SMT. BIMLA DEVI ETC.
co 4ST ADDITIONAL "DISTRICT JUDGE AND OTHERS ETC. ¥ » March 27,1984 - , {S: MurTAZA Fazav ALt, A. VARADARAJAnN AND RANGANATH.
Misra, JJ.]
* Uttar Pradesh Urban Buildings “Regulation of Letting, Rent and Eviction)
et. 1972, Scope of — Words a-d Phrases—Inport, interpretation and meaning
« wof the word “‘occup:tivn” occurring in Explanation (IV) ro section 22(1)(6)—
* ‘The words used are not a rule of evidence—A tenant has no right to question ° the mode in which the Land'ord may choose to live in.
In both Civil Appeal No. 41 of 1979 and Civil ‘Appeal No. 379 of
1980, the. appellants are the unsuccessful house-owners to get an eviction
~order against their tenants from the portions of their respective houses from s the court’s telow. In the first case, the question afose whether the, portion vof the premises sought to be vacated by the landlady was one single unit or iwo separate units. In the second case, the point involved was whether, the
" «word ‘ ‘occupation’ included actual residence of the landlord even though
& the may not have been ‘residing there.
. . Allowing the appeals, by spscial leave, the Court,
HELD : (C.4. No. 41/1979) In view of the Tria] Court’s finding basing its decision on the report . “of the Commissioner appointed for the purpose, that the entire building con- A an “stituted one single unit, the appellant being in occupation of a portion of . ' the same, she is entitled to get release of the other portion occupied by the’ “ stenant, [323F-G]
wo i
In C.A; Now 379/ 1980.
«
1:1, The case of the appellant is clearly covered by: the provisions of Explanation (iv) to section 21(1)(b) of the Uttar Pradesh Urban Buildings ARegulation of Letting, Rent and Eviction), Act 1972. [323] 1:2; The policy of the law was to give a facility to the landlord so ‘ sas to secure the cntire building where he is in occupation of a part of the. weame and wants to occupy the whole house. [321D]
JA
Gc"
ran
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' 316. _. SUPREME COURT REPORTS’ " [1984] 3S.CR..
13. In Babu Singh Chauhan v. Rajkumari Jain & Ors. [198273 SC.R.. -
114, the Supreme Court, while construing the word: “oceuprtioa”’ occurring.»
_in section 21(1)(b) of the 1972 Act, used the word “possessioa”, treating .
the word “ “possession” as synonym of “‘occupation” aad since the word “possession”? or “occupation” may take various forms held that even keep- jing the house-hold effects by” the owner is an act of occupation,
- , [319H, 320D- Gy
Therefore, even if a landlord is serving outside or living with his near relations but makes casual visits to his house and thus retains control of”
. over the entire area or a portion of the-property, he. would. in law be deemed to be in occupation of the same, To accept the coateotion that Explaaa~.
’ tion IV required actual physical occupation by the landiord of the portion. . retdined by him would destory the very concept of coastructive or actuat
Possession or occupation. [320H ;°32.1A-B] © -
.
. All the Rent Control Acts try to deprive and curtail the right of an onwer of his property and hive put ‘constraints and restraints on his .
right by giving sukstantial protectioa to the tenants in public interest, other-
. wise if Rent Acts, were to be abolished or were not there, the tandlord could “get a tenant evicted only by a notic: after expiry of the. tenancy in accordance with the provisions of the Transfer of ‘Property Act. [321B-F] .
2:2: gThe words “shall bo conclusive. to prove” in Explanation Civ} clearly indicate that it is a substantive right which belongs to the jand!ord and which has been affirmed and recognised if a part of an accommodation:
is retained by the landford. The words “conclusive to prove that the buil- ding iS bona fide required by the landlord” does not constitute a rule of evi- -. dence. [321F-G] |
2: 3. The right to ejectment havisg accrued to the appellant under Ex planation (iv) was a vested right as an owner and could not be affected by: the 1976 amendment unless it was couched in a language which waS either expressly or by nccessary intendment meant to be operative - retrospectively. Explariation (iv) deals not merely with a particular procedure but with the:
. Substantive rights of the parties. The said Explanation has asserted andi . “ affirmed tho substantive right of a landlord to get portion of a buliding vuca- —.
. ted where he is in occupation of a part of it. Such a substantive right can-not be taken away merely by a procedural amendment noyz does the language of the amendment introduced the 1976° Act envisage or contemplate such a position. Section 14 of the 1976 ‘Act merely recites’ that Explanation (ii)
_and (iv) of s.21(1)(b) shall be omitted. There is nothing to show that the , legislature intended to give any retrospective effect to the deletion” of Expla- ;
nation (iv). [321H, 322A-D] _
3. The argument that merely becatise the landlord was living with “his son or his relation after retirement and, therefore, was not ia accupation ' of the hause cannot be accepted because it was not for the tenant to dictate to, the Jandlord as to how he should use his own premises. A tenant to has got: no right nor any business to interfere with the mode or manner in which a landlord may choose to use | his property or live therein, [323 A- B)
a
BIMLA DEVI vy. ADDL. DISTT: JUDGE (Fazal Ali, J.) 317
CIiL APPELLATE JURISIDICTION : Civil Appeal | No. 41 of 1979. - (From the Judgment and Order dated 23rd August, 1978 of Allahabad High: Court in Writ Petition No, 1483 of 78)
WITH Civil Appeal No. 379 of 1980. .
From the Judgment-and order dated 28th March, 1979 of the Allahabad High Court in civil Misc-Writ No. 1287 of 1977
G.L. Sanghi, V.A. Bobde & H.K. Puri for the appellant in'C.A. ‘No. 41/79.
R-K. Jatn for the appellant in C.A. No. 319/80.
K.P. Gupta for the respondents in C.A. No. 41/79,
Shanti Bhushan and. R.B. ‘Mehrotra for the respondent i in C.A.
No. 379/ 80. ’
The Judgment of, the Court was delivered by
FazaL Att J. We would first take up Civil appeal No. 379 of 1980 which is directed against an Order dated March 28, 1979 passed by the Allahabad High Court dismissing the writ petition of the appellant and arises in the following circumstances.
The appellant owns a house bearing No. 113, Amroha Gate,
‘Fruit Market, Moradabad, in a portion of which ‘he had inducted:
respondent No.3 (Vishwa Nath Kapoor) as a tenant while retaining: some portion for himself, when he (appellant) was serving as a.
i. Judigial Officer in the State of Uttar Pradesh. In the year 1968, the .
appellant retired as a District Judge as a result of which he had to
‘vacate his official residence, which necessitated the present eviction proceedings against respondent No.3. The application for eviction was filed on 2.1.1973 under s.21(1) (b) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ‘1972 Act’) in which the appellant prayed that the portion occupied by respondent No.3 may bé released on the ground of personal requirement as after retirement he wanted to occupy the entire house.. The appellant further claimed that due ° to shortage of accommodation he had to stay with his son elsewhere. «The eviction proceedings were contested by the respondent on the following grounds:- (a) that since the appellant was already living with his son there was no particular urgency or personal necessity for him to occupy the rented portion also,
Ss, SUPREME court REPORTS’ [1984] 35. CR.
by that the appellant had in his occupdtion a part of the housé which was retained by him even after inducting him. (respondent) as a tenant and which was sufficient for his needs, and
‘(c) that the.appellant after keeping his household effects in the” portion retained by him had locked up the same and was, " therefore, not in actual occupation of the house as required - by Explanation (iv) tos. a () (b).° ;
In the same token, it was submitted as a point of Jaw that the ’ essential ingredient of Explanation (iv) to s.21(1) (b) was that the building must have been in occupation.of the landlord for residentiat purposes which alone would be a conclusive proof of personal necessity. It was also contended as a question of fact that? as the appellant-landlord was not in actual. occupation of the premises, |’ Explanation (iv) would not be attracted in the instant case. To buttress this argument it was submitted that the landlord never occupied or possessed the premises but had locked up the same and | . was residing elsewhere. - This plea of thé respondent-tenant did not - find favour “with the Prescribed Authority or the High Court..
; The dominant question, therefore, turns ‘upon the import and interpretation of Explanation (iv) to s.21(1) (b), particularly the nature and meaning of the word.‘occupation’ as used in Explanation (iv). The crux of the matter, therefore, was as to whether or not the case of the appellant squarely fell within the four corners of Explana-tion (iv) and’whether the word ‘occupation’ included actual residence of the landlord even though he may not have been residing there.
_ We might mention that while the eviction proceedings were pending before the Prescribed Authority the 1972 Act was amended by U.P. Act No.28 of 1976 (for short to be referred to as the “1976 Act’) — which came into force with effect | from 5th July 1976 and ‘which’ » deleted Explanation (iv). The Prescribed Authority, relying on ' Explanation (iv), held that the need of the landlord was fully made out and accordingly passed an érder of eviction against the tenant, partly releasing some portion in appellant’s favour. The appellant then filed an appeal before-the District Judge which was heard by an . Additional District Judge who accepted the offer of the tenant and modified the Order of the Prescribed Authority by further ‘releasing some.other portion in his-favour. The appellant then filed a writ
_BIMLA DEVI v, ADDL. DISTT. sUDGE (Fazal Ali; J.) 319 petition before the High Court which upheld the decision of the Disttict Judge and dismissed the writ petition.
Before we approach the question of law raised before us it may ; be necessary to give a detailed picture of the position of the premises retained by the landlord and that rented out to the tenant. The house in question is a double-storeyed oné containing some rooms
_ on the first floor and some on the ground floor which were retained by the landiord at the time.of the lease and the rest of the portion. was let out to the tenant. Ts
The learned counsel for the appellant contended that in view of the requirements of the landlord he-had a real and Sona fide need for occupying the entire house and, therefore, the entire portion occupied by the tenant should have been réleased' in favour of the _ appellant. This argument was countered by Mr. Shanti Bhushan, counsel for the respondent, who put forward the following legal submission: :
In the first place, he contended that Explanation (iv) would not in terms apply to the facts of the present case because on the findings of fact arrived at by the courts below it was not shown that.
the appellant was in actual occupation of the portion retained by _
* him, which js a prerequisite for the application of Explanation (iv) to s.21 (1) (b). In this connection, it was submitted that the admitted — position being that the application was'previously employed as a, District Judge and was living elsewhere, he could not be deemed to. be in occupation of the portion retained by him. In order to appreciate this argument, it may be necessary to examine closely the language of Explanation (iv) which may be extracted thus:
““iv) the fact that the building under tenancy is a part of a building, the remaining part thereof is.in the occupation of the landlord for residential purposes, shall be conclusive to
_ prove that the building is, bona fide required by the landiord,”’
G:
The pivotal argument of the counsel for the respondent turns. . a upon the interpretation of the word ‘occupation’. This, however, . does not present any difficulty because ina recent decision in the case of Bapu Singh Chauhan v. Rajkumari Jain & Ors.) this Court while
(1) [1982] 3SCR 114. - s
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320000 SUPREME COURT REPORTS. [1984] 3 s.c.Rr.
construing a similar term in the same > Act observed: as follows :° - “We have gone through the judgment of the High
- Court in the light of the arguments of the parties and we are inclined to agree with the view taken ‘by the High Court that
' ™ the mere fact that the lady did not actually reside in the premises which were locked arfd contained. het household effects, it cannot be said that she was not in possession of the premises so as to make s. 17-(2)*inapplicable. Possession by a landlord of his property ‘may assume various forms. A * landlord: may be serving outside while retaining his possession over a property ora part of the property by either leaving it in-chargé of a servant or by putting his household effects or. things loéked up in the premises. Such an occupation also would be full and complete possession .in. the eye of law.”
It is true that the court used the word, ‘possession’ but in Explanation-{iv) to $.21(L) (b) the word used is ‘occupation’ and not
‘possession’ but this Court treated the word ‘possession’ as being a” ‘synonym of ‘occupation’. In Webster’s Third New International
Dictionary the word “occupation” has- been defined at page 1560 thus: -.
“Occupation—to take possession 1 of, occupy, einploy”
“. The Black’s Law Dictonary (Sth Ed ) defines ‘occupation’ at
‘page $2 thus: .
_“occupation—possession; control, tenure, use,”
In Corpus Juris Secundum (vol.67) at page 74 ‘occupation’ has
‘been. mentioned thus:
“The word may be employed’as referring to the act or process of occupying, ‘the state of being occupied, occupancy, or tenure.’
' This.Court in‘the observations, extracted above, has clearly pointed out that ‘possession’ of ‘occupation’ may take various forms
~ and it was expressly held that even keeping the household effects by the owner is.an act of occupation.
+
It is, therefore, manifestly clear that even if a landlord is serving outside OF diving with his near relations but makes casual v-
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BIMLA DEVI ¥. ADDL, DISTT. JUDGE (Fazal All, J) * 321 . ¢
“visits to his house and thus retains control over the entire or.a por-
“tion of the property, he would in law be deemed to be in occupation
-of the same. Therefore, we are unable to accept the argument of Mr. Shanti Bhushan that the essential. ingredient of Explanation (iv) has not been made out, there being no actual ‘physical occupation - ‘by the landlord of the portion retained by him. Indeed, if the ‘broad argument put forward by the counsel is to be accepted then that would destroy the very concept of constructive or actual posses-
“sion or occupation. For, instance, even if a house is not let out to anybody but is locked up, can it be said that the owner who is not
‘tiving there but has kept his household effects, would not be deemed to be in occupation of the same? The answer must necessarily be in ‘the negative, rt
It seems to us that the policy of the law was to give a facility’ ‘to the landlord so as to secure the entire building where he is in occupation of a part of the same and wants to occupy the whole -hause,
Mr. Shanti Bhushan then argued that Explanation (iv) -’ ‘does not confer any substantive right but merely raisesa presump-
_ ‘tion that ifa landlord is in occupation of a part of the premises, ‘hisneed would be deemed to be bona fide. We are, however,
‘unable to agree with this argument. We must remember that all the Rent Control Acts try to deprive and, curtail the legal tight of an owner to his property and have put constraints and’ restraints on his right by giving substantial protection to the tenants in public interest; otherwise ifthe Rent Acts were to be abolished or ‘were not there, the landlord could get a tenant evicted only by a notice after expiry of the tenancy in accordance with the provisions © of the Transfer of Property Act. The words “shall be conclusive to prove” in Explanation (iv) clearly indicate that it is a substantive right which belongs to the landlord and which has been affirmed and .
_ recognised if a part of an accommodation is retained by the land-
Jord. Weare unable to agree with Mr. Shanti Bhushan that the words “‘conclusive to prove that the building is bona fide required by | the landlord”’ constitute a rule of evidence. In fact, this’ argument ~ was put forward before us’because the learned counsel wanted to
_ submit that in view of the 1976 Amendment Act, deleting Explana- tion (iv) to s.21(1) (6) of the 1972 Act, it would be -deemed to be retrospective and therefore the relief given by Explanation (iv) would disappear. We cannot agree with this somewhat far-fetched submis- a
322. —ti( | SUPREME COURT REPORTS oe 1984] 35. CR.
sion because Explanation (iv) deals not merely with’ a particular he procedure but with the substantive ‘Tights of the parties. The said , Explanation has assserted and affirmed the substantive right of a.
. landlord to get a portion of a building vacated where he is in occupae tion of a part of it. Such a substantive right Cannot-be taken away’ merely by’a procedural amendment nor. does the language of the amendment introduced by the 1976:Act envisage Or contemplate such., a position... Section 14 of the 1976 Act merely recites that Explanations (ii) and (iv) of s.21(1) (b) shall be omitted, There is nothing: to show that the legislature intended to give any Tetrospective effect. to the deletion of Explanation (iv).
In these circumstances, therefore, the right to ejectment having |‘ accrued to the appellant under Explanation (iv) was a vested right — as an owner and could not be affected by the 1976 amendment unless. it was couched in a language which was either expressly or by a, necessary intendment meant to be operative retrospectively, ~ x
Lastly,. it was argued by Mr. Shanti Bhushan that the fact. remains that the appellant, even after retirement, was not in’ actuat possession of the portion retained by him and was living wth his— _ son.or other relations most of the time excepting casual visits to the premises in dispute. A further argument was raised in an additional
Note supplied-by the counsel for the respondent that as the bath- room and the Jatrine were in occupation of the tenant, the landlord h. could not possibly have occupied the prémises retained by hiny. and - ‘could not have lived there in the " absence: of these facilities. The High Court Tightly rejected these arguments by observing thus:
“The last argument ¥ was that the view of the Prescribed ;
Authority that since the petitioner - -did not occupy the portion retained by him and lived: with his son and, therefore, his need was not bona fide has no’merits’ inasmuchas the petitioner did not have either a latrine or a bathroom: and
‘that he could not possibly occupy the house in the. position in which it had been retdined,, There may be some truth in.
the submission made by the learned counsel for the petitioner.
» But, as neither the Preseribed. Authority. nor the Appellate: Authority based their judgment on this feature of the case and — they examined the merits of the claim of the respective parties, A.
*” it is not possible to interfere with. the judgments of the courts: co ‘ below.”
BIMLA DEVI ¥. ADDL. DISTT. JUDGE (F azal Ali, J.) 323
_ An attempt was made by the parties to come to a settlement ’ but, unfortunately, the efforts failed. The argument.of Mr. Shanti’ Bhushan that merely because the landlord was living with his son. or his relation after retirement and, therefore, was not in occupation of . the house cannot be accepted becausé it was not for the tenant to
' dictate to the landlord as to how he should use his own premises,
A tenant has got no right nor any business to interfere with the mode or manner in which a landlord may choose to use his Propecty or live therein. ; «
" Jn these circumstances, therefore, we are satisfied that the case of the appellant is’ clearly covered by the provisions of Explanation (iv) to's.21(1) (b) and-a. decree for release of the entire premises should have been passed by the District Judge against the respondent. We, therefore, allow this appeal, set aside the judgments of all the courts below and order release of the entire premises in possession of the respondent to the appellant. Time is granted to the respondent to vacate the premises on or before 31st December 1984, subject to the usual undertaking to be given and filed by him in the Court within four weeks from today, failing which the grant of time shall stand revoked without further reference to the Bench and the appellant would be entitled to be put in possession forthwith.
.
” Civil Appeal No. 41 of 1979
This appeal was heard alongwith civil appeal No. 379 of 1980 which we have decided by our judgment’ The main point involved in this appeal was as to whether the-portion of the premises sought to be vacated by the landlady was one sjngle unit or two separate units. This Court remanded the matter to the trial court for examining this point and the trial court has returned a finding, basing its decision on the report of the Commissioner appointed for the purpose, that the entire building constituted one single unit.
It is, therefore, manifest that if the entire building was one unit — and the appellant being in occupation of a portion of the same, she is entitled to get release of the other portion also. In view of our decision in civil appeal No. 379 of 1980, the appeal is allowed and we order release of the entire portion in favour of the appellant. - Time is granted to the respondent to vacate the premises on or before 31st October 1984, subject to the usual undertaking being given and fited within four weeks from today, failing which the .grant of time
324 . - SUPREME COURT REPORTS _ [1984] 3 5.0.8. .
; shall stand revoked without forther reference ‘to the Bench. There , — will ber no order as to costs. ;
* Let a certified copy of this judgment be placed on the file of civil appeal No.41 of 1979. ;
S.R. 4 oe oo, | Appeals allowed. .
x