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PETITIONER: S. B. NORONAH

       Vs.

RESPONDENT: PREM KUMARI KHANNA

DATE OF JUDGMENT16/08/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SHINGAL, P.N.

CITATION:  1980 AIR  193            1980 SCR  (1) 281  1980 SCC  (1)  52  CITATOR INFO :  F          1984 SC 595  (6,13)  F          1984 SC1019  (1)  E          1985 SC 475  (5,6,11,12)  RF         1987 SC1986  (30)  F          1987 SC1996  (9,10)  F          1989 SC 458  (9,10)  F          1990 SC 325  (14,18)  R          1990 SC1133  (3)  R          1990 SC1725  (21)  RF         1991 SC1233  (10,12,13)  RF&E       1992 SC1555  (2,10,15,16,18,19)

ACT:      Delhi Rent  Control Act, 1958, Section 21 scope of-Duty of the  Court in dealing with applications under Section 21, explained.

HEADNOTE:      Dismissing the appeal by special leave, the Court      HELD: Section  21 of  the Delhi  Rent Control Act, 1958 carves out  a  category  for  special  treatment.  While  no landlord can  evict without  compliance with sections 14, 19 and 20  of the Act, a liberal eviction policy cannot be said to under-lie  in section  21. Parliament was presumably keen on maximising accommodation available for letting, realising the scarcity  crisis. One source of such spare accommodation which is  usually shy is potentially vacant building or part thereof which the landlord is able to let out for a strictly limited period  provided he has some credible assurance that when he needs he will get it back. The law seeks to persuade the owner  of the  premises  available  for  letting  for  a particular period  by giving him a special assurance that at the expiry  of that  period the  appointed agency will place the landlord  in vacant possession. And, Section 21 confines the special  remedy to  letting for  residential uses  only. Parliament had  the wholesome  fear that if the section were not  controlled   by  many  conditions  it  might  open  the floodgates for  wholesale circumvention  of the rent control legislations by ingenious landlords exploiting the agonising need of houseless denizens. [285B-D, G-H, 286A]      2. Section  21 over-rides  section 14 precisely because it is  otherwise hedged  in  with  drastic  limitations  and

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safeguards  itself  against  landlords’  abuses.  The  first condition is  that the landlord does not require the demised premises "for  a particular period" only. This means that he must indicate  to the  authority before  which  sanction  is sought for  letting what  is the particular period for which he can  spare the accommodation. The Controller exercises an important regulatory  function on  behalf of  the community. The fact  that a  landlord and  a potential  tenant together apply, setting  out the  formal ingredients  of Section  21, does not  relieve the  Controller  from  being  vigilant  to inquire and  satisfy himself  about the  requisites  of  the landlord’s non-requirement "for a particular period" and the letting itself being "as a resident". A fraud on the statute cannot be permitted especially because of the grave mischief that may be perpetrated in such event. [286E, H, 287A-D]      3. There  would be  a terrible blow to the rent control law if  section 21  were freely  permitted  to  subvert  the scheme of Section 14. Every landlord will insist on a tenant going through  the formal  exercise of  Section  21,  making ideal averments  in terms  of that  Section. The consequence will be  that both the Civil Procedure Code which prescribes suits for  recovery of possession and the Delhi Rent Control Act which  prescribes grounds  for eviction will be eclipsed by the  pervasive operation  of Section  21. Neither grounds for eviction  nor suits  for  eviction  will  thereafter  be needed, and if the landlord moves the Court 282 for a  mere warrant to place the landlord, through the Court process, in  vacant possession  of the premises, he gets it. No  court-fee,   no  decree,   no  execution   petition,  no termination of  tenancy-wish for possession and the court is at your  command. Such  a horrendous  situation will  be the negation of the rule of law in this area. [287 D-F]      4. When an application under Section 21 is filed by the landlord and/or  tenant the  Controller must satisfy himself by such  inquiry  as  he  may  make,  about  the  compulsive requirements of  that provision.  If  he  makes  a  mindless order, the  Court, when  challenged at the time of execution will go  into the question as to whether the twin conditions for sanction  have really  been fulfilled.  Of course, there will be  a presumption  in  favour  of  the  sanction  being regular, but  it will  still be  open to a party to make out his case that in fact and in truth the conditions which make for a valid sanction were not present.                                              [287 G-H, 288A]      5. The  sanction granted  under section  21, if  it has been  procured  by  fraud  and  collusion  cannot  withstand invalidity because,  otherwise, high  public policy  will be given as  hostage to  successful collusion.  The doctrine of estoppel cannot  be invoked  to render  valid  a  proceeding which the  legislature has,  on  grounds  of  public  policy subjected to  mandatory conditions  which are  shown  to  be absent. As  between unequals the law steps in and as against statutes there  is no  estoppel, especially  where collusion and fraud  are made out and high purpose is involved. [288D- E, G-H]      6. Law that non-performs stultifies the rule of law and hence the  need for strict compliance. Or else, the sanction is non-est....Collusion  between the  strong  and  the  weak cannot confer  validity where the mandatory prescriptions of the law are breached or betrayed. [289A]

JUDGMENT:

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    CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 290 of 1979.      Appeal by  Special Leave  from the  Judgment and  Order dated 25th  January 1979  of the  Delhi High Court in S.A.O. No. 73/78.      Hardev Singh and R. S. Sodhi for the Appellant.      Y. S. Chitaley and K. C. Dua for the Respondent.      The Judgment of the Court was delivered by      KRISHNA IYER, J. This appeal is symptomatic of a social pathology which  afflicts the  Justice System at every level with none concerned to cure it.      The extraordinary  scarcity  of  accommodation  in  our country  has   produced  the   legislative  and  legislative phenomena  of  tenants’  protection  laws  and  interminable ’eviction’ cases.  The situation cries for a social audit of the explosive expansion of ruinous and pathetic 283 ’rent control  litigation’ and  an urgent yet dynamic policy of promoting  house construction  for the  lower brackets of Indian humanity.      A landlady  let out her premises to another day several years ago  (1968) for  a term  and, thereafter, from time to time, continued  the possession of the tenant on fresh lease and increase in rent. Every time there was homage to the law by grant of sanction by the Rent Controller under Section 21 of the  Delhi Rent  Control Act, 1958. (the Act, for short), as if the letting were of a residential accommodation. It is apparent  that  all  these  years  an  elitist  ’residential school’ is being run in the premises and that is the purpose expressly recited in all but the last lease deed of December 1975. This lease recites blandly that ’the lessee requires a suitable accommodation for residential purposes’. The period of the lease having expired the landlady applied for summary eviction by  application  for  execution-a  novel  procedure enjoyed by the landlords of this capital city which relieves them of  the need  even to  file a  suit for  eviction.  The tenant, whose expensive and lucrative school was about to be uprooted for  want of habitation, hunted for a legal plea to resist the  threat of  dispossession.  Technicality  is  the unfailing resource  of an  Indian litigant and the ingenious defence,  among   others,  was   set  up  that  because  the application for  eviction did  not mention  that the letting was ’in writing’ it was fatally flawsome. Better pleas which merited  serious  consideration  were  over-ruled  but  this little infirmity in the pleading loomed large in the eyes of the Rent Controller who, for that reason alone, rejected the relief.      The inevitable  appeal to  the  Tribunal  followed.  An application  for  amendment  of  the  pleading,  by  way  of abundant caution,  to make  good the  verbal deficiency  was also made.  Furious forensic battles raged and the appellate tribunal as  well as  the High Court allowed the appeals and the amendments,  over-ruling the  further plea of limitation for the  application as  on the  date of  the amendment. The worsted tenant  has secured  leave to appeal and there is an application for revocation of leave.      We have  been addressed  two main  arguments plus other points of  lesser moment.  The first is that the application for execution is defective because in the narration of facts the lease  is mentioned  but the  words ’in writing’ are not stated. It is further contended that by the time these words were supplied by amendment of the application, the period of limitation (six  months) had  elapsed and that bar prevented entertainment of the proceedings. 284

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    Pleadings  are   not  statutes   and  legalism  is  not verbalism. Common  sense should  not be kept in cold storage when pleadings are construed. It is too plain for words that the petition  for eviction referred to the lease between the parties which  undoubtedly was  in writing. The application, read as  a whole,  did imply  that and we are clear that law should not  be stultified  by courts  by sanctifying  little omissions  as   fatal  flaws.  The  application  for  vacant possession suffered  from no verbal lacunae and there was no need to  amend at  all. Parties  win or  lose on substantial questions, not  ’technical tortures’  and courts  cannot  be ’abettors’.      The further  arguments on  limitation when a vital fact creative of  a cause  of action  is brought  in by amendment after expiry  of limitation  is an  important question which need not  be considered  in the  view we  have taken  on the adequacy of the pleading.      The next issue is of importance not merely for this lis but also  for the  sensitive application  of Sec.  21 in its social perspective. The notorious rack-renting and impotence of legislation  against unreasonable eviction in the capital city of  Delhi (and  elsewhere) compels  us to  take a close look at  the facile provision in Sec. 21, its social purpose and functional  distortion, its  potential for subversion of the  statutory  scheme  unless,  by  interpretation,  it  is canalised and  the ’mischief  rule’ in Hyden’s case applied. After all,  for the  common man,  law-in-action is  what the court says it is.      To maintain  the integrity  of the  law the  court must ’suit the  action to  the word, the world to the action, and so we  have to  fathom, from  the language  employed and the economic, milieu, what the meaning of Sec. 21 is and save it from possible  exploitation by  unscrupulous  landlords  for whom ’fair is foul, and foul is fair’.      Rent control  legislation in Delhi, as elsewhere in the country, is  broadly intended ’to provide for the control of rents and  evictions and  of rates  of  hotels  and  lodging houses and  for the  lease of vacant premises to Government, in certain areas in the Union Territory of Delhi.      This is understandable where the city population swells and the  city accommodation  stagnates, the people suffocate for space and landlords ’make hay’ playing the game of ’each according to his ability to grab’.      Parliament  has  built  into  the  Act  restriction  on eviction. Sec. 14 (1) starts off:           "Notwithstanding anything  to the  contrary in any      other law  or contract,  no order  or  decree  for  the      recovery of posses- 285      sion of  any premises  shall be  made by  any court  or      Controller in favour of the landlord against a tenant:           Provided  that   the   Controller   may,   on   an      application made  to him in the prescribed manner, make      an order for the recovery of possession of the premises      on one or more of the following grounds only, namely:-      ............................................      The scheme  of embargo  on eviction  makes a  pragmatic swerve by  the time  we reach  Sec.  21.  We  can  correctly visualise the  scope and sweep of this provision only in its proper social  setting. It carves out a category for special treatment. While  no landlord  can evict  without compliance with Sections  14, 19 and 20; does a liberal eviction policy underlie Sec. 21 ? Apparently contrary but actually not once we understand  the raison  d’etre of the section. Parliament was presumably  keen on  maximising accommodation  available

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for letting,  realising the  scarcity crises.  One source of such spare accommodation which is usually shy is potentially vacant building  or part  thereof which the landlord is able to let  out for  a strictly  limited period  provided he has some credible  assurance that  when he  needs he will get it back. If  an officer  is going  on other  assignment  for  a particular period,  or the  owner has  official quarters  so that he  can  let  out  if  he  is  confident  that  on  his retirement he  will be able to re-occupy, such accommodation may add  to the  total lease-worthy  houses. The  problem is felt most  for residential  uses. But  no one will part with possession because the lessee will become a statutory tenant and,  even  if  bona  fide  requirement  is  made  out,  the litigative tiers  are  so  many  and  the  law’s  delays  so tantalising that  no realist  in his  sense will  trust  the sweet promises  of a tenant that he will return the building after the  stipulated period.  So the law has to make itself credit-worthy. The  long  distance  between  institution  of recovery proceedings  and actual  dispossession  runs  often into a  decade or  more-a factor  of despair  which  can  be obviated only by a special procedure.      Section 21 is the answer. The law seeks to persuade the owner of  premises available for letting for a particular or limited period  by giving  him the special assurance that at the expiry  of that  period the  appointed agency will place the landlord  in vacant  possession. As  stated earlier, the critical  need   was  for  residential,  not  nonresidential housing. Therefore,  Section 21 confines this special remedy to letting  for residential  uses only.  Parliament had  the wholsome fear  that if  the section  were not  controlled by many conditions  it might open the flood gates for wholesale circumvention of  the rent  control legislation by ingenious landlords exploiting the 286 agonising need  of houseless  denizens. Against  this  back- drop, let  us read  Section 21  and highlight  the essential conditions written into the provision:           "21. Where  a landlord  does not require the whole      or any  part of  any premises  for a particular period,      and the landlord, after obtaining the permission of the      Controller in  the prescribed manner, lets the whole of      the premises  or part  thereof  as  resident  for  such      period as  may be  agreed to  in  writing  between  the      landlord and the tenant and the tenant does not, on the      expiry of  the said period, vacate such premises, then,      notwithstanding anything  contained in Section 14 or in      any other  law, the  Controller may,  on an application      made to  him in this behalf by the landlord within such      time as may be prescribed, place the landlord in vacant      possession of  the premises or part thereof by evicting      the tenant  and  every  other  person  who  may  be  in      occupation of such premises."      We must  notice that  Section 21  runs counter  to  the general scheme  and, therefore,  must be restricted severely to its  narrow sphere.  Secondly, we  must place  accent  on every condition which attracts the Section and if any one of them is  absent the  Section cannot  apply  and,  therefore, cannot arm  the landlord with a resistless eviction process. Thirdly, we must realise that the whole effect of Section 14 can  be   subverted  by   ritualistic  enforcement   of  the conditions of  sanction under Sec. 21 or mechanical grant of sanction therein.  Section 21 overrides Section 14 precisely because it  is otherwise  hedged in with drastic limitations and safeguards itself against landlords’ abuses.      What, then,  are those  conditions and  safeguards? The

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first condition  is that  the landlord  does not require the demised premises  "for a particular period" only. This means that he must indicate to the authority before which sanction is sought  for letting  what is  the particular  period  for which he can spare the accommodation. The Controller must be satisfied that the landlord means what he says and it is not a case  of his  not requiring  the property  indefinitely as distinguished from  a specific  or particular limited period of say  one year,  two years  or five  years. If a man has a house available  for letting for an indefinite period and he so lets  it, even if he specifies as a pretense, a period or term in  the lease,  Section 21  cannot be attracted. On the other hand,  if he gives a special reason why he can let out only for  a limited  period and requires the building at the end of that period, 287 such as  that he  expects to  retire by  then or  that he is going on  a short  assignment or on deputation and needs the house when be returns home it is good compliance. The second condition is that the letting must be made for a residential purpose. The house must be made over "as a residence". If it is let  out for  a commercial  purpose, Section  21 will not apply, whether the ritual of a sanction under that provision has been  gone through  or not.  Thirdly,  the  Controller’s permission is  obligatory where  he specifies the particular period for  which he  gives permission and further qualifies the permission  for  use  as  a  residence.  The  Controller exercises an  important regulatory function on behalf of the community. The  fact that  a landlord and a potential tenant together  apply,  setting  out  the  formal  ingredients  of Section 21,  does not  relieve  the  Controller  from  being vigilant to inquire and satisfy himself about the requisites of the  landlord’s nonrequirement  "for a particular period" and the  letting itself  being "as  a residence". A fraud on the statute  cannot be  permitted especially  because of the grave mischief that may be perpetrated in such event.      It is  easy to  envisage the  terrible blow to the rent control law  if Section  21 were freely permitted to subvert the scheme  of Section  14. Every landlord will insist’ on a tenant going  through the  formal exercise  of  Section  21, making  ideal  averments  in  terms  of  that  Section.  The consequence will be that both the Civil Procedure Code which prescribes suits  for recovery  of possession  and the Delhi Rent Control  Act which prescribes grounds for eviction will be eclipsed  by  the  pervasive  operation  of  Section  21. Neither grounds  for eviction  nor suits  for eviction  will thereafter be  needed, and  if the  landlord moves the court for a  mere warrant to place the landlord, through the court process, in  vacant possession  of the premises, he gets it. No  court-fee,   no  decree,   no  execution   petition,  no termination of  tenancy-wish for possession and the court is at your  command. Such  a horrendous  situation will  be the negation of  the rule  of law in this area. So it is that we deem it  necessary to lay down the law as implied in Section 21      When an  application under  Section 21  is filed by the landlord and/or  tenant, the Controller must satisfy himself by such  inquiry  as  he  may  make,  about  the  compulsive requirements of  that provision.  If  he  makes  a  mindless order, the  Court, when challenged at the time of execution, will go  into the question as to whether the twin conditions for sanction  have really  been fulfilled.  Of course, there will be  a presumption  in  favour  of  the  sanction  being regular, but  it will  still be  open to a party to make out his case that in fact and in truth the

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288 conditions which make for a valid sanction were not present. We do  not agree  with the statement of the law by the Delhi High Court striking a contrary note. In this context, we may make special  reference to Kasturi Lal’s case, a decision of the Delhi  High Court  reported in  1976 R.C.J.p. 582. It is true as  Misra, J. in that case, following earlier decisions has observed  that the provisions of Section 21 are designed to meet  the problem of shortage of housing in Delhi. If the landlord does  not need  the premises  for a limited period, section 21  permits him  to lease it out during that period. Without the  facility of  section 21 the landlord might have preferred to  keep the  premises vacant,  but that  does not mean that  the law  surrenders itself  to this  landlord and releases him  from all  conditions. That is why the need for sanction and  the mandatory conditions for such sanction are specified in  the section.  It is altogether wrong to import the idea that the tenant having taken advantage of induction into the  premises pursuant  to the  permission,  he  cannot challenge  the   legality  of  the  permission.  As  between unequals the  law steps  in and as against statutes there is no estoppel,  especially where  collusion and fraud are made out and high purpose is involved.      The doctrine  of estoppel  cannot be  invoked to render valid a  proceeding which the legislature has, on grounds of public policy,  subjected to  mandatory conditions which are shown to be absent:           "Where a  statute, enacted  for the  benefit of  a      section of  the public,  imposes a  duty of  a positive      kind the  person charged  with the  performance of  the      duty cannot  by estoppel  be prevented  from exercising      his statutory  powers. A  petitioner in  a divorce suit      cannot obtain  relief simply  because the respondent is      estopped from  denying the  charges, as the court has a      statutory  duty   to  inquire   into  the  truth  of  a      petition".      It is  an old maxim that estoppels are odious, although considerable inroad  into this maxim has been made by modern law. Even  so, "a  judgment obtained  by fraud or collusion, even it  seems a  judgment of  the House  of Lords,  may  be treated as a nullity." (See Halsbury’s Laws of England, Vol. 16-fourth edition para 1553). The point is that the sanction granted under  section 21,  if it has been procured by fraud or   collusion,   cannot   withstand   invalidity   because, otherwise, high  public policy  will be  given as hostage to successful collusion. 289      Law that non-performs stultifies the rule of law and so it is  that we  stress the  need for  strict compliance.  Or else, the  sanction is non est. Collusion between the strong and the  weak cannot  confer validity  where  the  mandatory prescriptions of  the law  are breached or betrayed. We have said enough  to make the point that it is open to the tenant in the  present case  to plead  and prove  that the sanction under Section 21 is invalid, and if it is void the executing court is not debarred from holding so.      We, therefore, hold on the first point that no question of amendment  arises in the present case and the application before the Controller did not suffer from any deficiency. On the second  point we  hold that  it is perfectly open to the Controller to  examine whether the sanction under Section 21 is a make-believe, vitiated by fraud and collusion.      We make  it clear that the Controller is concerned with delivery of  possession at  the expiry  of the lease of 1975 and he  will, therefore, examine the position with reference

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to that  lease only.  The appellant-tenant  urged a  further contention that  because there was fraud the court could not assist the  party in  fraud even if both sides were involved in the  fraud. He  invoked the  doctrine of  inpari  delicto potior est  conditio defendantis.  We are  not  inclined  to examine these contentions but leave it open to the executing court to  go into  such pleas  as  are  permissible  at  the execution stage.  Beyond that  he has  no  jurisdiction  but within that  he has  a duty  to decide. On these findings we dismiss the  appeal but direct the Controller to go into the question of  the validity  of the  sanction and  such  other objections  as   may  be  available  in  the  light  of  our observations recorded  above.  The  first  point  raised  is untenable and we should have directed costs while dismissing the appeal.  The second  point raised  is  of  great  public moment and  the appellant  has  broadly  succeeded  on  that question. The  result is that the community has benefited by our declaration  of the  law and the parties must, therefore bear their respective costs throughout. S.R.                                       Appeal dismissed. 290