as to costs.

Appeal allowed.