Delhi High Court
Dr. P.P. Kapur vs Union Of India And Others on 8 May, 1990
Equivalent citations: ILR1990DELHI244, AIR 1990 DELHI 290, (1990) ILR(DEL) 2 DEL 244, (1990) ILR 2 DEL 244, (1990) 2 RENCR 75, (1990) 1 RENTLR 611, (1990) 2 DL 344, (1990) 41 DLT 483
Author: B.N. Kirpal
Bench: B.N. Kirpal
ORDER KIRPAL, J.
1. After the promulgation of Delhi Rent Control (Amendment) Act, 1988 whereby some provisions were incorporated into the Delhi Rent Control Act, this is the second round of litigation which has come up before this Bench. In an earlier case of B. M. Chanana v. Union of India, (1989) 4 Delhi Lawyer 246, we had decided the validity of Sections 14-B, 14-C the 14-D as well as interpreted Section 14-C of the Act. The present bunch of writ petitions which has come up for hearing before us again pertains to the same provisions.
2. The present writ petition deals with the vires and the interpretation of Section 14-D of the Act. As there were a number of writ petition pending in this Court and in view of the fact that a large number of litigants were likely to be affected we permitted various counsel, who so desired, to appear and address arguments on all facets with regard to the interpretation and validity of the said provisions.
3. For the purpose of appreciating various issues which are involved with regard to the interpretation of Section 14-D of the Act it is necessary to, by way of illustration, refer to the facts of the present writ petition.
4. The petitioner is the tenant in respect of a residential house of which respondent No. 3 is the landlady. The premises in question at Delhi, which were tenanted to the petitioner, were let out to him by the landlady's husband on 11-2-1976. According to the averments made in the writ petition the husband of respondent No. 3 died on 24-7-1977 and thereafter the respondent No. 3 became the landlady. It is contended that the landlady has been residing at Jaipur along with her husband and, now, with her son. It appears that respondent No. 3 had filed a petition for eviction of the petitioner under Section 14(l)(e) of Delhi Rent Control Act, before the Additional Rent Controller, Delhi. The ground for filing the eviction petition was that the landlady wanted to shift to Delhi from Jaipur. Vide order dated 5-5-1987 the Additional Rent Controller dismissed the eviction petition inter alia holding that the landlady was permanently settled at Jaipur where she owns her own house and that her contention that she wanted to live in the suit premises was not true and the intention of the landlady appeared to be only to enhance the rate of rent. No appeal against the said dismissal of the eviction petition is stated to have been filed.
5. After the promulgation of the Amendment Act the landlady filed a fresh petition under Section 14-D read with Section 25-B of Delhi Rent Control Act. In this petition it was inter alia stated that the premises in question had been let out to the petitioner herein for residential purposes and that her husband had expired on 24-7-1977 and the widow required the tenanted premises for her own residence and she wanted to live in Delhi and she had no other house in Delhi.
6. After the summons were issued an application was filed by the petitioner herein praying for leave to defend the eviction petition. It was inter alia contended that the landlady wanted to increase the rent, secondly she did not bona fide require the premises in question. It was also submitted that the premises in question were let for residential cum-commercial purpose and, therefore, the petition under Section 14D was not maintainable.
7. The Additional Rent Controller vide his order dated 25-8-1989 came to the conclusion that no friable issue had been raised by the petitioner. He was of the view that it was not necessary to consider whether the premises were bona fide required by the landlady or not because Section 14-D did not use the word 'bona fide'. With regard to the dismissal of the earlier petition the additional. Rent Controller came to the conclusion that the two provisions i.e. Section 14(l)(e) and Section 14-D were separate and gave rise to independent causes of action and theref6fe the dismissal of the earlier application under Section 14(l)(e) was not relevant. He was of the opinion that the only requirement of Section 14-D was to see that the landlady must be a widow and that the premises must have been let out by her and thirdly they must be needed by her for her own residence. He also came to the conclusion that it was highly improbable to believe that the landlady would not shift to Delhi. With regard to the nature of the premises the Additional Rent Controller held that even if the premises were let for residential-cum-commercial purpose Section 14-D would still be applicable. Leave I to defend having been refused an order of eviction was passed against the petitioner.
8. The petitioner has, in this writ petition, as already indicated herein above, sought lo challenge the validity of Section 14-D and has also raised a number of contentions with regard to the correct interpretation of the said provision. While dealing with this provision we have also had the benefit of argument of other counsel who are appearing in similar writ petitions involving the interpretation of Section 14-D. We propose to deal with all the major contentions, raised by various counsel, in this judgment.
9. With regard to the validity of Section 14-D the matter stands concluded by-the aforesaid judgment in B. M. Chanana's case (1989 (4) Delhi Lawyer 246) (supra). While construing Sections 14-B, 14-C and 14-D this Court held that, like Section 14-A, 14-B and 14-C the provisions of Section 14-D were not violative of Article 14 of the Constitution. After referring to the object for which the said provisions were incorporated in Delhi Rent Control Act it was held that a reasonable classification had been made having an intelligible differentia with relation to the object sought to be achieved. It was also contended in Chanana's case that Section 14-C did not contain any guideline and was vague and was therefore, liable to be struck down. This Court referred to the decision of Madhya Pradesh High Court in the case of B. Johnson 1 Y6 C. S. Naidu, which dealt with a similar provision contained in the Madhya Pradesh Rent Control Act and also to the Supreme Court decision in the case of Winifred Ross v. Ivy Fongeca, and Shivram Anand Shiroor v. Radhabai Sh.4ntaram, (1984) 1 Ren CR 599: (AIR 1984 and came to the conclusion that the -said provisions were valid.
10. Section 14-D was not interpreted in B. M. Chanana's case (supra) and therefore, it has been contended before us that Section 14-D does not contain any guidelines and therefore the same should be struck down. In this connection it is submitted that whereas in Sections 14-B and 14-C there is a period of limitation prescribed within which an application for eviction can be filed, Section 14-D on the other hand, does not provide for any period of limitation and unless Section 14-D is read down the validity of the same ought not to be upheld.
11. Relying upon the decision of the supreme Court in the case of Trilok Chand V. H. B. Munshi; , it was submitted that on the ground of laches the Court can even refuse to grant relief where there is a violation of fundamental rights and therefore, on the ground of delay no relief should be granted under Section 14-13. According to the learned counsel the right to file an application under Section 14-D arose with the landlady becoming a widow and her requiring the premises in question. If a person had become a widow a number of years ago and she sleeps over her right then she should not be permitted to take advantage of Section 14-D and file an application for eviction on the ground that she requires the premises for herself.
12. The provisions of Section 14-1), according to learned counsel for the petitioner, are stated to be analogous to Section 14(1)(c). Assuming this to be so, though presently we will have to examine the correctness of this submission, even under Section 14(l)(c) there is no period of limitation prescribed for a landlord to file an application for ejectment. The right to file an application under Section 14-D arises in case of a widow not because of the death of her husband but arises as and when there is a requirement for the house in question. In other words, the cause of action, which would enable a widow to file an application under Section 14-D is not her widowhood but is her requirement for the house. If the landlady requires the premises for her own residence and if she fulfills the other conditions contained in Section 14-D and she happens to be a widow then the law provides that she can take recourse to Section 14-D instead of filing an application under Section 14(l)(e). The requirement of the premises may arise immediately after a person becomes a widow or may arise after a number of years. Merely because application has been filed for ejectment under Section 14-D long after a person has become a widow cannot be a ground for holding that the application is belated. Further more, the mere fact that such an application can be filed long after a person has become a widow cannot be a valid reason for holding that Section 14-D is ultra vires. As we have already observed, just as in Section 14(l)(e) there is no time limit prescribed similarly in Section 14-D also no period of limitation has been prescribed and the landlady is entitled to move an application under that provision as and when she requires the premises for her residence.
13. On the interpretation of Section 14-D it was firstly submitted that the said provision applies only in a case where the landlady is not a widow at the time when the premises had been let out to the tenant. In order to examine this it is necessary to refer to the provisions of Section 14-D. The said provision is as under: -
SECTION 14-D:
"Right to recover immediate possession of premises to accrue to a widow: -
(1) Where the landlord is a widow and the premises let out by her, or by her husband, are required by her for her own residence, she may apply to the Controller for recovering the immediate possession of such premises.
(2) Where the landlord referred to in subsection (1) has let out more than one premises, it shall be open to her to make an application under that sub-section in respect of any one of the premises chosen by her."
It was submitted by Shri Sehgal and Shri Sawhney on behalf of the respondents, that there is no need to read Section 14-D in a manner other than in which it is stated. The Section need not be read up or read down. The contention of the learned Counsel was that Section 14-D does not state that the premises should have been let out only when the husband was alive. The premises could have been let out by the widow herself or could have been let out by her husband when he was alive.
14 In our opinion Section 14-D can apply to only such a case where the premises 'were let out a, he time when the husband of the landlady was alive. If the contention of Sehgal and Mr. Sahni is correct it would have been necessary to use the words 'let out by her or by her husband' in Section 14-D. The contention of these counsel essentially would have the effect of taking the cases of widow landladies out of the purview of Section 14-D. This was certainly not the intention of the legislature. The intention of the legislature was that with a view to give benefit to certain class of persons special provision should be enacted and this was done with the promulgation of Sections 14-B, 14-C and 14-D. While interpreting Section 14-C we had, in Chanana's case (1989 (4) Delhi Lawyer 246) (supra), come to the conclusion that Section 14-C will apply where the premises have been let out by a Government employee prior to his retirement and not after he had retired. Similarly Section 14-D would apply to a case where the premises have been let out prior to the landlady becoming a widow, and not thereafter. The reason for this is obvious. The landlady may suddenly become a widow and may have urgent need for the premises in question. It was therefore, necessary to provide for a situation where speedy relief can be granted. The use of the expression 'immediate possession' in Section 14-D clearly indicates that the said provision is to apply where the widow is in urgent need of premises for her residence. When an unexpected event like the death of her husband occurs, a need for residence may arise immediately or after sometime. Section 14-D is meant to cater to such situations where such a need arises. On the other hand when a widow lets out the premises after the death of her husband, she is aware that her right to get back the premises will depend upon her being able to bring about a successful action under Section 14 of the Act. If she bona fide requires the premises she will have to apply under Section 14(l)(e). Therefore, it is not as if a widow, who requires the premises for her residence after they had been let out by her after her husband's death, is without any remedy. The remedy of such a widow is not under Section 14-D but is Section 14(t)(e). The provision of sub-section (2) of Section 14-D also seems to indicate that the right which was to be exercised under Section 14-D was meant to be exercised only once. Under sub-section (2) she has to choose, if she has let out more than one premises, as to which premises she wants. Once that option has been exercised her right to invoke Section 14-D would come to an end. If, on the other hand, the contention of Shri Sehgal is accepted and it is held that Section 14-D applies to a widow who lets out the premises even after she becomes a widow then it would mean that Section 14(2) cannot be given effect to. That could certainly not be the intention of the Legislature. Once in a lifetime chance was given to the landladies falling under Section 14-D and this is evident from Section 14(2) of the Act.
15. Our attention was also drawn to the decision of a single Bench Judgment of the Madhya Pradesh High Court in the case of Radhabai v. Arjundas, in support of the contention that a similar provision in the Madhya Pradesh Act to Section 14-D of the Delhi Act applied even where the premises were let out by a widow after she had become a widow. In that case the learned single Judge came to the conclusion that the provisions of the Madhya Pradesh Act were meant for widows and no distinction could be drawn with reference to the tenancy in question being prior or subsequent to her widowhood. We, however, find ourselves unable to agree with this conclusion firstly because the judgment does not give any reason for coming to the aforesaid conclusion and secondly because, in our opinion, Section 14-D is analogous to Section 14-C and just as the premises had to be let out by the landlord when he was in government service for Section 14-C to apply, similarly Section 14-D was meant for those cases where the premises had been let out when the husband of the widow was alive.
16. It was then contended that the word 'required' in Section 14-D should be construed as bona fide required by the landlady. In support of this a reference was made to Section 14(l)(e) in which this expression appears. Section 14(l)(e) reads as follows: -
Section 14(l)(e):
"That the premises let for residential purposes are required 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;
17. The Legislature, when it enacted Section 14-1), was aware of the provisions of Section 14(l)(e). We find it difficult to accept that Section 14-D should be so construed so as if it incorporate therein the provisions of Section 14(l)(e). This, in fact, would be the result if the contentions of the learned Counsel for the petitioners are accepted. It was submitted before us that in order to invoke the provisions of Section 14-D not only should the premises be required bona fide but the landlady should also be the owner of the premises and the premises should be such which were let only for residential purposes.
17-A. Provisions were Section 14(l)(e) could be invoked successfully if the landlord is able to show as follows: -
(1) Premises were let for residential purposes;
(2) The premises are required bona fide by him for occupation as a residence for himself or any member of the family dependent on him;
(3) He is the owner thereof, or the premises are required for the benefit of the person for whom the landlord is holding the premises; and (4) That the landlord has no other suitable residential accommodation. When we examine Section 14-D we find that the word 'bona fide' is missing. Similarly Section 14-D does not state that the premises should have been let for residential purpose. Also absent in Section 14-D is the requirement that the landlord should be the owner of the premises or that he has no other reasonably suitable residential accommodation. There force in the contention of the learned Counsel for the respondents is that when there is a different language used in the same statute the court ought to presume that the intention of the Legislature was that the provisions of Section 14-D were not to be construed in the manner in which Section 14 has been interpreted. It was submitted by Shri Chandtok that the heading of Section 25-B states that the special procedure prescribed by Chapter 111-A is for application for eviction on the ground of bona fide requirement. It was therefore, contended that the word 'required' in Section 14-D must mean bona fide requirement. We are unable to agree with this submission. Section 25-B(l) provides for application under Sections 14-A, 14-B ' 14-C and 14-D to be filed in accordance with the procedure specified in the said Section. Merely because in the heading of Section 25-B the words 'bona fide requirement' has been specified does not mean that this word has to be read into Section 14-D. Unless we are compelled to, no words should be added to or subtracted from the substantive provision like Section 14-1). To add the words 'bona fide required' in Section 14-D would be trying to make the provisions of Section 14-D similar to Section 14(l)(e). This (sic).
18. Even if the word 'bonafide' is not used in Section 14-D the question would still arise as to what is the meaning of the word 'required'. In the case of Bega Begum v. Abdul Abad Khan, the words 'reasonable requirement' occurring in J & K Houses and Shops Rent Control Act was being construed. It was held by the Supreme Court that the use of these words undoubtedly postulated that there must be an element of need as opposed to a mere desire or wish. In this connection the Supreme Court held as under (para 13):
"The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire as the High Court has done in this case. It seems to us that the connotation of the term 'need' or 'requirement' should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act, which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts, prevalent in other States in the country. This Court has considered the import of the word 'requirement' and pointed out that it merely connotes that there should be an element of need. "
V. S. Deshpande, J. (as he then was) in Lalit Kumar Vijay v. Saroj Kumari; 1969 Ren CJ 545 (Delhi) held that the word 'required' as used in Section 14(l)(e) of the Act meant that the premises are needed by the landlord. This need was to be judged as an objective fact by the Rent Control Authority. The need was to be based on hard reality and it was not a question of sentiment or desire not based on reality. With regard to the use of the word 'bona fide', occurring in Section 14(l)(e), the learned Judge observed that the same had two fold meaning, firstly that the need must be genuine one and not a frivolous one and secondly that the landlord was not motivated by extraneous consideration in trying to recover the possession from the tenant on a higher rent. The learned counsel also drew our attention to the meaning of the word 'required' in Words and Phrases, Volume 4 page 314, which again provides that the word 'required' would mean need.
19. From the aforesaid it is evident that the word 'required' in Section 14-D must mean something more than a mere desire of the landlord to live in the premises in question. The words 'required' by her must mean that the premises are needed by her far her residence. Whether the need exists or not is the question of fact which will have to be determined by the Rent Controller while dealing with an application under Section 14-D of the Act. We may here observe that the delay in bringing about an action under Section 14-D, without any plausible explanation, may be a relevant consideration for the Rent Controller while deciding whether the premises are required by the landlady or not. If an action has been brought for any mala fide or extraneous reason then again it may be that the Rent Controller would justifiably come to the conclusion that the premises in question are not required by her. Be that as it may, it is clear that once the landlady is able to show that the premises are required by her for her own residence and she fulfills the other conditions of Section 14-D then an order for recovery of possession would be passed in her favor.
20. It was also contended by Shri Chandiok that if a widow is living in a part of the accommodation and she had a residence for herself then Section 14-D would be inapplicable. We are unable to agree with bald proposition. Section 14-D clearly states that if the tenanted premises are required by the widow for her own use, Section 14-D would apply. It is immaterial, for deciding this issue, whether the widow is on the street or is living in a rented accommodation or is living in a part of the tenanted premises. It is possible that when the widow is living in a part of the tenanted premises the Rent Controller may come to the conclusion that she does not require the tenanted premises for her own use. What has to be seen is the need of the widow as opposed to desire. If the need exists then there would be no justification in non-suiting her merely because she is living in part of the tenanted premises. Learned counsel for the petitioner referred to the case of S.P. Jain v. Krishna Mohan; and contended that it had been held in that case that if portion of the premises are in occupation of the landlord and can be used "separately then the landlord is not entitled to take recourse to the urgency provisions of Section 25-B of the U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1971. In this case the Supreme Court while dealing with the requirement of a retired army officer observed as follows (at p. 229):
"It has to be borne in mind that in this case the issue is not whether the premises is sufficiently comfortable or whether the portion in question was sufficiently comfortable for dwelling or residence of the appellant or a party but the question is whether the house or the portion can be separately considered to be dwelled in. If the portion in the occupation of the appellant could not be separately dwelled in by the appellant, it was only then that the extraordinary provisions of Ss. 24-A, 24-B and 24-C could be resorted to. Otherwise the owner or the landlord is entitled to take recourse to other provisions of Rent Act contending that the premises in question is reasonably required bona fide for the landlord's use but in the situation like the present the landlord was not entitled to take recourse to the urgency provisions in Ss. 24-A, 24-B and 24-C of the Act. In our opinion to be the 'dwelling or residential accommodation it must be capable of being separately enjoyed and whether or not the premises in question can be so enjoyed does not depend merely because that a portion cannot be locked up independently or separately."
From the aforesaid passage it appears that the extraordinary provision contained in Sections 25-A, 25-D and 25-C provided for summary trial in certain cases. The normal procedure under the other provisions of the Rent Act for getting eviction of the tenant was different. In the present case however, the procedure for both Section 14(l)(e) as well as Sections 14-A, 14-B, 14-C and 14D is the same namely the summary procedure provided by Section 25-B. The aforesaid principle was laid down by the Supreme Court because the two procedures were different. In the present case the procedure for Section 14(l)(e) and Section 14D being the same the aforesaid observations of the Supreme Court would not be applicable to the present case.
21. One of the contentions raised before us was also that the words 'for her own residence' in Section 14D meant that the premises must be required by the landlady herself and no one else. In other words, the requirement or need of other members of the family was not to be taken into consideration under Section 14-1). It was contended that whereas in Section 14(l)(e) it is specifically provided that the premises may be required for occupation of the landlord or for any member of his family dependent upon him, in Section 14-D the requirement of the members of the family are missing. It is no doubt true that in S. 14-D there is no specific mention of members of the family. In our opinion however, the use of the expression 'own residence' must mean residence of the landlady with such person without whom she cannot be expected, in normal circumstances, to live. For example, the landlady may be residing with her aged parents or parents-in-law or with her infant children when her husband expired. In such circumstances because of emotional ties and social and other responsibilities the widow cannot be expected to discard other members of the family and live alone. She can reside only where her aged parents or parents-in-law can also be accommodated. A widow, young or old, may require a companion, who may not even be a member of the family, who must reside with her. In a sense, therefore, Section 14-D is wider than Section 14(l)(e). Whereas under Section 14(l)(e) it is only the requirement of: the members of the family, other than the landlord, which are to be taken into consideration, but for the purpose of Section 14-D what is to be seen is the requirement of the widow who may need a companion, who may be an old friend, relative or a trusted servant, without whom it is not possible for her to reside alone. A widow may be able to set up, residence only if she has other person/ s to live with her. A widow, in this country, needs social as well as emotional security plus she may have obligations towards her near and distant relations, without whom she cannot live. It will depend on the facts and circumstances of each case as to who are the other persons whose residence in the premises is to be regarded as the need or requirement of the landlady herself, while applying the provisions of Section 14-D.
22. Referring to Gopal Dass v. S.C.D. Gupta (1988) 2 Ren CJ 351 (Delhi), Kartar Singh v. Chaman Lal; (1969 Delhi LT 344) it was sought to be contended that Section 14-B can apply to only such a case where the premises have been let for residence and will not apply to a case where the premises have been let out for residence-cum-commercial purposes. Except for the case of Gopal Dass (supra) none of the other cases were concerned with the provisions analogous to the provisions of Section 14-D. The other cases were concerned with Section 14(l)(e) where it is specifically provided that premises have to be let for residential purposes. Section 14-D, as we have already observed, does not provide that the premises should have been let for residential purpose. In Gopal Dass's case (supra) this court was concerned with Section 14(l)(h) and one of the contentions raised was that the premises had not been let for residential purposes. On evidence the learned Judges came to the conclusion that it had not been proved that the premises had been let for residential-cum-commercial purpose. There was no discussion on the question whether Section 14(l)(h) would be applicable to a case where premises were let for composite-purpose or not. That case is, therefore, clearly distinguishable. In B. M. Chanana's case (1989 (4) Delhi Lawyer 246) (supra) we have already held that Section 14-C is applicable even where premises had been let for a composite purpose of residential-cum-commercial. In this behalf we have observed as follows:
"It was also contended that Section 14(l)(e) applies to a case where the premises were let out for residential purpose and it had no application where the premises were let out either for commercial purpose or were let out for a composite purpose of residential-cum commercial. The submission was that the same restriction or ingredients have to be read into Section 14-C. We are unable to agree with this submission. Section 14(l)(e) no doubt applies to a case where the premises have been let for residential purposes. Section 14-C on the other hand uses expression 'premises' and further states that the same are required by the landlord 'for his residence'. As we read Section 14-C it appears that the premises to which the said provision will apply must be those which are residential in nature. A landlord cannot invoke the provisions of Section 14-C in respect of premises which are commercial in nature. For example if a landlord who is a government employee, lets out office premises or shop then he cannot invoke Section 14-C and contend that he is entitled to the possession thereof as he requires those premises for his residence. This will be contrary to the very spirit of the said provision. Special provision contained in Section 14-C have been enacted in order to provide residential accommodation to the landlord and is not to be used merely as a modus operandi for getting rid of an in convenient tenant. At the same time, Section 14-C cannot be made inapplicable if residential premises have been let out by the land lord for commercial or residential-cum commercial purpose, as long as the landlord requires those premises for his own residence. It will be for the Controller to Judge whether the premises are required by the landlord for his residence or not. If the premises are such which are residential in nature and the Controller comes to the conclusion that they are required by the landlord for his residence then, on the other ingredients of Section 14-C being satisfied, the landlord would be entitled to regain the possession of the said premises even if they had been let out for a composite or a commercial purpose. To quote an example if a house in a residential colony is given to a business organization for residential-cum-commercial purpose or for running an office then the nature of the premises will always remain residential and on the ingredients of Section 14-C being satisfied the landlord should be able to recover the possession thereof if the premises are needed by him for his own residence."
23. The provisions of Section 14-D are similar to Section 14-C and therefore, for the same reasons we must come to the conclusion that Section 14-D would also apply to cases where the premises which are let out were residential in nature even though the premises may have been let out for residential-cum commercial purpose. It was contended by Sh. Chandiok that it is possible, and it happens quite frequently, that the premises may be residential in nature when they are let out and subsequently they are converted into commercial premises, Some additions and alterations are made and the premises are then used for commercial purposes. Can it be said in such a case that the purpose for which the premises had been let is to be ignored? As held by us in Chanana's case (1989 (4) Delhi Lawyer 246) (supra) what has to be seen is not the letting purpose but the nature of the premises themselves. If the premises are residential in nature even if they are let out for commercial purpose the provisions of S. 14-D would apply. If, on the other hand, the nature of the premises themselves is changed by the landlord from residential to commercial and then those premises are let for commercial purpose the position would be quite different. In that case the Rent Controller may well come to the conclusion that the nature of the premises are not residential and therefore the question of S. 14-D applying may not arise because the premises cannot be used for residential purpose after they have been recovered by the landlord. The nature of the premises would change if the premises themselves are modified by the landlord and from residential they are converted into commercial purpose and then they are let out for commercial purpose. It may, however, happen that even after the changes and alterations have been made the premises may still retain the character of residential purpose, therefore, it will always be a question of fact for the Rent Controller to determine whether the premises are residential in character or not. If the conclusion is that the premises in question are residential and are capable of being used as such by the landlord after he recovers possession thereof then the provisions of Ss. 14B, 14-C and 14-D will apply even if those premises had been let out for a composite purpose or even a commercial purpose. It is however, to be seen that if originally the premises are residential in nature and it is the case of the tenant that the nature of the premises had been altered to commercial then a mere allegation in this behalf would not be sufficient in order to persuade the Rent Controller to come to the conclusion that Ss. 14B, 14-C and 14-D do not apply. Even at the stage of application for grant of leave to contest where the landlord shows that the premises in question are residential and there is some proof in support thereof then on behalf of the tenant, if he wants to plead that the nature of the premises had been altered by making structural changes from residential premises to commercial premises, some prima facie facts will have to be disclosed by him to that effect. Unless such facts are disclosed, which would disentitle the landlord from obtaining an order for recovery of possession of premises, the Controller under sub-see. (5) of S. 25-B would not grant leave to contest.
24. It was vehemently urged that in order to apply S. 14-D the landlady must show that either she is the owner of the premises or she has substantial or some interest therein. In other words the learned counsel sought to contend that unless and until the landlady had an interest in the property, which may even be a life estate, an application under S. 14-D was not maintainable.
25. We do not see in S. 14-D the requirement for the landlady to be an owner of the premises in question for the said provision to apply. It is true that in S. 14(l)(e) the question of ownership would be relevant but then S. 14-D is a clear departure from the provisions of S. 14(l)(e). If the contention of the petitioner is correct then the legislature would have provided for the landlady to be an owner in order to attract the provisions of S. 14-D. The Legislature did not do so. This departure from S. 14-D must be regarded as a deliberate and conscious act while enacting the said provision. It would be inappropriate to set the intention of the Legislature at nought by interpreting S. 14-D in such a way, as is being suggested by the petitioner, to read into the said provision the requirement for the landlady to be an owner of the premises in question or to have any beneficial rights therein. We may, however, note that ever, though S. 13-14 does not require the landlady to be the owner of the premises or to have any beneficial interest therein nevertheless where (sic) and Controller will have to satisfy himself that the premises will be used by her for her own residence. It was submitted by Shri Chandiok that, prior to the amendment of S. 19, just as the said provision had to be read into S. 14-A similarly the word 'landlord' in S. 14-D has to be the owner of the premises. S. 19 had to be read into S. 14-A because S. 19 contained a restriction relating to the use of the premises after the recovery thereof on the ground of S. 14(l)(e) or S. 14-A. S. 19 provided that once the premises are required for the landlord's own use they were not to be let out within a period of 3 years from the date of obtaining such possession. It was considered necessary to read the provisions into S. 14-A so that the provisions of S. 14-A were not abused. We see no analogy between that situation with the present one. Whereas reading S. 19 into the provisions of S. 14-A would have been necessary to prevent abuse of the process by the landlord, we fail to appreciate how the use of the word 'landlord' in S. 14-D would necessarily imply the incorporation into that section of the word 'owner' as well. The further condition that the landlord should also be an owner is not called for the purpose of S. 14-D of the Act.
26. It was then submitted by Shri Chandiok that S. 14-A uses the expression notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary whereas S. 25-A only uses-the (sic) therewith contained elsewhere in this Act or in any other law for the time being in force'. The submission is that S. 25-A makes no reference to contract, custom or usage to the contrary. It is true that the latter words are not present in S. 25-A but to our mind the same would make no difference. A similar contention was raised in Chanana's case (1989 (4) Delhi Lawyer 246) and it was dealt with by us as under:
"It was also contended that the non obstante words used in S. 14-A are not used in Ss. 14-B, 14-C and 14-D and therefore, the provisions of S. 14-B, 14-C and 14-D can be invoked by the landlord subject to the terms of the lease which he may have executed in favor of the tenant, or any other law for the time being in force. In other words if a law prohibits the eviction of the tenant or if there; is a lease deed in his favor then the alleged right given under Ss. 14-B, 14-C and 14-D is ineffective. We are unable to agree with this contention. S. 25-A provides that the provisions of the Chapter are to apply notwithstanding anything inconsistent therewith contained elsewhere in the Act or any other law for the time being in force, therefore, once the provisions of S. 25-B are made applicable to Ss. 14-B, 14-C and 14-D then the Controller can pass an order under S. 25-B. pot withstanding contained in any law because of the provisions of S. 25-A. In other words, even though the non obstante words are not included in Ss. 14B, 14-C and 14-D but because of the provisions of S. 25-A the effect is as if the provisions are non obstante.
It will be useful in this behalf to refer to the decision of the Constitution Bench of the Supreme Court in the case of V. Dhanapi Chettjar v. Yesodai Animal, . The question which arose in that case', was whether it was necessary to terminate the tenancy of a tenant under S. 106 of the Transfer of Property Act before an application for eviction could have been filed under; the tenancy Act. The Supreme Court came to, the conclusion that it was not necessary terminate the tenancy by giving a notice under S. 106 of the Act.
It was observed in this connection as follows:,-
"It will bear repetition to say that the Transfer of Property Act in order to entitle the landlord to recover possession determination of the lease is necessary as during its continuance he could not recover possession Only on the fulfillment of the rigour of law provided therein. Otherwise not. He cannot recover possession merely by determination of tenancy. Nor can he be stopped from doing so on the ground that he has not terminated the contractual tenancy. Under the State Rent Control Act the concept of the contractual tenancy has lost much of its significance and force'.
In our opinion, therefore, the right which is created under S. 14-C is an absolute and independent right with the landlord who is entitled to recover possession of the premises on his satisfying the ingredients of Section 14-C and'nothing more. The provisions of Transfer of Property Act -would not stand in his way."
Presumably because in Dhanapal Chettiar's case (suprta), it was observed that under the State Rent Control Act the concept of contractual tenancy had lost much of its significance and force; that is why the legislature, possibly, did not think it necessary to add these words in the non obstante clause in Section 25-A.
27. It was lastly contended that the principles of resjudicata would apply in cases like the present. It was argued that if a petition under Section 14(l)(e) is dismissed inter alia on the ground that the premises are not required bona fide by the landlord then another petition under Section 14-D would not be maintainable and the same would be barred by the principles of res judicata.
28. It is now well settled that as an earlier p6tition under Section 14(l)(e) has been dismissed then a fresh application under Section 14(l)(e) would be maintainable only on changed circumstances. If the facts remain the same and the circumstances have not changed then a fresh application under Section 14(l)(e) will be barred on the principles of res judicata. The question is whether this principle can also be extended to apply to an application under Section 14-D when an earlier application under Section 14(l)(e) has been dismissed.
29. We find that Section 14(l)(e) and Section 14-D are, to a limited extent, overlapping. For instance both Section 14(l)(e) as well as Section 14-D require the applicant to be a landlord. Moreover, while in Section 14(l)(e) the premises have to be bona fide required by the landlord for his own use and use of his family members, Section 14-D postulates the premises being required by the landlady by her for her own residence. In our opinion to the extent to which Section 14(l)(e) and Section 14-D are overlapping the aforesaid principle of res judicata will apply. To give an example, if in a petition filed under Section 14(l)(e) the Rent Controller comes to the conclusion that the applicant is not a landlord then in a subsequent application under Section 14-D being filed unless some fresh facts or circumstances arise the tenant would be justified in invoking the principles of res judicata. The Rent Controller would ordinarily be bound by earlier decision on the same point between the same parties namely - whether the applicant is a landlord or not. Similarly if in an earlier petition it is held that the landlord does not need the premises for himself for residence, then unless there are change of circumstances and facts, principle of res judicata may apply. In such case it will have to be seen whether there is any merit with regard to the res judicata, if it is raised.
30. Before concluding we would like to make some observations on two important matters.
31. During the course of hearing our attention had been drawn to the provisions of Madhya Pradesh Rent Control Act where an analogous provision exists giving relief not only to widow but also to divorcees. In the Delhi Act, however, there is no separate provision, which has been incorporated giving right of immediate recovery of possession to a divorcee. The position of a divorcee may not be as pathetic or serious or urgent as that of a widow but nevertheless her need merits more serious consideration. The provision in the Madhya Pradesh Act providing for a summary procedure in case of premises being needed by a widow and divorcees, has been upheld by the Courts. That provision could have served as a guide in enacting Section 14-D of the Act. We find in the Bill which was framed that Section 14-D was not there. This provision was incorporated at the time when the Act was passed and, possibly, the attention of the Legislature was not drawn to the need of the divorcees as being similar to that of a widow. Perhaps the Government may consider bringing about a further amendment to the Delhi Rent Control Act so as to provide relief to the divorcees.
32. Some landladies addressed arguments before us on the question as to whether Section 14-D would be available to a widow who lets out the premises after her husband had died. We were informed that prior to the enactment of Section 14-D petitions under Section 14(l)(e) had been filed but the same have been languishing before the Rent Controller and the Additional Rent Controllers for a (sic) the applications under Section 14(l)(e) are required to be decided in a summary manner, in actual fact long drawn out legal battles occur spreading over a number of years. That perhaps is the result due to super-abundance of similar cases which are pending in the trial Court. What is, however, of serious concern, and for which the litigants cannot be faulted, is the fact that the cases are adjourned, time and again, because of the non-availability of the counsel due to strike. We do not propose to go into the question as to whether strikes by lawyers are justified or not but we would like to emphasise that it is the litigating public which suffers when the work in Courts cannot be transacted.
33. The most important requirement of a human being, apart from food and clothing, is shelter. The litigation under the Rent Control Act pertains to this. In any civilised society it should be the endeavor of all that such litigation is not unduly prolonged. As already mentioned, strike by lawyers has in recent times, been one of the contributor; factors in delaying the disposal of the eviction petitions. Any delay would, naturally, benefit the defendant.
34. While we cannot force or direct the lawyers to appear before the Rent Controllers and argue the cases, we think, looking at the realities of the situation, that time has come that some directions should be issued to the Rent Controllers and the Additional Rent Controllers to confront such a situation, and to discharge the duties in interest of justice and fair-play. Even during the strike period it should not be difficult, after the eviction petition is field whether under Section 14 or Section 14-A or 14-B, 14-C or 14-13, to direct the parties to be present in person and complete the pleadings. Thereafter difficulty may arise with regard to recording of evidence. If the parties agree the Rent Controller may, in appropriate cases, direct evidence to be taken on affidavits. Where necessary, and again with the agreement of the parties, the parties may be at liberty to cross-examine any deponents or the court may even like to put questions to any deponents. In cases where the pleadings have been completed and evidence has been recorded and the case is ripe for arguments then we see no justification as to why the case should be adjourned time and again. Even if the counsel are on strike and are not prepared to argue the cases in court, the Rent Controllers can require the parties either to argue the case themselves or to file written arguments. Filing of written arguments can also be resorted to while deciding miscellaneous applications where arguments have to be put forth, for instance when a question arises as to whether leave to defend should be granted or not the Rent Controller can and ought to accept written arguments. All over the world, especially in America and European Countries the written brief and arguments are more important and only limited time is given to the counsel to argue the case. If the United States Supreme Court can decide the most complicated questions of law by hearing counsel only for half an hour and by considering the written arguments in the case, we see no reason as to why the Rent Controllers cannot decide miscellaneous applications and eviction petitions, which are ripe for hearing, (sic).
35. We, therefore, direct the Rent Controller and the Additional Rent Controllers to follow the aforesaid procedure and wherever arguments are required to be heard, but counsel are unwilling to address, by reason of strike or otherwise, the Rent Controller should issue directions, give reasonable time to the parties to file written arguments and should thereafter dispose of the miscellaneous applications and eviction petitions in accordance with law. We are constrained, and also unhappy, to issue these directions but we are compelled to do so in the interest of general public because, unfortunately, going on strike has become very frequent and they seem to prolong indefinitely. The wheels of justice cannot be allowed to come to a grinding halt and a solution has to be found to provide speedy relief and justice to the needy. The litigants ought not to feel that they are helpless and are being held to ransom.
36. Reverting to the facts of this case we find it will be appropriate to set aside the impugned order of eviction passed by the Rent Controller and direct him to decide the application of the petitioner for leave to defend de novo. The reason for this is that some contentions have been raised by the petitioner, which requires serious consideration in the light of the observations, which we have now made in this judgment. We accordingly issue a writ of certiorari quashing the order dated 25-8-1989 passed by the Additional Rent Controller, Delhi and issue a writ of mandamus directing him to decide within a period of six months from today the application for leave to defend filed by the petitioner de novo in the light of the observations made in this judgment. There will be no order as to costs.
37. The parties should appear before the Additional Rent Controller for further directions on 3-7-1990.
Order accordingly.