http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: BRIJ KISHORE GUPTA

       Vs.

RESPONDENT: VISHWAMITRAKAPUR

DATE OF JUDGMENT: 08/01/1965

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C.

CITATION:  1965 AIR 1574            1965 SCR  (2) 705  CITATOR INFO :  RF         1969 SC1288  (7)

ACT: Delhi  &  Ajmer  Rent Control Act,  1952  --construction  of unauthorised   structures-Suit  for   ejectment-Removal   of structures-pending  proceedings-Whether  court  could  grant relief-Repeal  of  the 1952 Act by Delhi Rent  Control  Act, 1958-Sections 57(2) & 14(1) of new Act--cope of.

HEADNOTE: In each of the two appeals before the court, suits had  been filed  by landlords under the Delhi and Ajmer  Rent  Control Act, 1952, for ejectment on the ground that the tenants  had erected  certain  structures without the  authority  of  the landlords  and  in  violation of  the  conditions  of  -ease between   the  landlord  and  the   concerned   authorities. However,  in  both these cases the tenants had  removed  the offending structures during be pendency of the suits and the question  for  decision in both the cases  was  whether  the tenant  could  still  be ejected after he  had  removed  the authorised structures and there was no further danger to the landlords’ leases being forfeited. It  was  contended on behalf of the landlords  that  once  a breach had been committed by a tenant within the meaning  of cl.  (k) of the proviso to s. 13(1) of the 1952 Act, he  was liable to be ejected even though the landlord may never have given  him  notice about the breach and may  not  even  have required  him  to  remove  it; and  that  his  liability  to ejectment  would  continue  even  if  be  had  removed   the offending  structure before the filing of the suit or  while it was pending.  Furthermore, by virtue of the provisions of s.  57(2)  of  the  Delhi Rent  Control  Act,  1958,  (which repealed  the  1952  Act),  these two  appeals  fell  to  be governed  by cl. (k) of the proviso to s. 13(1) of the  1952 Act and not by cl. (k) of proviso to S. 14(1) of 1958 Act or by  s.  14(11) of that Act which made it  possible  for  the Controller  not to make an order of eviction if  the  tenant complied with any requirements specified by the  Controller; this  was  so because the first proviso to s. 57(2)  of  the 1958  Act  which  required that,  in  certain  circumstances regard shall be had to the 1958 Act, was not applicable

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

to   these two cases. HELD : (i) While considering the scope of the first  proviso to s.     57(2),  it was held in Karam Singh v.  Sri  Pratap Chand,  A.I.R. 1964 S.C. 1305 that where, in the  1958  Act, there was a radical departure from the 1952 Act, the  latter Act  would  continue to apply to  pending  proceedings;  but where  the 1958 Act had slightly modified or  clarified  the previous    provisions,   then   these   modifications    or clarifications  would apply  Section 14(11) of the 1958  Act did  not provide a radical departure from the provisions  of the  1952 Act because when the latter Act was in  force,  it would  have been possible for the court in a suit  based  on cl.  (k ) of the proviso to s. 13(1) to give relief  against forfeiture in a proper case on the analogy of s. 114A of the Transfer  of Property Act where the tenant has  removed  the offending structure before the suit was filed; or even where he had done so during the pendency of the suit if reasonable time  was not allowed in the notice contemplated by cl.  (k) of  the provisio   to s. 13(1). when s. 14(11) of  the  1958 Act  gave  power  to the Controller to give  relief  to  the tenant  under the conditions mentioned therein, it  ,was  in fact clarifying and slightly modifying what the court could 706 already  do under the 1952 Act.  Therefore, regard could  be had  to  the  provisions of s. 14(11) of the  1958  Act  and relief granted to the tenants in both appeals. [710 E-F; 711 F-H; 712 C-E] (ii) Under  the 1952 Act, the language of the proviso to  s. 13(1)  was imperative and laid down that nothing in the  Act applied when various clauses of the proviso were  satisfied. Although the language of the proviso to s. 14(1) of the 1958 Act  is  not  so  imperative,  there  is  no  difference  in substance.  Where the requirements of the proviso under  the 1958 Act are satisfied, the Controller has to pass a  decree for ejectment unless there is provision otherwise in s.  14. L709 G-H; 910 A-B]

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 879 of  1962 etc. Appeals by special leave from the judgment and decrees dated January  18, 1961, and December 13, 1960 of the Punjab  High Court Circuit Bench at Delhi, in Civil Revision No. 13-D  of 1958 and Civil Revision Case No. 592-D of 1957. M.S.K.  Sastri and M. S. Narasimhan, for the  appellant  (in C.A. No. 121/63) M.   C.  Setalvad,  S. Murty and B. P. Maheshwari,  for  the appellants  (in  C.A. No. 879 of 1962) and  respondents  (in C.A. No. 121 of 1962) Raghbir Singh and M. I. Khowaja, for respondent (in C.A. No. 879 of 1962). The Judgment of the Court was delivered by Wanchoo,  J.  These two appeals by special  leave  from  two judgments  of the Punjab High Court raise a common  question with  respect to the application of the first proviso to  s. 57  (2)  of  the Delhi Rent Control Act,  No.  59  of  1958, (hereinafter  referred to as the present Act).   They  arise from  decisions  of two learned Single  Judges  in  revision applications under the Delhi and Ajmer Rent Control Act, No. 38 of 1952 (hereinafter referred to as the 1952 Act.) In one of  them (C.A. 879) the learned Judge has held that in  view of  the first proviso to s. 57 (2), a decree  for  ejectment against the tenant could not be passed.  In the other appeal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

(No. 121), the other learned Judge has held that the  tenant is  liable to ejectment in spite of the first proviso to  s. 57  (2) of the present Act.  It will thus be seen  that  the two decisions are contradictory and raise the question as to when  the  first proviso to S. 57 (2) precisely  applies  to facts similar to the facts in the present two appeals  which are more or less the same. Before  we consider the question thus raised before  us,  we may  briefly  indicate  the facts in the  two  appeals.   In appeal No. 707 379  of 1962, the landlord sued for ejectment on the  ground that  he tenant had erected certain structures in the  shape of  closing  an  )pen  verandah  and  erecting  a  partition therein.   On  account  of this, notices were  sent  to  the landlord  as  well  as  to the  tenant  by  the  authorities concerned to remove the unauthorised structures.  As however the  tenant did not do so, suit for ejectment was  filed  by the  landlord under cl. (k) to the proviso to s. 13  (1)  of the 1952 at, which ran as follows               "13  (1).   Notwithstanding  anything  to  the               contrary  contained  in any other law  or  any               contract, no decree or order for the  recovery               of possession of any premises shall be  passed               by any court in favour of the landlord against               any  tenant (including a tenant whose  tenancy               is terminated) :               Provided  that  nothing  in  this  sub-section               shall  apply to any suit or  other  proceeding               for  such recovery of possession if the  court               is satisfied-               (k)   that  the tenant has, whether before  or               after the commencement of this Act, "caused or               permitted  to be caused substantial damage  to               the  premises,  or  notwithstanding   previous               notice has used or dealt with the premises  in               a manner contrary to any condition imposed  on               the  landlord by the Government or  the  Delhi               Improvement Trust while giving him a lease  of               the land on which the premises are situated;" The  lease  in  favour of the  landlord  by  the  Government provided  that  "the lessee will not  without  the  previous consent  in  writing of the Chief Commissioner of  Delhi  or such officer or body as the lessor or the Chief Commissioner of Delhi may authorise in this behalf erect or suffer to  be erected  on  any  part  of the  said  demised  premises  any buildings  other  than  and  except  the  buildings  erected thereon  at  the date of these presents." The  case  of  the landlord  was  that the tenant had made  structures  without authority which made him liable to ejectment under cl.  (k). During  the  pendency of the suit, however, the  tenant  had removed the offending structures with the result that  there was no longer any breach of the condition of the lease. In  C.A.  121 of 1963, also the facts were similar  and  the suit  was filed on the basis of cl. (k) of proviso to s.  13 (1)  of  the  1952 Act.  In this case also  the  tenant  had closed the verandah without 70 8 the  permission of the authorities concerned and notice  was given  to the landlord on that count by the authorities  and the  landlord  in his turn asked the tenant  to  remove  the unauthorised structure.  When the tenant did not do so,  the landlord  filed the suit.  It appears that during the  trial of  the  suit,  the  tenant  made  certain  changes  in  the structure and removed the glazing and instead he closed  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

verandah  with wire-gauze net.  It was stated by  a  witness from  the  office of the Land Development Officer  that  the fixing  of wire-gauze net was not against the clause  as  to unauthorised construction which was the same in the case  of this lease as in the case of the lease in the other  appeal. It may be added that no further action has been taken by the Land  Development Officer after removal of the  glazing  and after fixing of the wire-gauze net. In the circumstances the question that arose for decision in both the cases was whether the tenant could still be ejected after  he had removed the unauthorised structure  and  there was  no  further  danger  to  the  landlord’s  lease   being forfeited,  and  in that connection the application  of  the first proviso to s. 57 (2) of the present Act arose.  As  we have already indicated, one of the learned Judges held  that the  tenant  could be ejected while the other held  that  he could not. In order to decide the point that has been raised before  us it is necessary to set out the corresponding section in  the present  Act  which  is s. 14.  The relevant  part  of  this section is in these terms               "14.  (1).   Notwithstanding anything  to  the               contrary   contained  in  any  other  law   or               contract, no order or decree for the  recovery               of possession of any premises shall be made by               any court or Controller in favour of the land-               lord 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:-               (k)   that  the  tenant  has,  notwithstanding               previous  notice,  used  or  dealt  with   the               premises in a manner contrary to any condition               imposed  on the landlord by the Government  or               the   Delhi  Development  Authority   or   the               Municipal  Corporation of Delhi  while  giving               him a lease of the land on which the  premises               are situate;"               709               "14   (11)  No  order  for  the  recovery   of               possession  of any premises shall be  made  on               the  ground  specified in clause  (k)  of  the               proviso  to  sub-section (1), if  the  tenant,               within  such time as may be specified in  this               behalf  by the Controller, complies  with  the               condition  imposed on the landlord by  any  of               the authorities referred to in that clause  or               pays  to that authority such amount by way  of               compensation as the Controller may direct." Section 57(1) repeals the 1952 Act.  Section 57(2) which  is material for our purpose reads thus --               "57(2) Notwithstanding such repeal, all  suits               and  other  proceedings  under  the  said  Act               pending,  at  the commencement  of  this  Act,               before  any court or other authority shall  be               continued  and disposed of in accordance  with               the provisions of the said Act, as if the said               Act  had continued in force and this  Act  had               not been passed;               "Provided that in any such suit or  proceeding               for  the fixation of standard rent or for  the               eviction  of  a tenant from  any  premises  to               which section 54 does not apply, the court  or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

             other authority shall have regard to the  pro-               visions of this Act. It  will be seen from a comparison of the 1952 Act  and  the present  Act  with  respect  to  ejectment  on  the   ground contained  in  cl. (k) of the first proviso that  there  are some differences in the language of the proviso to s. 1 3  ( 1)  of  the 1952 Act and of the proviso to s. 14(1)  of  the present Act.   In the first place the proviso to      s.  13 (1)  of the 1952 Act lays down that nothing  in  sub-section (1)  shall  apply to any suit or other proceeding  for  such recovery  of possession while the proviso to s. 14 (1)  lays down  that the Controller may on an application made to  him make an order for the recovery of possession of the premises on  one  or  more  of  the  grounds  specified.   The  first difference is that the forum is changed from the civil court to  the Controller; but that is a question  of  jurisdiction which  we need not consider here.  The second difference  is that  while under the 1952 Act the language of  the  proviso Was imperative and laid down that nothing in the Act applied when the various clauses of the proviso were satisfied,  the language  of the proviso to s. 14 (1) of the present Act  is not so imperative.  Even so, we are of opinion that there is no difference in substance, 710 for  where  the requirements of the  proviso  are  satisfied under  the present Act the Controller has to pass  a  decree for  ejectment unless there is provision otherwise in s.  14 which will be found with reference to various clauses in the proviso as for example S. 14(2), 14(10) and 14(11).  Another difference  for our purposes between S. 13 of the  1952  Act and  S. 14 of the present Act is the introduction of  sub-s. (11) of S. 14 in the present Act while there was nothing  in the  1952  Act corresponding to it.  The  main  argument  on behalf  of the landlords in the two cases is based  on  this difference between the two Acts and it is contended that the introduction  of  sub-s.  (11) is a  radical  departure  and therefore  the  language of the first proviso  to  s.  57(2) would not apply to the present situation. Now the first proviso to s. 57(2) came up for interpretation before this Court in Karam Singh v. Sri Pratap Chand(1).  In that  case the majority held that the proviso must  be  read harmoniously  with  the substantive provision  contained  in sub-s.  (2) and the only way of harmonising the two  was  to read the expression "shall have regard to the provisions  of this  Act"  as  merely meaning that where the  new  Act  has slightly  modified  or clarified  the  previous  provisions, these  modifications and clarifications should  be  applied. It was further held that these words did not take away  what was  provided by sub-s. (2) and that ordinarily the old  Act would apply to pending proceedings.  In substance  therefore Karamsingh’s  case(1) decided that where in the present  Act there is a radical departure from the 1952 Act, the 1952 Act will continue to apply to pending proceedings, but where the present Act had slightly modified or clarified the  previous provisions these modifications and clarifications should  be applied. The  question  that falls for consideration in  the  present appeals therefore is whether the addition of sub-s. (1 1) in S. 14 is a radical departure from what s. 13 (1) provided or whether  it  is a clarification and/or modification  of  the previous  provision.  Whether subs. (11) is a  clarification and/or modification of the position as existed when the 1952 Act was in force would depend upon whether when that Act was in  force it was open to a court to give relief to a  tenant where the offending structure had been removed by him during

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

the  pendency of the suit.  In this connection s. 1 14-A  of the Transfer of Property Act (No. 4 of 1882) may be referred to. Section 114-A runs as follows C. 1305. 711               "114-A.  Relief against forfeiture in  certain               other   cases-Where  a  lease   of   immovable               property  has determined by forfeiture  for  a               breach of an express condition which  provides               that on breach thereof the lessor may reenter,               no  suit  for ejectment shall lie  unless  and               until  the lessor has served on the  lessee  a               notice in writing-               (a)   specifying    the   particular    breach               complained of; and               (b)   if  the  breach is  capable  of  remedy,               requiring the lessee to remedy the breach;               and the lessee fails, within a reasonable time               from the date of the service of the notice, to               remedy the breach, if it is capable of remedy.               "Nothing  in  this section shall apply  to  an               express   condition  against  the   assigning,               under-letting, parting with the possession, or               disposing,  of the property leased, or  to  an               express  condition relating to  forfeiture  in               case of nonpayment of rent." It  will be seen that s. 114-A gives power to court to  give relief to the tenant against forfeiture where it holds  that the  landlord did not give reasonable time to the tenant  to remedy the breach.  In such case it can dismiss the suit  as not  maintainable.   It is true that s. 114-A would  not  in specific  terms  apply  to  cases  like  the  present;   but ejectment on the ground specified in cl. (k) to the  proviso to  s.  13(1)  of the 1952 Act  was  somewhat  analogous  to forfeiture on breach of an express condition of a lease  for it  also required previous notice to the tenant  before  the suit is filed. (see Uma Kuinari v. Jaswant Rai Chopra)  (1). We  do  not  think that it can be said  that  the  1952  Act forbade the, court from granting ’relief where the offending structures  were  removed  by the  tenant  even  during  the pendency of the suit for ejectment.  What is reasonable time within  which  the  breach should be remedied  is  always  a question  of fact and we think it would have  been  possible for  the court in a suit based on cl. (k) of the proviso  to s.  1 3 ( 1 ) to give relief against forfeiture in a  proper case  where the tenant had removed the  offending  structure before the suit was filed or even during the pendency of the suit  if  reasonable  time was not  allowed  in  the  notice contemplated by cl. (k) of the proviso to s. 13 (1).  On the interpretation pressed before is on behalf of the  landlords in  the  two appeals it is argued that once the  breach  has been com- (1)  C.A. 246 of 1961, decided on 16-2-1962. 712 mitted by the tenant by making an unauthorised structure  he is  liable to ejectment even though the landlord  may  never have given him notice about the breach and may not even have required  him  to  remove  it  and  that  his  liability  to ejectment  would  continue  even  if  he  had  removed   the offending  structure before the filing of the suit.   We  do not  think that such an interpretation can be given  to  the provisions  of  an ameliorating statute like the  1952  Act, when it is clear that even under s. 114-A of the Transfer of Property  Act,  the court has power to give  relief  against forfeiture  in  the circumstances mentioned above.   We  are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

therefore  of opinion that even under the 1952 Act it  would have  been open to a court to give relief to the tenant  who had remedied the breach either before the suit was filed  or even  after the suit had been filed depending upon what  the court considered to be reasonable time.  Therefore when sub- s.  (11) gave power to the Controller to give relief to  the tenant  under  conditions mentioned therein it was  in  fact clarifying what the court could do under the 1952 Act on the analogy of s. 114-A of the Transfer of Property Act and also modifying  it  slightly.  Incidentally we may add  that  the addition of sub-ss. (10) and (1 1) may explain the change in the form of the language of the proviso to s. 14 (1) of  the present  Act  to  which we have already  referred.   We  are therefore of opinion that the introduction of sub-s. (1  1.) in s. 14 was clarificatory and slightly modificatory of  the power  of  the court under the 1952 Act to  relieve  against forfeiture  where  the suit was brought without  giving  the tenant reasonable time in the notice contemplated in cl. (k) of  the proviso to s. 13(1).  In this view C.A. 879 of  1962 must  fail  and  is  hereby dismissed.   C.A.  121  of  1963 succeeds   and   is  hereby  allowed  and   the   plaintiff- respondents’ suit is dismissed.  As in both these cases  the tenant has succeeded mainly on account of some change in law after  the  suit had been filed, we order  parties  to  bear their own costs throughout in both the appeals. Appeal No. 879 dismissed and Appeal No. 121 allowed. 713