http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12  

PETITIONER: J.R. VOHRA

       Vs.

RESPONDENT: INDIA EXPORT HOUSE PVT. LTD. AND ANOTHER

DATE OF JUDGMENT14/02/1985

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. MISRA RANGNATH KHALID, V. (J)

CITATION:  1985 AIR  475            1985 SCR  (2) 899  1985 SCC  (1) 712        1985 SCALE  (1)219  CITATOR INFO :  R          1987 SC1986  (22)  F          1987 SC1996  (11)  RF         1989 SC 458  (11)  R          1990 SC 325  (19,20,24)  E          1990 SC1725  (21)  E          1991 SC1233  (10,13,15)  RF         1992 SC1555  (2,6,15,16)

ACT:       Delhi  Rent Control  Act, 1958  section 21  read  with section 37  and Rule  5 of  Delhi Rent  Control Rules, 1959, scope of-Limited tenancy created with permission of the Rent Controller under  section 21-Whether  a warrant for recovery or possession  can be issued in favour of a landlord without notice to the tenant  under section 21

HEADNOTE:        A  tenancy  for  a  limited  period  of  three  years commencing from 1.6.79 in respect of a house at 34, Paschimi Marg, Vasant  Vihar, New  Delhi at  a monthly  rental of Rs. 5,000 was  created by  the appellant  in favour of the first respondent company  for the  residence of its Chairman, Shri C.L. Sachdev  after obtaining the requisite permission under section 21 of the Delhi Rent Control Act. In the application filed before  the Rent Controller and in the proposed lease- deed it was- specifically stated that the appellant landlord in order to clear the loan taken by him for the construction of the  premises was  creating the  limited  tenancy  for  a period of three years. The appellant was desirous of getting possession of the house at the expiry of the period i.e 31st May, 1982  but before  applying for possession under section 21 of the Act, by two registered letter one dated 1st March, 1981 and  the other  dated 5th  May, 1982 he called upon the respondents to  hand over  vacant possession  of the  leased premises on  the due  date. The  respondent neither  replied these letters  nor did  handover possession.  Therefore, the appellant filed an application under section 21 for recovery of possession  before the Rent Controller On 1st July, 1982. On 9.7.82 the appellant took possession of the house through the bailiff  and started  residing therein  with his  family members.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12  

     On  14th  July  1982  the  respondents  filed  a  writ petition (CM No. (Main) 174 of 1982) in the Delhi High Court under Article  227 of  the Constitution seeking to quash the warrant of  possession issued  by  the  Rent  Controller  on 6.7.1982 and  further proceedings taken in pursuance thereof on two  grounds: (a)  that the initial order dated 10th May, 1979 granting  permission to  create the limited tenancy was vitiated by  fraud practiced  by the appellant in as much as he had  suppressed the  fact that an earlier application for such  permission  has  been  declined  on  the  ground  that premises had  been let  out  for  commercial-cum-residential purposes  and  therefore,  there  was  no  executable  order pursuant to which and warrant for possession could be issued under section  21 of  the Act and (b) that the issuance of a warrant for  recovery of possession on 6th July 1982 without notice to  the tenant  was erroneous law and in violation of the principle  of natural  justice and  such nonissuance  of notice on  the part  of the Rent Controller had deprived the tenant of  an opportunity to prove his case of fraud. By his reply the  appellant denied  all the  allegation made in the Writ Petition. 900      The High  Court took  the  view  that  no  warrant  for recovery of  possession under section 21 of the Act would be issued in  favour of  the landlord  without  issuance  of  a notice to  the tenant,  and by  its judgment and order dated 18th October,  1982 allowed  the writ  petition, quashed the warrant of possession Issued by the Rent Controller and sent the matter back to him for hearing and adjudicating upon the objections of  the tenant to the issuance of such warrant of possession and  in the  meanwhile it  also is  directed that possession be  restored to  the tenant.  Hence the appeal by special leave       Allowing the appeal, the Court, ^       HELD: 1.1. Neither section 21 and 37 of the Delhi Rent Control Act 1958 nor the Rules framed under t‘he Act require service of  any prior  notice upon  the tenant  before he is evicted  and  in  the  instant  case,  the  order  directing issuance of  warrant of  possession under section 21 without prior notice  to the  tenant, for the purpose of putting the landlord in  possession of the leased premises at the expiry of the  limited  tenancy  cannot  be  regarded  as  illegal, invalid or unwarranted. [908 E-F]       1.2.  An analysis  of section  21 of  the  Delhi  Rent Control Act  will show  that  in  regard  to  tenancies  for limited  period   mentioned  therein  only  two  orders  arc contemplated; (i)  an order  by  the  Rent  Controller  sand or permitting  the creation  of a  tenancy for  a particular fixed period  only, and (ii) an order by the Rent Controller putting the  landlord in  vacant possession  of  the  leased premises by  evicting the  tenant and  every other  occupier thereof at  the expiry  of that  period. Before  passing the first order  the Rent  Controller  is  required  to  satisfy himself that the two conditions mentioned in the section are genuinely satisfied  in every  case, namely,  (a)  that  the landlord does  not require  the premises  for  a  particular period  only   and  (h)  that  the  letting  itself  is  for residential purposes  and no  other.  The  landlord  s  non- requirement OF  the premises  for a  particular  period  may arise out  of various  circumstances for  instance, being an officer he  may be  going on  some other  assignment  for  a particular  period   or  being  in  occupation  of  official quarters he may have to vacate the same on his retirement or having borrowed  a loan  for the  same on  his retirement or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12  

having borrowed a loan for the construction he may issuer to clear it  of before occupying the premises for this own use, etc. Both  the conditions must be truly fulfilled and not by way of any make belief before the Rent Controller grants his permission for the creation of such limited tenancy but once such limited tenancy is properly created the second order of putting the  landlord in  vacant possession  of  the  leased premises by  evicting the  tenant at the expiry of the fixed period has  to be  passed as  a matter of course because the tonality, in  view of  the non-obstinate clause contained in section 21,  has no right or protection whatsoever under law to  continue  in  possession  nor  has  he  any  defense  to eviction. The  second order contemplated by section 21 is in the nature  OF a  process in  execution where under landlord has to  be put  in possession  of  the  leased  premises  by evicting the tenant and every other occupant thereof, and no notice to  the tenant  is contemplated before issuing ll the warrant  of   possession  for   putting  the   landlord   in possession. [906 G-H; 907 A-E] 901       1.3.  Section 21  carves out  tenancies of  particular category for  A special  treatment and  provides  a  special procedure that will ensure to the landlord vacant possession of the leased premises forth-with at the expiry of the fixed period of  tenancy, evicting whoever be in actual possession Such being  the avowed  object of  prescribing  the  special procedure, service  of a  prior notice  on the  tenant  upon receipt  of  the  landlord’s  application  for  recovery  of possession  and  inviting  his  objections  followed  by  an elaborate inquiry  in which evidence may have to be recorded will rally frustrate that object. [909F-G]       S. B. Noronah v. Prem Kumari Khanna, [1980] I SCR 201, followed.       1.4  In ease  there was  in fact  a  mere  ritualistic observance of  the procedure  while granting  permission for the creation  of a  limited tenancy or where such permission was procured  by fraud  practised by  the landlord  or as  a result of  collusion between  the strong  and the  weak, the solution lies  not in  insisting upon  service  of  a  prior notice on  the tenant  before the issuance of the warrant of possession  to   evict  him   but  by   insisting  upon  his approaching the  Rent Controller  during the currency of the limited tenancy  for adjudication  of his pleas no sooner he discovers facts  and circumstances  that tend to vitiate ab- initio the initial grant of permission, and certainly not to wait till the landlord makes his application for recovery of possession after  the 1)  expiry of  the fixed  period under section 21.  The special  procedure provided for the benefit of the  landlord  in  section  21  warrants  such  immediate approach on the part of the tenant. Of course, if the tenant aliunde comes  to  know  about  landlord’s  application  for recovery of  possession and  puts forth his plea of fraud or collusion etc.  at that  stage  the  Rent  Controller  would inquire into such plea but he may run the risk of getting it rejected as an after-thought. [912A-D]       1.5.  Except Rule 5 which deals with applications made under  s.  21  and  which  merely  provides  for  period  of limitation by saying that every application under section 21 shall be  made by  the landlord  within six  months from the date of  the expiry  of the  period of  tenancy, there is no other rule  in Delhi  Rent Control  Rules 1959 framed by the Central Government  under  section  56  of  the  Delhi  Rent Control Act, requiring a notice being served upon the tenant before the  issuance of  warrant or possession to evict him. [907E-G]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12  

     1.6.  Section 37  (1)  of  the  Act  also,  cannot  be construed as  requiring service  of a  prior notice upon the tenant before  issuance of  a warrant  of possession against him. All  that sub-section  (1) of  section 31 of Delhi Rent Control Act  does  is  to  incorporate  a  rule  of  natural justice, namely,  that an  order prejudicially  affecting  a person shall not be made without hearing him and considering his objections  if any  to the  proposed order. But an order can be  said to  affect a  person prejudicially  only if any right of  his would be affected adversely and in view of the non-obstinate clause  contained in  section 21 the tenant on the expiry  of the limited period has no right or protection whatsoever under  any law  to continue  in possession and as such the  issuances of a warrant of possession directing him to vacate  the premises in his Occupation cannot be regarded as one which prejudicially affect him.                                               [907H; 908C-D] 902

JUDGMENT:          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3381 of 1982.            From the judgment and order dated 18.10 82 of the High Court of Delhi in C.M. (M)) No. 174/82.            V.M. Tarkunde, B. Dutta and Mrs. & Mr. A. Minocha for the  Appellant.       L N. Sinha and Mr.. Parmod Dayal, for the Respondent.          The Judgment Or the Court was delivered by             TULZAPURKAR. J. The only question raised in this appeal is  whether a  warrant for recovery of possession can be issued  ill favour  of a  landlord without  notice to the tenant under  s. 21  of the  Delhi Rent  Control  Act,  1958 (hereinafter referred to as the Act) ?        A  tenancy  for  a  limited  period  of  three  years commencing from  1.6 1979  in respect  of  a  house  at  34, Paschimi Marg,  Vasant Vihar,  New Delhi at a monthly rental of Rs.  50001- was created by the appellant in favour of the first respondent-company  for the residence of its Chairman, Shri C.L.  Sachdev after  obtaining the requisite permission under s.21 of the Act.      It appears  that the  said house was constructed by the appellant for  his own use and occupation but having taken a loan for  its construction  he was  desirous of clearing the said before occupying the same and he, therefore, offered in writing the  tenancy for  a limited period of three years to the  first  respondent-company,  and  since  the  offer  was accepted a  joint application seeking permission of the Rent Controller under  s.21 for creating such limited tenancy was made by  the parties  on 9th  May,  1979  in  which  it  was expressly stated  that three years tenancy was being created as the  appellant had  to clear  the construction  loan; the proposed lease-deed  containing the  terms and conditions of letting was  annexed thereto,  clause  2  whereof  expressly recited that  the premises  shall be  used by the respondent Company only  for the residential purposes of its Chair man, Shri C.L.  Sachdev (second respondent). On 10th May 1979 the parties  appeared  before  the  Rent  Controller  and  their statements were  recorded; the  second respondent  stated on oath that  the premises  were being  taken by the respondent company for the residence  of its Chairman (i.e. himself) on a monthly rental of Rs. 5000/- for 903 three years  with effect  from 1.6.1979 and the lessee shall

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12  

vacate the  A premises  on the expiry of that period. By his order passed  on that very day the Rent Controller, on being satisfied that  the requirements of s.21 had been fulfilled, 1, granted  permission for  the creation  of the tenancy for the said  period which  Was to  expire on 31st May 1982. The appellant was desirous of getting possession of the house at the expiry  of the period but before applying for possession under s.21  of the  Act, by two registered letters one dated 1st March  1982 and  the other  dated 5th May 1982 h- called upon the  respondents to  hand over vacant possession of the leased premises  on the  due date as the period permitted by the Rent Controller was coming to an end and also because h- required the,  pretenses for  himself. There was no reply to any of  this letters  nor was  possession handed  over  and, therefore, the  appellant filed  application under  s.21 for recovery of  possession before  the Rent  Controller on  1st July 1982;  the application was directed to be registered on that  day and the appellant was directed to file a certified copy of the plan on 16.7.1982; the appellant, however, filed the certified  copy of  the plan  on the  6th July 1982; the Rent Controller, therefore cancelled the date 16th July 1982 fixed for  filing the plan, took on record certified copy of the plan  and issued  warrant of possession in favour of the appellant. On  9.7.1982 the appellant took possession of the house through  the bailiff and started residing therein with his family members.       On  14th  July  1982  the  respondents  filed  a  writ petition (C.M.  No. (Main)  174 of  1982) in  the Delhi High Court under  Art. 227  of the  Constitution seeking to quash the warrant  of possession  issued by the Rent Controller on 6.7.1982 and  the further  proceedings  taken  in  pursuance thereof on  two grounds:  (3) that  the initial  order dated 10th May  1979 granting  permission to  create  the  limited tenancy was  vitiated by  fraud practised  by the  appellant inasmuch as  he had  suppressed the  fact  that  an  earlier application for  such permission  his been  declined on  the ground that  premises had  been let  out for commercial-cam- residential purposes  and therefore, there Was no executable order pursuant  to which any warrant for possession could be issued under  s.21 of the Act and (b) that the issuance of a warrant for  recovery of possession on 6th July 1982 without notice to  the tenant was erroneous in have and in violation of principles  of natural  justice and  such non issuance of notice on  the part  of the Rent Controller had deprived the tenant of an opportunity to prove his case of fraud. By this reply the  appellant denied  all the allegations made in the Writ Peti 904 tion and  particularly denied that the premises were let out for commercial-cum-residential  purposes or  that permission on the  earlier occasion had been declined on that ground or that any  fraud was  practised by him as alleged at the time when the  order granting  permission was  passed on 10th May 1979; it  was asserted  that  the  earlier  application  for permission was  not refused  but  was  got  with  drawn  for technical defect.  The appellant  also disputed that anoints to the  tenant Was  contemplated by  s.21 of  the Act before issuing the  warrant for  recovery of possession thereunder; he  also   pleaded  that  on  the  facts  of  the  case  the respondents had  ample  opportunity  to  approach  the  Rent Controller to  prove their case of alleged fraud inasmuch as the appellant  had issued  two  registered  notices  to  the respondents  informing   them  that   he  was   desirous  of recovering possession  at the expiry of the lease period and as such  though there was no requirement of a notice in law,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12  

the principles of natural justice could be said to have been substantially observed. By its judgment and order dated 18th October 1982  the High  Court  allowed  the  writ  petition, quashed  the  warrant  of  possession  issued  by  the  Rent Controller and  sent the  matter back to him for hearing and adjudicating upon  the  objections  of  the  tenant  to  the issuance of  such warrant of possession and in the meanwhile it also  directed that possession be restored to the tenant. In doing so the High Court took the view that no warrant for recovery of possession under s.21 of the Act could be issued in favour  of the  landlord without  issuance of a notice to the tenant.  It is this view of the High Court that is being challenged before us by the appellant in this appeal.       In  support of  the appeal the principal contention of the counsel  for the appellant has been that neither s.21 of the  Act   nor  any   Rules  framed  thereunder  require  or contemplate the  service of  a notice  on the  tenant before issuing the warrant of possession for the purpose of putting the landlord  in vacant possession of the leased premises at the expiry  of the  limited period for which the tenancy has been permitted  to be  created under  the Rent  Controller’s order.  Counsel   submitted  that  s.21  postulates  summary eviction of  the tenant  by a process which is really in the nature of executing the earlier order creating a tenancy for a limited  period as no fresh eviction order is contemplated and that insistence upon a prior notice to the tenant before issuing the  warrant of  possession followed by an elaborate inquiry would  defeat the  very object or purposes for which s.21 has been enacted and incorporated in the Act which, 905 as explained  by this  Court in  S.B. Noronah v. Prem Kumari Khanna,(l)   is to  afford an assurance to the landlord that he will  get back  possession forthwith at the expiry of the fixed period of tenancy but for which a landlord would never let out  his premises and would continue to keep them vacant even though  he may  not require  the premises  for a  fixed period. Counsel  for the  appellant pointed  out  that  even under the  Civil Procedure  Code no prior notice is required to be  served on  a judgment-debtor when execution processes say for  attachment and  sale of  his properties or even for dispossessing him  are taken within two years of the decree. Counsel for  the appellant,  therefore, urged  that the High Court was  ; error  in taking  the view  that a  warrant  of possession could  not be  issued   in favour of the landlord without service  of a  prior notice  upon the tenant under C s.21, and  according to  him the  decision in Noronaths case (supra on  which High Court has relied in this behalf is not on this  point. Counsel for the appellant further urged that even in a case where fraud is alleged to have been practised by the  landlord in obtaining the Rent Controller’s sanction for creating  the limited  tenancy the section does not cast any duty  or obligation upon the Rent Controller to invite a plea of fraud from the tenant by issuing notice to him after the landlord  has applied  for recovery  of possession under that section  Further the  counsel pointed  out that  in the facts of  the instant  case the  fraud, if  at all there was any, was known to the tenant right from the time the limited tenancy was  created under  the Rent  Controller’s order and the respondents  could have  approach the Rent Controller to have the  issue decided  at any  time during the three years period and  in any  case  at  least  immediately  after  the receipt of two registered letters from the appellant’s which were issue  months ahead  of the appellant’s application for recovery of possession under s.21. Counsel, therefore, urged both in  law as well as on the facts of the present case the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12  

service of  a notice  by the Rent Controller upon the tenant before issuing  warrant of  possession was  uncalled for and not required  and the  High Court was in error in taking the view it  did; in  any case  the  High  Court  was  wrong  in directing  the   restoration  of   possession  back  to  the respondents when  the matter  was remanded by it to the Rent Controller for  hearing and  adjudicating upon  the tenant’s objection and  the appellant’s possession need not have been disturbed pending such adjudication.       (1) [1980] I S.C.R. 281. 906       On the other hand counsel for the respondents strongly sup ported  the view  taken by  the High  Court and  in that behalf relied  upon this  Court‘s decision  in the Noronah’s case (supra)  which has  the view that even at the execution stage it  is open  to the  tenant to  put forward  a case of fraud in the matter of obtain g Rent Controller’s permission at the initial stag, for creating  a limited tenancy and the Rent controller is bound to hold an inquiry when such a plea of fraud  is put  forward by  the tenant  and  according  to counsel such  inquiry into  the, plea  of fraud would not be possible unless  notice is  served Upon  the tenant   before issuing the warrant of possession .              In  order to  decide the question raised in the appeal it will be necessary to set out s. 21 of the Act. The section ruts thus:                  "21. Recovery  of  possession  in  case  of      tenancies for  limited period where a landlord does not      require the  whole  or  any  part  of  premises  for  a      particular period,  and the  landlord, after  obtaining      the permission  of the  Controller in the prescribed in      the manner  , let  the whole  of the  premises or  part      thereof as a residence 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  any   other  law  the      Controller may  , on  an application mad to him in this      behalf by  the landlord  within such  time  as  may  be      prescribed, place  the landlord in vacant possession of      the premise  or part thereof by evicting the tenant and      every other  person who  may be  in occupation  of such      premises .              An  analysis of the provision will show that in regard to  tenancies   for limited period mentioned there in only two  orders are  contemplated by  the section:  (i)  an order by  the Rent  Controller sanctioning or permitting the creation of  3 tenancy  for a  particular fixed period only, and (ii)  an  order  by  the  Rent  Controller  putting  the landlord in  vacant possession  of the  leased  premises  by evicting the  tenant and every other occupier thereof at the expiry of  that period. It is also clear that before passing the first  order the  Rent Controller is required to satisfy himself that the two conditions mentioned in the section are genuinely satisfied in every 907 case, namely,  (a) that  the landlord  does not  require the premises A  ’for a  particular period’ only and (b) that the letting itself is for residential purposes and no other. The landlord’s non-requirement  of the premises for a particular period may arise out of various circumstances; for instance, being an  Officer he  may be  going on some other assignment for a  particular period  or being in occupation of official quarters he may have to vacate the same on his retirement or having borrowed a loan for the construction he may desire to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12  

clear it  of before  occupying the premises for his own use, etc. It  cannot be  disputed that both the condition must be truly fulfilled and not by Way of any make-belief before the Rent Controller  grants his  permission for  the creation of such limited  toenails but  once such  laminated tenancy  is properly created the second order of putting the landlord in vacant possession  of the  leased premises  by evicting  the tenant at  the expiry  of the  fixed period to be  passed as matter of  course because  the tenant,  in view  of the non- obstinate clause  contained in  the section, has no right or protection whatsoever  under law  to continue the possession nor has  he any defense to eviction and the section does not Contemplate the passing of any order of eviction against the tenant before issuing the warrant of possession in favour of the  landlord.  It  is  the  clear  that  the  second  order contemplated by the section is in the nature Or a process in execution whereunder  the landlord  has to put in possession of the  leased premises  by evicting  the tenant  and  every occupant  thereof,   and  no   notice  to   the  tenant   is contemplated before  issuing the  warrant of  possession for putting the landlord in possession       As  far as the Delhi Rent Control Rules 1956 framed by the Central  Government under  section 56  of  the  Act  are concerned there  is only  one rule being Rule 5 which merely provides for  period of  limitation  by  saying  that  every application for  recovery of  possession under sec. 21 shall be made  by the  landlord within six months from the date of the expiry  of the  period of  tenancy and  there is no rule requiring a  notice being  served upon the tenant before the issuance Or warrant of possession to evict him.       Counsel for the respondents relied upon sec. 37 of the Act to  canvas the  contention the service of a prior notice Upon the  tenant before he is evicted would be necessary but that deals  with the  practice and  procedure required to be followed by  the Rent  Controller in  proceedings before him and it mainly provides that subject to any rules 908 That may  be made  under the Act the Controller shall, while holding an  inquiry in  any proceeding before him, follow as may b the practice and procedure of a court of small causes, including the  recording of  evidence. In particular counsel relied upon  sub-sec. (1) of sec. 37 which provides that "no order which  prejudicially affects  any person shall be made by the  Controller under  this  Act  without  giving  him  a reasonable opportunity  of showing  cause against  the order proposed to  be made  and until  his objections, if any, and ,any evidence  he may  produce in  support of  the same have been considered by the Controller." In our view all that sub sec. (1)  does is  to incorporate a rule of natural justice, namely, that an order prejudicially affecting a person shall not  be   made  without  hearing  him  and  considering  his objections if any to the proposed order. But an order can be said to  affect a  person prejudicially only if any right of his would b affected adversely and as stated earlier in view of the  non-obstinate clause contained in sec. 21 the tenant on the  expiry  of  the  limited  period  his  no  right  or protection what  so  ever  under  any  law  to  continue  in possession  and  as  such  the  issuance  of  a  warrant  of possession directing  him to  vacate  the  premises  in  his occupation cannot  be regarded  as one  which  prejudicially affects him.  Section 37  (1) therefore, cannot be construed as requiring  service of  a prior  notice  upon  the  tenant before issuance  of a  warrant of possession against him. In other words neither sec. 21 nor sec. 37 nor the Rules framed under the  Act require  service of any prior notice upon the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12  

tenant before he is evicted and the order directing issuance of warrant of possession under sec. 21, without prior notice to the  tenant, for  the purpose  of putting the landlord in possession of  the leased  premises at  the  expiry  of  the limited tenancy  cannot be  regarded as  illegal, invalid or unwarranted.       The  question at  issue could  also be  considered  by having regard to the object or purpose with which section 21 has been  enacted and  incorporated in the Act. It cannot be disputed that  sec. 21  carves out  tenancies of  particular category for  special treatment and the raison d’etre of the provision has been explained by this Court in Noronah’s case (supra) in these words:                "Parliament was presumably keen on maximising      accommodation  available  for  letting,  realising  the      scarcity crises. One source of such spare accommodation      which is  usually shy is potentially vacant building or      a part 909      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  be  come  a      statutory tenant  and, even  if bonafide 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 h will return      the building  after the  stipulated period.  So the law      has to  make itself  credit-worthy. The  long  distance      between institutions 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  a premise 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." (Emphasis supplier).       It is thus clear that the object of incorporated s. 21 in the  Act is  to provide  a special  procedure  that  will ensure to  the landlord  vacant  possession  of  the  leased premises forthwith  at the  expiry of  the fixed  period  of tenancy but  for which  he would  be shy  to let    out  his premises and  would continue to keep them vacant even though he may not require the premises for a fixed period. Moreover the assurance  of getting  vacant  possession  forthwith  is further strengthened by the provision that under the warrant of possession not merely the tenant but every person who may be in  occupation is  also to  be evicted.  If such  is  the avowed object  of prescribing  the  special  procedure  then service of  a prior notice on the tenant upon receipt of the landlord’s  application   for  recovery  of  possession  and inviting his  objections followed by in elaborate enquiry in which evidence may have to be recorded will really frustrate that object.  In our  view precisely  for  this  reason  the scheme of  sec. 21  and the connected relevant provisions do not require  service of  a prior notice on the tenant before issuing the warrant of possession against

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12  

910 him for   putting  the landlord  in possession of the leased premises, for, the law has to make itself credit worthy.              Strong  reliance was  placed by counsel for the respondents on the decision of this Court in Noronah’.s case (supra) where  according to  counsel a  view has  been taken that even  at the second stage when the landlord applies for recovery of  possession under  sec 21,  the Rent  Controller must satisfy  himself by  such inquiry he may make about the compulsive requirements  of that  provision that  is to say, whether the  twin conditions  requisite  for  granting,  the permission for  the creation  Or limited  tenancy  had  been really fulfilled  or not  and counsel  argued that  no  such inquiry would  be possible  unless on  receipt of landlord s application. for  recovery of  possession a notice served is upon the tenant which would enable the tenant to put forth a plea that  at   initial stage  a  mindless  order  granting, permission ion  for the creation of limited tenancy had been made with  it the  will condition being really satisfied  or that the  said initial  order granting  permission  was  the result of  either fraud  on the  part of’  the  landlord  or collusion between  the parties  Counsel urged  that  a  more ritulistic enforcement   the  condition of’  the  permission udders  sec.   21  or   a  mechanical  grant  of  permission thereunder    would amount to subverting the whole effect-of sec.  21   and  it  is  well  settled  fraud  and  collusion (especially collusion  between two to unequal the strong and the weak)  will vitiate completely the permission so granted and render  it non-est.  ’therefore, it would be the duty of the Rent  Controller to  hear and adjudicate upon such pleas of the tenant before issuing warrant of possession in favour of the landlord. At the outset we would like to observe that in Noronah’s  case the  question whether  a prior  notice is required to  be served  upon the  tenant before  issuance of warrant of  possession in  favour of the landlord under sec. 21, did  not arise  for consideration.  It was  a case where upon receipt  of  landlord‘s  application  for  reconvey  of possession under  the section  the tenant  raised pleas that the premises  had been  let out for non-residential purposes and that  the  sanction    or  permission  granted  for  the creation of  the limited  tenancy was  vitiated by fraud and collusion and  the question that arose for consideration was whether at  that stage  the Rent  Controller should consider those peas even when reside at the stage. In other words all that the  said case  decided in  that if such please  by the tenant event at the exception 911 stage (i.e.  at the  stage of  passing the second order) the Rent Controller  should consider  and adjudicate  upon  such pleas but  the decision  is no authority for the proposition that upon  receipt of landlord’s application for recovery of possession the  Rent Controller  must issue  a notice to the tenant inviting  from him the pleas of fraud, collusion etc. and hold  an inquiry  into such  pleas  before  issuing  the warrant of  possession in  favour of the landlord; for there cannot be  a presumption  that in very case there was a m re ritualistic observance  of the  procedure contemplated while passing the  initial order  granting  pertain  or  that  the Controls had  passed a  mindless order  or  that  the  order granting permission  was the  result of  either fraud on the part of the landlord or collusion between the strong and the weak. In  fact clean in Noronah case this Court has observed that there  will be  a presumption in favour of the sanction or permission  being regular  and if  that be so, we fail to appreciate as  to why the Rent Controller should invite such

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12  

pleas of fraud, collusion etc. at the instance of the tenant by being required to serve a notice upon, him before issuing the  warrant   of  possession  in  favour  of  the  landlord especially when  the scheme  of sec.  21 and  the  connected relevant provisions do not require it.       what  then is  the remedy available to the tenant in a case where  there was  in fact a mere ritualistic observance of the  procedure while granting permission for the creation of a l limited tenancy or where such permission has procured by fraud  practised by  the landlord  or  was  a  result  of collusion between  n the  strong and  the weak  ?  Must  the tenant   in scull  cases be  unceremoniously evicted without his plea  being inquired  into ?  The answer is obviously in the negative.  At the  same time  must he  be  permitted  to protract the  delivery of  possess on of the leased premises to the  I Landlord  on a false plea of fraud or collusion or that there  was a  mechanical grant  of permission  and thus defeat the  very subject  of the  special procedure provided for the benefit of the landlord in sec. 21 ? The answer must again be  in the  negative. In  our view these two competing claims must  be harmonized  and the-  solution lies  not  in insisting upon  service of  a prior  notice on  the tenant b fore the  issuance of the warrant of possession to evict him but by  insisting upon  his approach  the  leant  Controller during the  currency of the limited tenancy for adjudication of his  pleas no sooner he discovers facts and circumstances that  tend  to  vitiate  ab  initio  the  initial  grant  of permission. Either  it is a mechanical grantor permission or it is  procured by  fraud practised by the landlord or it is the result 912 of collusion  between two unequals but in each case there is no reason for the tenant to wait till the landlord makes his application for  recovery of  possession after the expiry of the fixed period under sec. 21 but there is every reason why the tenant  should make  an i  mediate approach  to the Rent Controller to  have his  pleas adjudicated by him as soon as facts and  circumstances giving  rise to  such pleas come to his knowledge  or are  discovered by him with due diligence. The special  procedure  provided  for  the  benefit  of  the landlord in  sec. 21 warrants such immediate approach on the part of the tenant. Of course if the tenant aliunde comes to know about landlord’s application for recovery of possession and puts  forth his  plea of fraud or collusion etc. at that stave the  Rent Controller  would inquire into such plea but he  may   run  the   risk  of  getting  it  rejected  as  an afterthought.  There   is  however  no  need  to  imply  any obligation on  the part  of the Rent Controller r to serve a notice on  the tenant  inviting him  to file  his objections before issuing  the warrant  of possession  in favour of the landlord.       Having  regard to  the above discussion we are clearly of the  view that  the High Court Was in error in taking the view that  no warrant  for recovery of possession under sec. 21 could  be issued without serving a notice on the- tenant. We hold  that the  Rent  Controller’s  order  directing  the issuance  of   warrant  of   possession  in  favour  of  the appellant-landlord herein  and the  further  proceedings  of putting him  in position  of the  suit premises in pursuance thereof were  valid and  proper and  ought not  to have been quashed by the High Court. However, since the High Court has remanded  the   matter  back  to  the  Rent  Controller  for adjudication upon  pleas of  the respondent  tenant we   not propose  to   interfere  with  that  e  the  order  and  the adjudication of  the objections  raised by  the  respondent-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12  

talent may  be proceeded with and decided in accordance with the law  but on  the facts  of the instant case there was no justification for  the direction  issued by  the High  Court that pending such adjudication possession of the premises be restored to the respondent-tenant. Admittedly in the instant case long before he applied for recovery of possession under sec. 21  of the  Act the  appellant had  sent two registered notices to  the registered      notices  calling upon  it to vacate the,  premises as  the period  of the limited tenancy was about  to expire and also because he wanted the premises for his  own use  and occupation and nothing was done by the respondents and  it was only after the warrant of possession had been  executed and  the landlord  got possession  of the premises 913 in question  that the respondent-company approached the High A Court by means of a Writ Petition challenging the issuance of warrant of possession on the ground that no prior notice- had been  served upon  him and that the first order granting permission for  limited tenancy  was  the  result  of  fraud practised by  the landlord. Obviously the respondent-company has thought  fit to  raise the  plea of fraud belatedly. We, would therefore,  quash that  part of the High Cortege order which  directs  restoration  of  possession  of    the  suit premises to  the respondent-company  during  the  i  of  the proceedings before  the, Rent Controller and direct that the appellant’s possession  of the  suit premises  which he  has secured in pursuance, of the warrant of possession shall not be disturbed  till the respondent-company objections and  or pleas are  finally decided.  Since the  appeal substantially succeeds the  respondents are  directed to  ply the, cost of the appeal to appellants. S.R.                                        Appeal allowed. 914