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CASE NO.: Appeal (civil)  390 of 2004

PETITIONER: Kailash Chand & Anr.

RESPONDENT: Dharam Dass

DATE OF JUDGMENT: 04/05/2005

BENCH: CJI R.C. Lahoti, Y.K. Sabharwal & G.P. Mathur

JUDGMENT: J U D G M E N T

R.C. Lahoti, CJI

       An application seeking an order of eviction under Section  14 (3)(a) (i) of the Himachal Pradesh Urban Rent Control Act,  1987, hereinafter, the Act for short, was allowed by the Rent  Controller and the tenant was ordered to be evicted.  The order  was maintained in appeal by the Appellate Authority.  The High  Court has in exercise of revision jurisdiction set aside the order  of eviction.  The aggrieved landlords have come up in appeal by  special leave.

       It will be necessary to set out the relevant material facts in  order to appreciate the controversy arising for decision.  The suit  premises are part of a double-storeyed building, bearing house  number 108, situated in the city of Shimla, where the Act is  applicable.  The ground floor consists of one shop, one godown,  one store-room and one kitchen.  The first floor consists of two  rooms, a kitchen, latrine and one verandah.  The property  belonged to one Ramji Dass.  The two appellants before us,  namely, Kailash Chand and Nokha Ram are real brothers.  They  purchased the property from Ramji Dass. The exact date of  purchase is not known but it was sometime in the year 1980.   Ramji Dass was carrying on his own business on the ground floor  while the first floor was in occupation of the tenant, Dharam  Dass, the respondent herein.  The appellants got vacant  possession of the ground floor from their vendors while the  tenant continued to be in occupation of the first floor which he  was holding on tenancy at a monthly rent of Rs.15/-.

       Having purchased the premises, the landlords initiated    proceedings for the eviction of the tenant from the first floor  premises by an application filed on 1.8.1980 before the Rent  Controller under the Himachal Pradesh Urban Rent Control Act,  1971 \026 the law as it was applicable then. The ground for eviction  was that the family of the appellants was living in miserable  conditions.  On purchasing the building No. 108, appellant No. 2  commenced his commercial activity by opening a shop on the  ground floor of the building.  He started using the godown for  the residence of himself along with his wife and two school going  children.  One room was used as a store room and one room as  a kitchen.  Before purchasing house No.108, appellant No. 1 was  living in a rented accommodation which he had to vacate  perforce as it was in a dilapidated condition and unsafe for  human habitation.  Appellant No. 1 joined appellant No. 2 for

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residence.  At night, he had to sleep in the shop. Appellant no.1  was of marriageable age but his marriage was not being  performed for want of living accommodation. The landlords  urged that the residential accommodation on the first floor in  occupation of the tenant was required by them to accommodate  their large family. The Rent Controller vide order dated  31.10.1984 allowed the landlords’ application and directed the  respondent-tenant to be evicted.

       The tenant preferred an appeal.  During the pendency of  appeal before the Appellate Authority the parties entered into a  compromise which is recorded in the order dated 17.9.1986  passed by the Appellate Authority.  The landlords agreed to  create a new tenancy in favour of tenant-respondent in respect  of a room, a kitchen and a passage on the ground floor of the  building with effect from 1.10.1986 on a monthly rent of Rs.30.   Appellant No.2 and his family members shifted to the first floor  accommodation which was in occupation of the tenant earlier.   The tenant entered into occupation of the ground floor, as per  the terms of the agreement, though the ground floor premises  were not fit for human residence as per the version of the  landlords itself.

       On 1st March, 1988, the landlords filed another application  against the tenant-respondent  seeking his eviction from the  ground floor accommodation in his possession.  It was alleged in  the application that subsequent to the induction of respondent as  tenant in the ground floor, appellant No.1 was blessed with a  female child.  It appears that this appellant was married during  the pendency of the earlier eviction proceedings.  The family of  appellant No.1 was kept at village Panhoi i.e. away from Shimla  but then for the purpose of giving education to his child, the wife  of appellant no.1 and the child were shifted permanently to  Shimla in view of the educational facilities needed for the child  being available in the city.  But the family of appellant no.1 was  residing in a rented residential accommodation where the rent  was being paid at the rate of Rs.225/- per month beside taxes.   The upper floor accommodation continued to be in occupation of  the family of appellant no.2.  Looking at the number of members  in the family of appellant no.2 and the small size of  accommodation on the first floor which was already occupied by  the family of appellant No.2, the family of appellant no.1 could  not have been accommodated therein.

       Vide Order dated 20.1.1993, the Rent Controller directed  tenant-respondent to be evicted.  The tenant’s appeal was  dismissed by the Appellate Authority.  In Civil Revision preferred  by the tenant, the High Court has vide its Order dated November  27, 2001 allowed the Civil Revision and directed the eviction  petition to be dismissed.  The High Court has placed reliance on  one of the provisos appended to sub-Section (3) of Section 14 of  the Act (called the ’third proviso’ in this judgment) as noticed  hereinafter and the decision of this Court in Molar Mal (dead)  through L.Rs.  v.  M/s. Kay Iron Works (Pvt.) Ltd., (2000) 4  SCC 285.  In the opinion of the High Court the landlords had  admittedly obtained the possession of another building (as  defined in Section 2 clause (b) of the Act) on the same ground of  bona fide requirement for his own occupation under Section  14(3)(a)(i) of the Act and as against this very tenant and,  therefore, the eviction petition filed by the landlords was not  maintainable even prima facie. The landlords have come up in  appeal by special leave.         The relevant part of sub-Section (3) of Section 14 of the  Act reads as under:

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"(3) A landlord may apply to the Controller for  an order directing the tenant to put the  landlord in possession :-

(a) in the case of a residential building, if -  

(i)  he requires it for his own occupation:

               Provided that he is not occupying  another residential building owned by  him in the urban area concerned:

       Provided further that he has not  vacated such a building without sufficient  cause within five years of the filing of the  application, in the said urban area;"   

xxx                     xxx                     xxx

"Provided further that where the landlord  has obtained possession of any building  or rented land under the provisions of  clause (a) or clause (b), he shall not be  entitled to apply again under the said  clause for the possession of any other  building of the same class or rented  land."   

       The relevant proviso quoted hereinabove and which has  been relied on by the High Court, we will refer to as the third  proviso for the sake of convenience.           When the appeal came up for hearing before a two-Judge  Bench of this Court, reliance was placed on behalf of tenant   again on the case of Molar Mal (supra), as was done before the  High Court.  The Bench felt the need of giving a fresh look at the  law laid down in Molar Mal’s case and hence for the appeal  being heard by a three-Judge Bench inasmuch as Molar Mal’s  case is a two-Judge Bench decision.

       The two-Judge Bench has, in its referral order dated  October 7, 2004, for hearing by a Bench of three Judges, noted  two contentions advanced before it on behalf of the landlords.   First, the present case is not a case of obtaining possession.  Secondly, the landlords were not seeking eviction on the "self  same ground".  If the circumstances have changed and the  necessity has increased, it may be possible and permissible for  the landlord to apply again under Sub-section (3) of Section 14  of the Act on the ground of bona fide requirement.  The  requirement may continue to subsist or the circumstances may  have changed to a different state.  In either case, the third  proviso to Section 14(3) of the Act would not apply.  These are  the reasons which persuaded the learned two Judges to place  the matter for consideration by a Bench of three Judges.   

       In our opinion, the third proviso has no application to the  facts of the present case and this we say for two reasons.  First,  the third proviso would apply when an order for eviction has  been passed under clause (a) or (b) and possession is obtained  by the landlord pursuant to that order. In this case, the parties  entered into a compromise and, therefore, an occasion for the  Appellate Authority passing an order for eviction did not arise.  

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Secondly, by virtue of settlement arrived at between the parties,  the landlords did not obtain possession of the building; the  tenant shifted from one part of the building to another part of  the same building.  The tenant did not ’vacate’ the building.  ’Vacate’, normally, means to go away, to leave. (See \026 Surinder  Singh Sibia v. Vijay Kumar Sood, (1992) 1 SCC 70 para 2).   The landlord can be said to have obtained possession of any  building if the tenant has correspondingly vacated such building.   Such is not the case before us.

       Molar Mal’s case which has been relied on by the High  Court deals with a pari materia provision contained in the  Haryana Urban (Control of Rent) & Eviction Act, 1973.  There the  plea taken by the tenant in his written statement was that the  landlord had filed other petitions against other tenants alleging  personal requirement and during the pendency of the eviction  petition in question he had obtained possession of building and  lands from three other tenants and hence the landlord’s plea for  the tenant’s eviction was not maintainable, in view of the third  proviso.   The contention of the landlord was that the possession  from other tenants was obtained during the pendency of the  eviction petition and not on the date of filing of the eviction  petition and, therefore, the proviso did not apply.  This  contention of the landlord was repelled by this Court observing  that the proviso needed to be interpreted keeping in view the  Legislative intent and not in a pedantic manner.  Not the letter of  the law by assigning a literal meaning, but the purpose sought to  be achieved by the legislature had to be kept in view.  This Court  opined that if the landlord had obtained possession of the  premises/land belonging to the same class of building or  tenanted land, wherefrom the eviction was being sought for in  the proceedings, then the applicability of the proviso would be  attracted.  To record a finding in that regard, the case was  remanded to the trial court by framing an issue and allowing  liberty to the parties to adduce evidence.  Molar Mal’s case  (supra) does not deal with the situation like the one before us  nor does answer the question as is posed in the case before us.   In Molar Mal’s case this Court has not expressed any opinion if  the applicability of the third proviso would be attracted if there  was no order of eviction pursuant to which the landlords came  into occupation of another residential building and what was  done, was only an exchange of accommodation by way of mutual  settlement and without intervention of the Court, though such  settlement was brought to the notice of the Court.   

       We find it difficult to accept the construction placed on the  third proviso, in para 14 of the judgment in Molar Mal’s case.   In Rakesh Wadhawan and Ors  v.  Jagdamba Industrial  Corporation and Ors, (2002) 5 SCC 440, this Court has held  that a statute can never be exhaustive.  Legislature is incapable  of contemplating all possible situations which may arise in future  litigation and in myriad circumstances.  The scope is always  there for the Court to interpret the law with pragmatism and  consistently with the demands of varying situations. The  construction placed by the Court on statutory provisions has to  be meaningful.  The legislative intent has to be found out and  effectuated.  "Law is part of the social reality" (See - Law in the  Scientific Era by Justice Markandey Katju, 2000 Ed., p.33)   "Though Law and Justice are not synonymous terms they have a  close relationship, as pointed out by the American jurist Rawls.   Since one of the aims of the law is to provide order and peace in  society, and since order and peace cannot last long if it is based  on injustice, it follows that a legal system that can not meet the  demands of justice will not survive long.  As Rawls says "Laws  and institutions no matter how efficient and well arranged, must

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be reformed or abolished if they are unjust"." (ibid, p.72).   Clearly law cannot be so interpreted as would cause oppression  or be unjust.                Life is not static and so the law cannot afford to be static.   The third proviso cannot be so interpreted as to restrict the right  conferred by sub-Section (3)(a)(i) on the landlord to be  exercisable only "once in a life time".  The proviso has to be read  as providing a statutory expression of a situation which would  otherwise have been held to be mala fides of a requirement.  A  landlord, having obtained possession of any building to satisfy a  requirement, cannot again and again plead the same set of  circumstances or similar circumstances for evicting tenants one  after other.  That is what the third proviso aims at providing.   The proviso cannot be interpreted to mean that in spite of the  requirement having undergone a change or a new requirement  unrelated to the previous one having come into existence, the  landlord would yet be denied relief under sub-Section (3)(a)(i)  merely because at some point of time in the past he had  resorted to this provision for seeking an eviction.  Such an  interpretation is too rigid an interpretation and would cause such  hardship to the landlord as the Legislature cannot be said to  have intended.  The examples are available in decided cases and  two such are: Jagir Singh v. Jagdish Pal Sagar, 1980 (1)  R.C.R. 494 and Brij Lal Puri and Anr v. Smt. Muni Tandon,  AIR 1979 Punjab & Haryana 132.

       In Jagir Singh’s case there were five tenants on the  ground floor of the premises in dispute and the respondent filed  applications for ejectment against all the tenants simultaneously.   Orders of ejectment were passed against all the tenants.  Four  tenants vacated; the fifth one took his battle to the Appellate  Court.  The premises got vacated from the four tenants  consisted of five rooms out of which two were very small rooms  which can be used only as stores.  The entire construction of the  house lay in two hundred square yards.  The requirement of the  landlord was of the ground floor in its entirety and was found to  be bona fide as a matter of fact.  The contention that the  landlord having evicted four other tenants cannot evict the fifth  tenant in spite of the proven requirement was rejected by the  High Court.                 In Brij Lal Puri’s case the interpretation placed by the  High Court on the third proviso in similar set of facts runs,  thus___   "A plain reading of the proviso mentioned  above shows that a landlord after getting one  building vacated, which can reasonably meet  his needs, cannot get another building  vacated.  The proviso does not lay down that if  the entire building, which is needed by a  landlord for his personal use, is occupied by  more than one tenant, he or she cannot take  out eviction proceedings against the other  tenants after having evicted one.  The object of  this proviso is that a landlord should not be  allowed to seek unreasonable ejectments of  tenants from independent buildings if he has  already succeeded in evicting a tenant from a  building which is sufficient for his personal  occupation."  

                In our opinion, the interpretation placed by the High Court  on the local law takes a practical, pragmatic, reasonable and

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balanced view of the law and deserves to be upheld.  We find it  difficult to subscribe to the view taken in Molar Mal’s case that  eviction of three other tenants from the premises which are part  of the same building, would disentitle the landlord from pursuing  the proceedings for eviction against yet another tenant in spite  of his requirement for possession over such part of the building  being found to be bona fide, subsisting and real.  

       Having held that third proviso is not attracted to the facts  and circumstances of the present case and, therefore, that  provisio cannot cause any dent in the entitlement of the  landlords to seek eviction of the tenant-respondent under  Section 14(3)(a)(i), it is still necessary to examine whether the  order for eviction passed by the Rent Controller and upheld by  the Appellate Authority could have been sustained by the High  Court.

       Sub-Section (3)(a)(i) contemplates an order of eviction  being made against tenant in the case of a residential building if  the same was required by the landlord for his own occupation.   The two provisos appended to sub-clause (i) of clause (a) of sub- section (3) of Section 14 place two restrictions on the right of  the landlord to seek eviction.  These are :-  (i)     the landlord must not be in occupation of another  residential building owned by him in the urban  area concerned;   (ii)    the landlord having another residential building  of his own in the urban area concerned though  not in occupation thereof on the date of the filing  of the application, must not have vacated such a  building without sufficient cause within five years  of the date of the filing of the application.   

       In short, availability of another residential building of his  own in the same urban area would disentitle the landlord from  seeking eviction of the tenant on the ground of his requirement  for his own occupation if he is in occupation of such another  building or has vacated such another building within five years.   On a plain reading, the availability of another building by  reference to the first proviso disentitles the landlord from  seeking eviction if the building satisfies these tests: (i) it is  another building; (ii) it is residential in nature; (iii) it is in  occupation of landlord; (iv) it is owned by him; and (v) it is  situated in the same urban area in which another building in  occupation of the tenant is situated.  The building referred to in  the second proviso, availability whereof disentitles the landlord  to seek eviction is not in occupation of the landlord.  In all other  manner it has to be a building satisfying the tests as above, and  in addition, it must be a building vacated by landlord within five  years of the date of filing of the application and that too without  sufficient cause. The applicability of any of the two provisos  would not be attracted if the landlord is occupying or has  vacated another residential building which is rented or is not  owned by the landlord.    

       What is the scope of the first Proviso?  Whether the  occupation by landlord of any other residential accommodation  of whatever nature, in abstract and without consideration of any  other relevant factor would be enough to attract the applicability  of the first Proviso and to deny the landlord his right to seek an  order of eviction against the tenant?  In our opinion, the first  Proviso is not to be read in isolation.  It has to be read along  with the principal provision to which it is appended.  The ground

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for eviction in the case of a residential building is "he requires it  for his own occupation".  If the pleadings and the evidence  adduced by the landlord do not make out a case of requirement,  there would be no question of the tenant being directed to put  the landlord in possession.  Even on the requirement having  been proved, the landlord would be denied the order for  possession from the tenant because of his being in occupation of  ’another residential building owned by him in the same urban  area’.  The occupation of another residential building, to act in  denial of the landlord’s right to evict the tenant to satisfy his  requirement, must have correlation with the requirement of the  landlord.  To illustrate, another residential building in occupation  of the landlord may be crumbling, or may be in dilapidated  condition or may consist of very little residential space, say one  small room alone, which it would be misnomer to call availability  of a residential building in occupation of the landlord by any  stretch of imagination.  The legislature could not have intended  such an absurd and unreasonable consequence to follow.  In our  opinion, the first Proviso would come into play only if the  landlord is occupying another residential building of his own in  the same urban area and such building is considered by the  Court as reasonably enough and suitable to satisfy the proven  requirement of the landlord.  Hence, the first Proviso would not  apply in the case before us.  It is impractical and unreasonable  to hold that the accommodation which is already fully occupied  and actually in use of appellant No.2, though technically in  occupation of both the landlords can satisfy the requirement of  appellant No.1 and his family as well.  Rightly the tenant has not  urged the plea that the landlord being in occupation of other  parts of the building excluding the portion in occupation of the  tenant would attract applicability of the first proviso so as to  disentitle the landlord from seeking his eviction on the ground of  requirement of appellant No. 1 who is actually living in a rented  house.

       We have to see if the landlords’ entitlement to evict the  tenant can be faulted by reference to the second proviso.  For  two reasons we are of the opinion that the applicability of the  second proviso is also not attracted so as to disentitle the  landlord-appellants from seeking eviction of the tenant- respondent.  First, the landlords cannot be said to have ’vacated’  any building.  It is not the case of the tenant, pleaded or proved,  that the accommodation which was given to the tenant by way  of settlement in the earlier round of litigation was in actual  occupation of the landlords.  If the accommodation was non- residential (though the tenant agreed to use it for his residence)  or was already and genuinely lying vacant as of no use to the  landlords and not deliberately or mala fide kept vacant to create  a false ground for eviction, it cannot be said that the landlords  had ’vacated’ a residential building.  It is for the tenant to raise  and substantiate the plea attracting applicability of the proviso  so as to disentitle the landlord from evicting him in spite of the  requirement having been proved.   On the tenant having pleaded  and proved that the landlord has vacated another residential  building in the same urban area within five years of the filing of  the application, the onus will shift again on the landlord to either  rebut the plea or to prove sufficient cause for such vacating.  In  the present case, there is complete lack of pleadings and  evidence so as to enable a finding of fact being recorded which  would attract applicability of the second proviso.  

       Secondly, ’sufficient cause’ is also discernible from the  facts available on record in the present case. As held in  Surinder Singh Sibia’s case (supra), ’Sufficient cause’ "has  been construed liberally in keeping with its ordinary dictionary

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meaning as adequate or enough. That is, any justifiable reason  resulting in vacation has to be understood as sufficient cause.   For instance economic difficulty or financial stringency or family  reasons may compel a landlord to let out a building in his  occupation.  So long as it is found to be genuine and bona fide it  would amount to vacating a building for sufficient cause and the  bar of second proviso stands lifted.  In other words if the  vacation of the building was not a pretence or pretext the  proviso could not frustrate the right of landlord to approach the  Controller for necessary direction to tenant to hand over  possession to him."   

The landlords were earlier litigating for eviction of the  tenant from the upper floor.  In the first round of litigation, they  succeeded and yet the fruits of the decree were denied to them  on account of pendency of the appeal.  They thought it proper to  shift the tenant from the first floor to the ground floor so as to  satisfy their own requirement as it existed on that date.  The  tenant also agreed to occupy the ground floor for residence as  he was in dire need of some space to live though the premises  were not fit for human residence and could not be termed  ’residential’.   This is ’sufficient cause’ within the meaning of the  second proviso.  Circumstances changed.  Subsequent events  took place.  The family of appellant no.1 enlarged.  A new  requirement came into existence which did not exist earlier.  The  bona fides of such requirement of the landlords cannot be  doubted.

       The expression ’his own occupation’ as occurring in sub- clause (i) of clause (a) of section (3) is not to be assigned a  narrow meaning.  It has to be read liberally and given a practical  meaning.  ’His own occupation’ does not mean occupation by the  landlord alone and as an individual.  The expressions "for his  own use" and "for occupation by himself" as occurring in two  other Rent Control Acts, have come up for the consideration of  this   Court  in   Joginder Pal  v.  Naval Kishore Behal,  (2002) 5 SCC 397 and Dwarkaprasad v. Nirnajan and  Another, (2003) 4 SCC 549.  It was held that the requirement  of members of family of the landlord or of the one who is  dependent on the landlord, is the landlord’s own requirement.   Regard will be had to the social or socio-religious milieu and  practices prevalent in a particular section of society or a  particular region to which the landlord belongs, while  interpreting such expressions.  The requirement of the family  members for residence is certainly the requirement by the  landlord for ’his own occupation’.

       Undoubtedly, the Himachal Pradesh Urban Rent Control  Act, 1987 has been enacted for the purpose of providing for the  control of rents and evictions because of paucity of  accommodation in urban areas.  The Rent Control Legislations,  generally aim at preventing rack-renting and resorting to  evictions by unscrupulous and greedy landlords, who take  advantage of the shortage in availability of accommodations in  cities and dictate their terms to the tenants and if they do not  follow the dictates, subject them to eviction.  The Rent Control  Legislations are generally heavily loaded in favour of the tenants  and the provision dealing with which the courts at times lean in  favour of the landlords is the one which permits the landlord to  seek eviction of the tenant on the ground of requirement for his  own occupation, residential or non-residential.  There are weak  amongst the tenants as also amongst the landlords. (See \026  Joginder Pal’s case, supra, paras 9 and 32)  Take the case of a  landlord knocking the doors of the court seeking its assistance

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for a roof over his head or for a reasonably comfortable living,  when he is himself either in a rented accommodation or  squeezing himself and his family members in a limited space,  while the tenant protected by the Rent Control Law is  comfortably occupying the premises of the landlord or a part  thereof.  Provisions like Section 14(3)(a)(i) of the Act should be  so interpreted as to advance the cause of justice instructed by  the realties of life and practical wisdom.  While the tenant needs  to be protected, the courts would not ordinarily deny the relief to  the landlord, who genuinely and bona fide requires the premises  in occupation of the tenant for occupation by himself or for the  members of his family, unless they feel convinced that the so- called requirement of the landlord was a ruse for getting rid of  an inconvenient tenant or was otherwise mala fide and did not  fall within the four corners of the ground for eviction provided by  the law.

       On a perusal of the pleadings and the findings arrived at  by the Rent Controller and the Appellate Authority (which  findings have not been dislodged by the High Court), the picture  which emerges may briefly be projected.  The tenant was in  occupation of the upper floor of the building before and during  the first round of litigation.  Through the compromise arrived at  during the pendency of the appeal, the tenant agreed to take  one room, one kitchen and one covered passage accommodation  situated on the ground floor under the new tenancy at a new  rate of rent with effect from 1.10.1986.  The arrangement made  by the compromise having been implemented, the family of the  appellant No. 2 \026 one out of the two landlords, who are two  brothers, actually occupied the entire first floor and also a part of  the ground floor.  The appellant no.2, who is the brother of  appellant No.1 herein and was impleaded as a performa  defendant before the Rent Controller and the Appellate  Authority, is running a shop on the ground floor and is also using  a portion of the ground floor as godown and staircase.  The  upper floor accommodation consists of two rooms, one kitchen  and one open veranda which is being used by appellant No.2  with his family members namely his wife and three school going  children.  Appellant No.1 is staying in a rented accommodation  for the reason that the wives of the two brothers not carrying on  well with each other to permit their living together and also on  account of paucity of accommodation.  During the pendency of  the proceedings another female child was born to appellant No.1  and thus by the time the appeal came to be decided by the  Appellate Authority on 1.3.1988, appellant No.1 had two  children, as has been noted by the Appellate Authority.

       As an upshot of the above discussion we hold that the High  Court was not right in applying third proviso to the facts of the  case and deny the relief of eviction to the appellants.  The first  and the second proviso also do not come in the way of  appellants.  Their case of requirement within the meaning of  Section 14(3)(a)(i) is fully made out.

       The appeal is allowed.  The order of the High Court is set  aside and that of the Rent Controller as upheld by the Appellate  Authority is restored.  However, the tenant-respondent is  allowed time upto 31.8.2005 for vacating the suit premises and  delivering peaceful possession to the landlords, subject to filing  the usual undertaking before the Rent Controller within a period  of four weeks from today.  The costs incurred by the landlords  shall be borne by the tenant-respondent throughout.