Supreme Court of India
J.R. Vohra vs India Export House Pvt. Ltd. And Another on 14 February, 1985
Equivalent citations: 1985 AIR 475, 1985 SCR (2) 899, AIR 1985 SUPREME COURT 475, 1985 (1) SCC 712, 1985 UJ (SC) 721, 1985 SCFBRC 142, 1985 RAJLR 191, (1985) 1 RENCR 368, (1985) 1 RENCJ 343, (1985) 1 CURCC 682, (1985) 27 DLT 211
Author: V.D. Tulzapurkar
Bench: V.D. Tulzapurkar, Misra Rangnath, V. Khalid
PETITIONER:
J.R. VOHRA
Vs.
RESPONDENT:
INDIA EXPORT HOUSE PVT. LTD. AND ANOTHER
DATE OF JUDGMENT14/02/1985
BENCH:
TULZAPURKAR, V.D.
BENCH:
TULZAPURKAR, V.D.
MISRA RANGNATH
KHALID, V. (J)
CITATION:
1985 AIR 475 1985 SCR (2) 899
1985 SCC (1) 712 1985 SCALE (1)219
CITATOR INFO :
R 1987 SC1986 (22)
F 1987 SC1996 (11)
RF 1989 SC 458 (11)
R 1990 SC 325 (19,20,24)
E 1990 SC1725 (21)
E 1991 SC1233 (10,13,15)
RF 1992 SC1555 (2,6,15,16)
ACT:
Delhi Rent Control Act, 1958 section 21 read with
section 37 and Rule 5 of Delhi Rent Control Rules, 1959,
scope of-Limited tenancy created with permission of the Rent
Controller under section 21-Whether a warrant for recovery
or possession can be issued in favour of a landlord without
notice to the tenant under section 21
HEADNOTE:
A tenancy for a limited period of three years
commencing from 1.6.79 in respect of a house at 34, Paschimi
Marg, Vasant Vihar, New Delhi at a monthly rental of Rs.
5,000 was created by the appellant in favour of the first
respondent company for the residence of its Chairman, Shri
C.L. Sachdev after obtaining the requisite permission under
section 21 of the Delhi Rent Control Act. In the application
filed before the Rent Controller and in the proposed lease-
deed it was- specifically stated that the appellant landlord
in order to clear the loan taken by him for the construction
of the premises was creating the limited tenancy for a
period of three years. The appellant was desirous of getting
possession of the house at the expiry of the period i.e 31st
May, 1982 but before applying for possession under section
21 of the Act, by two registered letter one dated 1st March,
1981 and the other dated 5th May, 1982 he called upon the
respondents to hand over vacant possession of the leased
premises on the due date. The respondent neither replied
these letters nor did handover possession. Therefore, the
appellant filed an application under section 21 for recovery
of possession before the Rent Controller On 1st July, 1982.
On 9.7.82 the appellant took possession of the house through
the bailiff and started residing therein with his family
members.
On 14th July 1982 the respondents filed a writ
petition (CM No. (Main) 174 of 1982) in the Delhi High Court
under Article 227 of the Constitution seeking to quash the
warrant of possession issued by the Rent Controller on
6.7.1982 and further proceedings taken in pursuance thereof
on two grounds: (a) that the initial order dated 10th May,
1979 granting permission to create the limited tenancy was
vitiated by fraud practiced by the appellant in as much as
he had suppressed the fact that an earlier application for
such permission has been declined on the ground that
premises had been let out for commercial-cum-residential
purposes and therefore, there was no executable order
pursuant to which and warrant for possession could be issued
under section 21 of the Act and (b) that the issuance of a
warrant for recovery of possession on 6th July 1982 without
notice to the tenant was erroneous law and in violation of
the principle of natural justice and such nonissuance of
notice on the part of the Rent Controller had deprived the
tenant of an opportunity to prove his case of fraud. By his
reply the appellant denied all the allegation made in the
Writ Petition.
900
The High Court took the view that no warrant for
recovery of possession under section 21 of the Act would be
issued in favour of the landlord without issuance of a
notice to the tenant, and by its judgment and order dated
18th October, 1982 allowed the writ petition, quashed the
warrant of possession Issued by the Rent Controller and sent
the matter back to him for hearing and adjudicating upon the
objections of the tenant to the issuance of such warrant of
possession and in the meanwhile it also is directed that
possession be restored to the tenant. Hence the appeal by
special leave
Allowing the appeal, the Court,
^
HELD: 1.1. Neither section 21 and 37 of the Delhi Rent
Control Act 1958 nor the Rules framed under t`he Act require
service of any prior notice upon the tenant before he is
evicted and in the instant case, the order directing
issuance of warrant of possession under section 21 without
prior notice to the tenant, for the purpose of putting the
landlord in possession of the leased premises at the expiry
of the limited tenancy cannot be regarded as illegal,
invalid or unwarranted. [908 E-F]
1.2. An analysis of section 21 of the Delhi Rent
Control Act will show that in regard to tenancies for
limited period mentioned therein only two orders arc
contemplated; (i) an order by the Rent Controller sand
or permitting the creation of a tenancy for a particular
fixed period only, and (ii) an order by the Rent Controller
putting the landlord in vacant possession of the leased
premises by evicting the tenant and every other occupier
thereof at the expiry of that period. Before passing the
first order the Rent Controller is required to satisfy
himself that the two conditions mentioned in the section are
genuinely satisfied in every case, namely, (a) that the
landlord does not require the premises for a particular
period only and (h) that the letting itself is for
residential purposes and no other. The landlord s non-
requirement OF the premises for a particular period may
arise out of various circumstances for instance, being an
officer he may be going on some other assignment for a
particular period or being in occupation of official
quarters he may have to vacate the same on his retirement or
having borrowed a loan for the same on his retirement or
having borrowed a loan for the construction he may issuer to
clear it of before occupying the premises for this own use,
etc. Both the conditions must be truly fulfilled and not by
way of any make belief before the Rent Controller grants his
permission for the creation of such limited tenancy but once
such limited tenancy is properly created the second order of
putting the landlord in vacant possession of the leased
premises by evicting the tenant at the expiry of the fixed
period has to be passed as a matter of course because the
tonality, in view of the non-obstinate clause contained in
section 21, has no right or protection whatsoever under law
to continue in possession nor has he any defense to
eviction. The second order contemplated by section 21 is in
the nature OF a process in execution where under landlord
has to be put in possession of the leased premises by
evicting the tenant and every other occupant thereof, and no
notice to the tenant is contemplated before issuing ll the
warrant of possession for putting the landlord in
possession. [906 G-H; 907 A-E]
901
1.3. Section 21 carves out tenancies of particular
category for A special treatment and provides a special
procedure that will ensure to the landlord vacant possession
of the leased premises forth-with at the expiry of the fixed
period of tenancy, evicting whoever be in actual possession
Such being the avowed object of prescribing the special
procedure, service of a prior notice on the tenant upon
receipt of the landlord's application for recovery of
possession and inviting his objections followed by an
elaborate inquiry in which evidence may have to be recorded
will rally frustrate that object. [909F-G]
S. B. Noronah v. Prem Kumari Khanna, [1980] I SCR 201,
followed.
1.4 In ease there was in fact a mere ritualistic
observance of the procedure while granting permission for
the creation of a limited tenancy or where such permission
was procured by fraud practised by the landlord or as a
result of collusion between the strong and the weak, the
solution lies not in insisting upon service of a prior
notice on the tenant before the issuance of the warrant of
possession to evict him but by insisting upon his
approaching the Rent Controller during the currency of the
limited tenancy for adjudication of his pleas no sooner he
discovers facts and circumstances that tend to vitiate ab-
initio the initial grant of permission, and certainly not to
wait till the landlord makes his application for recovery of
possession after the 1) expiry of the fixed period under
section 21. The special procedure provided for the benefit
of the landlord in section 21 warrants such immediate
approach on the part of the tenant. Of course, if the tenant
aliunde comes to know about landlord's application for
recovery of possession and puts forth his plea of fraud or
collusion etc. at that stage the Rent Controller would
inquire into such plea but he may run the risk of getting it
rejected as an after-thought. [912A-D]
1.5. Except Rule 5 which deals with applications made
under s. 21 and which merely provides for period of
limitation by saying that every application under section 21
shall be made by the landlord within six months from the
date of the expiry of the period of tenancy, there is no
other rule in Delhi Rent Control Rules 1959 framed by the
Central Government under section 56 of the Delhi Rent
Control Act, requiring a notice being served upon the tenant
before the issuance of warrant or possession to evict him.
[907E-G]
1.6. Section 37 (1) of the Act also, cannot be
construed as requiring service of a prior notice upon the
tenant before issuance of a warrant of possession against
him. All that sub-section (1) of section 31 of Delhi Rent
Control Act does is to incorporate a rule of natural
justice, namely, that an order prejudicially affecting a
person shall not be made without hearing him and considering
his objections if any to the proposed order. But an order
can be said to affect a person prejudicially only if any
right of his would be affected adversely and in view of the
non-obstinate clause contained in section 21 the tenant on
the expiry of the limited period has no right or protection
whatsoever under any law to continue in possession and as
such the issuances of a warrant of possession directing him
to vacate the premises in his Occupation cannot be regarded
as one which prejudicially affect him.
[907H; 908C-D]
902
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3381 of 1982.
From the judgment and order dated 18.10 82 of the High Court of Delhi in C.M. (M)) No. 174/82.
V.M. Tarkunde, B. Dutta and Mrs. & Mr. A. Minocha for the Appellant.
L N. Sinha and Mr.. Parmod Dayal, for the Respondent. The Judgment Or the Court was delivered by TULZAPURKAR. J. The only question raised in this appeal is whether a warrant for recovery of possession can be issued ill favour of a landlord without notice to the tenant under s. 21 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act) ?
A tenancy for a limited period of three years commencing from 1.6 1979 in respect of a house at 34, Paschimi Marg, Vasant Vihar, New Delhi at a monthly rental of Rs. 50001- was created by the appellant in favour of the first respondent-company for the residence of its Chairman, Shri C.L. Sachdev after obtaining the requisite permission under s.21 of the Act.
It appears that the said house was constructed by the appellant for his own use and occupation but having taken a loan for its construction he was desirous of clearing the said before occupying the same and he, therefore, offered in writing the tenancy for a limited period of three years to the first respondent-company, and since the offer was accepted a joint application seeking permission of the Rent Controller under s.21 for creating such limited tenancy was made by the parties on 9th May, 1979 in which it was expressly stated that three years tenancy was being created as the appellant had to clear the construction loan; the proposed lease-deed containing the terms and conditions of letting was annexed thereto, clause 2 whereof expressly recited that the premises shall be used by the respondent Company only for the residential purposes of its Chair man, Shri C.L. Sachdev (second respondent). On 10th May 1979 the parties appeared before the Rent Controller and their statements were recorded; the second respondent stated on oath that the premises were being taken by the respondent company for the residence of its Chairman (i.e. himself) on a monthly rental of Rs. 5000/- for 903 three years with effect from 1.6.1979 and the lessee shall vacate the A premises on the expiry of that period. By his order passed on that very day the Rent Controller, on being satisfied that the requirements of s.21 had been fulfilled, 1, granted permission for the creation of the tenancy for the said period which Was to expire on 31st May 1982. The appellant was desirous of getting possession of the house at the expiry of the period but before applying for possession under s.21 of the Act, by two registered letters one dated 1st March 1982 and the other dated 5th May 1982 h- called upon the respondents to hand over vacant possession of the leased premises on the due date as the period permitted by the Rent Controller was coming to an end and also because h- required the, pretenses for himself. There was no reply to any of this letters nor was possession handed over and, therefore, the appellant filed application under s.21 for recovery of possession before the Rent Controller on 1st July 1982; the application was directed to be registered on that day and the appellant was directed to file a certified copy of the plan on 16.7.1982; the appellant, however, filed the certified copy of the plan on the 6th July 1982; the Rent Controller, therefore cancelled the date 16th July 1982 fixed for filing the plan, took on record certified copy of the plan and issued warrant of possession in favour of the appellant. On 9.7.1982 the appellant took possession of the house through the bailiff and started residing therein with his family members.
On 14th July 1982 the respondents filed a writ petition (C.M. No. (Main) 174 of 1982) in the Delhi High Court under Art. 227 of the Constitution seeking to quash the warrant of possession issued by the Rent Controller on 6.7.1982 and the further proceedings taken in pursuance thereof on two grounds: (3) that the initial order dated 10th May 1979 granting permission to create the limited tenancy was vitiated by fraud practised by the appellant inasmuch as he had suppressed the fact that an earlier application for such permission his been declined on the ground that premises had been let out for commercial-cam- residential purposes and therefore, there Was no executable order pursuant to which any warrant for possession could be issued under s.21 of the Act and (b) that the issuance of a warrant for recovery of possession on 6th July 1982 without notice to the tenant was erroneous in have and in violation of principles of natural justice and such non issuance of notice on the part of the Rent Controller had deprived the tenant of an opportunity to prove his case of fraud. By this reply the appellant denied all the allegations made in the Writ Peti 904 tion and particularly denied that the premises were let out for commercial-cum-residential purposes or that permission on the earlier occasion had been declined on that ground or that any fraud was practised by him as alleged at the time when the order granting permission was passed on 10th May 1979; it was asserted that the earlier application for permission was not refused but was got with drawn for technical defect. The appellant also disputed that anoints to the tenant Was contemplated by s.21 of the Act before issuing the warrant for recovery of possession thereunder; he also pleaded that on the facts of the case the respondents had ample opportunity to approach the Rent Controller to prove their case of alleged fraud inasmuch as the appellant had issued two registered notices to the respondents informing them that he was desirous of recovering possession at the expiry of the lease period and as such though there was no requirement of a notice in law, the principles of natural justice could be said to have been substantially observed. By its judgment and order dated 18th October 1982 the High Court allowed the writ petition, quashed the warrant of possession issued by the Rent Controller and sent the matter back to him for hearing and adjudicating upon the objections of the tenant to the issuance of such warrant of possession and in the meanwhile it also directed that possession be restored to the tenant. In doing so the High Court took the view that no warrant for recovery of possession under s.21 of the Act could be issued in favour of the landlord without issuance of a notice to the tenant. It is this view of the High Court that is being challenged before us by the appellant in this appeal.
In support of the appeal the principal contention of the counsel for the appellant has been that neither s.21 of the Act nor any Rules framed thereunder require or contemplate the service of a notice on the tenant before issuing the warrant of possession for the purpose of putting the landlord in vacant possession of the leased premises at the expiry of the limited period for which the tenancy has been permitted to be created under the Rent Controller's order. Counsel submitted that s.21 postulates summary eviction of the tenant by a process which is really in the nature of executing the earlier order creating a tenancy for a limited period as no fresh eviction order is contemplated and that insistence upon a prior notice to the tenant before issuing the warrant of possession followed by an elaborate inquiry would defeat the very object or purposes for which s.21 has been enacted and incorporated in the Act which, 905 as explained by this Court in S.B. Noronah v. Prem Kumari Khanna,(l) is to afford an assurance to the landlord that he will get back possession forthwith at the expiry of the fixed period of tenancy but for which a landlord would never let out his premises and would continue to keep them vacant even though he may not require the premises for a fixed period. Counsel for the appellant pointed out that even under the Civil Procedure Code no prior notice is required to be served on a judgment-debtor when execution processes say for attachment and sale of his properties or even for dispossessing him are taken within two years of the decree. Counsel for the appellant, therefore, urged that the High Court was ; error in taking the view that a warrant of possession could not be issued in favour of the landlord without service of a prior notice upon the tenant under C s.21, and according to him the decision in Noronaths case (supra on which High Court has relied in this behalf is not on this point. Counsel for the appellant further urged that even in a case where fraud is alleged to have been practised by the landlord in obtaining the Rent Controller's sanction for creating the limited tenancy the section does not cast any duty or obligation upon the Rent Controller to invite a plea of fraud from the tenant by issuing notice to him after the landlord has applied for recovery of possession under that section Further the counsel pointed out that in the facts of the instant case the fraud, if at all there was any, was known to the tenant right from the time the limited tenancy was created under the Rent Controller's order and the respondents could have approach the Rent Controller to have the issue decided at any time during the three years period and in any case at least immediately after the receipt of two registered letters from the appellant's which were issue months ahead of the appellant's application for recovery of possession under s.21. Counsel, therefore, urged both in law as well as on the facts of the present case the service of a notice by the Rent Controller upon the tenant before issuing warrant of possession was uncalled for and not required and the High Court was in error in taking the view it did; in any case the High Court was wrong in directing the restoration of possession back to the respondents when the matter was remanded by it to the Rent Controller for hearing and adjudicating upon the tenant's objection and the appellant's possession need not have been disturbed pending such adjudication.
(1) [1980] I S.C.R. 281.906
On the other hand counsel for the respondents strongly sup ported the view taken by the High Court and in that behalf relied upon this Court`s decision in the Noronah's case (supra) which has the view that even at the execution stage it is open to the tenant to put forward a case of fraud in the matter of obtain g Rent Controller's permission at the initial stag, for creating a limited tenancy and the Rent controller is bound to hold an inquiry when such a plea of fraud is put forward by the tenant and according to counsel such inquiry into the, plea of fraud would not be possible unless notice is served Upon the tenant before issuing the warrant of possession .
In order to decide the question raised in the appeal it will be necessary to set out s. 21 of the Act. The section ruts thus:
"21. Recovery of possession in case of tenancies for limited period where a landlord does not require the whole or any part of premises for a particular period, and the landlord, after obtaining the permission of the Controller in the prescribed in the manner , let 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 and the tenant does not, on the expiry of the said period , vacate such premises then, notwithstanding anything contained in section 14 or any other law the Controller may , on an application mad to him in this behalf by the landlord within such time as may be prescribed, place the landlord in vacant possession of the premise or part thereof by evicting the tenant and every other person who may be in occupation of such premises .
An analysis of the provision will show that in regard to tenancies for limited period mentioned there in only two orders are contemplated by the section: (i) an order by the Rent Controller sanctioning or permitting the creation of 3 tenancy for a particular fixed period only, and (ii) an order by the Rent Controller putting the landlord in vacant possession of the leased premises by evicting the tenant and every other occupier thereof at the expiry of that period. It is also clear that before passing the first order the Rent Controller is required to satisfy himself that the two conditions mentioned in the section are genuinely satisfied in every 907 case, namely, (a) that the landlord does not require the premises A 'for a particular period' only and (b) that the letting itself is for residential purposes and no other. The landlord's non-requirement of the premises for a particular period may arise out of various circumstances; for instance, being an Officer he may be going on some other assignment for a particular period or being in occupation of official quarters he may have to vacate the same on his retirement or having borrowed a loan for the construction he may desire to clear it of before occupying the premises for his own use, etc. It cannot be disputed that both the condition must be truly fulfilled and not by Way of any make-belief before the Rent Controller grants his permission for the creation of such limited toenails but once such laminated tenancy is properly created the second order of putting the landlord in vacant possession of the leased premises by evicting the tenant at the expiry of the fixed period to be passed as matter of course because the tenant, in view of the non- obstinate clause contained in the section, has no right or protection whatsoever under law to continue the possession nor has he any defense to eviction and the section does not Contemplate the passing of any order of eviction against the tenant before issuing the warrant of possession in favour of the landlord. It is the clear that the second order contemplated by the section is in the nature Or a process in execution whereunder the landlord has to put in possession of the leased premises by evicting the tenant and every occupant thereof, and no notice to the tenant is contemplated before issuing the warrant of possession for putting the landlord in possession As far as the Delhi Rent Control Rules 1956 framed by the Central Government under section 56 of the Act are concerned there is only one rule being Rule 5 which merely provides for period of limitation by saying that every application for recovery of possession under sec. 21 shall be made by the landlord within six months from the date of the expiry of the period of tenancy and there is no rule requiring a notice being served upon the tenant before the issuance Or warrant of possession to evict him.
Counsel for the respondents relied upon sec. 37 of the Act to canvas the contention the service of a prior notice Upon the tenant before he is evicted would be necessary but that deals with the practice and procedure required to be followed by the Rent Controller in proceedings before him and it mainly provides that subject to any rules 908 That may be made under the Act the Controller shall, while holding an inquiry in any proceeding before him, follow as may b the practice and procedure of a court of small causes, including the recording of evidence. In particular counsel relied upon sub-sec. (1) of sec. 37 which provides that "no order which prejudicially affects any person shall be made by the Controller under this Act without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objections, if any, and ,any evidence he may produce in support of the same have been considered by the Controller." In our view all that sub sec. (1) does is to incorporate a rule of natural justice, namely, that an order prejudicially affecting a person shall not be made without hearing him and considering his objections if any to the proposed order. But an order can be said to affect a person prejudicially only if any right of his would b affected adversely and as stated earlier in view of the non-obstinate clause contained in sec. 21 the tenant on the expiry of the limited period his no right or protection what so ever under any law to continue in possession and as such the issuance of a warrant of possession directing him to vacate the premises in his occupation cannot be regarded as one which prejudicially affects him. Section 37 (1) therefore, cannot be construed as requiring service of a prior notice upon the tenant before issuance of a warrant of possession against him. In other words neither sec. 21 nor sec. 37 nor the Rules framed under the Act require service of any prior notice upon the tenant before he is evicted and the order directing issuance of warrant of possession under sec. 21, without prior notice to the tenant, for the purpose of putting the landlord in possession of the leased premises at the expiry of the limited tenancy cannot be regarded as illegal, invalid or unwarranted.
The question at issue could also be considered by having regard to the object or purpose with which section 21 has been enacted and incorporated in the Act. It cannot be disputed that sec. 21 carves out tenancies of particular category for special treatment and the raison d'etre of the provision has been explained by this Court in Noronah's case (supra) in these words:
"Parliament was presumably keen on maximising accommodation available for letting, realising the scarcity crises. One source of such spare accommodation which is usually shy is potentially vacant building or a part 909 thereof which the landlord is able to let out for a strictly limited period provided he has some credible assurance that when he needs he will get it back. If an officer is going on other assignment for a particular period, or the owner has official quarters so that he can let out if he is confident that on his retirement he will be able to re-occupy, such accommodation may add to the total lease-worthy houses. The problem is felt most for residential uses. But no one will part with possession because the lessee will be come a statutory tenant and, even if bonafide requirement is made out the litigative tiers are so many and the law's delays so tantalising that no realist in his sense will trust the sweet promises of a tenant that h will return the building after the stipulated period. So the law has to make itself credit-worthy. The long distance between institutions of recovery proceedings and actual dispossession runs often into a decade or more-a factor of despair which can be obviated only by a special procedure.
Section 21 is the answer. ''The law seeks to persuade the owner of a premise available for letting for a particular or limited period by giving him the special assurance that at the expiry of that period the appointed agency will place the landlord in vacant possession." (Emphasis supplier).
It is thus clear that the object of incorporated s. 21 in the Act is to provide a special procedure that will ensure to the landlord vacant possession of the leased premises forthwith at the expiry of the fixed period of tenancy but for which he would be shy to let out his premises and would continue to keep them vacant even though he may not require the premises for a fixed period. Moreover the assurance of getting vacant possession forthwith is further strengthened by the provision that under the warrant of possession not merely the tenant but every person who may be in occupation is also to be evicted. If such is the avowed object of prescribing the special procedure then service of a prior notice on the tenant upon receipt of the landlord's application for recovery of possession and inviting his objections followed by in elaborate enquiry in which evidence may have to be recorded will really frustrate that object. In our view precisely for this reason the scheme of sec. 21 and the connected relevant provisions do not require service of a prior notice on the tenant before issuing the warrant of possession against 910 him for putting the landlord in possession of the leased premises, for, the law has to make itself credit worthy.
Strong reliance was placed by counsel for the respondents on the decision of this Court in Noronah'.s case (supra) where according to counsel a view has been taken that even at the second stage when the landlord applies for recovery of possession under sec 21, the Rent Controller must satisfy himself by such inquiry he may make about the compulsive requirements of that provision that is to say, whether the twin conditions requisite for granting, the permission for the creation Or limited tenancy had been really fulfilled or not and counsel argued that no such inquiry would be possible unless on receipt of landlord s application. for recovery of possession a notice served is upon the tenant which would enable the tenant to put forth a plea that at initial stage a mindless order granting, permission ion for the creation of limited tenancy had been made with it the will condition being really satisfied or that the said initial order granting permission was the result of either fraud on the part of' the landlord or collusion between the parties Counsel urged that a more ritulistic enforcement the condition of' the permission udders sec. 21 or a mechanical grant of permission thereunder would amount to subverting the whole effect-of sec. 21 and it is well settled fraud and collusion (especially collusion between two to unequal the strong and the weak) will vitiate completely the permission so granted and render it non-est. 'therefore, it would be the duty of the Rent Controller to hear and adjudicate upon such pleas of the tenant before issuing warrant of possession in favour of the landlord. At the outset we would like to observe that in Noronah's case the question whether a prior notice is required to be served upon the tenant before issuance of warrant of possession in favour of the landlord under sec.
21, did not arise for consideration. It was a case where upon receipt of landlord`s application for reconvey of possession under the section the tenant raised pleas that the premises had been let out for non-residential purposes and that the sanction or permission granted for the creation of the limited tenancy was vitiated by fraud and collusion and the question that arose for consideration was whether at that stage the Rent Controller should consider those peas even when reside at the stage. In other words all that the said case decided in that if such please by the tenant event at the exception 911 stage (i.e. at the stage of passing the second order) the Rent Controller should consider and adjudicate upon such pleas but the decision is no authority for the proposition that upon receipt of landlord's application for recovery of possession the Rent Controller must issue a notice to the tenant inviting from him the pleas of fraud, collusion etc. and hold an inquiry into such pleas before issuing the warrant of possession in favour of the landlord; for there cannot be a presumption that in very case there was a m re ritualistic observance of the procedure contemplated while passing the initial order granting pertain or that the Controls had passed a mindless order or that the order granting permission was the result of either fraud on the part of the landlord or collusion between the strong and the weak. In fact clean in Noronah case this Court has observed that there will be a presumption in favour of the sanction or permission being regular and if that be so, we fail to appreciate as to why the Rent Controller should invite such pleas of fraud, collusion etc. at the instance of the tenant by being required to serve a notice upon, him before issuing the warrant of possession in favour of the landlord especially when the scheme of sec. 21 and the connected relevant provisions do not require it.
what then is the remedy available to the tenant in a case where there was in fact a mere ritualistic observance of the procedure while granting permission for the creation of a l limited tenancy or where such permission has procured by fraud practised by the landlord or was a result of collusion between n the strong and the weak ? Must the tenant in scull cases be unceremoniously evicted without his plea being inquired into ? The answer is obviously in the negative. At the same time must he be permitted to protract the delivery of possess on of the leased premises to the I Landlord on a false plea of fraud or collusion or that there was a mechanical grant of permission and thus defeat the very subject of the special procedure provided for the benefit of the landlord in sec. 21 ? The answer must again be in the negative. In our view these two competing claims must be harmonized and the- solution lies not in insisting upon service of a prior notice on the tenant b fore the issuance of the warrant of possession to evict him but by insisting upon his approach the leant Controller during the currency of the limited tenancy for adjudication of his pleas no sooner he discovers facts and circumstances that tend to vitiate ab initio the initial grant of permission. Either it is a mechanical grantor permission or it is procured by fraud practised by the landlord or it is the result 912 of collusion between two unequals but in each case there is no reason for the tenant to wait till the landlord makes his application for recovery of possession after the expiry of the fixed period under sec. 21 but there is every reason why the tenant should make an i mediate approach to the Rent Controller to have his pleas adjudicated by him as soon as facts and circumstances giving rise to such pleas come to his knowledge or are discovered by him with due diligence. The special procedure provided for the benefit of the landlord in sec. 21 warrants such immediate approach on the part of the tenant. Of course if the tenant aliunde comes to know about landlord's application for recovery of possession and puts forth his plea of fraud or collusion etc. at that stave the Rent Controller would inquire into such plea but he may run the risk of getting it rejected as an afterthought. There is however no need to imply any obligation on the part of the Rent Controller r to serve a notice on the tenant inviting him to file his objections before issuing the warrant of possession in favour of the landlord.
Having regard to the above discussion we are clearly of the view that the High Court Was in error in taking the view that no warrant for recovery of possession under sec. 21 could be issued without serving a notice on the- tenant. We hold that the Rent Controller's order directing the issuance of warrant of possession in favour of the appellant-landlord herein and the further proceedings of putting him in position of the suit premises in pursuance thereof were valid and proper and ought not to have been quashed by the High Court. However, since the High Court has remanded the matter back to the Rent Controller for adjudication upon pleas of the respondent tenant we not propose to interfere with that e the order and the adjudication of the objections raised by the respondent- talent may be proceeded with and decided in accordance with the law but on the facts of the instant case there was no justification for the direction issued by the High Court that pending such adjudication possession of the premises be restored to the respondent-tenant. Admittedly in the instant case long before he applied for recovery of possession under sec. 21 of the Act the appellant had sent two registered notices to the registered notices calling upon it to vacate the, premises as the period of the limited tenancy was about to expire and also because he wanted the premises for his own use and occupation and nothing was done by the respondents and it was only after the warrant of possession had been executed and the landlord got possession of the premises 913 in question that the respondent-company approached the High A Court by means of a Writ Petition challenging the issuance of warrant of possession on the ground that no prior notice- had been served upon him and that the first order granting permission for limited tenancy was the result of fraud practised by the landlord. Obviously the respondent-company has thought fit to raise the plea of fraud belatedly. We, would therefore, quash that part of the High Cortege order which directs restoration of possession of the suit premises to the respondent-company during the i of the proceedings before the, Rent Controller and direct that the appellant's possession of the suit premises which he has secured in pursuance, of the warrant of possession shall not be disturbed till the respondent-company objections and or pleas are finally decided. Since the appeal substantially succeeds the respondents are directed to ply the, cost of the appeal to appellants.
S.R. Appeal allowed.
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