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PETITIONER: BABU RAM GOPAL AND OTHERS

       Vs.

RESPONDENT: MATHRA DASS

DATE OF JUDGMENT28/02/1990

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) RAMASWAMI, V. (J) II

CITATION:  1990 AIR  879            1990 SCR  (1) 736  1990 SCC  (2) 279        JT 1990 (3)    25  1990 SCALE  (1)416

ACT:     EAST   PUNJAB   URBAN   RENT   RESTRICTION   ACT,  1949: Section  13(2) (v)--Tenant--Temporarily  suspending   actual physical    user    of    premises--Whether    liable    for eviction--Whether nonoccupation must continue till the  date of filing of eviction application.     INTERPRETATION   OF   STATUTES: External   aids-Compari- son with Rent Acts of other States---Not commended.

HEADNOTE:     On  an application flied by the respondent--landlord  in March  1973  for eviction of the  appellant--tenant  on  the ground that for a continuous period of more than four months the appellant had ceased to occupy the shop during  1969-71, the  Rent  Controller  passed a decree  for  eviction  under Section  13(2)(v) of the East Punjab Rent  Restriction  Act, 1949. The appellate authority affirmed the decree. The  High Court rejected the tenant’s appeal.     In  the appeal before this Court,  the  appellant-tenant contended  that  though the shop had remained closed  for  a temporary  period, it Was in his effective control and  that since the non-occupation did not continue when the  eviction petition was filed, the ground mentioned in Section 13(2)(v) had not been made out.     On behalf of respondent-landlord, it was contended  that since  in  a number of Rent Acts,  the  ground  specifically required such nonoccupation for a period immediately preced- ing  the date on which the ejectment application was  filed, the  Act  which did not use identical  language,  should  be interpreted differently. Allowing the appeal, this Court,     HELD:  1.1  If a tenant stops the business which  he  is carrying  on in a shop and closes the premises  continuously for  a period of four months without a reasonable  cause  he will be liable for eviction. However, the non-occupation  of the  premises  by a tenant must continue till the  date  of. filing of application for his eviction on the ground covered by s. 13(2)(v). [739D] 737     1.2 The reason of including clause (v) in s. 13(2) is to ensure that buildings, which are scarce in number  specially

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in the towns, necessitating rent control legislation, do not remain unused at the instance of tenants who do not actually need  them. A tenant who is in possession of a  building  in the  legal  sense only cannot be said to  be  in  occupation thereof for the purpose ors. 13(2)(v); otherwise a  question of  his  eviction  as envisaged in that  section  would  not arise. The section, by making provisions for his  ejectment, assumes that he is in possession, but, still includes cessa- tion of occupation as one of the grounds. The clause, there- fore,  has to be interpreted in this background and it  must take colour from the context. [739B-C]     However,  the use of present perfect tense in the  words ’has ceased to occupy’ contemplates a period even connecting in some way with the present time. [741A]     Goppulal  v.  Thakurji Shriji  Shriji  Dwarkadheeshji  & Anr., [1969] 1 SCC 792, relied on.     V.  Dhanpal Chettiar v. Yesodai Ammal, [1980] 1 SCR  334 and  Gajanan  Dattatraya v. Sheroani Hosang  Patel  &  Ors., [1976] 1 SCR 535, referred to.     1.3 Though a comparison of the language of the Act  with that  of  other Rent Acts specifically indicating  that  the period of non-occupation should be one immediately preceding the suit supports the view that the period of non-occupation need  not subsist at the date of the suit, that  alone  does not  outweigh the other relevant circumstances. If,  on  the other hand, provisions of several other Acts are examined it would be seen that the Section has been framed in such a way which avoids use of present perfect tense. Besides,  compar- ing  statutes  of different States is not  to  be  commended because  similarity  or variation in the laws  of  different States  is  not  necessarily indicating. of  a  kindered  or different intention. [741 B-D]     Nathia  Agarwalla and Another v. Musst.  Jahanara  Begum and Others, [1966] 3 SCR 926, followed.     In  the circumstances, the decision of the courts  below that the tenant is liable to be ejected is set aside. [741G]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  823  of 1981. 738     From  the  Judgment and Order dated  16.10.1979  of  the Punjab  & Haryana High Court in Civil Revision No.  2300  of 1979.     V.C. Mahajan (NP), Ms. Urmila Kapoor, Ms. S. Janani  and Ms. Meenakashi for the Appellant. M.L. Verma and P.C. Kapur for the Respondents. The Judgment of the Court was delivered by     SHARMA, J. This appeal by a tenant-defendant is directed against  the  decree  for his eviction from a  shop  on  the ground  mentioned  in s. 13(2)(v) of the East  Punjab  Urban Rent  Restriction Act, 1949 (hereinafter referred to as  the Act) which renders the tenant liable for eviction if he  has ceased to occupy the rented premises for a continuous period of four months without reasonable cause. The questions which are  involved in this case are whether a tenant can be  said to  have ceased to occupy a building merely for  the  reason that he temporarily suspends the actual physical user there- of;  and whether a landlord is entitled to a decree even  if the tenant has re-occupied the premises before the  eviction proceeding was commenced.     2. The landlord-respondent filed the present application for eviction of the appellant before the Rent Controller  in

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March,  1973and  inter alia pleaded that  for  a  continuous period of more than four months the appellant had ceased  to occupy  the shop during 1969 to 1971 and he was,  therefore, liable to be ejected. The appellant disputed the allegation, but, the Rent Controller as well as the Appellate  Authority rejected  the  defence and accepted  the  plaintiff’s  plea. After unsuccessfully moving the High Court under s. 15(5) of the Act, the tenant had filed the present appeal by  special leave.     3.  The grounds on which a tenant can be asked  to  quit are  mentioned under s. 13(2) of the Act, and  under  clause (v)  thereof the Controller may pass an order for  the  ten- ant’s eviction if he is satisfied, "13(2)(v):  That where the building is situated in  a  place other  than a hill-station, the tenant has ceased to  occupy the building for a continuous period of four months  without reasonable cause," Mrs.  Urmila Kapoor appearing in support of the appeal  con- tended  that the appellant has all along been in  possession of the shop which 739 was  never vacated and merely for the reason that  the  shop remained closed for a temporary period he cannot be said  to have  ceased  to occupy the same. The argument is  that  the appellant’s occupation of the shop was never interrupted  as it was in his effective control, although closed and secured under  the appellant’s lock which nobody ever disturbed.  We do not find ourselves in a position to accept the  interpre- tation  of the section as attempted on behalf of the  appel- lant. The reason of including the clause (v) in s. 13(2)  is to  ensure that buildings, which are scarce in  number  spe- cially in the towns, necessitating rent control legislation, do  not remain unused at the instance of tenants who do  not actually  need  them.  A tenant who is in  possession  of  a building  in  the legal sense only cannot be said to  be  in occupation thereof for the purpose of s. 13(2)(v); otherwise a  question  of his eviction as envisaged  in  that  section would  not arise. The section, by making provisions for  his ejectment,  assumes  that he is in  possession,  but,  still includes cessation of occupation as one of the grounds.  The clause, therefore, has to be interpreted in this  background and  it ,must take colour from the context.  We,  therefore, hold that if a tenant stops the business which he is  carry- ing on in a shop and closes the premises continuously for  a period of four months without a reasonable cause he will  be liable for eviction.     4.  The  other  point urged by Mrs.  Kapoor  needs  more serious consideration. The non-occupation of the premises by the  tenant did, not continue after 197 1, and the  eviction petition  was filed in 1973. Is it permissible to  hold,  in this situation, that the ground mentioned in s. 13(2)(v) has been  made  out?  On behalf of the respondent  it  has  been contended  that  since  in a number of Rent  Acts  of  other States  a  similar ground specifically  requires  such  non- occupation  for a period immediately preceding the  date  on which  the ejectment application is filed, the  present  Act which does not use identical language should be  interpreted differently.  Reliance has also been placed on the  observa- tions of this Court in Gajanan Dattatraya v. Sherbanu Hosang Patel & Ors., [1976] 1 S.C.R. 535; a case arising under the’ Bombay Rents, Hotel & Lodging House Rates Control Act, 1947.     5.  The  prayer  for eviction, in the  above  case,  was rounded  on  a plea of subjetting, and the  ground  in  this regard,  as  mentioned in s. 13(1)(e), is "that  the  tenant has, since the coming into operation of the Act,  unlawfully

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sublet"  the premises. The Court rejected a similar  conten- tion of the tenant, as in the present case, by holding that, "To accede to the contention of the appellant would mean 740 that  a tenant would not be within the mischief of  unlawful subletting if after the landlord gives a notice  terminating the tenancy on the ground or unlawful subletting the subten- ant vacates. The landlord will not be able to get any relief against the tenant in spite of unlawful subletting. In  that way  the tenant can foil the attempt of landlord  to  obtain possession  of  the premises on the  ground  of  sublet.ting every   time  by  getting  the  sub-tenant  to  vacate   the premises." The  observations, and consequently the decision were  based on the law requiring service of notice to quit before start- ing  an action for ejectment as assumed earlier  before  the decision  of  7  learned Judges in V.  Dhanpal  Chettiar  v. Yesodai  Ammal,  [1980] 1 S.C.R. 334 holding  otherwise  was given. The provisions of s. 13 had, then, to be construed in a  manner which did not render the same completely  ineffec- tive.  Now,  that is not the position. It is true  that  the Court in the former decision also observed that the tenant’s liability  to eviction arose once the fact of unlawful  sub- letting  is  proved,  but, the very  next  sentence  further clarifies the position in the following words: "At  the date of the notice, if it is proved that there  was unlawful subletting, the tenant is liable to be evicted." It is significant to note that according to the decision the subletting  had to continue till the date of the notice.  If the  requirement of notice disappears the above  observation must  be read as referring to the application  for  eviction and not the notice.     6. The observations in an earlier case of this Court  in Goppulal  v. Thakurji Shriji Shriji Dwarkadheeshji  &  Anr., [1969]  1  S.C.C. 792; may be of some help  in  the  present context. This decision was discussed in Gajanan Dattatraya’s case  (supra) and was distinguished on the ground  that  the Court  there had no occasion to consider the question as  to whether subletting to be within the mischief of the relevant statute  is to subsist at the date of the suit. It  is  true that the Court did not have to consider and decide  directly the  present controversy, but, the comment made on the  lan- guage of the statute concerned is helpful to the tenant. The dispute, in that case, depended on the interpretation of  s. 13(1)(e)  of  the Rajasthan Premises (Control  of  Rent  and Eviction) Act, 1950 which forbids the Court to pass a decree for  eviction  unless inter alia "the tenant  has  assigned, sublet  or  otherwise  parted with the  possession"  of  the disputed  premises.  There  the words  "has  sublet"  needed construing, while in the case before us they are 741 "has  ceased to occupy". In this background, the Court  said that the use of present perfect tense contemplates a  period even connecting in some way with the present time.     7. So far as the language of some rent Acts, specifical- ly  indicating that the period of non-occupation  should  be one  immediately  preceding  the  suit,  is  concerned,  the learned  counsel is right that a comparison of the  language of the present Act lends some support to his stand, but this alone does not outweigh the other relevant circumstances. On the other hand, if the provisions of several other Acts  are examined, it will be seen that the section has been  phrased in  a way which avoids the use of present perfect tense.  As an illustration, the provisions of the Bihar Rent Act may be seen,  which  forbids the eviction of a  tenant  "except  in

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execution  of a decree passed" for subletting (or for  other grounds  mentioned  therein).  Besides, as  pointed  out  in Nathia  Agarwalla and Another v. Musst. Jahanara  Begum  and Others,  [1966] 3 SCR 926; comparing  statutes  of’different States  is not to be commended because similarity or  varia- tion  in  the laws of different States  is  not  necessarily indicative  of  a  kindered or a  different  intention.  The reason  for  this view was expressed in the  following  lan- guage: ’Enactments  drafted by different hands, at different  times and to satisfy different requirements of a local  character, seldom  afford  tangible  or sure aid  in  construction.  We would, therefore, put aside the Rent Control Acts of Madras, Bihar,  Delhi and other States because in these  States  the problem of accommodation in relation to the availability  of lands  and  houses  and the prior  legislative  history  and experience, cannot be same as in Assam."     8.  On an examination of all the provisions of  the  Act and  on  taking into account the other  relevant  considera- tions,  we  are of the view that the non-occupation  of  the premises  by  a tenant must continue till the  date  of  the filing  of  the application for his eviction on  the  ground covered  by s. 13(2)(v). Accordingly, the appeal is  allowed and  the  decision  of the courts below is  set  aside.  The parties shall bear their own costs throughout. N.P.V.                                          Appeal   al- lowed. 742