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PETITIONER: SHADI SINGH

       Vs.

RESPONDENT: RAKHA

DATE OF JUDGMENT23/04/1992

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. KASLIWAL, N.M. (J)

CITATION:  1994 AIR  800            1992 SCR  (2) 726  1992 SCC  (3)  55        JT 1992 (3)   152  1992 SCALE  (1)918

ACT:           East Punjab Urban Rent Restriction Act, 1949:      Sections  13(3)  (a) (iii),  13(4)-Tenant-Eviction  of- Building unsafe and unfit for human  habitation-Subsequently tenant effecting minor repairs making it fit for habitation- Permissibility of-Eviction order-Validity of.

HEADNOTE:      The  respondent  landlord filed  an  application  under section  13(3) (a) (iii) of the East Punjab Urban  Rent  Re- striction Act, 1949 for eviction of the appellant-tenant  on the ground that the building was required for reconstruction since  it became unsafe and unfit for human habitation.  The rent  Controller ordered eviction.  On appeal, the  District Court  reversed  the order of the Rent Controller  and  held that as the tenant had already carried out repairs, the shop became  safe and habitable and therefore there was  no  need for  eviction.  On a Revision Application filed  before  it, the  High Court, reversed it and restored the order  of  the Rent Controller.  Though the High Court accepted the finding that the repairs effected by the tenant were not exhaustive, it  took the view that without recourse to section 12  which stipulated  that an application to be made to the Rent  Con- troller  to  effect ordinary repairs, the tenant  could  not replace the fallen roof, and since a portion of the roof had fallen, the building became unfit for human habitation.      Aggrieved against the High Court’s order the  appellant has  preferred  the present appeal, contending that  by  the subsequent replacement of the roof by the  appellant-tenant, the  requirement  of  the  building  by  the  landlord   for effecting repairs did not exist at all.      Allowing the appeal, this court,      HELD:1.1  By subsequent replacement of the roof by  the appellant,  the  requirement of the building to  effect  the repairs  no  longer subsisted.  This  subsequent  event  was rightly taken note of by the appellate authority                                                        727 and  the  High Court took a narrow view of  the  matter  and wrongly  reversed the judgment of the  appellate  authority. The High Court having accepted the finding of the  appellate authority that the tenant effected repairs by replacing  the

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fallen  roof  and made it safe and fit for  habitation,  the requirement  of the building for the same purpose no  longer subsisted. It is settled law that all the provisions  should harmoniously  be  read together to give effect to  them  and should not be rendered otiose or surpluses. The  requirement of the building would be both to carry out building work  as per  the  developmental scheme of the named  authorities  or where the building needs repairs or reconstruction when  the existing  one became unfit and unsafe for human  habitation. Otherwise  there  is  no power to the  Controller  to  order eviction  though  the building became unsafe and  unfit  for human  habitation.   The word ‘requires’  in  section  13(3) (a)(iii)  cannot  be read in isolation, but  in  conjunction with sub-section (4) of section 13, which enjoins the  land- lord, after effecting repairs or reconstruction or structur- al  alteration and making it safe and fit for human  habita- tion,  to restitute the same to his erstwhile tenant. If  he commits  breach  thereof, the Controller has  been  invested with  the power to pass an order in that behalf.  [730  G-H; 731  A-D]      1.2.  In the instant case, there were five rooms in  the building and the roof of one room alone had fallen and  that the tenant had obtained orders of the Rent Controller  under section 12, and thereafter the tenant replaced the roof.   A tenant  is  under  a statutory obligation  to  approach  the Controller and seek and order for effecting repairs provided the  landlord refuses or neglects to effect repairs.   After the  Rent  Controller posses an order, the  tenant  acquires right  to effect repairs.  In that event he is  entitled  to recover  costs thereof from the rent payable  under  section 108(f)of the Transfer of Property Act.  Even in the  absence of  a  contract, tenant has unilateral right to  effect  re- pairs, when the landlord neglects to effect repairs within a reasonable  time;  after notice the tenant has  a  right  to effect  the  repairs and deduct the expenses  with  interest from  the  rent or otherwise recover it from  the  landlord. The right is hedged with an obligation to get an order  from the Rent Controller. [732 F-H; 733 A,B]       Maharaj  Jagat  Bahadur Singh v.  Badri  Prasad  Seth, [1962]  Supp.  3 SCR 952 Piara Lal v. Kewal  Krishan  Chopra [1988] 3 SCC 51, relied on.      2.It is settled law that subsequent events can be taken note of and                                                 728 the relief could be molded suitably.  Therefore, the  appel- late authority is well justified in its conclusion that  the cause  of  action for eviction of the  appellant  no  longer subsisted  after  the tenant effected repairs  and  replaced that  part  of the fallen roof and the  order  of  eviction, thereafter became unnecessary. [733 H; 734 A, B]      Hasmat  Rai and Anr. v. Raghunath Prasad, [1981] 3  SCR 605;  M/s. Variety Emporium v. V.R.M. Mohd.  Ibrahim  Naina, [1985] 2 SCR 102, relied on.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2945 of 1980.      From  the  Judgment and Order dated  19.9.1980  of  the Punjab  &  Haryana High Court in Civil Revision No.  958  of 1975.      A.K. Goel for the Appellant.      S.M. Ashri for the Respondent.      The Judgment of the Court was delivered by

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    K  RAMASWAMY,  J. The respondent,  landlord,  laid  the application  under s.13(3)(a)(iii) of the East Punjab  Urban Rent  Restriction  Act,  1949,  for  short  ‘the  Act’   for ejectment  of  the  appellant  from  the  demised   premises alleging  that  the building  required  for  reconstruction, since it became unsafe and unfit for human habitation.   The rent  Controller by his order dated March 5,  1973  directed eviction  of the appellant.  On appeal, the  District  Court (Appellate Authority) by judgment dated May 7, 1975 reversed it  and held that as the appellant had already  carried  out repairs  the shop became safe and habitable and so the  need for ejectment no longer subsists.  The eviction Petition was dismissed.   The  High Court of Punjab and  Haryana  by  its judgment  dated Sept. 19, 1980 in Civil Revision  No.958  of 1975 allowed the revision and restored the order of the Rent Controller. Thus this appeal by special leave under  Art.136 of the Constitution of India.      In  the  Petition,  the  respondent  pleaded  that  the demised premises is a shop and most of the roof had  already fallen  and  the remaining part may fall at  any  time;  the flooring  has  given  way  and  the  walls  were  crumbling. Therefore,   the  premises  required   reconstruction.   The appellate authority,                                                729 as  final court of fact, appreciated the evidence  and  held that the report of the Nazir Richpal Singh shows that out of five,  two khanas (columns) of the roof had fallen down  and that three require replacement of few batons. He also  found that  no  portion of the wall had fallen down and  that  the appellant  did not repair by any addition to the roof.   The appellant  had carried out replacement of that part  of  the roof which had fallen down and no more.  It amounts to minor repairs  and  not reconstruction of the shop  or  structural alteration  thereof.  It pointed out that s.12 of  the  Act, gives right to a tenant to seek permission of the Controller to  effect  ordinary repairs but he has no right  to  effect reconstruction  or  structural alteration of  the  building. The  repairs effected by the appellant were  not  extensive. The High Court accepted these findings.  Nonetheless it took the view that the tenant, without talking recourse to  s.12, cannot  replace the fallen roof. The cause of  action  arose under  s.13(3)(a)(iii)  cannot  be  defeated  by  unilateral action of the appellant.  After the back portion of the roof of the shop had fallen it had become unfit for human habita- tion.   In  that view the appellant was held  liable  to  be evicted. Accordingly it allowed the revision.      The question is whether the High Court is right in  law in  reversing  the  judgment  of  the  appellate  authority. Section  13 of the Act gives right to the landlord  to  seek eviction  of  a tenant.  Clause a (iii)  of  sub-s(3)  reads thus:           "In the case of any building or rented land, if he          requires  it to carry out any building work at  the          instance  of  the Govt. or local authority  or  any          Improvement Trust under some improvement or  devel-          opment scheme or if it has become unsafe  or  unfit          for human  habitation."      Sub-section   (4)   further  obligates   on   effecting reconstruction  or  repairs that "where a landlord  who  has obtained  possession of a building or rented land in  pursu- ance of an order.....under sub-paragraph (iii) of  paragraph (a), puts that building to any use or lets it to any  tenant other  than the tenant evicted from it, the tenant  who  has been  evicted may apply to the Controller for an  order  di- recting  that  he shall be restored to  possession  of  such

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building  or  rented land and the Controller shall  make  an order  accordingly".  Section 12 gives right to a tenant  to effect necessary repairs, thus:                                                       730          "If a landlord fails to make the necessary  repairs          to a building other than structural alterations, it          shall be competent for the Controller to direct  on          application  by the tenant, and after such  inquiry          as  the Controller may think necessary,  that  such          repairs  may  be made by the tenant, and  that  the          cost  thereof may be deducted from the  rent  which          is payable by him."      The  scheme of the Act in this behalf adumberates  that it is the obligation of the landlord to keep the building in fit  and  habitable  condition.  It he  fails  to  make  the necessary repairs to the building other than  reconstruction or structural alteration, the tenant has been given a  right under  s.12 to make an application to the  Rent  Controller, who after making such enquiry as he may think necessary,  is empowered and shall be competent to pass an order  directing the tenant to effect necessary repairs.  The costs  expended thereof  may be deducted from the rent payable to the  land- lord.    The   landlord,   equally,   is   entitled    under s.13(3)(a)(iii)  to  seek eviction of the  tenant  from  any building  if the landlord requires it to carry out  building work  pursuant  to  the notice issued by  the  Govt.,  local authorities  or Improvement Trust under some improvement  or development  scheme or if it has become unsafe or unfit  for human habitation. On reconstruction or effecting repairs  by the landlord, he is enjoined to restitute the evicted tenant into  possession of the building.  Under sub-s. (4) of  s.13 it  shall  be mandatory for the Rent Controller to  make  an order in that behalf, despite the landlord himself makes use of the building of lets it out to any other tenant and  puts a new tenant in possession of the evicted building.      Shri  Goel,  learned  counsel for  the  appellant  with thorough  preparation  and neat presentation  of  the  case, argued  that  on  the  date of  filing  an  application  for eviction  the  building  was  unsafe  and  unfit  for  human habitation  due  to  fall  of  roof  from  two  khanas.   By subsequent  replacement  of  them  by  the  appellant,   the requirement of the building to effect the repairs no  longer subsisted.  This subsequent event was rightly taken note  of by  appellate authority and the High Court took narrow  view of  the  matter  and wrongly reversed the  judgment  of  the appellate authority.  We find force in the contention.   The High  Court  having accepted the finding  of  the  appellate authority that the tenant effected repairs by replacing  the fallen  roof  and made it safe and fit for  habitation,  the requirement  of the building for the same purpose no  longer subsisted. Whether the repairs                                                      731 effected  by  the  tenant at its  own  cost  without  taking recourse  to s.12 would alter the situation? Our  answer  is no.   It  is  settled law that  all  the  provisions  should harmoniously  be  read together to give effect to  them  and should not be rendered otiose or surpluses.  It is difficult to  give  acceptance to the contention of Sri  Harbans  Lal, learned  senior  counsel for the respondent, that  the  verb ‘requires’  in  s.13(3)(a)(iii) would be applicable  to  the first part, namely to carry out any building work.  It  also would encompass of the building which became unsafe or unfit for human habitation. The requirement of the building  would be both to carry out building work as per the  developmental scheme  of the named authorities or when the building  needs

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repairs or reconstruction when the existing one became unfit and  unsafe  for human habitation.  Otherwise  there  is  no power to the Controller to order eviction though the  build- ing became unsafe and unfit for human habitation.  The  word 1requires’  cannot be read in isolation, but in  conjunction with  sub-s. (4) of s.13 Sub-section (4) which  enjoins  the landlord,  after  effecting  repairs  or  reconstruction  or structural  alteration and making it safe and fit for  human habitation,  to restitute the same to his erstwhile  tenant. It  he commits breach thereof, the Controller has  been  in- vested with the power to pass an order in that behalf.   The acceptance of the respondent’s contention that the  require- ment  of  the building would be only for  reconstruction  or structural alteration but it would not apply when the build- ing became unsafe or unfit for human habitation, operates as an  escape route to enforce compliance of sub-s.(4) of  s.13 rendering the later clause otiose and the tenant though  was evicted on that ground remains remediless.  Such a construc- tion is impermissible.      In  Maharaj Jagat Bahadur Singh v. Badri  Prasad  Seth, [1962]  Supp.3 SCR 952  the respondent was running a  cinema theatre  known as Rivoli. The Municipal Commissioner  Shimla noted some defects and directed the appellant to remove  the defects  in the theatre.  The appellant sought for  eviction of  the  respondent tenant on the ground that  the  building became unsafe and unfit for habitation.  The Rent Controller directed  eviction.  The District Judge, on appeal, came  to the conclusion that the appellant manipulated the notice  to have  the  tenant evicted.  The repairs  could  be  effected without  ejecting the tenant.  On revision, the  High  Court confirmed  it.   This  court on  further  appeal  held  that s.13(3)(a)(iii) of the Act attracted only when the  building work is such that the landlord requires that the building be vacated  by the tenant in order to carry out the  work.   In other words, the repairs needed are so extensive and  funda- mental in character                                                        732 that  they  cannot be carried out if the tenant  remains  in possession.  Then  only  it can be said  that  the  landlord requires  the building to carry out the building  work.   On the  facts in that case it was held that repairs to  be  ef- fected  did no t requires eviction of the tenant.  In  Piara Lal v. Kewal Krishan Chopra, [1988] 3 SCC 51 the facts found were that out of five rooms only the roof of one room in the rear side had fallen down and needed replacement.  An appli- cation under s.12 of the Act was filed and the order by  the Rent  Controller  in  that behalf  was  obtained.  On  those grounds  the question arose whether s.13(3)(a)(iii)  of  the Act would get attracted.  This court held thus:                 "It is true that a roof of one of the  rooms          on  the  rear  side had fallen  down  and  required          replacement but there was no evidence whatever that          the  building or a substantial portion of it was in          a  damaged condition and consequently the  building          as  a whole had become unfit and unsafe  for  human          habitation.   Unless  the  evidence  warranted   an          interference  that the falling down of the roof  in          one  room was fully indicative of the  damaged  and          weak condition of the entire building and that  the          collapse   of   the  roof  was  not   a   localised          event,  we  fail to see how the  High  Court  could          have concluded that the entire building had  become          unsafe  and  unfit for human habitation.  In  fact,          the appellant had replaced the roof only at a  cost          of about Rs. 200 and this could not have been of  a

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        serious or disquieting nature."      It  is  true as contended by Shri Harbans Lal  that  in that  case  there were five rooms and the roof of  one  room alone had fallen and that the tenant had obtained orders  of the  Rent Controller under s.12, and thereafter  the  tenant replaced  the  roof. It is sought to be  contended  that  by unilateral act of the tenant effecting repairs, the right of the  landlord for eviction under s.13(3)(a)(iii)  was  frus- trated and it could not be permitted to be done. Normally it would  be  so. A tenant is under a statutory  obligation  to approach  the  Controller and seek an  order  for  effecting repairs provided the landlord refuses or neglects to  effect repairs.  After  the Rent Controller passes  an  order,  the tenant acquires right to effect repairs. In that event he is entitled  to  recover costs thereof from the  rent  payable. Under s.108(f) of the Transfer of Property Act, even in the                                                        733 absence  of  a  contract tenant has a  unilateral  right  to effect repairs, when the landlord neglects to effect repairs within a reasonable time after notice the tenant has a right to effect repairs and deduct the expenses with interest from the  rent or otherwise recover it from the  landlord.  Under the  Act this right is hedged with an obligation to  get  an order from the Rent Controller.      There is a distinction between effecting repairs and in its  guise to make structural alteration or  to  restructure the building. The tenant cannot effect structural alteration or reconstruct the building. It is the right of the landlord alone  to  exclusively have it done, unless of  course,  the landlord having had the tenant evicted from the building for that  purpose  and  demolished the building  and  failed  to reconstruct and redeliver possession thereof to the  tenant. In a given case if the tenant acts unilaterally and  effects structural  alterations  or  reconstruct  the  building,  it itself  may be a ground for eviction under  the  appropriate provision  of the statute. No such allegation was made,  nor an  amendment  to the pleading sought by the  respondent  in this  behalf. A feeble attempt was made by Shri Harbans  Lal to raiseo in the contention. In the absence of the  pleading and  the contentions raised in the courts below, we  decline to permit the counsel to argue that point, since there is no factual  pundation in that behalf. The test in each case  is whether it is absolutely necessary to have the tenant evict- ed to carry out repairs or structural alteration for  making the  demised  building safe and fit  for  human  habitation. Further it is to be asked whether the repairs are so  funda- mental  in character and extensive which cannot  be  carried out  without evicting the tenant from the building or  while the  tenant remained in occupation. If the repairs could  be carried out without disturbing the possession of the tenant, the  need for eviction is mere a wish of the landlord  or  a ruse to have the tenant evicted. Take for instance, a build- ing,  in which commercial activity having  established  good will, was taken possession of under s. 13(3)(a)(iii) and got no repairs effected but demolished and no reconstruction was made  for a long time. Prolonged stoppage of  business  will have  a deleterious effect on the goodwill and  cripple  the business  of the tenant. each case on its own facts  present its true colours. Its effect is to be visualised and consid- ered in its own perspective.      It  is settled law that subsequent events can be  taken note  of  and  the relief would be  moulded  suitably,  vide Hasmat  Rai and Anr. v. Raghunath Prasad, [1981] 3  SCR  605 and M/s Variety Emporim v. V.R.M. Mohld.                                                    734

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Ibrahim  Naina  [1985]  2 SCR 102  at  110.  Therefore,  the appellate  authority (District Court) is well  justified  in its conclusion that the cause of action for eviction of  the appellant  no  longer subsisted after  the  tenant  effected repairs  and replaced that part of the fallen roof  and  the order of eviction, thereafter became unnecessary and wrong.      The appeal is accordingly allowed. The judgment of  the High Court is set aside and that of the appellate  authority is   restored.   Consequently   eviction   Petition   stands dismissed. But in the circumstances parties are directed  to bear their own costs. G.N.                                        Appeal allowed.                                                        735