http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: DR. M. K. SALPEKAR

       Vs.

RESPONDENT: SUNIL KUMAR SHAMSUNDER CHAUDHARI AND OTHERS

DATE OF JUDGMENT10/08/1988

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) PATHAK, R.S. (CJ)

CITATION:  1988 AIR 1841            1988 SCR  Supl. (2) 339  1988 SCC  (4)  21        JT 1988 (3)   356  1988 SCALE  (2)666

ACT:      C.P. & Berar Letting of Houses and Rent Control  Order, 1949:Clause 13 (3) (v)-Whether confined to only  residential houses.

HEADNOTE:     The   respondent-landlords   submitted   two    separate applications  before the Rent Controller for  permission  to determine  the  tenancy of the appellant-tenant  from  their portions  of the premises on the ground that the tenant  had built  a  large  house  in the city  and  had  thus  secured alternative  accommodation. The Rent Controller allowed  the prayer.  A  Single  Judge of the High  Court  dismissed  the appellant’s writ petition and his Letters Patent Appeal  was also dismissed.     Before  this Court the appellant’s main  contention  was that the provisions of clause  l3 (3)(v) of the C.P. & Berar Letting of Houses and Rent Control Order, 1949 did not apply to  non-residential buildings. The argument was that by  the addition  of  the  Explanation  to  clause  l3(3)(v),   non- residential buildings have been excluded from the purview of the sub-clause.     Dismissing the appeals it was,     HELD: (1) It cannot be reasonably suggested that by  the addition  of  the Explanation, which is  confined  to  cases dealing   with  residential  buildings,  a   non-residential building  is excluded even where the tenant leaves the  area for  a  period of four months and does not need  the  house. [342G-H]     If  the  position in regard to the  second  category  of cases   remained  unaffected,  the  Explanation  cannot   be construed to narrow down the scope of the first category  of cases     where    the    tenant     secures     alternative accommodation.[342H; 343A]     (2)  It is not possible to split the main sub-clause  so as to apply it to non-residential buildings where the tenant leaves the area for four months and at the same time exclude it  where he secures alternative accommodation as  the  sub- clause  deals with the two situations in the  same  language without making any distinction. [343A-B]                                                    PG NO 339

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

                                                  PG NO 340     (3)  The Explanation operates within a very narrow  area and  does  not cover the entire field governed by  the  main sub-clause. By the use of the expression "shall be deemed" a legal fiction has been employed for the purpose of including a  particular situation within the sweep of the  sub-clause. l343D]     (4)  It cannot be  legitimately suggested that since  in the  majority  of other States, similar  provisions  in  the statutes on rent law are limited in operation to residential buildings, the same must be presumed to be the intention  of the author of the Control Order. It is a question of  policy to be adopted by the different legislatures. [343G-H]     Mansaram v. S. P. Pathak, [l984] 1 SCC 125 referred to.

JUDGMENT:     ClVlL’ APPELLATE  JURISDICTlON: Civil  Appeal  Nos.1584- 1585 of 1985.     From  the  Judgment  and Order dated  16.6.1984  of  the Bombay High Court in L. P. A. Nos. 76 and 77 of 1984.     V.A.  Bobde, A.G. Ratanapakrkhi, S.D. Mudaliar  and  Ms. Alanjit Chauhan for the Appellant.     U. R. Lalit and A. K. Sanghi for the Respondents.     The Judgment of the Court was delivered by     SHARMA,  J. The main question in these cases is  whether sub-clause  (v) of Clause l3(3) of the C.P. & Berar  Letting of  Houses  and  Rent  Control  Order,  1949,   (hereinafter referred to as the Control Order), applied to all  buildings whether residential or non-residential or was confined  only to residential houses.     2. The civil appeals have arisen out of two  proceedings initiated  by  the owners of the disputed premises  for  the eviction  of the appellant-tenant on the ground that he  has secured  alternative accommodation and, therefore, does  not reasonably need the house. The two premises are parts of the same building situate in Mahal Chowk in the city of  Nagpur, and  belong to a family of which the applicants  respondents before  this  Court, are members. The  appellant-tenant  Dr. M.K. Salpekar, who is a renowned doctor of Nagpur, has  been occupying  the  premises as tenant for the  purpose  of  his clinic  since 1944. Admittedly he has built  in  Ramdaspeth,                                                    PG NO 341 another part of the city, a large double storeyed house, and has let out portions thereof to the State Forest  Department for  running its office. On a partition amongst the  members of  the  family  of the owners of  the  Mahal  Building  the premises in possession of the appellant-tenant was  allotted to  the  respondents in the two appeals, in parts  and  they started the present proceedings by two separate applications for  permission to determine the tenancy of  the  appellant- tenant.  The  appellant defended the actions  but  the  Rent Controller allowed the prayer of the respondents. The  order was confirmed in appeal. The appellant moved the High  Court under Article 226 of the Constitution. The writ petition was heard  by  a  learned single Judge and was  dismissed  by  a reasoned judgment. A Letters Patent Appeal was dismissed  in limine.  The appellant then filed the present civil  appeals by special leave.     3.   The  necessary  findings  on  the  various   issues involving  facts were recorded in favour of the  respondents by  the Rent Controller as well as the appellate  court  and have  been endorsed by the learned single Judge of the  High Court.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

   4.  Mr.  Bobde appearing in support of the  appeals  has contended  that  the provisions of  Clause  13(3)(v)  quoted below, which are the basis for the impugned decision, do not apply to non-residential buildings:     "13.(1)  No  landlord shall, except  with  the  previous written permission of the Controller---     (a)  give  notice to a tenant determining the  lease  or determining  the  lease  if the lease  is  expressed  to  be determinable at his option; or          ....................................................     (3)  If  after  hearing the parties  the  Controller  is satisfied-     (i) ..................................................         ..................................................     (v)   that   the   tenant   has   secured    alternative accommodation, or has left the area for a continuous  period of four months and does not reasonably need the house ;                                                    PG NO 342     Explanation-For  the  purpose of this  item  the  tenant shall be deemed to have secured an alternative accommodation if he owns a residential house in the city or town concerned and  if such house is constructed on a site lying vacant  on Ist  January 1951 or on a site made vacant on or after  that date by demolition of any structure standing on such site  ; or     (vi)  .................................................           ................................................. he  shall  grant the landlord permission to give  notice  to determine the lease as required by sub-clause (1)."     The courts were, therefore, in grave error in  directing eviction  of the appellant from the premises let out to  him not  for  the  purpose of his residence but  for  running  a clinic.  The argument is that the Explanation to the  clause quoted  above  by referring to "a residential house  in  the city  or town concerned" makes it abundantly clear that  the clause cannot be applied to a non-residential house, for,  a residential  house  cannot  be  considered  as   alternative accommodation to a non-residential building.     5.  The  original  Control Order  did  not  include  the Explanation; it was added later by an amendment.  Sub-clause (v) referred to "house" which by clause 2(3) means  building or   part  of  a  building,  whether  residential  or   non- residential, and it cannot, therefore, be suggested that its application was limited to residential buildings only. While introducing  the Explanation, the main sub-clause  was  left untouched. The substance of the argument addressed on behalf of the appellant is that by the addition of the Explanation, non-residential  buildings  have  been  excluded  from   the purview of the sub-clause. We do not find any  justification for this interpretation. The ’expression "house" used in the Control  Order in the wider sense is retained and  envisages two  situations  in which the landlord becomes  entitled  to possession, namely, (i) where the tenant secures alternative accommodation,  and  (ii)  where he leaves the  area  for  a continuous  period of four months. It cannot  be  reasonably suggested that by the addition of the Explanation, which  is confined to cases dealing with residential buildings, a non- residential  building  is  excluded even  where  the  tenant leaves  the  area for a period of four months and  does  not need  the  house. If the position in regard  to  the  second category  of  cases  remained  unaffected,  the  Explanation cannot  be construed to narrow down the scope of  the  first category  of  cases  where the  tenant  secures  alternative                                                    PG NO 343 accomodation.  It  is not possible to split  the  main  sub-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

clause so as to apply it to non-residential buildings  where the  tenant leaves the area for four months and at the  same time exclude it where he secures alternative  accommodation, as the sub-clause deals with the two situations in the  same language without making any distinction. A close look of the Explanation  will also show that unlike the main  sub-clause it  deals with only a very limited class of cases where  the tenant  owns a residential house which was constructed on  a site  lying vacant on 1. 1. 1951 or on a site  which  became available  on  or  after  that date  by  demolition  of  any structure. Further, the main sub-clause is not restricted to cases  where  the  tenant is the owner  of  the  alternative building;  it  also  applies  where  the  tenant  gets   the alternative accommodation in another capacity, e.g., under a lease,  or acquires the right of residence for life under  a bequest.  It  is, therefore, manifest that  the  Explanation operates  within a very narrow area and does not  cover  the entire field governed by the main-sub-clause. By the use  of the  expression "shall be deemed" a legal fiction  has  been employed for the purpose of including a particular situation within the sweep of the sub-clause. Without the  Explanation there  was  some  scope for controversy  about  the  precise meaning  of the expression "has secured" in the  sub-clause, which  by the inclusive nature of the Explanation is set  at rest.     6. Mr. Bobde referred to several other State statutes on rent  law to show that similar provisions  corresponding  to those  in  sub-clause  (v)  are  limited  in  operation   to residential  buildings. it was urged that it should, in  the circumstances,  be assumed that the State  Government  while making the present Control Order also intended to limit  the scope  of the present sub-clause (v). There is no  merit  in this  argument either. The list of the different State  Acts prepared by the learned counsel itself shows that in four of them  the  corresponding provisions are applicable  to  both residential  as  well as non-residential  premises.  In  the remaining   Acts  the  relevant  ground  is  restricted   to residential buildings but in clear and unambiguous terms  in the  body of the section itself. They are, therefore, of  no help  to the appellant. Besides, it is a question of  policy to  be adopted by the different legislatures, and it  cannot be  Iegitimately  suggested that since the majority  of  the State  legislature  have followed a particular  policy,  the same  must be presumed to be the intention of the author  of the  Control Order in question before us. We, therefore,  do not  find  any merit in the argument of  the  appellant  for restricting the application of sub-clause (v) to residential buildings.                                                    PG NO 344     7. Mr. Bobde pressed two additional points. It is  urged that  the  clause "and does not reasonably need  the  house" applies  as  a  necessary condition to  both  categories  of cases,  that  is,  where  the  tenant  secures   alternative accommodation  as  also  where he has left the  area  for  a period of four months, and this the courts below have failed to  appreciate. We do not agree. The punctuation ’comma’  in the  subclause after "alternative accommodation" and  before the rest of the sentence indicates that the last part of the sub-clause  namely "and does not reasonably need the  house" governs  only  the  part of the  sub-clause.  However,  this controversy  is academic in nature because when a  court  is called upon to decide whether another building available  to the  tenant can be treated as alternative accommodation,  it has  to  consider whether the other building is  capable  of reasonably  meeting  the requirements of the tenant  on  his

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

vacating the disputed premises. The adjective "alternative’’ by  itself imports this as a condition. And this aspect  has been thoroughly gone into by the courts below and  necessary findings have been recorded against the appellant.     8. The last ground uged is that since "Ramdaspeth’ house was  built  several  years before  the  institution  of  the present  proceedings.  the  applications  should  have  been dismissed  on the ground of undue delay. Reliance  has  been placed  on Mansaram v. S.P. Pathak and others, [1984] 1  SCC 125.  The learned counsel for the respondents in  his  reply contended that an action for enforcing a right filed  within the  period of limitation as fixed by law cannot  be  thrown out  merely  on the ground of delay. He also relied  on  the evidence   in  the  present  case  indicating  the   special circumstances arising later justifying the belated filing of the application. Following a partition in the family of  the landlord-respondents  they  became  entitled  to   exclusive possession of the respective portions of the premises  which are  subject-matter  of  the two cases.  The  evidence  also indicates that the appellant was in the process of  retiring from  active  practice and was attempting to  establish  his son,  who is also a doctor, in the premises in question.  In that  view  there is no substance in the  point  urged.  The facts in which the decision in Mansaram’s case was  rendered clearly  indicate that it does not support the argument  put forward on behalf of the appellant and no aid therefrom  can be  taken. The  case of the plaintiff, there, was  that  the appellant-tenant  had  occupied  the  premises  in  question about 22 years earlier illegally and was, therefore,  liable to eviction,out of which the appeal before the Supreme Court arose was filed, there were numerous proceedings between the original landlord and the tenant and this question about the                                                    PG NO 345 illegal entry of the appellant had never been raised and  it was  only  after the death of the original landlord  that  a "total stranger" had come forward to raise the issue and  it was held that he was not entitled to do so. The principle of waiver  was clearly applicable. We, therefore, do  not  find substance  in  any  of the points urged  on  behalf  of  the appellant. The appeals are accordingly dismissed with costs. R.S.S.                                  Appeals dismissed.