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PETITIONER: SMT. BIMLA DEVI ETC.

       Vs.

RESPONDENT: MST ADDITIONAL DISTRICT JUDGE AND OTHERS ETC.

DATE OF JUDGMENT27/03/1984

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J) MISRA RANGNATH

CITATION:  1984 AIR 1376            1984 SCR  (3) 315  1984 SCC  (2) 582        1984 SCALE  (1)578

ACT:      Uttar Pradesh  Urban Buildings  (Regulation of Letting, Rent and  Eviction) Act. 1972, Scope of - Words and Phrases- Import, interpretation  and meaning of the word "occupation" occurring in Explanation (IV) to section 22(1)(b)- The words used are  not a  rule of  evidence-A tenant  has no right to question the  mode in  which the Landlord may choose to live in.

HEADNOTE:      In both Civil Appeal No.41 of 1979 and Civil Appeal No. 379 of  1980, the  appellants are  the  unsuccessful  house- owners to  get an  eviction order against their tenants from the portions  of their  respective houses  from the  court’s below. In  the first  case, the  questions arose whether the portion of the premises sought to be vacated by the landlady was one  single unit  or two  separate units.  In the second case, the  point involved was whether the word " occupation" included actual  residence of  the landlord  even though the may not have been residing there.      Allowing the appeals, by special leave, the Court, ^      HELD: (C.A. No. 41/1979)      In  view  of  the  Trial  Court’s  finding  basing  its decision on the report of the Commissioner appointed for the purpose, that  the entire  building constituted  one  single unit, the  appellant being in occupation of a portion of the same, she  is entitled  to get  release of the other portion occupied by the tenant. [323F-G]      In C.A. No. 379/1980.      1:1. The  case of  the appellant  is clearly covered by the provisions  of Explanation  (iv) to  section 21(1)(b) of the Uttar  Pradesh Urban  Buildings (Regulation  of Letting, Rent and Eviction), Act 1972. [323C]      1:2. The  policy of  the law  was to give a facility to the landlord so to secure the entire building where he is in occupation of  a part  of the  same and  wants to occupy the whole house. [321D] 316      1:3. In  Babu Singh  Chauhan v.  Rajkumari Jain  & Ors. [1982] 3 S.C.R. 114, the Supreme Court, while construing the

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word "occupation"  occurring in section 21(1)(b) of the 1972 Act,  used   the  word   "possession",  treating   the  word "possession" as  synonym of  "occupation" and since the word "possession" or  "occupation" may  take various  forms  held that even  keeping the house-hold effects by the owner is an act of occupation. [319H, 320D-G]      Therefore, even  if a  landlord is  serving outside  or living with  his near  relations but  makes casual visits to his house  and thus retains control of  over the entire area or a  portion of  the property, he would in law be deemed to be in  occupation of the same. To accept the contention that Explanation IV  required actual  physical occupation  by the landlord of  the portion  retained by  him would destory the very  concept   of  constructive  or  actual  possession  or occupation. [320H; 321A-B]      2:1. All  the Rent  Control Acts  try  to  deprive  and curtail the  right of  an owner of his property and have put constraints  and   restraints  on   his  right   by   giving substantial protection  to the  tenants in  public interest, otherwise if  Rent Acts  were to  be abolished  or were  not there, the  landlord could  get a  tenant evicted  only by a notice after  expiry of  the tenancy  in accordance with the provisions of the Transfer of Property Act.[321E-F]      2:2. The  words  "shall  be  conclusive  to  prove"  in Explanation (iv)  clearly indicate  that it is a substantive right which  belongs to  the landlord  and  which  has  been affirmed and  recognised if  a part  of an  accommodation is retained by  the landlord.  The words  "conclusive to  prove that the  building is  bona fide  required by  the landlord" does not constitute a rule of evidence. [321F-G]      2:3. The  right to  ejectment  having  accrued  to  the appellant under  Explanation (iv)  was a  vested right as an owner and could not be affected by the 1976 amendment unless it was  couched in  a language which was either expressly or by   necessary    intendment   meant    to   be    operative retrospectively. Explanation  (iv) deals  not merely  with a particular procedure  but with the substantive rights of the parties. The  said Explanation has asserted and affirmed the substantive right of a landlord to get portion of a building vacated where  he is  in occupation  of a part of it. Such a substantive  right   cannot  be   taken  away  merely  by  a procedural amendment  nor does the language of the amendment introduced the  1976. Act  envisage or  contemplate  such  a position. Section  14 of  the 1976  Act merely  recites that Explanation (ii)  and (iv)  of s.21(1)(b)  shall be omitted. There is  nothing to  show that  the legislature intended to give any retrospective effect to the deletion of Explanation (iv). [321H, 322A-D]      3. The  argument that  merely because  the landlord was living with  his son  or his  relation after retirement and, therefore, was  not in  occupation of  the house  cannot  be accepted because it was not for the tenant to dictate to the landlord as  to how he should use his own premises. A tenant to has  got no  right nor any business to interfere with the mode or  manner in  which a  landlord may  choose to use his property or live therein. [323 A-B] 317

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal                       No. 41 of 1979.      (From the Judgment and Order dated 23rd August, 1978 of

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Allahabad High Court in Writ Petition No, 1483 of 78)                             WITH      Civil Appeal No. 379 of 1980.      From the  Judgment and  order dated 28th March, 1979 of the Allahabad High Court in civil Misc-Writ No. 1287 of 1977      G.L. Saghi, V.A. Bobde & H.K. Puri for the appellant in C.A. No. 41/79.      R.K. Jain for the appellant in C.A. No. 379/80.      K.P. Gupta for the respondents in C.A. No. 41/79.      Shanti Bhushan  and R.B. Mehrotra for the respondent in C.A. No. 379/80.      The Judgment of the Court was delivered by      FAZAL ALI  J. We  would first  take up Civil appeal No. 379 of  1980 which  is directed against an Order dated March 28, 1979  passed by  the Allahabad High Court dismissing the writ petition  of the  appellant and arises in the following circumstances.      The appellant  owns a  house bearing  No.  113,  Amroha Gate, Fruit  Market, Moradabad, in a portion of which he had inducted respondent  No.3 (Vishwa  Nath Kapoor)  as a tenant while  retaining   some  portion   for  himself,   when   he (appellant) was  serving as  a Judicial Officer in the State of Uttar Pradesh. In the year 1968, the appellant retired as a District  Judge as  a result of which he had to vacate his official residence,  which necessitated the present eviction proceedings against  respondent No.3.  The  application  for eviction was  filed on  2.1.1973 under  s.21(1) (b)  of  the Uttar Pradesh  Urban Buildings  (Regulation of Letting, Rent and Eviction)  Act, 1972  (hereinafter referred  to  as  the ’1972 Act’)  in which  the appellant prayed that the portion occupied by respondent No.3 may be released on the ground of personal requirement as after retirement he wanted to occupy the entire  house. The appellant further claimed that due to shortage of  accommodation he  had  to  stay  with  his  son elsewhere. The  eviction proceedings  were contested  by the respondent on the following grounds:-      (a)  that since  the appellant  was already living with           his  son   there  was  no  particular  urgency  or           personal necessity  for him  to occupy  the rented           portion also, 318      (b)  that the appellant had in his occupation a part of           the house  which was  retained by  him even  after           inducting him  (respondent) as  a tenant and which           was sufficient for his needs, and      (c)  that the  appellant after  keeping  his  household           effects in  the portion retained by him had locked           up the  same and  was, therefore,  not  in  actual           occupation of the house as required by Explanation           (iv) to s. 21 (1) (b).      In the  same token,  it was submitted as a point of law that the essential ingredient of Explanation (iv) to s.21(1) (b) was  that the  building must  have been in occupation of the landlord for residential purposes which alone would be a conclusive  proof   of  personal   necessity.  It  was  also contended as  a question  of fact  that  as  the  appellant- landlord was  not in  actual  occupation  of  the  premises, Explanation (iv) would not be attracted in the instant case. To buttress this argument it was submitted that the landlord never occupied  or possessed  the premises but had locked up the same  and was  residing  elsewhere.  This  plea  of  the respondent-tenant did  not find  favour with  the Prescribed Authority or the High Court.      The dominant question, therefore, turns upon the import and interpretation  of  Explanation  (iv)  to  s.21(1)  (b),

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particularly the nature and meaning of the word ’occupation’ as used  in  Explanation  (iv).  The  crux  of  the  matter, therefore, was  as  to  whether  or  not  the  case  of  the appellant  squarely   fell  within   the  four   corners  of Explanation (iv)  and whether the word ’occupation’ included actual residence of the landlord even though he may not have been  residing  there.  We  might  mention  that  while  the eviction proceedings  were  pending  before  the  Prescribed Authority the 1972 Act was amended by U.P. Act No.28 of 1976 (for short  to be  referred to as the ’1976 Act’) which came into force  with effect from 5th July 1976 and which deleted Explanation  (iv).  The  Prescribed  Authority,  relying  on Explanation (iv),  held that  the need  of the  landlord was fully made  out and  accordingly passed an order of eviction against  the   tenant,  partly  releasing  some  portion  in appellant’s favour.  The  appellant  then  filed  an  appeal before the  District Judge  which was heard by an Additional District Judge  who accepted  the offer  of the  tenant  and modified the  Order of  the Prescribed  Authority by further releasing some  other portion  in his  favour. The appellant then filed a writ 319 petition before  the High Court which upheld the decision of the District Judge and dismissed the writ petition.      Before we approach the question of law raised before us it may  be necessary  to give  a  detailed  picture  of  the position of  the premises  retained by the landlord and that rented out to the tenant. The house in question is a double- storeyed one  containing some  rooms on  the first floor and some on the ground floor which were retained by the landlord at the time of the lease and the rest of the portion was let out to the tenant.      The learned counsel for the appellant contended that in view of  the requirements  of the landlord he had a real and bona fide need for occupying the entire house and therefore, the entire  portion occupied  by the tenant should have been released in  favour of  the  appellant.  This  argument  was countered by Mr. Shanti Bhushan, counsel for the respondent, who put forward the following legal submission:      In the first place, he contended that Explanation. (iv) would not  in terms  apply to  the facts of the present case because on  the findings  of fact  arrived at  by the courts below it  was not  shown that  the appellant  was in  actual occupation of  the portion  retained  by  him,  which  is  a prerequisite for the application of Explanation (iv) to s.21 (1) (b).  In this  connection, it  was  submitted  that  the admitted position  being that the application was previously employed as  a District  Judge and  was living elsewhere, he could not  be deemed  to be  in occupation  of  the  portion retained by  him. In  order to  appreciate this argument, it may  be   necessary  to  examine  closely  the  language  of Explanation (iv) which may be extracted thus:           "(iv) the  fact that the building under tenancy is      a part  of a building, the remaining part thereof is in      the  occupation   of  the   landlord  for   residential      purposes,  shall   be  conclusive  to  prove  that  the      building is bona fide required by the landlord."      The pivotal  argument of the counsel for the respondent turns upon  the interpretation  of  the  word  ’occupation’. This, however,  does not present any difficulty because in a recent decision  in  the  case  of  Babu  Singh  Chauhan  v. Rajkumari Jain & Ors.(1) this Court while 320 construing a  similar term  in  the  same  Act  observed  as follows:

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         "We have  gone through  the judgment  of the  High      Court in  the light of the arguments of the parties and      we are  inclined to  agree with  the view  taken by the      High Court  that the  mere fact  that the  lady did not      actually reside  in the  premises which were locked and      contained her household effects, it cannot be said that      she was not in possession of the premises so as to make      s. 17 (2) inapplicable. Possession by a landlord of his      property may  assume various  forms. A  landlord may be      serving outside  while retaining  his possession over a      property or a part of the property by either leaving it      in-charge of  a servant  or by  putting  his  household      effects or  things locked  up in  the premises. Such an      occupation also  would be  full and complete possession      in the eye of law."      It is  true that  the court  used the word ’possession’ but in  Explanation (iv)  to s.21(1)  (b) the  word used  is ’occupation’ and not ’possession’ but this Court treated the word ’possession’  as being  a synonym  of ’occupation’.  In Webster’s  Third   New  International  Dictionary  the  word ’occupation’ has been defined at page 1560 thus:           "Occupation-to take possession of, occupy, employ"      The  Black’s   Law  Dictionary   (5th   Edn.)   defines ’occupation’ at page 82 thus:           "occupation-possession; control; tenure; use."      In  Corpus   Juris  Secundum   (vol.67)  at   page   74 ’occupation’ has been mentioned thus:           "The word  may be employed as referring to the act      or process  of occupying,  the state of being occupied,      occupancy, or tenure."      This Court  in the  observations, extracted  above, has clearly pointed  out that  ’possession’ or  ’occupation’ may take various  forms and  it was  expressly  held  that  even keeping the  household effects  by the  owner is  an act  of occupation.      It is,  therefore, manifestly  clear  that  even  if  a landlord  is   serving  outside  or  living  with  his  near relations but makes casual 321 visits to his house and thus retains control over the entire or a  portion of  the property, he would in law be deemed to be in  occupation of  the same.  Therefore, we are unable to accept the argument of Mr. Shanti Bhushan that the essential ingredient of  Explanation (iv) has not been made out, there being no  actual physical  occupation by the landlord of the portion retained  by him.  Indeed, if the broad argument put forward by  the counsel  is to  be accepted  then that would destroy  the   very  concept   of  constructive   or  actual possession or  occupation. For, instance, even if a house is not let out to anybody but is locked up, can it be said that the owner who is not living there but has kept his household effects, would  not be  deemed to  be in  occupation of  the same? The answer must necessarily be in the negative.      It seems to us that the policy of the law was to give a facility to the landlord so as to secure the entire building where he is in occupation of a part of the same and wants to occupy the whole house.      Mr. Shanti  Bhushan then  argued that  Explanation (iv) does not  confer any  substantive right  but merely raises a presumption that if a landlord is in occupation of a part of the premises,  his need  would be deemed to be bona fide. We are, however  unable to  agree with  this argument.  We must remember that  all the  Rent Control Acts try to deprive and curtail the legal right of an owner to his property and have put constraints  and  restraints  on  his  right  by  giving

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substantial protection  to the  tenants in  public interest, otherwise if  the Rent Acts were to be abolished or were not there, the  landlord could  get a  tenant evicted  only by a notice after  expiry of  the tenancy  in accordance with the provisions of the Transfer of Property Act. The words "shall be conclusive to prove" in Explanation (iv) clearly indicate that it is a substantive right which belongs to the landlord and which  has been  affirmed and recognised if a part of an accommodation is  retained by the landlord. We are unable to agree with  Mr. Shanti Bhushan that the words "conclusive to prove that  the  building  is  bona  fide  required  by  the landlord" constitute  a rule  of  evidence.  In  fact,  this argument was  put forward  before  us  because  the  learned counsel wanted  to submit that in view of the 1976 Amendment Act, deleting  Explanation (iv)  to s.21(1)  (b) of the 1972 Act, it  would be  deemed to  be retrospective and therefore the relief  given by  Explanation (iv)  would disappear.  We cannot agree with this somewhat far-fetched submis- 322 sion because  Explanation  (iv)  deals  not  merely  with  a particular procedure  but with the substantive rights of the parties. The  said Explanation has asserted and affirmed the substantive right  of a  landlord to  get  a  portion  of  a building vacated  where he is in occupation of a part of it. Such a  substantive right  cannot be  taken away merely by a procedural amendment  nor does the language of the amendment introduced by  the 1976  Act envisage  or contemplate such a position. Section  14 of  the 1976  Act merely  recites that Explanations (ii)  and (iv) of s.21(1) (b) shall be omitted. There is  nothing to  show that  the legislature intended to give any retrospective effect to the deletion of Explanation (iv).      In  these   circumstances,  therefore,   the  right  to ejectment having  accrued to the appellant under Explanation (iv) was  a vested  right as  an  owner  and  could  not  be affected by  the 1976  amendment unless  it was couched in a language  which   was  either   expressly  or  by  necessary intendment meant to be operative retrospectively.      Lastly, it  was argued  by Mr.  Shanti Bhushan that the fact remains  that the appellant, even after retirement, was not in  actual possession of the portion retained by him and was living  with his son or other relations most of the time exception casual  visits  to  the  premises  in  dispute.  A further argument  was raised  in an additional Note supplied by the  counsel for  the respondent that as the bathroom and the latrine  were in  occupation of the tenant, the landlord could not  possibly have  occupied the  premises retained by him and  could not  have lived there in the absence of these facilities. The  High Court rightly rejected these arguments by observing thus:           "The last  argument  was  that  the  view  of  the      Prescribed Authority  that since the petitioner did not      occupy the  portion retained  by him and lived with his      son and,  therefore, his  need was not bona fide has no      merits in as much as the petitioner did not have either      a latrine  or a bathroom and that he could not possibly      occupy the  house in  the position in which it had been      retained. There  may be  some truth  in the  submission      made by the learned counsel for the petitioner. But, as      neither the  Prescribed  Authority  nor  the  Appellate      Authority based  their judgment  on this feature of the      case and  they examined  the merits of the claim of the      respective parties,  it is  not possible  to  interfere      with the judgments of the courts below." 323

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    An attempt  was made  by  the  parties  to  come  to  a settlement  but,  unfortunately,  the  efforts  failed.  The argument of  Mr. Shanti  Bhushan  that  merely  because  the landlord was  living with  his son  or  his  relation  after retirement and,  therefore, was  not in  occupation  of  the house cannot  be accepted  because it was not for the tenant to dictate  to the  landlord as to how he should use his own premises. A  tenant has  got no  right nor  any business  to interfere with  the mode  or manner  in which a landlord may choose to use his property or live therein.      In these  circumstances, therefore,  we  are  satisfied that the  case of  the appellant  is clearly  covered by the provisions of  Explanation (iv)  to s.21(1) (b) and a decree for release  of the  entire premises should have been passed by the District Judge against the respondent. We, therefore, allow this appeal, set aside the judgments of all the courts below and order release of the entire premises in possession of the  respondent to  the appellant. Time is granted to the respondent to vacate the premises on or before 31st December 1984, subject to the usual undertaking to be given and filed by him  in the  Court within  four weeks from today, failing which the  grant of time shall stand revoked without further reference to  the Bench  and the appellant would be entitled to be put in possession forthwith. Civil Appeal No. 41 of 1979      This appeal was heard alongwith civil appeal No. 379 of 1980 which  we have  decided by our judgment. The main point involved in this appeal was as to whether the portion of the premises sought to be vacated by the landlady was one single unit or  two separate  units. This Court remanded the matter to the  trial court  for examining  this point and the trial court has  returned a  finding, basing  its decision  on the report of  the Commissioner  appointed for the Purpose, that the entire building constituted one single unit.      It is,  therefore, manifest that if the entire building was one  unit and  the appellant  being in  occupation of  a portion of  the same,  she is entitled to get release of the other portion  also. In view of our decision in civil appeal No. 379  of 1980, the appeal is allowed and we order release of the  entire portion  in favour  of the appellant. Time is granted to  the respondent  to vacate  the  premises  on  or before 31st  October 1984,  subject to the usual undertaking being given  and filed within four weeks from today, failing which the grant of time 324 shall stand  revoked without further reference to the Bench. There will be no order as to costs.      Let a  certified copy of this judgment be placed on the file of civil appeal No.41 of 1979. S.R.                                        Appeals allowed. 325