9911796707
TMI Blog1976 (9) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... ng anything inconsistent in the Act or elsewhere in any other law for the time being in force. The procedure is prescribed by section 25B and it governs only two kinds of petitions, viz. (1) petition for eviction by the landlord on the ground of bona fide personal necessity mentioned in clause (e) of the proviso to sub-section (1) of section 14 of the Act, and (2) the petition for eviction on the ground mentioned in section 14A. It shows that the other proceedings will continue to be governed by the existing provisions under the Act prior to the amendment viz. section 37 and the Rules under the Act. In case proceedings under section 14(l)(e) are already pending, they will continue to be governed by the provisions prior to the amendment, since by their very nature the procedure prescribed by section 25B will govern only new petitions, as summons are directed to be issued in a special form and the provisions of law have prescribed for grant or refusal of leave, which can appropriately not be applied to pending proceedings. The pending proceedings must, Therefore, be continued under the existing Act or be withdrawn with liberty to file another petition on the same cause of action, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng an early decree by raising untenable and frivolous defenses in a class of cases where speedy decisions are desirable in the interest of trade and commerce. In general, therefore, the test is to see whether the defense raises areal issue and not a sham one, in the sense that, if the facts alleged by the defendant are established, there would be a good, or even a plausible, defense on those facts. 5. The decision of the Supreme Court referred to above, in my opinion, has a persuasive value, but it does not apply to the provisions of law under our consideration. Under Rule 3 of Order 37, the requirement is seeking leave upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application. Again the leave may, in the discretion of the Court, be given unconditionally or be subject to such terms as to payment into court, giving security, etc. Consequently, in very many cases, the provision about imposing conditions and terms in cases under Order 37 meets the ends of justice, but no such provision is available in the procedure prescribed by section25B. Moreover, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the affidavits for leave are clear, specific and positive and the defense raised is bona fide and prima fade not untenable and untrue. But the Controller in granting or refusing the leave cannot determine any disputed questions of fact, and if any such dispute arises bona fide where the defense taken is clear, specific and positive, then the petition must be set down for trial on evidence and the facts should be investigated as quickly as possible, as is required by subsections (6) and (7) of section 25B. On the other hand should the Controller find that the defense raised is not clear, specific and positive or is not bona fide, but has been made only to gain time, he would be justified in refusing the leave to contest the petition. In case leave to contest has been granted, the petition for eviction would be set down for trial in accordance with the procedure prescribed by law and the landlord would then be required to lead evidence to prove the ingredients of the grounds on which he seeks eviction and the burden will lie on the landlord to prove his claim except in so far as any part of the claim be admitted by the tenant. 9. This takes us to the consideration of the defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y right on the landlord in the special circumstances. The exercise of this right is, therefore, circumscribed only by the conditions imposed by the amendment and not by any other provisions of law or contract to the contrary. At this stage, it would be convenient to reproduce the relevant provisions of section 14A of the Act: 14A. (1) Where a landlord who being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required by, or in pursuance of, any general or special order made by that Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations, on the ground that he owns, in the Union Territory, of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order, to such landlord, 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, a right to recover immediately possession of any premises let out by him ;Provided that nothing in this s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to immediate possession and no compensation shall be payable by him to the tenant. As such neither the plea of want or validity of the notice to terminate the tenancy lack of permission of the Competent Authority (Slum Areas), nor any stipulation in the contract of tenancy to the contrary would prevent the landlord from obtaining immediately possession of the premises. Therefore, his right under section 14A to obtain possession is to be exercised by the landlord untrammelled by any. other restriction or conditions notwithstanding anything contained in any other law or contract to the contrary except of course subject to the conditions and restrictions contained in section 14A itself. 14. It has been urged that section 54 of the Act also states that nothing in this Act shall affect the provisions of the Slum Areas(Improvement Clearance) Act and so the protection granted by the said Act is still available, as section 14A also becomes a part of the Act. The argument is attractive, but suffers from a fallacy. Section 14A has been added by the amendment Act mentioned above. It, therefore ,expresses the later will of the Parliament and when this provision lays down that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtain eviction conferred by section 14A is confined to residential accommodation and if the premises in dispute had been let out for residential-cum-commercial purpose or were in fact used by the tenant for such purposes then the landlord cannot avail of the right. The Explanation to clause (e) of the proviso to sub-section (1)of section 14 of the Act says that the premises let for residential purpose include any premises which having been let out for use as residence, are without the consent of the landlord, used incidentally for commercial or other purposes. This Explanation governs the expression premises let for residential purpose which occur in clause(e). In clause (e), Therefore, the letting purpose of the premises is an important factor. The said considerations do not apply to the petition under section 14A. In my opinion, the object of letting out of the premises or the purposes for which the tenant is using the premises with or without the consent of the landlord are not a relevant consideration. What is material is that the landlord petitioner himself or his wife or dependent child owns an accommodation in the Union Territory of Delhi, which is residential in nature. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of exercise of right under section 14A of the Act, an important proviso has been inserted. It is to the effect that the right to obtain eviction under section 14A (unrestricted and untrammelled by any other statutory or contractual conditions) is confined only to one dwelling house and the landlord is not enabled to recover possession of more than one dwelling house in exercise of the right under section 14A. In case the landlord owns two or more dwelling houses ,then it is incumbent on him to specify in the petition for eviction all his dwelling-houses and clearly indicate one dwelling house, the possession of which he claims to recover. In my view, the specification of this fact in the petition for eviction is necessary for the reason that the landlord should not be enabled to institute a number of petitions separately in respect of each dwelling-house without disclosing the fact of his owning other houses and if a tenant should not be aware of the landlord being owner of more than two dwelling houses, then the landlord may be able to illegally obtain possession of two or more dwelling houses under section 14A. So, in my opinion, it is necessary that the landlord must specify in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Ireland Act,1854 (C. 103)), although the occupier's usual residence was just outside the boundary of the town Laws-on v. Fraser, 8 L.R. 55. 21. In Butterworth's Words Phrases, Vol. Ii, page 127, the word 'dwelling-house' has been defined this: 1. (a) a rating unit used wholly or mainly for the purpose of a private dwelling ; or (b) any such separately occupied part of a rating unit as issued wholly or mainly for the purposes of a private dwelling ; or . (c) such part of rating unit which is used partly, but not wholly or mainly, for the purposes of a private dwelling as is used for these purposes (Coal Mining (Subsidence)Act), 1957, s. 17(1). 2. 'Dwelling' means a building or part of a building occupied or intended to be occupied as a separate dwelling(Housing Act, 1964, s. 44). 3. 'Dwelling' means a building or part of a building occupied or intended to be occupied as a separate dwelling, together with any yard, garden, outhouses and appurtenances belongs to or usually enjoyed with that building or part ; so, however ,that a building or part which, in the opinion of the Minister, is designed for permanent use as a single dwelli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u must search otherwise than the word itself what is the meaning in which the Legislature has used it, since the natural and ordinary meaning of an ambiguous word cannot be ascertained without the context. Accordingly, the word 'house' has no common or ordinary meaning so fixed and definite that by the mere use of The word you can determine in what sense the Legislature has used it. I think the original idea of an inhabited house was that of a building inhabited by one person (with his family)responsible for the tax, who was himself the inhabitant of the whole of the house. But very soon questions began to be raised as to what constituted the unity of a house; one side of a whole street is in one sense structurally one building, but the separate unity of each of the structures with all its arrangements for occupation by one family and its head was of course recognised as a house separately liable to the tax. Even semi-detached houses were always recognised as two houses, although they were structurally one and protected by one roof. In modern times a practice has grown up of putting separate houses one above the other; they are built in separate flats or hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is a shop on the ground floor will not convert the building into something different from a residential house. Considering 'residential accommodation' in Firm Ganga Ram Kishore Chand v. Firm Jai Ram Bhagat Ram, the High Court of Punjab observed as follows : The word 'residential' and other cognate expressions, such as, 'reside', 'residing', 'resident', 'residence' and 'occupy' occurring in several statutes have variously shaded butelastic meaning. A person is ordinarily said to 'reside' where he lives with his family. The word 'residence' connotes two elements, (1) actual or physical habitation and (2) the intention to remain there permanently that is, for an unlimited time. In its ordinary sense the word 'reside' carries with it the idea of permanence, that is for any length of time, as well as continuity. The word 'residence' denotes a dwelling house where a person lives in a settled abode. In other sense, residential house is a dwelling-house as distinct from a house of business, warehouse, office shop, etc. Residential house is a building, used as a place of abode, in which, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from Ganga Dutt Murarka v. Smt. Bibhabati Devi, AIR 1957 Cal 65, and it is submitted that the fact that there are different municipal numbers and entrances in different streets, does not show that it is not one building. Reliance has also been placed on a decision of the Income Tax Appellate Tribunal, Hyderabad Bench 'B', in Wealth-tax Officer, A Ward Chittoor v. Sri C. A. Natesa Mudaliar ChiKor, W.T.A. No. 282/Hyd. 1973-74, decided on 30/06/1975and reported in (1976) Tax 42, for January, 1976. The members of the Tribunal, after quoting C. Grant v. Langstan,1900 A.C. 390, and Yorkshire Insurance v. Clayton, (1881) 8 QBD 421, observed: For the purpose of Wealth-tax Act, it is clear that the expression has to be one which could be utilised for human residential purposes. The fact that the expression used is a 'House' and no building would indicate that all conveniences which go with proper human living also have to be considered. If, Therefore, it is not one building but two or three buildings, all in the neighborhood, which are together utilised by a person for his residence-one being used as a kitchen, another as living rooms and the other as cattle shed or st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; in section 2(i) of the Act means and includes a whole or part of the building, which is or intended to be let separately for use as a residence, etc. In the context of the Act, to arrive at the meaning of the word 'dwelling-house', the expression let separately is to be excluded from the consideration, and the building, in order to constitute a dwelling-house, must howsoever let be such as is intended to be used separately as a residence. Where the premises consists of a whole building, the question obviously does not arise, since in such cases the premises and dwelling-house would refer to the same accommodation. The problem arises, if what has been let out as a premises exist in a part of the building. In such cases, IN my opinion, the landlord would, in a case falling under section 14A, be entitled to obtain possession of the whole building consisting of several premises, provided the whole building constitutes one dwelling-house. 29. In order to determine whether two parts of the building consist of one or two dwelling-houses, the test to be applied is this:(1) consider the building and see whether it constitutes a whole house or part of the house ; (2) if one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mer Rent Control Act, 1952. This has been interpreted by the Supreme Court in HariShankar v. Rao Girdhari Lal Choudhry, Air 1963 Sc 698. The rule of law laid down is that the High Court can satisfy itself that the decision as a whole is according to law and it refers to the overall decision, which it would not be if there be a miscarriage of justice due to mistake of law, but it cannot be equated to errors of law or of fact simpliciter. Instances in which the High Court will be justified in interfering are where the court had no jurisdiction or in which the court had passed a decision on evidence which should not have been admitted or had not been given a proper opportunity of being heard or the burden of proof has been placed on the wrong shoulders. But the High Court will not be justified in interfering with a plain finding of fact. 33. The result is that the High Court in exercise of powers under sub-section (8) of section 25B of the Act is not entitled to interfere with a plain finding of fact, if it be satisfied that the order of the Controller taken as a whole is according to law and no error of law has been committed resulting in miscarriage of justice. I shall now Summar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o or more dwelling-houses and seeking recovery of possession of one of them must specify all the houses owned by him or his wife or dependent child and indicate the one of which he seeks recovery of possession . 8. The meaning of dwelling-house is not confined to a part of the building containing a premises, but it means the whole building consisting, if necessary, of one or more premises, as defined by the Act, but the whole building must be such as is reasonably intended to be used separately as one residential house. 9. The scope of revision under sub-section (8) of section 25B of the Act is as laid down by the Supreme Court in HariShankar v. Rao Girdhari Lal, Air 1963 Sc 698. In view of the observations made above, the particular revisions are now disposed of. C.R. 369 of 1976 34. This is a revision by the tenant against the order of the Controller dated 29/05/1976 by which he has refused leave to contest and ordered eviction of the petitioner in a petition for eviction under section 14A of the Act. In this case, the defense raised is that the landlord had more than one dwelling-house and he is already in possession of house No. 5/61 and has obtained an order for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Controller dated 17/04/1976 refusing leave to the petitioner to contest and ordering his eviction. The defense raised was that the previous petition filed under clause (e) of the proviso to sub-section (1)of Section 14 of the Act had been withdrawn and the present petition is not maintainable. This objection has been repelled by the Controller, in my opinion, rightly. The other contention raised is the letting purpose of the premises and the ownership of the respondent. So far as the letting purpose is concerned, the Controller has found that the rent receipts show that the premises had been let out for residential purposes and not commercial and that the nature of the premises was residential. I am of the view that this observation of the Controller is correct. So far as the denial of the title of the respondent is concerned, the respondent has based his title on a registered will. Had it been a recent will, I would have accepted the submission of the counsel for the petitioner and ordered the setting down of the case for trial on evidence and proof of the will, since mere production of the will does not prove it. But the will is old and the petitioner tenant has acknowledged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a petition under section 14A of the Act. The revision has, Therefore, no merit and is dismissed and the order of the Controller is affirmed. The parties are left to bear their respective costs. C.R. 349 of 1976 38. In this case, the tenant has filed the revision against the order of the Controller dated 25/04/1976 refusing leave to contest THE petition and ordering eviction. The petition has been filed for eviction on the ground mentioned in section 14A of the Act. The defense raised is that the notice of termination of tenancy is not valid and the premises have been let out for residential-cum-commercial purposes and no permission has been obtained from the Competent Authority (Slum Areas)to institute the petition. The Controller has observed that no material has been placed on record to suggest that the premises were let out for residential-cum-commercial purposes and that the defense about the validity of the notice of termination of tenancy and lack of permission from the Competent Authority (Slum Areas) were not available to the tenant in a petition under section 14A of the Act. In the view I have taken, the order of the Controller is correct. It was not open to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
