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Attorney(S)
  • B.C Misra, Advocate,
  • Raj Kishan, Advocate,
Judges
  • Hans Raj Khanna, J.
Acts
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Attorney(S)
  • B.C Misra, Advocate,
  • Raj Kishan, Advocate,
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  • Hans Raj Khanna, J.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This is a second appeal under section 39 of the Delhi Rent Control Act (No. 59 of 1958) brought by the appellant, Sham Sunder, against an order of the Rent Control Tribunal, Delhi. The Tribunal had affirmed the Controller's order directing the ejectment of the appellant from certain premises in Basti Harphul Singh, Delhi, in favour of the respondent, Khan Chand.

The premises in dispute comprised one room, a tin shed, a store and a terrace, occupied by the appellant as tenant at a monthly rent of Rs. 8. The respondent applied for ejectment under section 14 of the Act, relying on the proviso to sub-section (1) of section 14, clause (h), which permits recovery of tenanted premises where "the tenant has, whether before or after the commencement of the Act, built, acquired vacant possession of, or been allotted, a residence."

The appellant resisted the application, denying that he had acquired vacant possession of a separate residence at Kishan Ganj. He stated that he and extended family members (including his brother and widowed mother) had been displaced persons occupying the suit premises since 1948, and that family growth necessitated taking an additional small "barsati" at 9, Kishan Ganj. A Local Commissioner (Shri K. L. Sawhney) inspected the Kishan Ganj premises and reported that the appellant was in possession of a living room, bathroom, kitchen, latrine and an open space — findings treated by the Controller as constituting a complete set of residence. The Controller ordered ejectment; that order was affirmed by the Tribunal, and this appeal followed.

Legal Issues Presented

  1. Whether clause (h) of the proviso to sub-section (1) of section 14 of the Act is attracted where a tenant has "acquired vacant possession" of another place of residence by taking it on rent (rather than by purchase).
  2. Whether the tenant's taking of additional rented accommodation because of family expansion (and continuing occupation of both places) negates the requirement to vacate the earlier tenanted premises.
  3. Whether the subsequent vacation of the newly taken premises during the pendency of ejectment proceedings removes the tenant's liability to be ejected.

Arguments of the Parties

Appellant's Arguments (as advanced by Mr. Misra)

  • The appellant rented the Kishan Ganj premises only because family expansion (brother's marriage and births) made the original one-room premises insufficient; the whole extended family occupied both places together, so taking additional accommodation did not amount to "acquiring vacant possession" as contemplated by the statute.
  • The Kishan Ganj premises were not sufficiently spacious to accommodate both families, and therefore were not "suitable" or adequate, so the ground for ejectment should not arise.
  • During the pendency of the ejectment proceedings the appellant vacated the Kishan Ganj premises; this, it was contended, ought to defeat the application for ejectment because the ground for ejectment had ceased to exist.
  • The word "acquired" in clause (h) should be read to mean an acquisition on a permanent basis (e.g., purchase), and not the temporary acquisition of a rented residence; therefore clause (h) should not be attracted by taking a place on rent.

Respondent / Authority Position

  • The respondent sought ejectment under section 14 (clause (h) of the proviso) on the ground that the appellant had acquired vacant possession of a residence at 9, Kishan Ganj. The Controller (on the basis of the Local Commissioner's inspection) and the Tribunal accepted that finding and ordered/affirmed ejectment.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Maharaj Jagat Bahadur Singh v. Badri Parshad Seth (1965) 67 PLR 452 That where the ground for ejectment (e.g., need for repairs) ceases during proceedings, the Controller should take that fact into account; i.e., changed circumstances may remove the basis for ejectment. The Court distinguished this case as not being on all fours with the present matter: in Maharaj Jagat Bahadur Singh the ground for ejectment disappeared by reason of repairs having been completed, whereas in the present case the tenant's liability to eject arose from his having acquired vacant possession of another residence.
Messrs Gulab Rai Kishori Lal v. Shri Banarsidas Chandiwala Sewa Smarak Trust, Delhi (1964) 66 PLR 731 That when a landlord's bona fide requirement is the ground for ejectment, subsequent events (transfers, negotiations) may be relevant to test bona fides. The Court found this authority distinguishable because the present ejectment was not founded on the landlord's changed requirement but on the tenant's acquisition of another residential possession.
Naurang Lal v. Suresh Kumar (1964) 66 PLR 505 Principle that where a tenant becomes liable to ejectment due to his act/omission (e.g., wrongful subletting), subsequent rectification (e.g., eviction of subtenant) does not necessarily cure the tenant's liability unless statute provides relief. The Court invoked the distinction in such cases to explain that when liability arises from the tenant's own act (acquiring another residence), later remedial steps (vacating the new premises) do not undo the liability to ejectment.
Des Raj Goyal v. Satya Parkash Gupta, SAO No. 217 of 1964 (decided 26 Oct 1964) Support for the view that "acquired vacant possession" can include taking premises on rent (i.e., vacant possession is not limited to ownership). The Court relied on the view expressed by Jindra Lal J. in that decision to reject the argument that clause (h) applies only where the tenant acquires permanent ownership; the Court held that acquiring vacant possession by rent falls within clause (h).

Court's Reasoning and Analysis

The Court's reasoning proceeds through factual finding, statutory interpretation and application of precedent:

  1. Factual finding: The Local Commissioner (Shri K. L. Sawhney) inspected the Kishan Ganj premises and reported that the appellant was in possession of a living room, bathroom, kitchen, latrine and open space. The Court treated these elements as constituting a complete set of residence according to the appellant's standards of living. This factual finding supported the conclusion that the appellant had acquired possession of another place for his residence.
  2. Statutory interpretation — clause (h): The Court examined clause (h) of the proviso to sub-section (1) of section 14 of the Act, which permits recovery where "the tenant has... built, acquired vacant possession of, or been allotted, a residence." The Court contrasted this wording with the earlier corresponding provision in the Delhi and Ajmer Rent Control Act (No. XXXVIII of 1952), which used the adjective "suitable." The later Act (No. 59 of 1958) omitted the word "suitable," and the Court treated this omission as deliberate and significant, concluding that it was not necessary under the current statute to show that the new place acquired by the tenant was "suitable" for his needs.
  3. On the appellant's "necessity" argument: The Court held that if the tenant takes new premises because the old premises are insufficient, the tenant should vacate the earlier tenanted premises. The underlying objective of clause (h), the Court observed, is to prevent tenants from occupying more than one residence in times of housing shortage.
  4. On the sufficiency/suitability contention: Given the legislative omission of "suitable," the Court rejected the argument that the new premises' relative insufficiency defeated the applicability of clause (h).
  5. On vacating the new premises during proceedings: The Court held that once the tenant incurred liability to ejectment by acquiring vacant possession of another residence, later surrendering possession of that new place during the pendency of proceedings would not undo the liability. The Court distinguished authorities where the ground for ejectment ceased to exist because of intervening events (e.g., completed repairs or bona fide change in landlord's plans).
  6. On the meaning of "acquired": The Court interpreted "acquired vacant possession" to include taking possession by rent; there is no requirement that "acquired" mean acquisition of ownership. The Court cited Des Raj Goyal (Jindra Lal J.) as taking the same view.
  7. Distinguishing precedents: The Court explained that decisions relied on by the appellant (Maharaj Jagat Bahadur Singh and Messrs Gulab Rai Kishori Lal) were distinguishable because they concerned situations where the ground for ejectment ceased to exist or where bona fides of the landlord were in question, whereas the present case concerned the tenant's own acquisition of another residence.

Holding and Implications

Appeal dismissed.

Direct effect on the parties:

  • The Court dismissed the appellant's second appeal; the Controller's order of ejectment (affirmed by the Rent Control Tribunal) stands.
  • The parties were directed to bear their own costs.

Broader implications:

The opinion applies a literal and purposive interpretation of clause (h) of the proviso to sub-section (1) of section 14 of the Act: (a) the omission of the word "suitable" in the later statute means the tenant need not show that the new premises are suitable for his needs, and (b) "acquired vacant possession" includes premises taken on rent (not limited to purchase). The Court distinguished precedents where the ground for ejectment had ceased during proceedings. The opinion does not purport to set any novel legal test beyond these applications and does not indicate that it creates a sweeping new precedent beyond the facts of the case.

Source: Opinion authored by H.R. Khanna, J., concerning Sham Sunder (appellant) v. Khan Chand (respondent); second appeal under section 39, Delhi Rent Control Act (No. 59 of 1958).

Show full summary ...

    Shyam Sunder, , v. Khan Chand, .

    H.R. Khanna, J.

    1. This second appeal under section 39 of Delhi Pent Control Act (No. 59 of 1958), hereinafter referred to as the Act filed by Sham Sunder is directed against the order of Rent Control Tribunal, Delhi, affirming on appeal the order of the Controller whereby an order for ejectment of the appellant from the premises in dispute was made in favour of Khan Chand, respondent.

    2. The brief facts of the case are that the appellant is occupying the premises in dispute, which consist of one room, a tin shed, a store and a terrace, situated in Basti Harphul Singh, Delhi, as a tenant of the respondent on a monthly rent of Rs. 8. The respondent made an application for ejectment of the appellant under section 14 of the Act on the allegation that the appellant had acquired vacant possession of a residence at 9, Kishan Ganj, Delhi.

    3. The application was resisted by the appellant who denied that he had acquired vacant possession of a residence at Kishan Ganj. According to the appellant, he and the other members of his family including his brother and widowed mother, were residing in the suit premises as displaced persons from 1948. The appellant’s brother got married in 1949 and had three children. The appellant had four children and the entire family consisted of twelve members. As the premises in dispute consisted of one small room and were insufficient for the members of his family, the appellant got one small barsati in Kishan Ganj for accommodating the family. The whole of the family was in occupation of both the premises. According to the appellant the expansion of the members of the family necessitated the getting of additional accommodation, and this fact did not amount to acquiring vacant possession of a residence as contemplated by law.

    4. The Controller held that the appellant had acquired vacant possession of a residence and as such ordered his ejectment. The order of the Controller, as stated above, was affirmed on appeal by the tribunal.

    Clause (h) of the proviso to sub-section (1) of section 14 of the Act, under which the order for the ejectment of the appellant has been made, provides that an order for recovery of the premises may be made on the ground—

    "that the tenant has, whether before or after the commencement of the Act, built, acquired vacant possession of, or been allotted, a residence."

    In the present case the Controller appointed Shri K. L. Sawhney as Local Commissioner to visit the premises at No. 9, Kishen Ganj, Delhi, and he found that the appellant was in possession of those premises which consisted of one living room, one bath room, one kitchen one latrine and an open space. This is a complete set of residence according to the standard and mode of living of the appellant because the premises in dispute were, if anything, less spacious than the new premises taken on rent by him in Kishen Ganj. The appellant could thus be said to have acquired possession of another place for his residence.

    5. Mr. Misra on behalf of the appellant has argued that the appellant took the premises in Kishen Ganj on rent because his younger brother had got married and as a result of birth of children the strength of the families of the appellant and his brother had gone up to twelve. The necessity of taking the premises in Kishen Ganj on rent arose, it is submitted, because the premises in dispute had become insufficient for the needs of the family of the appellant. In this respect I am of the view that if the premises in dispute were not sufficient for the requirement of the family of the appellant and he was on that account impelled to take other premises, he should have vacated the premises in dispute. The underlying object of enacting clause (h) of the proviso to sub-section (1) of section 14 of the Act was that the tenant should not have more than one premises for his residence in these days of housing shortage. In case the tenant has taken on rent any premises for his residence and he thereafter acquires the vacant possession of another premises for his residence, the tenant in such an eventuality would have to quit the earlier tenanted premises.

    6. Mr. Misra, however, points out that the new premises in Kishen Granj, which the appellant has taken on rent, are not so spacious as to accommodate both the families of the appellant as well as his brother, who used to live with the appellant. Although it is open to question if the family of the brother of the appellant, who is doing independent separate business, can be considered to be part of the family of the appellant, the contention advanced by Mr. Misra is liable to be repelled on another ground. It is for the tenant when he takes the new place for his residence to see that it is sufficient for his needs. Having taken vacant possession of the new premises for residence, he cannot refuse to vacate the earlier tenanted premises on the ground that the new premises, the possession of which he has acquired for residence, are not sufficient for his requirement. I may in this connection point to the change which has been introduced in the language of clause (h) of the proviso to sub-section (1) of section 14 of the Act reproduced above. This clause replaces clause (h) of the proviso to sub-section (1) of section 13 of the Delhi and Ajmer Rent Control Act (No. XXXVIII of 1952), according to which a tenant was liable to be ejected if—

    "the tenant has, whether before or after the commencement of this Act, built, acquired vacant possession of, or been allotted a suitable residence."

    The word “suitable” in the corresponding clause of Act XXXVIII of 1952 has been omitted in Act 59 of 1958, and one can take it that this omission by the Legislature was deliberate and not without significance. It would consequently be not necessary to show that the new place acquired by the tenant is also suitable for his needs. The argument on behalf of the appellant that the premises taken by him in Kishen Ganj are not sufficient for the requirement of his family cannot, in the circumstances, be allowed to prevail.

    7. Mr. Misra then contends that the appellant has, during the pendency of the ejectment proceedings, vacated the premises in Kishen Ganj. This fact, in my opinion would not make material difference because the appellant became liable to ejectment when he shifted to his new place of residence after having acquired vacant possession of the same. Once that liability to ejectment has been incurred the same cannot be undone by the appellant surrendering possession of the premises he took on rent in Kishen Ganj. Reliance on behalf of the appellant has been placed upon Maharaj Jagat Bahadur Singh v. Badri Parshad Seth . (1965) 67 PLR 452 and Messrs Gulab Rai Kishori Lal v. Shri Banarsidas Chandiwala Sewa Smarak Trust, Delhi,(1964) 66 PLR 731 to show that if the ground of ejectment has ceased to exist the application for ejectment is liable to be dismissed. In the case of Maharaj Jagal Badadur Singh (Supra) the landlord sought the ejectment of the tenant from a cinema building on the ground that he required the building to be vacated in order to carry out the repairs having been directed to do so by the authorities concerned. The Executive Engineer during the pendency of the ejectment proceedings reported that satisfactory repairs had been done. It was held that the Rent Controller should have taken into consideration that fact. In the case of Messrs ulab Rai Kishori Lal the landlord trust filed suit for ejectment against its tenants on the ground that it bona fide required the tenanted premises for the furtherance of its activities for the setting up of a school therein. When the matter came up in revision it was found that the trust had transferred its property including the premises in dispute to a college for its income, and that alternatively the landlord trust was negotiating to sell the property to the Corporation at a price made higher by the fact that the tenants would have been removed. It was held that these facts could be taken into consideration to see as to whether the land lord-trust bona fide required the premises for the establishment of a school therein. The above cases, are evidently distinguishable and cannot help the appellant for the liability of the appellant to be eject the arose because of his having acquired vacant possession by taking on rent new premises. A distinction has to be kept in view between the cases where the liability of the tenant for ejectment arises because of some act or omission or default on his part, and those cases where the ejectment of the tenant is sought not because of any act, omission or default on the part of the tenant but for some other reason. In cases where the tenant becomes liable to ejectment because of any act or omission or default on his part he cannot avoid ejectment except in cases where the statute itself grants some relief and makes provision for the condonation of the default. For example where a tenant sublets the premises against the terms of the statute and thus incurs the liability to ejectment the subsequent eviction of the subtenant would be no answer to proceedings for ejectment brought by the landlord against the tenant. See in this connection Naurang Lal v. Suresh Kumar, (1964) 66 PLR 505.

    8. Lastly, it is argued by Mr. Misra that the word “acquired” in clause (h) shows that the new premises which are obtained by the tenant should be on a permanent basis like purchase and that in case the tenant acquires new premises for residence by taking them on rent the clause would not be attracted, there is no force in this contention. The words used in clause (h) reproduced above are not “acquired ownership” of the premises, but “acquired vacant possession.” One can acquire vacant possession of premises for residence even without becoming owner thereof and there is no warrant for the proposition that clause (h) would not be attracted if the new premises, of which the tenant has acquired vacant possession for residence, have been taken by him on rent and not by purchase. The same view was taken by Jindra Lal J. in Des Raj Goyal v. Satya Parkash Guptaf, SAO No. 217 of 1964 decided on 26th October, 1964.

    9. The appeal consequently fails and is dismissed, but, in the circumstances, I leave the parties to bear their own costs.

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    Comments

    Shyam Sunder, , v. Khan Chand, .
    (Jan 19, 1966)