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PETITIONER: SMT. GIAN DEVI ANAND

       Vs.

RESPONDENT: JEEEVAN KUMAR AND OTHERS

DATE OF JUDGMENT01/05/1985

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. CHANDRACHUD, Y.V. ((CJ) FAZALALI, SYED MURTAZA SEN, AMARENDRA NATH (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1985 AIR  796            1985 SCR  Supl. (1)   1  1985 SCC  (2) 683        1985 SCALE  (1)724  CITATOR INFO :  R          1986 SC 600  (5,7)  R          1987 SC 117  (40,55)  F          1987 SC1602  (1)  RF         1987 SC1823  (5)  D          1989 SC1110  (17)  E          1991 SC2053  (16,8)  R          1992 SC1439  (13)

ACT:      Delhi  Rent   Control  Act,   1958,  ss.14(1)-Heirs  of deceased tenant-Whether  enjoy  protection  under  the  Act- Commercial tenancy-Whether heritable.

HEADNOTE:      The appellant’s  husband was the tenant in respect of a shop under  the respondent-landlord  since 1979. In 1970 the respondent-landlord  served  a  notice  on  the  appellant’s husband determining  the tenancy.  Thereafter,  he  filed  a petition under  section 14  of the  Delhi Rent  Control Act, 1958 for  eviction of  the tenant  from  the  said  shop  on several grounds  including the grounds of nonpayment of rent and sub-letting. The Rent Controller dismissed the petition. Against the  order of  the Rent  Controller the  respondent- landlord  preferred   an  appeal  before  the  Rent  Control Tribunal and  the tenant  filed cross-objections. During the pendency of  the appeal,  the tenant  died and  the  present appellant  was   substituted.  The   Rent  Control  Tribunal remanded the  case to  the Rent  Controller  to  decide  the question  of   sub-letting   afresh   after   affording   an opportunity to the parties to lead evidence.      Aggrieved by  the order  of the  Rent Control Tribunal, the appellant  filed  an  appeal  in  the  High  Court.  The respondent-landlord filed cross-objection and further raised a contention  that in  view of  the death  of  the  original tenant who  continued to remain in possession of the shop as a statutory tenant, the widow and the heirs of the deceased- tenant were not entitled to continue to remain in occupation thereof. The High Court allowed the cross-objection filed by the respondent-landlord  and passed  a decree  for  eviction

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against  the   appellant  mainly  on  the  ground  that  the protection afforded  to the  statutory tenant by the Act was not available to the heirs and the legal representatives.      In appeal  to this  Court the  appellant while  relying upon Damadi  Lal and Ors. v. Parashram and Ors. [1976] Supp. S.C.R. 645  and V. Dhanapal Chettiar v. Yesodai Ammal [1980] 1   S.C.R.   334,   contended   that   notwithstanding   the determination of  the statutory  tenancy of  the  tenant  in respect of  any commercial  premises, the  position  in  law remains unchanged  in so  far as  the tenancy  in respect of commercial premises is concerned by virtue of the provisions of the  Act. The  respondent, however  argued (i)  that  the protection against the eviction after termination of tenancy afforded to  a tenant by the Act creates a personal right in favour of  the tenant  who continues to remain in possession after termination  of his  tenancy  without  any  estate  or interest in 2 the premises and therefore on the death of such a tenant his heirs who  had   neither  any  estate  or  interest  in  the tenanted premises  and who  do not have any protection under the Act  against eviction  are liable  to be  evicted  as  a matter of  course under  the ordinary  law of  the land; and (ii) that  the amendment  to the definition of ’tenant’ with retrospective effect  introduced by  the Delhi  Rent Control Amendment Act  (Act 18  of 1976) to give personal protection and personal right to continue in possession to the heirs of the deceased  statutory tenant  in  respect  of  residential premises only and not with regard to the so called statutory tenant in  respect of commercial premises indicated that the heirs of  so called  statutory  tenant,  do  not  enjoy  any protection under the Act.      Allowing the appeal,      [Per Y.  V. Chandrachud  C.J. S.M.  Fazal Ali, A.N. Sen and V.B. Eradi JJ.] ^      HELD: (1)(i)  The term  "statutory tenant"  is used  in English Rent  Act and though this term is not to be found in the Indian  Acts, in  the judgments of the Supreme Court and also various  High Courts in India, this term has often been used to  denote a  tenant whose contractual tenancy has been terminated but who has become entitled to continue to remain in possession by virtue of the protection afforded to him by the statutes  in question;  namely, the various Rent Control Acts prevailing  in different  States of  India. It  is also important to  note that  notwithstanding the  termination of the contractual  tenancy by  the  Landlord,  the  tenant  is afforded protection  against eviction  and is  permitted  to continue to  remain in possession even after the termination of the  contractual tenancy  by  the  Act  in  question  and invariably by  all the  Rent Acts in force in various States so long  as an  order of  decree for  eviction  against  the tenant on  any of  the grounds specified in such Acts on the basis of  which an  order or decree for eviction against the tenant can be passed, is not passed. [14H; 15 A-B]      (1)(ii) Though  provisions of all the Rent Control Acts are not  uniform, the common feature of all the Rent Control Legislation is  that a contractual tenant on the termination of the contractual tenancy is by virtue of the provisions of the Rent Acts not liable to be evicted as a matter of course under the  ordinary law  of the  land and  he is entitled to remain  in   possession  even  after  determination  of  the contractual tenancy and no order or decree for eviction will be passed  against a tenant unless any ground which entitles the landlord  go get  an  order  or  decree  for  possession

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specified in the Act is established. [25D-E]      (2)(i) It  is clear  from  the  definition  of  tenant, whether in  the original Act or in the amended Act, that the tenant within  the meaning  of the definition of the term in the Act  includes any  person continuing in possession after the termination of his tenancy. [28 G]      (2)(ii) Section  14 of  the Act clearly postulates that despite the  termination of  the tenancy and notwithstanding the provisions  of any  other  law  which  might  have  been applicable on  the termination  of the  contractual tenancy, protection against eviction is applicable to every tenant as defined 3 in S. 2(i) of the Act. This section clearly establishes that determination of  a contractual  tenancy does not disqualify him from  continuing to  be a  tenant within  the meaning of this Act  and the  tenant whose contractual tenancy has been determined enjoys  the same  position  and  is  entitled  to protection against  eviction. The  other sections in Chapter III also  go to  indicate that  the tenant whose tenancy has been terminated  enjoys the  same status  and benefit  as  a tenant whose  tenancy has  not been terminated, and a tenant after termination  of his tenancy stands on the same footing as the  tenant before  such termination. Chapter III A which provides for  summary trial  for certain  applications  also does not make any distinction between a tenant whose tenancy has been  determined and a tenant whose tenancy has not been terminated. Chapter  IV which  deals with  deposit  of  rent consists of  ss. 26  to 29  and these sections make it clear that the  tenant after determination of a tenancy is treated under the  Act on the same footing as a tenant whose tenancy has not been determined. Chapter VI though not very material for the  purpose  of  adjudication  of  the  point  involved indicates that  no discrimination  is made  in the matter of proceedings for  eviction between  the ’so  called statutory tenant’ and a contractual tenant. Chapter VII which consists of sections  44 to 49 makes provisions regarding obligations of landlords  and also provides for penalties in appropriate cases. The  sections make  it  clear  that  the  duties  and obligations  of  landlords  cast  upon  the  landlord  apply equally whether the tenant is a so called ’statutory tenant’ or the  tenant is  a contractual tenant. It may, however, be noted that  section 50  which bars the jurisdiction of Civil Courts in  respect of  certain matters  does not  in any way discriminate between  a ’so  called statutory  tenant’ and a contractual tenant. Thus, the various provisions of the Act, make it  abundantly clear  that the  Act does  not make  any distinction between  a ’so  called statutory  tenant’ and  a ’contractual tenant’  and the  Act proceeds  to  treat  both alike and to preserve and protect the status and rights of a tenant after determination of the contractual tenancy in the same way  as the  status and  rights of a contractual tenant are protected and preserved. [30 A-H; 31A]      V. Dhanpal Chattiar v. Yesodai Ammal, [1980] 1 SCR 334, relied upon.      (3)(i) The  termination of  the contractual  tenancy in view of the definition of ’tenant’ in the Act does not bring about any  change in  the status  and legal  position of the tenant, unless  there are  contrary provisions  in the  Act; and, the  tenant notwithstanding  the termination of tenancy does enjoy  an estate  or interest in the tenanted premises. This interest  or estate  which the  tenant  under  the  Act despite termination  of the contractual tenancy continues to enjoy creates  a heritable  interest in  the absence  of any provision to  the contrary.  The amendment of the definition

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of ’tenant’  by Act  18  of  1976  introducing  particularly section 2(i)(iii)  does not in any way mitigate against this view.  The   said  sub-section  (iii)  with  all  the  three Explanations thereto  is not in any way inconsistent with or contrary  to   sub-section  (ii)   of  Section   2(1)  which unequivocally  states  that  ’tenant’  includes  any  person continuing  in  possession  after  the  termination  of  his tenancy. In  the absence  of the provision contained in sub- section 2(i)(iii),  the heritable  interest of  the heirs of the statutory  tenant would  devolve on all the heirs of the ’so called  statutory tenant’  on his death and the heirs of such tenant would in law step into his position. [33 G-H; 33 A-C]      Damadial & Ors. v. Parashram & Ors. [1976] Supp, S.C.R. 645 followed. 4      (3)(ii) Section  2(i)(iii) of  the Act  does not create any additional  or special  right in  favour of the heirs of the ’so  called statutory tenant’ on his death, but seeks to restrict the right of the heirs of such tenant in respect of residential  premises.   As  the  status  and  rights  of  a contractual tenant  even after  determination of his tenancy when the  tenant is  at times  described  as  the  statutory tenant, are fully protected by the Act and the heirs of such tenants become  entitled by  virtue of the provisions of the Act to  inherit the  status and  position of  the  statutory tenant on  his death, the Legislature which has created this right has thought it fit in the case of residential premises to limit  the rights  of the  heirs in the manner and to the extent provided  in S.  2(1)(iii). However,  the Legislature has not  thought it  fit to  put any  such restrictions with regard to  tenants in respect of commercial premises in this Act. So  long as  the contractual  tenancy of  a tenant  who carries on  the business continues, there can be no question of the  heirs of the deceased tenant not only inheriting the tenancy but  also  inheriting  the  business  and  they  are entitled to run and enjoy the same. [33 D-G]      (3)(iii) The mere fact that in the Act no provision has been made  with regard to the heirs of tenants in respect of commercial tenancies  on  the  death  of  the  tenant  after termination of  the tenancy, as has been done in the case of heirs of  the tenants  of  residential  premises,  does  not indicate that the Legislature intended that the heirs of the tenants of  commercial premises  will  cease  to  enjoy  the protection  afforded  to  the  tenant  under  the  Act.  The Legislature could  never have  possible intended  that  with death of  a tenant  of the commercial premises, the business carried on  by the tenant, however flourishing it may be and even if the same constituted the source of livelihood of the members of  the family,  must necessarily  come to an end on the death  of the  tenant only because the tenant died after the contractual tenancy had been terminated. [35 F-H]      (3)(iv) In  case of commercial premises governed by the Delhi Act  the Legislature  has not  thought to  fit in  the light of  the situation  at  Delhi  to  place  any  kind  of restriction on  the ordinary  law of inheritance with regard to succession.  It may also be borne in mind that in case of commercial premises  the heirs  of the  deceased tenant  not only succeed  to the  tenancy right in the premises but they succeed to  the business as a whole. It might have been open to the  Legislature  to  limit  or  restrict  the  right  of inheritance with  regard to  the tenancy  as the Legislature had done  in the  case of  the tenancies  with regard to the residential houses  but it  would not  have been open to the Legislature  to  alter  under  the  Rent  Act,  the  law  of

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succession  regarding  the  business  which  is  a  valuable heritable right  and which  must necessarily  devolve on all the heirs  in  accordance  with  law.  The  absence  of  any provision restricting  the heritability  of the  tenancy  in respect of  the commercial  premises only  establishes  that commercial tenancies  notwithstanding the  determination  of the contractual  tenancies will  devolve  on  the  heirs  in accordance with law and the heirs who step into the position of the deceased tenant will continue to enjoy the protection afforded by  the  act  and  they  can  only  be  evicted  in accordance with the provisions of the Act. [36 B-E] 5      (3)(v) As  the protection afforded by the Rent Act to a tenant after  determination of  the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of  the tenants, it is open to the Legislature which provides for  such protection to make appropriate provisions in the  Act with  regard to  the nature  and extent  of  the benefit and protection to be enjoyed and the manner in which the same  is to  be enjoyed.  If the  Legislature makes  any provision in the Act limiting or restricting the benefit and the nature  of the  protection to  be enjoyed in a specified manner by  any particular  class of  heirs of  the  deceased tenant on  any condition  laid  down  being  fulfilled,  the benefit of  the protection  has necessarily to be enjoyed on the fulfillment  of the  condition in  the manner and to the extent stipulated  in the  Act. The Legislature which by the Rent Act  seeks to  confer the benefit on the tenants and to afford protection  against eviction,  is perfectly competent to make  appropriate  provision  regulating  the  nature  of protection and  the manner  and extent  of enjoyment of such tenancy rights  after the termination of contractual tenancy of the  tenant  including  the  rights  and  the  nature  of protection of the heirs on the death of the tenant. [38 C-F]      (3) (vi)  When the tenant is a Company or a Corporation or any body with juristic personality, question of the death of the tenant will not arise. Despite the termination of the tenancy, the  Company or  the Corporation  of such  juristic personalities, however,  will go  on enjoying the protection afforded to  the tenant  under the  Act. It  can  hardly  be conceived that  the Legislature  would intend to deny to one class of  tenants, namely,  individuals the protection which will be  enjoyed by the other class, namely, the Corporation and Companies  and other  bodies with  juristic  personality under the Act. [36 G-H]      (4) In  the instant  case there  is no provision in the Act regulating  the rights  of  the  heirs  to  inherit  the tenancy rights  of the  tenant in  respect of  the  tenanted premises which  is commercial  premises, the  tenancy  right which is  heritable devolves on the heirs under the ordinary law of  succession. The tenancy right of appellant’s husband therefore, devolves on all the heirs on his death. The heirs and legal  representatives of  appellant’s husband step into his position  and they  are  entitled  to  the  benefit  and protection of  the Act.  Therefore, the  High Court  was not right  in  coming  to  the  conclusion  that  the  heirs  of appellant’s husband  the so called statutory tenant, did not have any  right to  remain in  possession  of  the  tenanted premises and did not enjoy any protection under the Act. The judgment and  order of the High Court is therefore set aside and the  case is  remanded to the High Court for decision of the appeal  and the cross objection on merits. The appeal is accordingly allowed to the extent indicated above. [39 B; D- E; G]      Ganpat Ladha  v. Sashikant Vishnu Shinde [1978] 3 S. C.

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R. 198 dissented.      The Legislature may consider the advisability of making bona fide  requirement of  the landlord a ground of eviction in respect of commercial premises as well. [40 F] 6 Per Bhagwati, J. (Concurring)      Though genetically  the  parentage  of  the  two  legal conceits, namely,  contractual tenancy and statutory tenancy is different, one owing its origin to contract and the other to rent  control legislation,  they are  equated  with  each other and  their incidents  are the  same. If  a contractual tenant has  an estate  or interest  in the premises which is heritable, it  is difficult  to understand  why a  statutory tenant should  be held  not to have such heritable estate or interest. In  one case, the estate or interest is the result of contract while in the other, it is the result of statute. But the  quality of  the estate  or interest  is the same in both cases.  When the  rent  control  legislation  places  a statutory tenant  on  the  same  footing  as  a  contractual tenant, wipes  out  the  distinction  between  the  two  and invests a  statutory tenant with the same right, obligations and incidents  as a  contractual tenant,  why should  it  be difficult to  hold that,  just like  a contractual tenant, a statutory tenant also has estate or interest in the premises which can be inherited. [8 B-F]      It is  true that  there  are  certain  observations  in Ganpat Ladha  v. Sashikant  Vishnu Shinde, [1978] 3 S. C. R. 198, which  go counter  to what  the Court is holding in the present case  and to  that extent these observations must be held not  to enunciate  the correct law on the subject. This Court was  not  really  concerned  in  that  case  with  the question or  heritability of  statutory  tenancy.  The  only question was in regard to the true interpretation of Section 5 (ii)  (c) of  the Bombay  Rents, Hotel  and Lodging  House Rates Control  Act 1947  which is  almost in  same terms  as Section 2  (1) (iii)  of the Delhi Rent Control Act 1958 and while dealing  with this  question, the  Court made  certain observations regarding  the nature  of statutory tenancy and its  heritability.  The  attention  of  the  Court  was  not focussed on  the question  whether a statutory tenant has an estate or interest in the premises which is heritable and no argument was advanced that a statutory tenancy is heritable. It was assumed that a statutory tenancy is not heritable and on that  footing the  case was  argued in regard to the true meaning  and   construction  of  Section  5  (ii)  (c).  The observations made  in that  case to the extent to which they conflict  with   the  judgment  in  the  present  case  must therefore be regarded as overruled. [9 A-D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3441 of 1972.      From the  Judgment and  Order dated  11-10-1979 of  the Delhi High Court in S.A.O. No. 8 of 1979.      S.N. Andley,  Uma Datta, T.C. Sharma and K.S. Mohan for the Appellant.      Mrs. Shyamla  Pappu, B.B.  Sawhney, Mrs.  India Sawhney and Miss Kittu Bansilal for the Respondents. 7      The following Judgments were delivered      BHAGWATI, J.  I entirely  agree with  the Judgment just delivered by  my learned  brother A.N. Sen, J. I am adding a few words  of my  own since I was a party to the decision in

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Ganpat Ladha  v. Shashikant  Vishnu Shinde(1)  where certain observations were  made which  seem to take a different view from the one we are taking in the present case.      The question  which arises here for consideration is as to whether  statutory tenancy  is heritable  on the death of the  statutory   tenant.  ’Statutory   tenant’  is   not  an expression to  be found  in any  provision of the Delhi Rent Control Act  1958 or  the rent  control legislation  of  any other State.  It is  an expression  coined by  the judges in England and, like many other concepts in English law, it has been imported into the jurisprudence of this country and has become an  expression of common use to denote a tenant whose contractual  tenancy   has  been   determined  but   who  is continuing in  possession of  the premises  by virtue of the protection against  eviction afforded  to him  by  the  rent control  legislation.   Though  the   expression  ’statutory tenant’ has  not been  used in  any rent control legislation the concept  of statutory tenant finds recognition in almost every rent  control legislation.  The definition of ’tenant’ in Section  2(1) of the Delhi Rent Control Act 1958-and I am referring here  to the  provisions of the Delhi Rent Control Act 1958  because that  is the  statute with  which  we  are concerned in  the present  case-includes a statutory tenant. It says  in clause  (ii) that  ’tenant’ includes  any person continuing the  possession  after  the  termination  of  his tenancy’. Such  a person  would not  be a  tenant under  the ordinary law  but he is recognised as a ’tenant’ by the rent control  legislation   and  is   therefore  described  as  a statutory tenant  as contra-distinguished  from  contractual tenant. The  statutory tenant  is, by virtue of inclusion in the definition  of ’tenant’,  placed on  the same footing as contractual tenant  so far  as rent  control legislation  is concerned. The  rent control legislation in fact, as pointed out by  this Court  in a  seven judge  Bench decision  in V. Dhanapal Chettiar  v. Yesodai  Ammal(2) does  not  make  any distinction between contractual tenant and statutory tenant. "It does  not permit  the landlord  to snap his relationship with the tenant merely by his act 8 of serving  a notice  to quit on him. Inspite of the notice, the law says that he continues to be a tenant and he does so enjoying all  the rights of a lessee and is at the same time deemed to  be under  all the  liabilities such as payment of rent etc.  in accordance  with  the  law."  The  distinction between contractual  tenancy and  statutory tenancy  is thus completely obliterated  by  the  rent  control  legislation. Though  genetically   the  percentage  of  these  two  legal concepts is  different, one owing its origin to contract and the other to rent control legislation, they are equated with each  other   and  their   incidents  are  the  same.  If  a contractual tenant has an estate or interest in the premises which is  heritable, it  is difficult  to understand  why  a statutory tenant  should be  held not to have such heritable estate or  interest. In  one case, the estate or interest is the result  of contract  while in the other it is the result of statute. But the quality of the estate or interest is the same in  both cases.  The difficulty  in recognising  that a statutory tenant can have estate or interest in the premises arises from  the fact  that throughout  the last century and the first  half of  the present,  almost until recent times, our  thinking   has  been   dominated  by  two  major  legal principles, namely,  freedom of  contract  and  sanctity  of private property  and therefore  we are  unable  to  readily accept that  legal relationships  can be  created by statute despite want  of contractual  concensus and in derogation of

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property rights  of the  landlord. We  are unfortunately not yet reconciled  to the  idea that  the law is moving forward from contract  to status.  Why can  estate  or  interest  in property not  be created  by statute ? When the rent control legislation places a statutory tenant on the same footing as a contractual  tenant, wipes out the distinction between the two and  invests a  statutory tenant  with the  same  right, obligations and  incidents  as  a  contractual  tenant,  why should it be difficult to hold that, just like a contractual tenant, a  statutory tenant  also has  estate or interest in the premises  which can  be  inherited.  Of  course,  strong reliance was  placed on  behalf of  the landlord  on Section 2(1) (iii) of the Delhi Rent Control Act 1958 to combat this conclusion but that provision merely limits or circumscribes the nature  and extent  of the  protection  that  should  be available on  the death  of a statutory tenant in respect of residential premises.  It does  not confer  a new  right  of heritability which did not exist aliunde. My learned brother A.N. Sen,  J. has discussed this aspect of the case in great detail and  I find  myself wholly  in agreement with what he has said in regard to the true meaning and import of Section 2(1) (iii). 9      Now a  word about  Ganpat Ladha’s  case (supra).  It is true that  there are certain observations in that case which go counter to what we are holding in the present case and to that extent these observations must be held not to enunciate to correct  law on  the subject.  This Court  was not really concerned in  that case with the question of heritability of statutory tenancy.  The only  question was  in regard to the true interpretation  of Section  5(ii)  (c)  of  the  Bombay Rents, Hotel  and Lodging House Rates Control Act 1947 which is almost  in same  terms as Section 2(1) (iii) of the Delhi Rent Control  Act 1958 and while dealing with this question, the Court  made certain observations regarding the nature of statutory tenancy and its heritability. The attention of the Court was  not focussed  on the question whether a statutory tenant has  an estate  or interest  in the premises which is heritable and  no argument  was advanced  that  a  statutory tenancy is  heritable.  It  was  assumed  that  a  statutory tenancy is  not heritable  and on  that footing the case was argued in  regard to  the true  meaning and  construction of Section 5(ii) (c). The observations made in that case to the extent to  which they  conflict with  the  judgment  in  the present case must therefore be regarded as overruled.      I accordingly  concur with the order made by my learned brother A.N. Sen, allowing the appeal and remanding the case to the  High Court for disposal according to law. There will be no order as to costs.      A.N. SEN,  J. The  question for  consideration in  this appeal by  special leave  is whether  under the  Delhi  Rent Control Act,  1958 (for  the  sake  of  brevity  hereinafter referred to  as the  Act), the  statutory tenancy to use the popular phraseology,  in respect  of commercial  premises is heritable or  not. To  state is more precisely, the question is whether  the heirs of a deceased tenant whose contractual tenancy  in   respect  of   commercial  premises   has  been determined, are  entitled to  the  same  protection  against eviction afforded by the Act to the tenant.      The question  is essentially  a question  of law.  This very question  has been  raised  in  a  number  of  appeals, arising out of different sets of facts giving rise, however, to this  common question  of law  in all the appeals. As the decision on  this common question of law which arises in the other appeals  pending in  this Court may effect the parties

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in the other appeals, we considered it proper to 10 hear the counsel appearing in all the appeals on this common question  of   law.  We,  however,  feel  that  it  will  be convenient to  deal with  the other  appeals separately  and dispose of  the same,  applying the  decision or this common question of  law in the light of the facts and circumstances of the  other cases  and pass appropriate orders and decrees in the other appeals when they are taken up for disposal.      Though the  question  is  mainly  one  of  law,  it  is necessary for a proper appreciation of the question involved to set out in brief the facts of the present appeal which is being disposed of by this judgment.      One Wasti Ram was the tenant in respect of Shop No. 20, New Market, West Patel Nagar, New Delhi under the respondent at the  monthly rent  of Rs. 110. He came into possession as such tenant  on  and  from  1.9.1959.  In  April,  1970  the respondent landlord  determined the  tenancy  by  serving  a notice to  quit on  the tenant Wasti Ram, since deceased. In September, 1970,  the respondent  landlord filed  a petition under S.  14 of the Act for the eviction of the tenant Wasti Ram from  the said  shop on  the following grounds:-(1) non- payment of  rent, (2)  bona-fide requirement,  (3) change of user from  residential to commercial, (4) substantial damage to property  and (5)  sub-letting. In  the petition filed by the landlord  against the tenant Wasti Ram, the landlord had also impleaded  one Ashok  Kumar Sethi,  as defendant  No. 2 alleging him  to be  the unlawful  sub-tenant of  the tenant Wasti Ram.  By judgment  and order dated 19.5.1975, the Rent Controller held that (1) the ground of bona fide requirement was not  available to  the landlord under the Act in respect of any commercial premises (2) the premises had been let out for commercial  purposes and  there had  been no  change  of user, (3) no substantial damage to property had been done by tenant and  (4) sub-letting  had been  established.  On  the question of  non-payment of  Rent, the  Rent Controller held that the  tenant was liable to pay a sum of Rs. 24 by way of arrears for the period of 1.3.1969 to 28.2.1970 after taking into consideration  all payments  made and  a further sum of Rs. 90 on account of such arrears for the month of September 1970 and the rent subsequent to the month of March, 1975, if not already  deposited. In  view of the aforesaid finding on the question  of  default  in  payment  of  rent,  the  Rent Controller held that the tenant was liable to eviction under S. 14(1)(a) of the Act and further held that in view of 11 the provisions  contained in S. 15(1) of the Act there would however be  no order  or decree  for eviction  if the tenant deposited all  the aforesaid  arrears within a period of one month from the date of the order and in that case the ground of  non-payment  of  rent  would  be  wiped  out.  The  Rent Controller ordered accordingly.      Against the  order of the Rent Controller, the landlord preferred an  appeal on  13.7.1975 and  the tenant Wasti Ram filed his cross-objection. The cross-objection of the tenant was against  the order  of the Rent Controller regarding his finding on  default in  payment of rent. The landlord in his appeal had  challenged the finding of the Rent Controller on the question  of substantial  damage to  the property by the tenant and  also the  finding of  the Rent Controller on the question of sub-letting. It appears that during the pendency of the appeal, the tenant Wasti Ram died and on 5.9.1977 the present  appellant  Smt.  Gian  Devi  Anand,  the  widow  of deceased Wasti Ram, was substituted in place of Wasti Ram on the application  of the  landlord. The Rent Control Tribunal

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allowed the  cross-objection of  the tenant  and  held  that there was no default on the part of the tenant in the matter of payment  of rent.  The Rent Control Tribunal rejected the first contention  of the  landlord in  the Landlord’s Appeal regarding substantial  damage done  to the  property by  the tenant. On  the other question, namely, the question of sub- letting, the Rent Control Tribunal allowed the appeal of the landlord and  remanded the  case to  the Rent  Controller to decide  the  question  of  sub-letting  after  affording  an opportunity to the parties to lead evidence in this regard.      Against the  order of  the Rent  Control Tribunal, Smt. Gian Devi  Anand, the widow of the deceased tenant, filed an appeal in  the High  Court impleading in the said appeal the other heirs  of Wasti  Ram  as  pro-forma  respondents.  The landlord also  filed a  cross-objection in  the  High  Court after the  widow had  presented the appeal against the order of  the  Rent  Control  Tribunal  directing  remand  on  the question of sub-letting. In the cross-objection filed by the landlord, the  landlord had  challenged the  finding of  the Tribunal on  the question  of non-payment  of rent  and  had further raised  a contention  that view  of the death of the original tenant  Wasti  Ram,  who  continued  to  remain  in possession of  the shop as a statutory tenant, the widow and the heirs  of the  deceased  tenant  were  not  entitled  to continue to  remain in  occupation thereof.  The High  Court held that on the death of the statutory tenant, the heirs 12 of the statutory tenant had no right to remain in possession of the  premises, as statutory tenancy was not heritable and the protection  afforded to a statutory tenant by the Act is not available  to the heirs and legal representatives of the statutory tenant.  In this view of the matter the High Court did not consider it necessary to go into other questions and the High  Court allowed  the cross-objection  filed  by  the landlord and  passed  a  decree  for  eviction  against  the appellant and  the other  heirs of  Wasti Ram,  the deceased tenant.      The correctness  of this  view that  on the  death of a tenant whose  tenancy in  respect of any commercial premises has been  terminated during  this life  time, whether before the commencement  of any  eviction proceeding against him or during the  pendency of any eviction proceeding against him, the heirs of the deceased tenant do not enjoy the protection afforded by  the Act  to the tenant and they do not have any right to  continue to  remain in  possession because they do not inherit  the tenancy  rights of  the deceased tenant, is challenged in this appeal.      The learned  counsel for  the  appellant-tenant  argues that there  could be  no doubt that a contractual tenancy is heritable  and   he  contends   that   notwithstanding   the termination of  the contractual  tenancy of  the  tenant  in respect of  any commercial  premises, the  position  in  law remains unchanged  in so  far as  the tenancy  in respect of commercial  premises   is  concerned,   the  virtue  of  the provisions  of  the  Act.  In  support  of  this  contention reference is  made to  the provisions  of the Act and strong reliance is placed on the decision of this court in the case of Damadi  Lal & Ors. v. Parashram & Ors.(1) and also to the decision of  this Court  in the case of V. Dhanapal Chettiar v. Yesodai Ammal.(2).      The  learned   counsel  appearing   on  behalf  of  the landlord-respondents   have    submitted   that    on    the determination of  the contractual tenancy, the tenancy comes to an  end and  the tenant  ceases to  have  any  estate  or interest  in   the  premises.   It  is   contended  that  on

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determination of  the tenancy,  the tenant becomes liable to be evicted  in due  process of  law under the general law of the land;  but, the  Act affords  a protection to the tenant against such evictiod in as the Act provides that inspite of the termination of 13 the tenancy,  no order  or decree  for procession  shall  be passed  against  the  tenant,  unless  any  of  the  grounds mentioned in  the Act  which entitles  a landlord to recover possession of  the premises  from the tenant is established. It is  contended that the protection to the tenant under the Act is  against eviction except on grounds recognised by the Act and  the protection  is only  in the  nature of personal protection  to   the  tenant  who  continues  to  remain  in possession  after   the  termination  of  the  tenancy.  The contention is  that the  tenant loses the estate or interest in  the   tenanted  premises   after  termination   of   the contractual tenancy  and the  tenant by virtue of the Act is afforded only  a personal  protection against eviction; and, therefore, the  heirs of such tenant on his death acquire no interest or  estate in  the premises,  because the  deceased tenant had  none, and  they can  also  claim  no  protection against  eviction,  as  the  protection  under  the  Act  is personal to  the tenant  as long  as the tenant continues to remain in  possession of  the premises after the termination of  the  tenancy.  The  argument,  in  short,  is  that  the protection against  eviction after  termination  of  tenancy afforded to  a tenant by the Act creates a personal right in favour of  the tenant  who continues to remain in possession after termination  of his  tenancy  without  any  estate  or interest in  the premises;  and, therefore,  on the death of such a  tenant, his  heirs who  have neither  any estate nor interest in  the tenanted  premises and  who do not have any protection under  the Act against eviction, are liable to be evicted as  a matter of course under the ordinary Law of the land.  In  support  of  this  argument  various  authorities including decisions  of this  Court, of various High Courts, of English  Courts and also passages from Halsburys" Laws of England and other eminent English authors have been cited.      It has  been further  argued that  in view of the clear provision in  law that  heirs of  a  deceased  tenant  whose tenancy had been terminated during his life time and who was continuing in  possession by virtue of the provisions of the Act did  not enjoy  any protection  and  was  liable  to  be evicted as a matter of course, the Legislature considered it fit to  intervene to  give some  relief to  the heirs of the deceased tenant  in respect  of the residential premises and amended the  Act of  1958 by  Delhi Rent Control (Amendment) Act, 1976  (Act 18  of 1976)  by changing  the definition of ’tenant’ with  retrospective effect. The argument is that by virtue  of   the   amendment   introduced   in   1976   with retrospective effect,  the  heirs  of  the  deceased  tenant specified  in  s.  2  (iii)  enjoy  the  protection  against eviction 14 during their  life time  in the  manner  mentioned  therein, provided the  conditions mentioned  therein  are  satisfied, only with  regard to  residential premises.  It is contended that with  regard to  the residential  premises such limited protection essentially  personal to  the heirs specified and to be  enjoyed by  them for  their lives  in the manner laid down in  the said  sub-section 2 (1) (iii) has been provided by the  amendment; but  in respect of commercial premises no such protection has been given.      We do not consider it necessary to refer to the various

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English cases  and the  other English authorities cited from the Bar. The English cases and the other authorities turn on the provisions  of the  English Rent Acts. The provisions of the English  Rent Acts  are not  in pari  materia  with  the provisions of  the Act  in question  or the  other Rent Acts prevailing in  other States  in India. The English Rent Acts which have  come into  existence from  time to  time were no doubt introduced  for the  benefit of the tenants. It may be noted that  the term  "statutory tenant"  which is not to be found in  the Act in question or in the other analogous Rent Acts in force in other States in India, is indeed a creature of the  English Rent  Act. English  Rent Act  1977 which was enacted to  consolidate the Rent Act 1968, parts III, IV and VIII of  the Housing  Finance Act,  1972, the Rent Act 1974, sections 7 to 10 of the Housing Rents and Subsidies Act 1975 and certain  related enactments,  with  amendments  to  give effect to  recommendation of  the Law  Commission, speaks of protected tenants and tenancies in S.1 and defines statutory tenant in S. 2, English Rent Act, 1977 is in the nature of a complete Code  governing the  rights and  obligations of the landlord and the tenant and their relationship in respect of tenancies covered  by the  Act. As  the  provisions  of  the English Act  are materially different from the provisions of the Act  in question and other Rent Control Acts in force in other States  in India,  the decisions of the English Courts and  the  passages  from  the  various  authoritative  books including the passages from Halsbury which are all concerned with English  Rent Acts are not of any particular assistance in deciding the question involved in this appeal. As we have already noticed,  the term  ’statutory tenant’  is  used  in English Rent Act and though this term is not be found in the Indian Acts,  in the Judgments of this Court and also of the various High  Courts in India, this term has often been used to denote  a  tenant  whose  contractual  tenancy  has  been terminated but who has become entitled to continue to remain in possession by virtue of the protection afforded to him by the statutes in question, 15 namely,  the   various  Rent  Control  Acts,  prevailing  in different States of India. It is also important to note that notwithstanding the  termination of  the contractual tenancy by the  Landlord, the  tenant is afforded protection against eviction  and   is  permitted   to  continue  to  remain  in possession even  after the  termination of  the  contractual tenancy by  the Act  in question  and invariably  by all the Rent Acts  in force in various States so long as an order or decree for  evictions against  the  tenant  on  any  of  the grounds specified  in such  Acts on  the basis  of which  an order or  decree for  eviction against  the  tenant  can  be passed, is not passed.      As various  decisions of  this Court  on which reliance has been placed by the learned counsel for the Landlord have been cited, it does not become very necessary to consider at any length  the various  decisions of the High Courts on the very same question, relied on by the Learned Counsel for the landlords. It  may, however,  be noted that the decisions of this Court  to which  we shall  refer in  due course and the decisions of the High Courts which were cited by the learned counsel  for   the  Landlords   do  lend  support  to  their contention.      We first propose to deal with the decision of his Court in Damadilal’s  case (supra)  in which this Court considered some of  the  English  Authorities  and  also  some  of  the decisions of  this Court.  In this  case the  first question raised on  behalf of  the plaintiff-appellant  in this Court

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was whether  the heirs  of the  statutory  tenants  had  any heritable interest in the demised premises and had the right to prosecute  the appeal  in the  High Court on the death of the statutory tenant.      Dealing with  this contention  the Court  held at pages 650 to 654:           "In support  of his  first  contention  Mr.  Gupta      relied on  two decisions  of this  Court,  Anand  Nivas      (Private) Ltd.  v. Anandji  Kalyanji Pedhi & Ors(1) and      Jagdish Chander  Chatteriee &  Ors.  v.  Sri  Kishan  &      Anr.(2). The  statute considered in Anand Nivas(1) case      was Bombay  Rents, Hotel and Lodging Rates Control Act,      1947 as  amended  in  1959.  The  question  there  was,      whether a  tenant whose tenancy had been terminated had      any right 16      to sublet  the premises.  Of the  three learned  Judges      composing the Bench that heard the appeal, Hidayatullah      and Shah,  JJ. held  that a statutory tenant, meaning a      tenant whose  tenancy has  determined but who continues      in possession,  has no  power of  subletting. Sarkar J.      delivered a  dissenting opinion.  Shah J. who spoke for      himself and  Hidayatullah J.  observed in the course of      their judgment:           ’A  statutory   tenant  has  no  interest  in  the      premises occupied  by him,  and he  has  no  estate  to      assign or  transfer. A  statutory tenant is, as we have      already observed,  a person who on determination of his      contractual right, is permitted to remain in occupation      so long  as he  observes and performs the conditions of      the tenancy  and pays  the standard  rent and permitted      increases.  His   personal  right   of  occupation   is      incapable of  being transferred  or  assigned,  and  he      having no  interest in  the property there is no estate      on which subletting may operate.’           It appears from the judgment of Shah, J. that ’the      Bombay Act  merely grants  conditional protection  to a      statutory tenant and does not invest him with the right      to  enforce  the  benefit  of  any  of  the  terms  and      conditions the original tenancy’. Sarkar, J. dissenting      held that  word ’tenant’ as defined in the Act included      both a  contractual  tenant-a  tenant  whose  lease  is      subsisting as  also a  statutory tenant  and the latter      has the  same power  to sublet as the former. According      to Sarkar,  J. even if a statutory tenant had no estate      or property  in  the  demised  premises,  the  Act  had      undoubtedly created a right in such a tenant in respect      of  the  property  which  he  could  transfer.  Jagdish      Chander Chatterjee’s  case  dealt  with  the  Rajasthan      Premises (Control  of Rent and Eviction) Act, 1950, and      the question for decision was whether on the death of a      statutory tenant his heirs succeed to the tenancy so as      to claim  protection of  the Act.  In this  case it was      held by  Grover  and  Palekar  JJ.,  relying  on  Anand      Nivas’s case, that after the termination of contractual      tenancy, a  statutory tenant  enjoys  only  a  personal      right to continue in possession and on his death 17      his heirs  do not inherit any estate or interest in the      original tenancy.           Both these  cases, Anand Nivas and Jagdish Chander      Chatterjee, proceed  on the  basis that  a tenant whose      tenancy has  been terminated,  described  as  statutory      tenant, has  no estate  or interest in the premises but      only a personal right to remain in occupation. It would

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    seem as  if there  is a  distinct category  of  tenants      called statutory  tenants  having  separate  and  fixed      incidents of  tenancy. The  term ’statutory tenancy’ is      borrowed from  the English  Rent Acts.  This may  be  a      convenient expression  for referring  to a tenant whose      tenancy has  been terminated and who would be liable to      be evicted  but for  the protecting statute, but courts      in this  country have sometimes borrowed along with the      expression certain  notions regarding such tenancy from      the decisions  of the English Courts. In our opinion it      has  to  be  ascertained  how  far  these  notions  are      reconcilable with  the provisions  of the statute under      consideration in  any particular  case. The  expression      ’statutory tenancy’  was used  in  England  in  several      judgments under  the  Increase  of  Rent  and  Mortgage      interest (War  Restrictions) Act,  1915, to  refer to a      tenant protected  under that  Act,  but  the  term  got      currency from  the marginal  note to  section 15 of the      Rent and  Mortgage Interest  (Restriction)  Act,  1920.      That section  which provided  inter alia  that a tenant      who by  virtue of  that Act  retained possession of any      dwelling house  to which the Act applied, so long as he      retained possession, must observe and would be entitled      to the  benefit of  all the terms and conditions of the      original contract of tenancy which were consistent with      the provisions  of the  Act, carried the description in      the margin  ’conditions of  statutory  tenancy’.  Since      then the  term has  been used  in England to describe a      tenant protected  under the  subsequent statutes  until      Section 49(1) of the Housing Repairs and Rent Act, 1954      for  the  first  time  define  ’statutory  tenant’  and      ’statutory tenancy’.  ’Statutory Tenant’ was defined as      a tenant  ’who retains possession by virtue of the Rent      Acts and not as being entitled to a tenancy’ and it was      added, ’statutory 18      tenancy’  shall   be   construed   accordingly.’   This      definition of ’statutory tenancy’ has been incorporated      in  the   Rent  Acts  of  1957  and  1965.  In  England      ’statutory tenancy’  does not  appear to  have had  any      clear and  fixed incidents;  the concept  was developed      over the  years from  the provisions  of the successive      Rent Restrictions  Act which  did not  contain a  clear      indication as  to the character of such tenancy. That a      statutory tenant  is entitled  to the  benefit  of  the      terms  and  conditions  of  the  original  contract  of      tenancy  so  far  as  they  were  consistent  with  the      provisions of  the statute  did not  as  Scrutton  L.J.      observed in  Roe v. Russell(1) ’help very much when one      came to  the practical facts of life’, according to him      ’citizens  are   entitled  to   complain   that   their      legislators did not address their minds to the probable      events that might happen in cases of statutory tenancy,      and consider  how the legal interest they were granting      was affected  by  those  probable  events’.  He  added,      ’........ it  is pretty  evident that  the  Legislature      never considered as a whole the effect on the statutory      tenancy  of   such   ordinary   incidents   as   death,      bankruptcy, voluntary assignment, either inter vivos or      by will,  a total or partial sub-letting; but from time      to time  put into one of the series of Acts a provision      as to  one of  the incidents without considering how it      fitted in  with the general nature of the tenancy which      those incidents  might affect.’ On the provisions which      gave no  clear and  comprehensive idea of the nature of

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    statutory tenancy,  the  courts  in  England  had  been      slowly ’trying to frame a consistent theory (2)’ making      bricks with  very  insufficient  statutory  straw’  (3)      Evershed  M.R.  in  Boyer  v.  Warbey  (4)  said:  ’The      character of  the statutory  tenancy,  I  have  already      said, is  a  very  special  one.  It  has  earned  many      epithets, including ’monstrum horrendum’ and perhaps it      has never been fully thought out by Parliament’. Courts      in England  have held  that a  statutory tenant  has no      estate or  property in the premises he occupies because      he retains possession by virtue of the 19      Rent Acts  and not  as being  entitled to a tenancy; it      has been  said that  he has  only a  personal right  to      remain  in   occupation,   the   statutory   right   of      ’irremovability’, and nothing more.           We find  it difficult  to appreciate  how in  this      country we can proceed on the basis that a tenant whose      contractual tenancy has determined but who is protected      against eviction  by  the  statute,  has  no  right  of      property  but  only  a  personal  right  to  remain  in      occupation, without  ascertaining what  his rights  are      under the  statute. The  concept of  a statutory tenant      having no  estate or  property in the premises which he      occupies is  derived from the provisions of the English      Rent Acts.  But it  is not  clear how it can be assumed      that the  position is  the same in this country without      any  reference   to  the  provisions  of  the  relevant      statute. Tenancy  has its  origin in contract. There is      no dispute  that a  contractual tenant has an estate or      property in  the subject  matter of  the  tenancy,  and      heritability is  an incident  of the tenancy. It cannot      be assumed, however, that with the determination of the      tenancy the  estate must  necessarily disappear and the      statute can  only preserve his status of irremovability      and not  the estate  he had  in  the  premises  in  his      occupation. It  is  not  possible  to  claim  that  the      ’sanctity’   of   contract   cannot   be   touched   by      legislation. It  is therefore  necessary to examine the      provisions of  the Madhya Pradesh Accommodation Control      Act,  1961   to  find   out  whether  the  respondents’      predecessors-in-interest retained  a heritable interest      in the  disputed premises even after the termination of      their tenancy.           Section 2(i)  of the  Madhya Pradesh Accommodation      Control Act  1961 defines  ’tenant’ to mean, unless the      context otherwise requires:           ’a person  by whom  or on  whose account or behalf      the rent  of  any  accommodation  is,  or,  but  for  a      contract express  or implied  would be  payable for any      accommodation and  includes any  person  occupying  the      accommodation as  a  sub-tenant  and  also  any  person      continuing in  possession after  the termination of his      tenancy whether before or after the 20      commencement of  this Act;  but shall  not include  any      person against  whom any  order or  decree for eviction      has been made’.           The  definition   makes  a  person  continuing  in      possession after  the determination  of his  tenancy  a      tenant unless  a decree  or order for eviction has been      made against him, thus putting him on par with a person      whose contractual tenancy still subsists. The incidents      of  such   tenancy  and   a  contractual  tenancy  must      therefore be  the same  unless any provision of the Act

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    conveyed a contrary intention. That under this Act such      a tenant  retains an  interest in the premises, and not      merely a personal right of occupation, will also appear      from section  14 which  contains provisions restricting      the tenant’s  power of  subletting. Section  14  is  in      these terms:                ’Sec. 14  Restriction on  sub-letting.-(1) No           tenant  shall  without  the  previous  consent  in           writing of the landlord-           (a)     sublet  the  whole  or  any  part  of  the                accommodation held by him as a tenant: or           (b)   transfer or assign his rights in the tenancy                or in any part thereof.                (2) No  landlord shall  claim or  receive the           payment of  any sum  as premium or pugree or claim           or receive any consideration whatsoever in cash or           in kind  for giving his consent to the sub-letting           of the whole or any part of the accommodation held           by the tenant’.           There is nothing to suggest that this section does      not apply  to all tenants as defined in Section 2(i). A      contractual  tenant   has  an  estate  or  interest  in      premises from  which he carves out what he gives to the      sub-tenant. Section 14 read with section 2 (i) makes it      clear that the so called statutory tenant has the right      to sub-let in common with a contractual tenant and this      is because he 21      also has an interest in the premises occupied by him."      It may  be noted  that  in  deciding  Damadilal’s  case (supra), this  Court considered  the two  decisions of  this Court, namely,  the decisions  in Anand  Nivas  and  Jagdish Chander Chatterjee’s cases (supra) which have been relied on by the learned counsel for the landlords.      The decision  of this Court in the case of Ganpat Ladha v. Sashikant  Vishnu Shinde(1)  is another decision on which very strong  reliance has  been  placed  on  behalf  of  the landlords. In  this  case  under  Bombay  Rents,  Hotel  and Lodging  House  Rates  Control  Act,  1947,  the  Court  was concerned with  the question  whether the  heirs of deceased tenant whose  tenancy has  been determined  and against whom eviction  proceeding  was  pending,  were  entitled  to  the benefit of  protection afforded  to  the  tenant  after  the determination of  the tenancy  in respect  of  the  business premises. This  Court noticed  at page  202 that the tenancy right was  being claimed  under S. 5(11) (c) of the said Act which, as  recorded in  the judgment,  is in  the  following terms :           "5(11)(c) :  ‘tenant’ means  any person by whom or      on whose  account rent  is payable for any premises and      includes-           (a) ...     ...     ...     ...     ...           (b) ...     ...     ...     ...     ...           (c)  any member  of the  tenant’s family  residing                with him  at the  time of his death as may be                decided  in   default  of  agreement  by  the                Court." While dealing  with this  question, this  Court held  at pp. 202-204 :           "In these  circumstances, the  question arose  for      decision  whether   the   present   respondent,   whose      residence is  given in  the special  leave petition  as      ‘Agakhan Building, Haines Road, Bombay’, could possibly      claim to 22

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    be a  tenant in  respect of  the shop  which admittedly      constitutes business  premises  by  reason  of  Section      5(11) (c) of the Act. The High Court took the view that      section 5(11)  (c)  applies  not  only  to  residential      premises but  also to  business premises and therefore,      on the  death of  a tenant  of business  premises,  any      member of tenant’s family residing with him at the time      of his  death would  become a  tenant. We  do not think      this view  taken by  the High  Court is  correct. It is      difficult to  see how in case of business premises, the      need for  showing residence with the original tenant at      the time  of his death would be relevant. It is obvious      from  the  language  of  Section  5(11)  (c)  that  the      intention of  the legislature in giving protection to a      member of the family of the tenant residing with him at      the time  of his  death was to secure that on the death      of the  tenant, the  member of his family residing with      him at the time of his death is not thrown out and this      protection  would   be  necessarily  only  in  case  of      residential premises. When a tenant is in occupation of      business  premises,  there  would  be  no  question  of      protecting  against   dispossession  a  member  of  the      tenant’s family residing with him at the time of death.      The tenant  may be  carrying on a business in which the      member of his family residing with him may not have any      interest at  all and yet on the construction adopted by      the High  Court, such member of the family would become      a tenant  in respect  of the  business premises. Such a      result could not have been intended to be brought about      by the  legislature. It  is difficult  to  discern  any      public policy  which might  seem  to  require  it.  The      principle behind  section 5(11)  (c) seems  to be  that      when a tenant is in occupation of premises, the tenancy      is taken  by him not only for his own benefit, but also      for the  benefit of  the members of the family residing      with  him   and,  therefore,   when  the  tenant  dies,      protection should  be extended  to the  members of  the      family who  were participants  in the  benefit  of  the      tenancy and  for whose needs inter alia the tenancy was      originally  taken   by  the   tenant.  This   principle      underlying the enactment of section 5(11) (c) also goes      to indicate  that  it  is  in  respect  of  residential      premises that the protection 23      of that  section  is  intended  to  be  given.  We  can      appreciate  a   provision  being  made  in  respect  of      business premises  that on  the death  of a  tenant  in      respect of  such premises,  any member  of the tenant’s      family carrying  on business  with the  tenant in  such      premises at the time of his death shall be a tenant and      the protection  of the  Rent Act  shall be available to      him. But  we fail  to see  the purpose  the legislature      could have  had in  view  in  according  protection  in      respect  of  business  premises  to  a  member  of  the      tenant’s family  residing with  him at  the time of his      death. The  basic postulate of the protection under the      Rent Act  is that  the  person  who  is  sought  to  be      protected must be in possession of the premises and his      possession is protected by the legislation. But in case      of business  premises, a  member of  the family  of the      tenant residing  with him  at the time of his death may      not be  in possession  of the business premises; he may      be in  service or  he may  be  carrying  on  any  other      business. And  yet on the view taken by the High Court,      he would  become tenant  in  respect  of  the  business

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    premises with  which he  has  no  connection.  We  are,      therefore, in  agreement with  the view taken by one of      us (Bhagwati  J.) in  the Gujarat  High Court about the      correct meaning of Section 5(11) (c) in Perupai Manilal      Brahmin &  Ors. v.  Baldevdas Zaverbhai  Tapodhan(1) in      preference  to  the  view  adopted  in  the  subsequent      decision of the Gujarat High Court in Heirs of deceased      Darji  Mohanlal   Lavji  v.  Muktabai  Shamji(2)  which      decision was  followed by  the Bombay High Court in the      judgment impugned in the present appeals before us."      This decision  proceeds entirely on the construction of S.5(11)(c)(i) and  it does  not  appear  that  the  case  of Damadilal (supra)  which also  was in  respect of commercial premises was  cited before  this Court  or was considered by the Court  while deciding  this case.  Section 5(11)(b)  and Section 5(11)(c)(ii) were also not discussed. 24      The  aforesaid  decisions  indicate  that  there  is  a divergence of  opinion in this Court on the question whether the heirs  of a deceased tenant whose contractual tenancy in respect of  commercial premises  has  been  determined,  can inherit the  tenancy rights  of the  deceased tenant and can claim the  benefit and  protection  to  which  the  deceased tenant was entitled under the Act.      For an  appreciation of the question it is necessary to understand the  kind of  protection that  is  sought  to  be afforded to  a tenant  under the  Rent Acts  and his  status after the  termination of  the contractual tenancy under the Rent Acts.  It is  not  in  dispute  that  so  long  as  the contractual  tenancy  remains  subsisting,  the  contractual tenancy creates  Charitable rights;  and, on  the death of a contractual tenant, the heirs and legal representatives step into the  position of  the contractual  tenant; and,  in the same way  on the  death of  a landlord  the heirs  and legal representatives of  a landlord  become entitled  to all  the rights and  privileges of  the contractual  tenancy and also come  under   all  the  obligations  under  the  contractual tenancy. A valid termination of the contractual tenancy puts an end to the contractual relationship. On the determination of the  contractual tenancy,  the landlord  becomes entitled under the  law of  the land  to recover  possession  of  the premises from  the tenant  in due  process of  law  and  the tenant under  the general  law of  the land  is hardly  in a position to  resist eviction,  once the  contractual tenancy has  been   duly  determined.   Because   of   scarcity   of accommodation and  gradual high  rise in  the rents  due  to various factors, the landlords were in a position to exploit the situation  for unjustified personal gains to the serious detriment of  the helpless  tenants. Under the circumstances it became  imperative for  the legislature  to intervene  to protect the  tenants against  harassment and exploitation by avaricious landlords  and appropriate legislation came to be passed in  all the  States and  Union Territories  where the situation required  an interference  by the  legislature  in this regard.  It is  no doubt  true that  the Rent  Acts are essentially meant  for the  benefit of  the tenants.  It is, however, to  be noticed  that the Rent Acts at the same time also  seek   to  safeguard   legitimate  interests   of  the landlords. The  Rent Acts  which are indeed in the nature of social welfare  legislation are  intended to protect tenants against   harassment    and   exploitation   by   landlords, safeguarding at  the same  time the  legitimate interests of the landlords. The Rent Acts seek to preserve social harmony and promote social justice by safeguarding 25

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the interests  of the  tenants mainly  and at  the same time protecting the legitimate interests of the landlords. Though the purpose  of the various Rent Acts appear to be the same, namely, to promote social justice by affording protection to tenants  against   undue  harassment   and  exploitation  by landlords,  providing   at  the   same  time   for  adequate safeguards of the legitimate interests of the landlords, the Rent Acts undoubtedly lean more in favour of the tenants for whose benefit  the Rent  Acts are essentially passed. It may also be  noted that  various amendments have been introduced to the  various Rent  Acts from  time to  time as  and  when situation so  required for  the purpose  of  mitigating  the hardship of tenants.      Keeping  in  view  the  main  object  of  Rent  Control Legislation, the  position, of  a tenant  whose  contractual tenancy has  been determined  has to  be understood  in  the light of  the provisions of the Rent Acts. Though provisions of all  the Rent  Control Acts  are not  uniform, the common feature of  all the  Rent  Control  Legislation  is  that  a contractual tenant  on the  termination of  the  contractual tenancy is  by virtue of the provisions of the Rent Acts not liable to  be evicted  as  a  matter  of  course  under  the ordinary law  of the  land and  he is  entitled to remain in possession  even  after  determination  of  the  contractual tenancy and  no order  or decree for eviction will be passed against a  tenant  unless  any  ground  which  entitles  the landlord to  get an order or decree for possession specified in the  Act is  established.  In  other  words,  the  common feature of  every  Rent  Control  Act  is  that  it  affords protection  to   every  tenant   against  eviction   despite termination of  tenancy except  on grounds recognised by the Act and  no order  or decree  for eviction  shall be  passed against the  tenant unless any such ground is established to the satisfaction of the Court.      This Court  has very aptly observed in Damadilal’s case (supra)  that   it  cannot   be  assumed   that   with   the determination of  the tenancy,  the estate  must necessarily disappear and  the statute  can only  preserve the status of irremovability and  not the estate he has in the premises in his occupation;  and it  is not  possible to  claim that the sanctity of  contract cannot  be touched  by legislation. As already noticed,  this Court  in  Damadilal’s  case  (supra) after referring  mainly to  the definition  of tenant  in S. 2(i) of  the Madhya  Pradesh Accommodation Control Act, 1961 came to  the so-called  statutory tenant  had an interest in the premises  occupied by him and the heirs of the statutory tenant "had a heritable interest in the premises". A 26 tenant has been defined in S. 2(1) of the Delhi Rent Control Act, which reads as follows :-           "‘tenant’ means  any person  by whom  or on  whose      account or  behalf the rent of any premises is, or, but      for a special contract would be, payable, and includes-      (i) a sub-tenant;      (ii) any person  continuing  in  possession  after  the           termination of his tenancy; and     (iii) in the event of the death of the person continuing           in  possession   after  the   termination  of  his           tenancy, subject  to the  order of  succession and           conditions specified  respectively, in Explanation           I and  Explanation II  to this clause, such of the           aforesaid person’s-           (a) spouse,           (b)  son or daughter, or, where there are both son                and daughter, both of them,

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         (c)  parents,           (d)  daughter-in-law,  being   the  widow  of  his                predeceased son,      as had been ordinarily living in the premises with such      person as  a member  or members  of his family upto the      date of his death, but does not include, -      (A)  any person  against whom  an order  or decree  for           eviction has  been made,  except where such decree           or order  for eviction  is liable  to be re-opened           under the  proviso to  section 3 of the Delhi Rent           Control (Amendment) Act, 1976.      (B)  any person  to  whom  a  licence,  as  defined  by           section 52  of the  Indian Easements Act, 1882 has           been granted. 27           Explanation I.-The  order  of  succession  in  the      event  of   the  death  of  the  person  continuing  in      possession after  the termination  of his tenancy shall      be as follows.-      (a)  firstly, his surviving spouse;      (b)  secondly, his  son or  daughter, or both, if there           is no surviving spouse, or if the surviving spouse           did not  ordinarily live  with the deceased person           as a  member of  his family  upto the  date of his           death;      (c)  thirdly, his  parents, if  there is  no  surviving           spouse, son or daughter of the deceased person, or           if such  surviving spouse,  son or daughter or any           of them,  did not  ordinarily live in the premises           as a  member of  the family of the deceased person           upto the date of his death; and      (d)  fourthly, his  daughter-in-law, being the widow of           his pre-deceased  son, if  there is  no  surviving           spouse, son,  daughter or  parents of the deceased           person, or  if such surviving spouse son, daughter           or parents,  or any  of them,  did not  ordinarily           live in  the premises as a member of the family of           the deceased person up to the date of his death.           Explanation II.-If  the person,  who acquires,  by           succession, the  right to  continue in  possession           after the  termination of  the  tenancy,  was  not           financially dependent  on the  deceased person  on           the  date  of  his  death,  such  successor  shall           acquire such  right for  a limited  period of  one           year; and, on the expiry of that period, or on his           death, whichever  is earlier,  the right  of  such           successor to  continue  in  possession  after  the           termination   of    the   tenancy   shall   become           extinguished.           Explanation III.-For  the removal of doubts, it is           hereby declared that,-      (a)  where, by  reason of  Explanation II, the right of           any successor to continue in possession after 28           the   termination    of   the    tenancy   becomes           extinguished, such extinguishment shall not affect           the right  of any  other  successor  of  the  same           category  to  continue  in  possession  after  the           termination of  the tenancy;  but if  there is  no           other successor of the same category, the right to           continue in  possession after  the termination  of           the tenancy shall not, on such extinguishment pass           on to  any other successor, specified in any lower           category or categories, as the case may be ;      (b)  the right  of  every  successor,  referred  to  in

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         Explanation I, to continue in possession after the           termination of  the tenancy,  shall be personal to           him and shall not, on the death of such successor,           devolve on any of his heirs ;" The definition of tenant as it stands at present in the Act, is after  the amendment  of the definition in S. 2(1) of the earlier Act, by the Amendment Act (Act 18 of 1976) which was introduced  with   retrospective  effect.   Prior   to   the amendment, the  definition of  tenant as  it  stood  in  the original Act, 1958 was in the following terms :-           "‘tenant’ means  any person  by whom  or on  whose      account or  behalf the rent of any premises is, or, but      for a special contract would be, payable and includes a      subtenant and  also any person continuing in possession      after the  termination of  his tenancy  but  shall  not      include any person against whom any order or decree for      eviction have been made". It is,  therefore, clear  from  the  definition  of  tenant, whether in  the original Act or in the amended Act, that the tenant within  the meaning  of the definition of the term in the Act  includes any  person continuing in possession after the termination  of his  tenancy. It  will be  seen that the definition of tenant in Madhya Pradesh Accommodation Control Act, 1961  on which the decision in Damadilal’s case (supra) mainly turns,  is similar  to the  definition of  tenant  as given in  the Delhi  Act in  the sense that the tenant under both the  Acts includes  for the purpose of the Rent Act any person continuing in possession after the termination of the tenancy. 29      The other section of the M.P. Accommodation Control Act 1961 considered  by this  Court in deciding Damadilal’s case (supra) was section 14 which deals with sub-letting and this Court held that there was nothing in that section to suggest that the  section would  not apply to all tenants as defined in section  2(1) of  the said  Act. S.14  was considered  in Damadilal’s case (supra) to ascertain whether the ‘so called statutory tenant’  enjoyed the same right as the contractual tenant in the matter of sub-letting and this Court held that the ‘so  called statutory  tenant’ enjoyed the same right as the contractual tenant.      Let us  now analyse  the provisions of the Delhi Act to find out  whether there  is anything in the other provisions to indicate  that the  tenant as defined in S. 2(1)(ii) will stand on  any different footing from a contractual tenant in the matter  of enjoyment  of  the  protection  and  benefits sought to be conferred on a tenant by the Act.      S. 2(e) defines landlord and clearly indicates that the landlord continues to be the landlord for the purpose of the Act even  after termination  of the  contractual tenancy. S. 2(1) which  defines ‘tenant’ has been set out earlier in its entirety. We  shall consider the true effect of S. 2(1)(iii) on which  as earlier  noted, reliance has been placed by the learned counsel  of the  landlords, when  we deal  with  the argument which  has been  advanced  on  the  basis  of  this subsection. Section  3 mentions  premises which  are outside the purview  of this  Act and has no bearing on the question involved. Chapter II of the Act consists of Sections 4 to 13 and makes  provision regarding rent. These sections indicate that they  are applicable  to tenants  as defined in S. 2(1) including 2(1)(iii).  Chapter III consists of sections 14 to 25 of  the Act  and  deals  with  eviction  and  control  of eviction of tenants. S. 14 starts as follows :-           "notwithstanding   anything    to   the   contrary      contained in  any other  law or  contract, no  order or

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    decree for  the recovery  of possession of any premises      shall be  made by  any Court or Controller in favour of      the landlord against a tenant;                .........................                ........................" 30 Thereafter various  provisions are  made as  to grounds  and under what  circumstances  a  decree  for  eviction  may  be passed. This  section, therefore,  clearly  postulates  that despite the  termination of  the tenancy and notwithstanding the provisions  of any  other  law  which  might  have  been applicable on  the termination  of the  contractual tenancy, protection against eviction is applicable to every tenant as defined  in  S.  2(1)  of  the  Act.  This  section  clearly establishes that determination of a contractual tenancy does not disqualify him from continuing to be a tenant within the meaning of this Act and the tenant whose contractual tenancy has been determined enjoys the same position and is entitled to protection  against eviction.  The other sections in this chapter also  go to  indicate that  the tenant whose tenancy has been  terminated enjoys the same status and benefit as a tenant whose  tenancy has  not been terminated, and a tenant after termination  of his tenancy stands on the same footing as the  tenant before  such termination. Chapter III A which provides for  summary trial  for certain  applications  also does not make any distinction between a tenant whose tenancy has been  determined and a tenant whose tenancy had not been terminated. Chapter  IV which  deals with  deposit  of  rent consists of  sections 26  to 29  and these  sections make it clear that  the tenant  after determination  of a tenancy is treated under  the Act on the same footing as a tenant whose tenancy has not been determined. Chapter V which consists of sections 30  to 34  deals with hotels and lodging houses and does not  have  any  relevance  to  the  question  involved. Chapter VI  which consists of sections 35 to 43 provides for appointment of  Controllers and  their powers  and functions and also  makes provisions  with  regard  to  appeals.  This chapter  though   not  very  material  for  the  purpose  of adjudication  of   the  point  involved  indicates  that  no discrimination is  made in  the matter  of  proceedings  for eviction between  the ‘so  called statutory  tenant’  and  a contractual tenant.  Chapter VII  which consists of sections 44 to 49 makes provisions regarding obligations of landlords and also  provides for  penalties in  appropriate cases. The sections make  it clear that the duties and obligations cast upon the  landlord apply  equally whether the tenant is a so called ‘statutory  tenant’ or  the tenant  is a  contractual tenant.  Chapter  VIII  which  makes  various  miscellaneous provisions  does  not  have  any  bearing  on  the  question involved. It  may, however,  be noted  that section 50 which bars the  jurisdiction of Civil Courts in respect of certain matters does  not in  any way  discriminate  between  a  ‘so called statutory  tenant’  and  a  contractual  tenant.  The provisions of the Act, therefore, make it abundantly 31 clear that  the Act  does not make any distinction between a ‘so called  statutory tenant’  and a  contractual tenant and the Act  proceeds to  treat both  alike and  to preserve and protect  the   status  and   rights  of   a   tenant   after determination of  the contractual tenancy in the same way as the status  and rights of a contractual tenant are protected and preserved.      While on  this question it will be appropriate to quote the following  observations of  this Court in the case of V. Dhanapal Chettiar v. Yesodai Ammal (supra) at 340 :-

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         "Once the  liability to  be evicted is incurred by      the tenant,  he cannot  turn round  and  say  that  the      contractual lease  has not  been determined. The action      of the  landlord in  instituting a suit for eviction on      the ground  mentioned in  any State  Rent Act  will  be      tantamount to  an expression  of his  intention that he      does not  want the tenant to continue as his lessee and      the jural  relationship of  lessor and lessee will come      to an  end on  the passing  of an order or a decree for      eviction. Until  then, under the extended definition of      the word  ‘tenant’ under  the various  State Rent Acts,      the tenant  continues to  be a  tenant even  though the      contractual tenancy  has been  determined by  giving  a      valid notice  under section  106  of  the  Transfer  of      Property Act.  In many  cases the distinction between a      contractual tenant  and a  statutory tenant was alluded      to for  the  purpose  of  elucidating  some  particular      aspects which cropped up in a particular case. That led      to the  criticism of  that expression  in some  of  the      decisions. Without  detaining ourselves  on this aspect      of the  matter by  any  elaborate  discussion,  in  our      opinion, it  will suffice to say that the various State      Rent Control  Acts make  a serious  encroachment in the      field of  freedom of  contract. It  does not permit the      landlord to  snap  his  relationship  with  the  tenant      merely by  his Act  of serving a notice to quit on him.      Inspite of  the notice,  the law says that he continues      to be  a tenant and  he does so enjoying all the rights      of a  lessee and is at the same time deemed to be under      all the  liabilities such  as payment  of rent  etc. in      accordance with the law."      These observations  were made by a seven-Judge Bench of this Court.  It is  not doubt  true that  these observations were made while 32 considering the  question of  requirement of  a notice under section 106  of the  Transfer of  Property  Act  before  the institution of  suit for  recovery of possession of premises to which  the Rent Act applies. These observations, however, clearly go  to establish  that  mere  determination  of  the contractual tenancy  does not  in any  way bring  about  any change in  the status of a tenant. As aptly observed in this decision, "it  will suffice  to say  that the  various State Rent Control  Acts make  a serious encroachment in the field of freedom  of contract.  It does not permit the landlord to snap his  relationship with  the tenant merely by his act of serving a  notice to quit on him. Inspite of the notice, the law says  that he  continues to  be a tenant and he does so, enjoying all  the rights of a lessee and is at the same time deemed to  be under  all the  liabilities such as payment of rent etc. in accordance with the law."      We now  proceed  to  deal  with  the  further  argument advanced on  behalf of  the landlords  that the amendment to the  definition   of  ‘tenant’   with  retrospective  effect introduced by  the Delhi  Rent Control Amendment Act (Act 18 of 1976)  to give  personal protection and personal sight of continuing in  possession  to  the  heirs  of  the  deceased statutory tenant in respect of residential premises only and not with  regard to  the heirs  of the  ‘so called statutory tenant’ in  respect of  commercial premises,  indicates that the heirs  of so called statutory tenants, therefore, do not enjoy any  protection under  the Act. This argument proceeds on the  basis that  in the  absence of  any  specific  right created in  favour of  the ‘so  called statutory  tenant’ in respect of  his tenancy,  the heirs  of the statutory tenant

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who do  not acquire  any interest  or estate in the tenanted premises, become liable to be evicted as a matter of course. The very  premise on  the basis  of which  the  argument  is advanced is, in our opinion, unsound. The termination of the contractual tenancy  in view  of the definition of tenant in the Act  does not  bring about  any change in the status and legal position  of the  tenant, unless  there  are  contrary provisions in  the Act;  and, the tenant notwithstanding the termination of  tenancy does  enjoy an estate or interest in the tenanted  premises. This  interest or  estate which  the tenant under  the Act despite termination of the contractual tenancy continues  to enjoy  creates a heritable interest in the absence  of any  provision  to  the  contrary.  We  have earlier noticed  the decision  of this  Court in Damadilal’s case (supra).  This view  has been  taken by  this Court  in Damadilal’s case and in our opinion this decision represents the correct position 33 in law.  The observations  of this  Court in the decision of the Seven Judge Bench in the case of V. Dhanapal Chettiar v. Yesodai Ammal (supra) which we have earlier quoted appear to conclude the  question. The  amendment of  the definition of tenant by  the  Act  18  of  1976  introducing  particularly 2(1)(iii) does  not in  any way  mitigate against this view. The said  sub-section (iii)  with all the three Explanations thereto is  not in  any way inconsistent with or contrary to subsection (ii)  of Section  2(1) which unequivocally states that tenant  includes any  person continuing  in  possession after the  termination of his tenancy. In the absence of the provision contained  in subsection  2(1)(iii). the heritable interest of  the heirs of the statutory tenant would devolve on all  the heirs of the ‘so called statutory tenant’ on his death and  the heirs  of such  tenant would in law step into his position.  This sub-section  (iii) of  S. 2(1)  seeks to restrict this  right in  so far  as the residential premises are concerned.  The heritability  of the  statutory  tenancy which otherwise  flows from the Act is restricted in case of residential premises  only  to  the  heirs  mentioned  in  S 2(1)(iii) and  the heirs  therein are  entitled to remain in possession and  to enjoy the protection under the Act in the manner and to the extent indicated in sub-section 2(1)(iii). The Legislature, which under the Rent Act affords protection against  eviction  to  tenants  whose  tenancies  have  been terminated and  who continue to remain in possession and who are generally  termed as  statutory  tenants,  is  perfectly competent  to   lay  down  the  manner  and  extent  of  the protection and  the rights  and obligations  of such tenants and their heirs. S. 2(1)(iii) of the Act does not create any additional or  special right  in favour  of the heirs of the ‘so called  statutory tenant’  on his  death, but  seeks  to restrict the right of the heirs of such tenant in respect of residential  premises.   As  the  status  and  rights  of  a contractual tenant  even after  determination of his tenancy when the  tenant is  at times  described  as  the  statutory tenant, are fully protected by the Act and the heirs of such tenants become  entitled by  virtue of the provisions of the Act to  inherit the  status and  position of  the  statutory tenant on  his death, the Legislature which has created this right has thought it fit in the case of residential premises to limit  the rights  of the  heirs in the manner and to the extent  provided  in  S.  2(1)(iii).  It  appears  that  the Legislature  has   not  thought  it  fit  to  put  any  such restrictions with regard to tenants in respect of commercial premises in this Act.      It  may   be  noted   that  for  certain  purposes  the

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Legislature in the Delhi Act in question and also in various other Rent Acts has treated 34 commercial premises differently from residential premises S. 14(1)(d) provides that it will be a good ground for eviction of a  tenant from  residential premises, if the premises let out for  use as residence is not so used for a period of six months immediately  before the filing of the application for the recovery  of possession  of the  premises. Similarly  S. 14(1)(e) makes  bonafide requirement  of the landlord of the premises let  out to  the tenant  for residential purposes a good ground  for eviction  of the tenant from such premises. These grounds, however, are not made available in respect of commercial premises.      We find  it difficult  to agree  with the  observations which we  have quoted earlier made by this Court in the case of Ganapat Ladha v. Sashi Kant Vishnu Shinde (supra).      It may  be noticed  that the  Legislature itself treats commercial tenancy  differently from  residential tenancy in the matter  of eviction  of the tenant in the Delhi Rent Act and also  in various  other Rent  Acts. All  the grounds for eviction of  a tenant  of residential  premises are not made grounds for  eviction of  a tenant  in respect of commercial premises. S.  14(1)(d) of  the Delhi  Rent Act provides that non-user of  the residential  premises by  the tenant  for a period of  six months  immediately before  the filing of the application for  the recovery  of possession of the premises will be  a good  ground for  eviction, though  in case  of a commercial premises no such provision is made. Similarly, S. 14(1)(e) which  makes bona  fide requirement of the landlord of the  premises let  out  to  the  tenant  for  residential purposes a  ground for  eviction of  the tenant, is not made applicable  to   commercial  premises.   A  tenant   of  any commercial premises  has necessarily to use the premises for business purposes.  Business carried  on by  a tenant of any commercial premises may be and often is, his only occupation and the  source of  livelihood of the tenant and his family. Out of  the income earned by the tenant from his business in the commercial  premises, the  tenant maintains  himself and his family;  and the tenant, if he is residing in a tenanted house, may  also be  paying his rent out of the said income. Even if  tenant is evicted from his residential premises, he may with  the earnings  out of the business be in a position to arrange  for some  other accommodation  for his residence with his  family. When,  however, a  tenant is thrown out of the commercial  premises, his  business which enables him to maintain himself  and his  family comes to a stand-still. It is common 35 knowledge that  it is  much more  difficult to find suitable business  premises   than  to  find  suitable  premises  for residence. It  is no  secret that  for  securing  commercial accommodation, large  sums of  money by  way of salami, even though not legally payable, may have to be paid and rents of commercial  premises  are  usually  very  high.  Besides,  a business which has been carried on for years at a particular place has  its own  good will and other distinct advantages. The death  of the person who happens to be the tenant of the commercial premises  and who was running the business out of the income  of which  the family  used to  be maintained, is itself a great loss to the members of the family to whom the death, naturally,  comes as  a great  blow. Usually,  on the death of  the person who runs the business and maintains his family out  of the income of the business, the other members of the family who suffer the bereavement have necessarily to

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carry on the business for the maintenance and support of the family. A  running business  is indeed a very valuable asset and often  a great  source of  comfort to  the family as the business keeps  the family going. So long as the contractual tenancy of  a tenant  who carries on the business continues, there can be no question of the heirs of the deceased tenant not only  inheriting the  tenancy but  also  inheriting  the business and they are entitled to run and enjoy the same. We have earlier  held that  mere termination of the contractual tenancy does not bring about any change in the status of the tenant and  the tenant  by virtue  of the  definition of the ‘tenant’ in  the Act  and the  other Rent  Acts continues to enjoy the  same status  and position  unless  there  be  any provisions in  the Rent Acts which indicate to the contrary. The mere  fact that  in the  Act no  provision has been made with regard to the heirs of tenants in respect of commercial tenancies on  the death  of the  tenant after termination of the tenancy,  as has  been done  in the case of heirs of the tenants of  residential premises, does not indicate that the Legislature intended  that  the  heirs  of  the  tenants  of commercial premises  will  cease  to  enjoy  the  protection afforded to  the tenant under the Act. The Legislature could never have possibly intended that with the death of a tenant of the  commercial premises,  the business carried on by the tenant, however  flourishing it  may be and even if the same constituted the  source of  livelihood of the members of the family, must  necessarily come to an end on the death of the tenant, only  because the  tenant died after the contractual tenancy had  been terminated.  It could  never have been the intention of  the Legislature  that the  entire family  of a tenant depending upon the 36 business  carried  on  by  the  tenant  will  be  completely stranded and  the business  carried  on  for  years  in  the premises which  had been  let out  to the  tenant must  stop functioning at  the premises which the heirs of the deceased tenant must  necessarily vacate,  as they  are  afforded  no protection under the Act. We are of the opinion that in case of commercial  premises  governed  by  the  Delhi  Act,  the Legislature has  not thought  it fit  in the  light  of  the situation at  Delhi to  place any kind of restriction on the ordinary law  of inheritance  with regard  to succession. It may also  be borne  in  mind  that  in  case  of  commercial premises the  heirs of  the deceased tenant not only succeed to the  tenancy rights  in the  premises but they succeed to the business  as a  whole. It  might have  been open  to the Legislature to  limit or  restrict the  right of inheritance with regard  to the  tenancy as  the Legislature had done in the case  of the  tenancies with  regard to  the residential houses but it would not have been open to the Legislature to alter under  the Rent  Act, the  Law of Succession regarding the business  which is  a valuable heritable right and which must necessarily devolve on all the heirs in accordance with law.  The   absence  of   any  provision   restricting   the heritability of  the tenancy  in respect  of the  commercial premises  only   establishes   that   commercial   tenancies notwithstanding  the   determination  of   the   contractual tenancies will  devolve on  the heirs in accordance with law and the  heirs who  step into  the position  of the deceased tenant will continue to enjoy the protection afforded by the Act and  they can  only be  evicted in  accordance with  the provisions  of   the  Act.   There  is  another  significant consideration which,  in our  opinion, lends  support to the view that we are taking. Commercial premises are let out not only to  individuals but also to Companies, Corporations and

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other statutory  bodies having  a juristic  personality.  In fact,  tenancies  in  respect  of  commercial  premises  are usually taken by Companies and Corporations. When the tenant is a  Company or  a Corporation  or  anybody  with  juristic personality, question  of the  death of  the tenant will not arise. Despite  the termination  of the tenancy, the Company or the  Corporation or such juristic personalities, however, will go  on enjoying  the protection  afforded to the tenant under  the   Act.  It  can  hardly  be  conceived  that  the Legislature would  intend to  deny to  one class of tenants, namely, individuals  the protection which will be enjoyed by the other  class’ namely, the Corporations and Companies and other bodies  with juristic personality under the Act. If it be held  that commercial  tenancies after the termination of the contractual tenancy of the 37 tenant are  not heritable on the death of the tenant and the heirs of the tenant are not entitled to enjoy the protection under the Act, an irreparable mischief which the Legislature could never  have intended  is likely to be caused. Any time after the  creation of the contractual tenancy, the landlord may determine  the contractual  tenancy, allowing the tenant to continue  to remain in possession of the premises, hoping for an  early death of the tenant, so that on the death of a tenant  he   can  immediately   proceed  to   institute  the proceeding  for  recovery  and  recover  possession  of  the premises as  a matter of course, because the heirs would not have any  right to  remain in occupation and would not enjoy the protection  of the  Act.  This  could  never  have  been intended by  the Legislature while framing the Rent Acts for affording protection to the tenant against eviction that the landlord would  be entitled  to recover  possession, even no grounds for eviction as prescribed in the Rent Acts are made out.      In our  opinion, the  view expressed  by this  Court in Ganpat Ladha’s  case and the observations made therein which we have earlier quoted, do not lay down the correct law. The said decision  does not  properly construe the definition of the ‘tenant’ as given in S. 5(11)(b) of the Act and does not consider the  status of  the tenant,  as defined in the Act, even after  termination of  the commercial  tenancy. In  our judgment  in  Damadilal’s  case  this  Court  has  correctly appreciated the  status and  the legal  position of a tenant who continues  to remain  in possession after termination of the contractual  tenancy. We  have quoted at length the view of this  Court and  the reasons in support thereof. The view expressed by  a seven-Judge  Bench of this Court in Dhanapal Chettiar’s case  and the  observations made therein which we have earlier  quoted, lend  support to  the decision of this Court in  Dhamadilal’s case.  These decisions  correctly lay down that  the termination of the contractual tenancy by the landlord does  not bring about a change in the status of the tenant who  continues to  remain  in  possession  after  the termination of  the tenancy  by virtue  of the provisions of the Rent  Act. A  proper interpretation of the definition of tenant in  the light of the provisions made in the Rent Acts makes it  clear that the tenant continues to enjoy an estate or interest in the tenanted premises despite the termination of the contractual tenancy.      Accordingly, we  hold that  if the Rent Act in question defines a tenant in substance to mean a tenant who continues to remain in 38 possession even  after the  termination of  the  contractual tenancy till  a decree  for eviction against him is passed’,

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the tenant  even after  the  determination  of  the  tenancy continues to  have an  estate or  interest in  the  tenanted premises  and   the  tenancy   rights  both  in  respect  of residential promises  and commercial premises are heritable. The heirs  of the  deceased tenant  in the  absence  of  any provision in the Rent Act to the contrary will step into the position of  the decreased  tenant and  all the  rights  and obligations of  the deceased tenant including the protection afforded to  the deceased  tenant under the Act will devolve on the  heirs of  the deceased  tenant.  As  the  protection afforded by  the Rent Act to a tenant after determination of the tenancy  and to his heirs on the death of such tenant is a creation  of the Act for the benefit of the tenants, it is open to  the Legislature  which provides for such protection to make appropriate provisions in the Act with regard to the nature and  extent of  the  benefit  and  protection  to  be enjoyed and  the manner  in which the same is to be enjoyed. If the  Legislature makes  any provision in the Act limiting or restricting  the benefit and the nature of the protection to be  enjoyed in a specified manner by any particular class of heirs  of the  deceased tenant on any condition laid down being  fulfilled,   the  benefit   of  the   protection  has necessarily  to   be  enjoyed  on  the  fulfillment  of  the condition in  the manner and to the extent stipulated in the Act. The  Legislature which  by the Rent Act seeks to confer the benefit  on the tenants and to afford protection against eviction,  is   perfectly  competent   to  make  appropriate provision regulating the nature of protection and the manner and extent  of enjoyment  of such  tenancy rights  after the termination of  contractual tenancy  of the tenant including the rights  and the nature of protection of the heirs on the death of  the tenant. Such appropriate provision may be made by the  Legislature both  with  regard  to  the  residential tenancy and commercial tenancy. It is, however, entirely for the Legislature  to decide whether the Legislature will make such provision  or not.  In the  absence  of  any  provision regulating the  right of  inheritance, and  the  manner  and extent thereof  and in  the absence  of any  condition being stipulated with  regard to  the devolution of tenancy rights on the  heirs on  the death of the tenant, the devolution of tenancy rights  must necessarily  be in  accordance with the ordinary law of succession.      In the Delhi Act, the Legislature has thought it fit to make provisions  regulating the right to inherit the tenancy rights in respect 39 of  residential   premises.  The   relevant  provisions  are contained in  S. 2(1)(ii)  of the  Act. With  regard to  the commercial  premises,  the  Legislature  in  the  Act  under consideration has  thought it  fit  not  to  make  any  such provision.  It  may  be  noticed  that  in  some  Rent  Acts provisions regulating  heritability of  commercial premises, have also  been made  whereas in  some  Rent  Acts  no  such provision either  in respect  of  residential  tenancies  or commercial tenancies  has been  made. As in the present Act, there is  no provision regulating the rights of the heirs to inherit the tenancy rights of the tenanted premises which is commercial premises,  the tenancy  right which  is heritable devolves on  the heirs under the ordinary law of succession. The tenancy  right of  Wasti Ram, therefore, devolves on all the heirs of Wasti Ram on his death.      We must,  therefore, hold  that Wasti  Ram enjoyed  the statute of  the premises in dispute even after determination of  the   contractual  tenancy   and   notwithstanding   the termination of  the contractual  tenancy, Wasti  Ram had  an

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estate or  interest in  the demised  premises;  and  tenancy rights of  Wasti Ram  did not  come to an end with his death but they  devolved on  the heirs and legal representative of Wasti Ram.  The heirs and legal representatives of Wasti Ram step into  his position and they are entitled to the benefit and protection  of the  Act. We must, accordingly, hold that the High  Court was  not right  in coming  to the conclusion that the heirs of Wasti Ram, the so called statutory tenant, did not  have any  right to  remain  in  possession  of  the tenanted premises and did not enjoy any protection under the Act. It  appears that  the High  Court passed  an order  for eviction against  the heirs of Wasti Ram only on this ground without going  into the  merits of  the appeal  filed by the appellant in  the High Court against the order of remand and also without  considering the  cross-objections filed in the High Court  by the  landlord. We  accordingly, set aside the judgment and  order of the High Court and we remand the case to the  High Court  for decision of the appeal and the cross objection on  merits. The  appeal is  accordingly allowed to the extent indicated above with no order as to costs.      Before  concluding,   there  is  one  aspect  which  we consider it  desirable to  make  certain  observations.  The owner of  any premises,  whether residential  or commercial, let out to any tenant, is permitted by the Rent Control Acts to seek  eviction of the tenant only on the ground specified in the Act, entitling the landlord to evict the tenant 40 from the  premises. The  restrictions on  the power  of  the landlords in  the matter  of recovery  of possession  of the premises let  out by  him to  a tenant have been imposed for the benefit  of the tenants. Inspite of various restrictions put on  the landlords  right to  recover possession  of  the premises from a tenant, the right of the landlord to recover possession of the premises from the tenant for the bona fide need of  the premises  by the  landlord is recognised by the Act, in case of residential premises. A landlord may let out the premises under various circumstances. Usually a landlord lets out  the premises when he does not need it for own use. Circumstances may  change and a situation may arise when the landlord may require the premises let out by him for his own use. It  is just  and proper that when the landlord requires the premises  bona fide  for his own use and occupation, the landlord should be entitled to recover the possession of the premises which  continues to  be his property inspite of his letting out  the same  to a  tenant. The  legislature in its wisdom did  recognise this  fact  and  the  Legislature  has provided that  bona fide requirement of the landlord for his own use  will be  a legitimate  ground under the Act for the eviction of  his tenant  from any residential premises. This ground is,  however, confined to residential premises and is not  made  available  in  case  of  commercial  premises.  A landlord who  lets out commercial premises to a tenant under certain circumstances  may need  bona fide  the premises for his own  use under  changed conditions  in some  future date should not  in fairness  be deprived of his right to recover the commercial premises. Bona fide need of the landlord will stand very  much on  the same  footing in  regard to  either class of premisses, residential or commercial. We therefore, suggest that  Legislature may  consider the  advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well. M.L.A.    Appeal allowed. 41

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