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PETITIONER: SMT. YAMUNA MALO0

       Vs.

RESPONDENT: ANAND SWARUP

DATE OF JUDGMENT28/02/1990

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH PUNCHHI, M.M. AGRAWAL, S.C. (J)

CITATION:  1990 AIR 1725            1990 SCR  (1) 715  1990 SCC  (3)  30        JT 1990 (1)   497  1990 SCALE  (1)384  CITATOR INFO :  RF         1991 SC1233  (5,10,13)  E          1992 SC1555  (2,16,17)

ACT:     Delhi Rent Control Act, 1958: Section 21--Limited tenan- cy-Objection  to  validity--To be raised  before  the  lease lapses.

HEADNOTE:     The  appellant-landlady  and the  respendent-tenant  ap- peared before the Rent Controller for creation of a  tenancy under  Section 21 of the Delhi Rent Control Act,  1958.  Ac- cordingly,  the authority passed an order  creating  tenancy for a limited period of two years. Since the respondent  did not  vacate  the premises on the expiry of  two  years,  the appellant moved the Rent Controller for issuance of  warrant of  possession. The Respondent filed his  objection.  Enter- taining  the  objection the Rent  Controller  dismissed  the petition, holding that the order granting permission for the tenancy  under section 21 of the Act was not  in  accordance with  law.  The  appellant’s first appeal  before  the  Rent Control Tribunal, as also her second appeal before the  High Court met the same fate.     This  appeal,  by  special leave, is  against  the  High Court’s order dismissing the second appeal in limine.     On  behalf of the appellant, it was contended  that  the Rent Controller should not have entertained the objection of the  respondent  as the same has not been filed  during  the currency of the tenancy. It was also contended that some  of the  considerations  which  weighed with  the  Rent  Control Tribunal  were not relevant for judging the bona  fides  and genuineness  of  actions taken at the time of  creating  the tenancy. Allowing the appeal, this Court,     HELD: 1. Section 14 of the Delhi Rent Control Act,  1958 deals with a normal tenancy and protects the tenant  against unreasonable  eviction. Section 21 of the Act, on the  other hand,  places  the tenant outside the purview of s.  14  and provides for an order of eviction at the time of creation of the tenancy. There is a purpose behind enacting s. 21 of the

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Act. The Legislature considered it appropriate that should a 716 landlord  not  need his residential premises for  a  period, instead of keeping it vacant the same could be available for a tenant’s use on being let out for a limited period  condi- tional upon the tenant’s surrendering possession as soon  as the tenancy terminates by efflux of time and the need of the landlord revives. [719G-H; 720A]     2.1. The rule in Noronah’s case has to be confined to  a particular set of facts and should not be freely extended so as to take away the effect ors. 21. [724F-G]     2.2. In Vohra’s case and in Shiv Chander Kapoor’s  case, though not arising for determination in either, it has  been stated  while laying down the rule that proceeding to  chal- lenge limited tenancy has to be taken during the currency of the  tenancy,  an  objection filed by the  tenant  could  be looked  into,  is  indeed an obiter. The  rule  having  been stated to the contrary in Vohra’s case, there was indeed  no warrant  to indicate the contra situation. Perhaps  to  meet the eventuality which might arise in a particular case,  the exception  has  also been indicated. If, the tenant  has  an objection to raise to the validity of the limited tenancy it has to be done prior to the lapse of the lease and not as  a defence  to  the landlord’s application for being  put  into possession. Even if such an exercise is available that  must be  taken to be very limited and made applicable  to  excep- tional situations. Unless the tenant is able to satisfy  the Controller  that  he had no opportunity at all to  know  the facts  earlier and had come to be aware of them  only  then, should such an objection be entertained. [725E-H]     2.3. In the facts and circumstances of the present  case the  belated objections of the tenant should not  have  been entertained  and prayer for possession made by the  landlady after the limited tenancy ran out should have been  granted. [726A]     S.B. Noronah v. Prem Kumari Khanna, [1980] 1 S.C.R. 281; J.R. Vohra v. India Export House Pvt. Ltd. & Anr., [1985]  2 SCR  899; Inder Mohan Lal v. Ramesh Khanna, [1987] 4  SCC  1 and  Shiv Chander Kapoor v. Amar Bose, JT 1989 (4)  SC  471, referred to.     [This  Court  directed  that the landlady  be  put  into possession of the premises by 31st March, 1990.]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1319  of 1990. 717     From the Judgment and Order dated 7.9.1987 of Delhi High Court in S.A.O. No. 99/1987. Dr. L.M. Singhvi and Dalveer Bhandari for the Appellant. Dr. Y.S. Chitale and A.K. Sangal for the Respondent. The Judgment of the Court was delivered by RANGANATH MISRA, J. Special Leave granted.     This is an appeal by the landlady whose application  for being  put in possession of the premises on the expiry of  a limited  tenancy of two years under section 21 of the  Delhi Rent Control Act (hereinafter referred to as ’the Act’)  has been  dismissed  by the Rent Controller,  the  Rent  Control Tribunal and the High Court.     On 30th September, 1976, the appellant-landlady and  the respondent-tenant appeared before Shri M.A. Khan, Additional Rent Controller for creation of a tenancy under s. 21 of the Act. The Additional Rent Controller recorded the  statements

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of both the landlady and the prospective tenant and made the following order: "Having  regard to the facts stated in the petition and  the statement of the parties made above permission under section 21 of the Delhi Rent Control Act is granted to Yamuna  Maloo applicant  to  let  out ground floor  of  her  premises  No. B--2/104,  Safderjung--Enclave,  New  Delhi  comprising   of drawing  cum dining hall, two bed rooms with  attached  bath room, kitchen, parking place and a small’ lawn delineated in the enclosed plan Ex. AI, to Mr.Anand Swarup respondent  for residential purposes for a limited period of two years  with effect from 1.10.76."     After  the expiry of the two year period, when  the  re- spondent did not vacate the premises, the landlady moved the Rent  controller  for issuance of warrant of  possession  to which  the tenant filed his objection. The  Additional  Rent Controller  entertained  the  objection  and  dismissed  the landlady’s  petition  for being put into  possession.  There upon the landlady moved the Rent Control Tribunal in  appeal and  when  she failed before it, a second appeal  was  filed before the High Court which was dismissed in limine. 718   The  Controller relied upon the judgment of this Court  in S.B.Noronah v.Prem Kumari Khanna[1980] 1 SCR 281 and came to hold:          "I have carefully gone through the execution appli- cation, the objections, the evidence on record, the original file in which the permission was granted and have heard  the learned counsel for parties. I am of the view that the order dated 30.9.75 granting permission was not in accordance with law  and  that the applicant/petitioner is not  entitled  to obtain  possession of the premises in dispute under  section 21 of the Delhi Rent Control Act." Noronah’s case had stated:          "Of course, there will be presumption in favour  of the  sanction being regular, but it will Still be open to  a party  to  make out his case that in fact and in  truth  the conditions  which  make  for  a  valid  sanction  were   not present."     It  is interesting to note that by the time  the  appel- lant’s appeal came up for hearing before the Tribunal,  Shri M.A. Khan who as an Additional Rent Controller had  approved the  tenancy  by his order dated 30th  September,  1976,  on being  judicially satisfied that the tenancy under s. 21  of the Act could be created had become the Rent Control  Tribu- nal. He noticed this fact in his appellate order dated  11th April, 1986, by stating "In this appeal, the validity and executability of the order dr. 30.9.76 is disputed which was passed by me as Addl. Rent Controller.  Since there is no other Rent Control  Tribunal, therefore, in exigency of the situation I have no option but to proceed to decide this appeal." He concluded "The  appellant in the application and in her statement  did not  give  the reason for letting out the premises  for  two years only. She even did not give the reason in  application for  recovery or’ possession. In reply to the  objection  of the  respondent, she states that she was residing in  Vasant Vihar  at a house which was allotted to her husband  by  the employer. There was no possibility of her vacating the said 719 house and shifting to the disputed premises. The first floor of the disputed premises was also let out by her to  another tenant  for a limited period. She did not disclose that  she intended to create a limited tenancy in respect of the first

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floor  also. Further the premises were let after  an  adver- tisement  of ’to let’ in Hindustan Times dt. 25.9.76. It  is conceded that in the advertisement it was not specified that the premises were available for letting for two years  only. All  these facts proved that the appellant did  not  require the  premises for occupation after two years and that  these premises  could have been let out for an indefinite  period. She  made a wrong statement before the court. She also  con- cealed  the material facts from the court. She obtained  the permission from the court under section 21 by playing fraud. The order  passed under section 21 is therefore invalid  and in execution thereof, the respondent cannot be evicted."      We  have already said that the second appeal  was  dis- missed in limine.      Lengthy  arguments  were  advanced at  the  hearing  in support of the respective stands.      Counsel  for  the landlady argued that  the  Additional Rent Controller should not have entertained the objection of the  tenant  to the execution of the eviction order  as  the same had not been filed during the currency of the  tenancy; it was further argued that some of the considerations  which weighed with the Rent Control Tribunal were )  not at all relevant for judging the bona fides and  genu- ineness of actions taken on 30th of September, 1976, at  the time of creation of the tenancy. On the/side of the  tenant, the contentions which had prevailed with the’Additional Rent Controller and the Rent Control Tribunal were reiterated.      Section  14 of the Act deals with a normal tenancy  and protects  the tenant against unreasonable eviction.  Section 21 of the Act, on the other hand, places tile tenant outside the  purview of s. 14 and provides for an order of  eviction at  the time of creation of the tenancy. There is a  purpose behind enacting s. 21 of the Act. The Legislature considered it appropriate that should a landlord not need his  residen- tial  premises  for a period, instead of  keeping  the  same vacant  the  same could be available for a tenant’s  use  on being let out for a limited period condi- 720 tional upon the tenant’s surrendering possession as soon  as the tenancy terminates by efflux of time and the need of the landlord revives. The conditions to be fulfilled at the time of  creation  of such a tenancy are three, namely,  (i)  the landlord  would  not require the premises for  a  particular period,  (ii)  the Controller must be satisfied  about  that position,  and (iii) the tenant agrees to vacate at the  end of the period. In  Noronah’s  case supra two-Judge Bench  dealt  with  this question. This Court then said. "We must notice that section 21 runs counter to the  general scheme  and, therefore, must be restricted severely  to  its narrow  sphere.  Secondly,  we must place  accent  on  every condition which attracts the section and if any one of  them is  absent the section cannot apply and,  therefore,  cannot arm the landlord with a resistless eviction process.  Third- ly, we must realise that the whole effect of section 14  can be subverted by ritualistic enforcement of the conditions of sanction  under section 21 or mechanical grant  of  sanction therein.  Section 21 overrides section 14 precisely  because it  is  otherwise  hedged in with  drastic  limitations  and safeguards itself against landlords’ abuses.     It  is  true that the judgment of this  Court  which  is dated  August 16, 1979, was not in existence when  Sri  Khan sanctioned  the  tenancy but the law then in force  was  not different.  In  fact, the orders out of  which  that  appeal arose  had  also taken the same view. This  Court  Noronah’s

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case further said: "When an application under section 21 is filed by the  land- lord  and/or tenant, the Controller must satisfy himself  by such  inquiry as he may make, about the compulsive  require- ments  of that provision. If he makes a mindless order,  the Court,  when  challenged at the time of execution,  will  go into  the  question as to whether the  twin  conditions  for sanction have really been fulfilled."     A three-Judge Bench of this Court in J.R. Vohra v. India Export House Pvt. Ltd. & Anr., [1985] 2 SCR 899 was  examin- ing  the  requirement of notice to the tenant  when  at  the expiry of the period of tenancy the landlord had applied for being  put in possession. While so examining  that  question this Court approved the following observations in  Noronah’s case: 721 "Parliament was presumably keen on maximising  accommodation available  for letting, realising the scarcity  crises.  One source  of such spare accommodation which is usually shy  is potentially vacant building or part thereof which the  land- lord  is able to let out for a strictly limited period  pro- vided  he has some credible assurance that when he needs  he will get it back. If an officer is going on other assignment for a particular period, or the owner has official  quarters so  that he can let out if he is confident that on  his  re- tirement  he will be able to re-occupy,  such  accommodation may  add  to the total lease-worthy houses. The  problem  is felt  most for residential uses. But no one will  part  with possession because the lessee will become a statutory tenant and, even if bona fide requirement is made out, the  litiga- tive  tiers are so many and the law’s delays so  tantalising that  no realist in his sense will trust the sweet  promises of  a  tenant  that he will return the  building  after  the stipulated  period.  So the law has to make  itself  credit- worthy.  The long distance between institution  of  recovery proceedings  and  actual  dispossession runs  often  into  a decade  or more--a factor of despair which can  be  obviated only by a special procedure.          Section 21 is the answer. The law seeks to persuade the owner of premises available for letting for a particular or  limited period by giving him the special assurance  that at the expiry of that period the appointed agency will place the landlord in vacant possession." Noronah’s judgment was approved to this extent. In the three succeeding  paragraphs in Vohra’s decision.  Noronah’s  case was  also referred to. Dealing with the  contentions  relied upon  in Noronah’s case, Tulzapurkar, J. who  delivered  the judgment of the Court, observed: "At  the outset we would like to observe that  in  Noronah’s case  the question whether a prior notice is required to  be served upon the tenant before issuance of warrant of posses- sion  in  favour of the landlord under section  21  did  not arise for consideration. It was a case where upon receipt of landlord’s application for recovery of possession under  the section  the tenant raised pleas that the premises had  been let  out for non-residential purposes and that the  sanction or permission granted for the creation of the limited tenan- cy was vitiated by fraud and collusion and the question that 722 arose  for consideration was whether at that stage the  Rent Controller  could go into and consider such pleas  and  this court  has ruled that the Controller should  consider  those pleas even when raised at that stage." A little later Justice Tulzapurkar further observed: "In fact even in Noronah’s case this Court has observed,that

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there  will  be a presumption in favour of the  sanction  or permission  being  regular  and if that be so,  we  fail  to appreciate as to why the Rent Controller should invite  such pleas of fraud, collusion etc. at the instance of the tenant by being required to serve a notice upon him before  issuing the  warrant of possession in favour of the  landlord  espe- cially when the scheme of sec. 21 and the connected relevant provisions do not require it."     The  three-Judge Bench thereafter went to  consider  the remedy  available to the tenant in a case where  the  objec- tions were as in the present case: "What  then is the remedy available to the tenant in a  case where there was in fact a mere ritualistic observance of the procedure  while granting permission for the creation  of  a limited  tenancy  or where such permission was  procured  by fraud practised by the landlord or was a result of collusion between  the  strong and the weak? Must the tenant  in  such cases  be  unceremoniously evicted without  his  plea  being inquired  into? The answer is obviously in the negative.  At the same time must he be permitted to protract the  delivery of  possession of the leased premises to the landlord  on  a false plea of fraud or collusion or that there was a mechan- ical grant of permission and thus defeat the very subject of the special procedure provided for the benefit of the  land- lord  in section 217 The answer must again be in  the  nega- tive. In our view these two competing claims must be  harmo- nised and the solution lies not in insisting upon service of a  prior  notice on the tenant before the  issuance  of  the warrant of possession to evict him but by insisting upon his approach  the  Rent Controller during the  currency  of  the limited  tenancy for adjudication of his pleas no sooner  he discovers  facts and circumstances that tend to  vitiate  ab initio the initial grant of permission. Either it is a 723 mechancial  grant of permission or it is procured  by  fraud practised  by the landlord or it is the result of  collusion between two unequals but in each case there is no reason for the  tenant to wait till the landlord makes his  application for  recovery  of possession after the expiry of  the  fixed period  under section 21 but there is every reason  why  the tenant  should make an immediate approach to the  Rent  Con- troller to have his pleas adjudicated by him as soon facts  and circumstances giving rise to such pleas  come  to knowledge  or are discovered by him with the diligence.  The special  procedure provided for the benefit of the  landlord in  section 21 warrants such immediate approach on the  part of the tenant."     What  followed thereafter perhaps is more in the  nature of an obiter than a part of the decision proper, namely: "Of course if the tenant alliunde comes to know about  land- lord’s application for recovery of possession and puts forth his  plea of fraud or collusion etc. at that stage the  Rent Controller  would inquire into such plea but he may run  the risk of getting it rejected as an afterthought."     It  may be pointed out that in Vohra’s case  the  objec- tions on the ground of fraud and collusion were raised after the  claim by the landlord for being put in  possession  but were rejected as belated. The question that came for consid- eration before the three-Judge Bench was whether notice  was necessary when the landlord applied to be put in  possession after  the termination of the tenancy. In that context,  the observation that tenant’s objections could be enquired  into if  the tenant aliunde came to know of the  landlord’s  move and objected was not relevant for the decision.     There  are  certain observations in Inder Mohan  Lal  v.

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Ramesh Khanna, [1987] 4 SCC 1 which are relevant: "An  analysis  of this judgment (Noronah’s case)  which  has been  applied in the various cases would indicate that  sec- tion  21 only gives sanction if the landlord makes a  state- ment to the satisfaction of the court and the tenant accepts that the landlord does not require the premises for a limit- ed period; this statement of the landlord must be bona fide. The purpose must be residence. There must not be 724 any fraud or collusion. There is a presumption of  regulari- ty. But it is open in particular facts and circumstances  of the case to prove to the satisfaction of the executing court that there was no collusion or conspiracy between the  land- lord  and the tenant and the landlord did not mean  what  he said  or that it was a fraud or that the tenant  agreed  be- cause the tenant was wholly unequal to the landlord. In  the instant case none of these conditions were fulfilled.  There is  no evidence in this case that when the  landlord  stated that  he  did  not require the premises in  question  for  a particular period, he did not mean what he stated or that he made  a false statement. There was no evidence in this  case at  any  stage that the tenant did not understand  what  the landlord  was  stating or that he did not  accept  what  the landlord  stated.  There  was no evidence  that  either  the tenant  was in collusion or perpetrating any fraud with  the landlord  or the tenant was unequal to the landlord in  bar- gaining powers. It is manifest that there is no evidence  to show that the Controller did not apply his mind. If that  is so  then on the principle enunciated by this Court in  Noro- nah’s  case, this sanction cannot be challenged. It  is  not necessary  to  state under section 21 the  reasons  why  the landlord  did not require the premises in question  for  any particular period. Nor is there any presumption that in  all cases  the tenants are the weaker sections. The  presumption is,  on  the contrary, in favour of sanction, it is  he  who challenges  the statement and the admission of the  landlord or  the  tenant who has to establish facts as  indicated  in Nagindas case."     In paragraph 22 of the judgment Mukharji, J. (as he then was)  speaking  for the Court held out a  caution  that  the residue must be understood in its proper perspective. We may point out that the respondent apart from being highly quali- fied  held the position of a Deputy Secretary to  Government and,  therefore, was not a tenant of the type  in  Noronah’s case. As has been stated in Inder Mohan Lal’s case, the rule in Noronah’s case has to be confined to a particular set  of facts  and should not be freely extended so as to take  away the effect of s. 21. Fraud is an allegation which can easily be  made but unless the allegations are clearly pleaded  and some  evidence, either direct or circumstantial,  is  avail- able, a charge of fraud would not succeed.     We  may refer to another judgment of this Court  in  the case  of Shiv Chander Kapoor. v. Amar Bose, JT (1989)  4  SC 471 where the 725 validity  of the permission under s. 21 of the Act  came  up for  consideration. Noronah’s case was also referred to.  In paragraph  15  of the judgment this Court pointed  out  that there   is   nothing  in  this  decision  to   support   the respondent-tenant’s contention in that appeal that the scope of  enquiry is wider permitting determination of  the  land- lord’s  bona fide need of the premises as if such  a  ground for  eviction specified in s. 14 of the Act was required  to be proved. Extending the enquiry to that field would  indeed be  against the express prohibition enacted in s. 21 of  the

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Act.  Referring to Vohra’s case, the latest  judgment  indi- cates: "It  is obvious from the decision in J.R. Vohra’s case  that the tenant is expected to raise such a plea during  currency of  the limited tenancy and on such a plea being  raised  by the  tenant enquiry into it is contemplated. Even though  it is  not expressly said in Vohra’s case, it is implicit  that on  such an application being made by the  tenant  requiting adjudication  by  the  Controller, it  is  the  Controller’s obligation  to issue notice of the same to the landlord  and then to make the adjudication with opportunity to both sides to prove their respective contentions.     Both  in Vohra’s case and in Shiv Chander Kapoor’s  case though not arising for determination in either, it has  been stated  while laying down the rule that proceeding to  chal- lenge limited tenancy has to be taken during the cunency  of the  tenancy,  an  objection filed by the  tenant  could  be looked  into is indeed an obiter. We would like to  make  it clear  that the rule having been stated to the  contrary  in Vohra’s  case, there was indeed no warrant to  indicate  the contra  situation.  Perhaps to meet  the  eventuality  which might arise in a particular case, neither of the two Benches of this Court wanted to close the avenue of enquiry totally, and  that  is why in both the cases  decided  by  coordinate Benches  the exception has also been indicated. It  must  be understood  on the authority of the said two  decisions  and our  judgment now that if the tenant has objection to  raise to  the  validity of the limited tenancy it has to  be  done prior to the lapse of the lease and not as a defence to  the landlord’s  application  for being put into  possession.  We would  like  to reiterate that even if such an  exercise  is available  that  must be taken to be very limited  and  made applicable  to exceptional situations. Unless the tenant  is able to satisfy the Controller that he had no opportunity at all  to know the facts earlier and had come to be  aware  of them only then, should such an objection be entertained. 726     On  the application of those tests to the present  facts we  must  hold  that the belated objections  of  the  tenant should  not have been entertained and prayer for  possession made  by  the  landlady after the limited  tenancy  ran  out should have been granted.     The appeal is allowed; the decisions of the  Controller, Rent  Control Tribunal and the High Court are  reversed  and the  landlady is directed to be put into possession  of  the premises  by  31st of March, 1990. The  appellant  would  be entitled to her costs in the proceedings throughout. Hearing fee is assessed at Rs.2,000. G.N.                                            Appeal   al- lowed. 727