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1971 DIGILAW 292 (DEL)

RAM DAS T. CHUGANI v. WAZIR CHAND NARANG

1971-10-25

V.S.DESHPANDE

body1971
V. S. DESHPANDE ( 1 ) A tenant is protected in varying degrees from eviction by three principal enactments, namely, (1) the Transfer of Property Act, 1882, (2) The Displaced Persons (Compensation and Rehabilitation) Act, 1954 and (3) the Delhi Rent Control Act, 1958 and similar legislation in other States. The question before us is whether these Acts can be construed harmoniously so that all of them can apply to a given situation or whether any oil them is repugnant to the other and is repealed by implication to the extent of the repugnancy. ( 2 ) THE appellant is the purchaser of a house in Azadpur, Delhi, from the compensation pool under Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. By virtue of the sale certificate he obtained title to the house with effect from 22-2-1964. The respondent was in occupation of the house from before the purchase and was thus entitled to the benefit of Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 which absolutely protected him from eviction for a period of two years from the date on which the appellant obtained title to the house. The proviso to Section 29 (1) lays down certain exceptions to the absolute protection given to the respondent by the principal part of Section 29 (1) so that if the respondent had committed any of the acts specified in. the provisos then the appellant would have been able to evict the respondent even within the period of two years from the date of the acquisition of title to the house by him. The Delhi Rent Control Act, 1958 is also applicable to the area in which this house is situated. the provisos then the appellant would have been able to evict the respondent even within the period of two years from the date of the acquisition of title to the house by him. The Delhi Rent Control Act, 1958 is also applicable to the area in which this house is situated. ( 3 ) THE appellant filed a petition for the eviction of the respondent before the Controller under the Delhi Rent Control Act, 1958 even before the expiry of two years from the date of the acquisition of title to the house on the sole ground that the respondent was protected against eviction only for the period of two years by the principal part of Section 29 (1) and that this period of two years would expire during the pendency of the eviction so that after the expiry of this period of two years an order for eviction can be passed against the respondent by the Controller on the sole ground that the respondent was bound to vacate the premises on the expiry of two years if the appellant so desired. ( 4 ) THE petition was dismissed by the Controller because it did not allege any ground for the eviction of the respondent on which a tenant could be evicted by the Controller either under the provisions to Section 29 (1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, or under the provisions to Section 14 (1) of the Delhi Rent Control Act, 1958. The Rent Control Tribunal dismissed the first appeal of the appellant and he has, therefore, filed this second appeal under Section 39 of the Delhi Rent Control Act, 1958. ( 5 ) THE questions for decision in this appeal are as follows: (1) Whether compliance with Section 106 of the Transfer of Property Act which required termination of the tenancy by a notice to quit was necessary before the appellant could file the petition for eviction? (2) Whether Section 14 (1) of the Delhi Rent Control Act, 1958 protected the respondent from eviction even after the expiry of two years from the acquisition of tide to the house by the appellant? and (3) Whether the appeal is also barred by limitation? ( 6 ) QUESTION NO. (2) Whether Section 14 (1) of the Delhi Rent Control Act, 1958 protected the respondent from eviction even after the expiry of two years from the acquisition of tide to the house by the appellant? and (3) Whether the appeal is also barred by limitation? ( 6 ) QUESTION NO. 1 : We have already held in Battoo Mal v. Rameshwar Nath, ILR (1970) 1 Delhi 748 = (AIR 1971 Delhi 98), after reviewing the case-law that the Rent Control Act does not impliedly repeal the provisions of Section 106 of the Transfer of Property Act and that the termination of the contractual tenancy is necessary before a petition for eviction can be filed under the Delhi Rent Control Act 1958. At the same time, we also held that the tenant is bound to raise the defence of the landlord s failure to comply with the provisions of Section 106 of the Transfer of Property Act in the trial Court and if he does not do so then he is estopped from raising it even in the first appeal much more so in the second appeal. As a question of law, it is clear to us that the respondent as the occupant of the house from before its purchase by the appellant became a tenant by virtue of Section 29 (1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. In Abdul Ghafoor v. Asa Ram, 1971 Ren CR 561, after a full consideration it was held by me that the person who becomes a tenant under Section 29 is in the same position as a person who becomes a tenant by an ordinary contract of tenancy and, therefore, in either case the termination of the tenancy by notice to quit is necessary. In the present case, however, this plea is not open to the tenant as he failed to take it in both the Courts below. The appellant is not, therefore, barred by this defence from seeking the remedy of eviction. ( 7 ) QUESTION NO. 2 : Both Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and Section 14 (1) of the Delhi Rent Control Act, 1958 are provisions containing the words "notwithstanding anything contained in any other law". The appellant is not, therefore, barred by this defence from seeking the remedy of eviction. ( 7 ) QUESTION NO. 2 : Both Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and Section 14 (1) of the Delhi Rent Control Act, 1958 are provisions containing the words "notwithstanding anything contained in any other law". The significance of thesewords is that if any other law conflicts with these provisions then these provisions would prevail against the conflicting law and in a proper case the conflicting law would be impliedly repealed. It is trite saying, however, that an implied repeal is not to be easily inferred. The duty of the Court is to put the two enactments side by side and attempt to apply them both to a given situation unless it finds that both of them cannot apply to a particular set of facts and that one isirreconcilable with the other. The question is whether there is any such repugnancy between these two provisions. On a careful study of both, I find that both of them are reconcilable with each other and none of them impliedly repeals the whole or any part of the other. The effect of the principal part of Section 29 (1) is that subject to the three exceptions in the proviso thereto a tenant is absolutely protected from eviction for the first two years. This means that even if some cause of action in favour of the landlord were to arise under the Delhi Rent Control Act, 1958 against the tenant for eviction within the first two years from the date of the acquisition of the title to the house by the landlord, then the landlord cannot file a petition for eviction on such a cause of action against the tenant because the tenant is absolutely protected from eviction by the principal part of Section 15 (1 ). It would be seen, however, that the grounds of eviction listed in the provisos to Section 29 (1) are analogous to the provisions of provisos (a), (b) and (j) to Section 14 (1) of the Delhi Rent Control Act, 1958 so that the landlord would be able to file a petition for eviction against the tenant if the default of the tenant was covered by these provisions. These causes of action are open to the landlord even during the first two years of the tenancy. These causes of action are open to the landlord even during the first two years of the tenancy. But the landlord is not entitled to bring a petition for the eviction of tenant on any other ground during the first two years. The effect in law is not that the other provisos of Section 14 (1) of the Delhi Rent Control Act, 1958 are impliedly repealed by Section 29 (1) of the Displaced Persons (Compensation and Rehabilitation) Act but rather that Section 29 (1) prevails over them for the first two years of the tenancy. (Harishankar Bagla v. State of Madhya Pradesh, AIR 1954 SC 465 ). For the same reason, the landlord cannot even try to evict a tenant by terminating his contractual tenancy under Section 106 of the Transfer of Property Act within these first two years because the provisions of Section 29 (1) prevail over the provisions of Section 106 of the Transfer of Property Act. ( 8 ) IN Ram Narain v. Simla Banking and Industrial Co. Ltd. , AIR 1956 SC 614 , the Supreme Court had occasion to examine the provisions of the Banking Companies Act, 1949 and the Displaced Persons (Debts Adjustment) Act, 1951 both of which contained the overriding provisions "notwithstanding anything contained in any other law". In that case, conflict to a certain extent could not be avoided and the implied repeal was given effect to. But in the present case, there is no such unavoidable conflict and the provisions of both the enactments can and have to be given effect to. ( 9 ) FIRSTLY, the appellant has filed this petition for the eviction of the respondent before the Controller thereby conceding that the respondent is his tenant. Secondly, he has also by. his conduct conceded that the jurisdiction to evict the respondent is in the Controller and not in the civil Court. This is obvious because the power of eviction of a tenant by the landlord in an area subject to the Rent Control Act, 1958 is exclusively vested in the Controller by Section 50 (1) of the Delhi Bent Control Act, 1958 and the jurisdiction of the civil Court is excluded. This is obvious because the power of eviction of a tenant by the landlord in an area subject to the Rent Control Act, 1958 is exclusively vested in the Controller by Section 50 (1) of the Delhi Bent Control Act, 1958 and the jurisdiction of the civil Court is excluded. At the same time the rule laid down in Section 14 (1) is that notwithstanding any other law or contract to the contrary, no order or decree for recovery of possession of any premises shall be made by the Controller in favour of the landlord against a tenant. The only exceptions to this rule are those listed in the various provisos to Section 14 (1 ). As pointed out above it is only the application of some of these provisos which has been held in abeyance for the first two years of tenancy by Section 29 (1 ). Thereafter the provisions of the Delhi Rent Control Act, 1958 are bound to apply and protect the tenant against the landlord. It is a contradiction in terms for the appellant to file a petition against his tenant under the Delhi Rent Control Act, 1958 before the Controller and yet to take a stand that he is entitled to evict the tenant simply on the ground that the period of two years for which the tenant was absolutely protected from eviction has expired. Unfortunately, the landlord sees the situation wrongly. The correct way to look at it is this: The protection given by Section 29 (1) is an absolute minimum. It does not mean that it is the only protection given to the tenant by law. The other protection given by Section 106 of the Transfer of Property Act and by Section 14 (1) of the Delhi Rent Control Act, 1958 is in addition to the protection given by Section 29 (1 ). It does not mean that it is the only protection given to the tenant by law. The other protection given by Section 106 of the Transfer of Property Act and by Section 14 (1) of the Delhi Rent Control Act, 1958 is in addition to the protection given by Section 29 (1 ). The view which was expressed in Sardha Ram v. Paras Ram, 63 Pun LB 716 = (AIR 1962 Pandh 147) that the Displaced Persons (Compensation and Rehabilitation) Act, 1954 was a special Act which did not necessitate the consideration of Rent Control legislation was not approved by a Division Bench of the same Court in Gobind Ram v. Takhat Mal Kanungo, 1962-64 Pun LB 969, in which it was pointed out that the protection of the Rent Control Act, 1958 had to be given to the tenant after the expiry of the absolute protection given by Section 29 (1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The only qualification to the ratio of this decision which I have already submitted with respect is that the exceptions to Section 29 (1) are also correspondingly embodied in provisos (a), (b) and (j) to Section 14 (1) which merely shows how both the enactments are harmonious in their object and provisions. The decision in Harbans Singh v. Sohan Singh, 1962-64 Pun LR 834, is subject to the same criticism as the previous decision inSardha Ram v. Paras Ram, referred to above. ( 10 ) LEARNED counsel for the appellant also relies on B. K. Pradhan v. Kalawati Devi, AIR 1968 Madh Pra 175 to show that an eviction petition could be filed by him even before the expiry of two years from the date of the acquisition of title to the premises provided that the order of eviction was passed after two years. It is not necessary to decide this point inasmuch as the appeal fails mainly on the ground that the petition for eviction cannot be filed whether under Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 or under Section 14 of the Delhi Rent Control Act, 1958 unless and until a cause of action arises in favour of the landlord and is pleaded and proved by him. The mere expiry of two years is not a cause of action. It was only the minimuprotection given to the tenant. The mere expiry of two years is not a cause of action. It was only the minimuprotection given to the tenant. The expiry of it does not mean that the rest of the protection is not there. ( 11 ) LEARNED counsel for the appellant further relies on sub-section (2) of Section 29 which enables the Government to prescribe the classes of persons and properties to which the protection under Section 29 (1) is to be applied. In doing so, the Government has to take into consideration the availability of suitable residential accommodation and the difficulty of obtaining alternative accommodation along with certain other factors. Learned counsel says that these are the same considerations which also are taken into account by the Government before applying Rent Control legislation to any particular area. He, therefore, argues that the Legislature could not have intended that Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act should further be subject to the Rent Control legislation in the State. The answer to this argument is obvious. The Displaced Persons (Compensation and Rehabilitation) Act, 1954 applies to the whole of India. Many of the houses governed by it are situated in small towns, rural areas, etc. , where Rent Control legislation has not been made applicable. It is this reason which necessitated the enactment of Section 29 (1 ). Had the Rent Control legislation been universally applicable to all the areas in India then perhaps Section 29 would not have been enacted. Therefore, the enactment of Section 29 (1) does not mean that it either supersedes the Rent Control legislation or that it is a self-contained code which is applicable without taking into account the Rent Control legislation. ( 12 ) QUESTION NO. 3 : The order of the Rent Control Tribunal was passed on 24-11-1966. The second appeal was filed without a certified copy of the order appealed against on 6-2-1967. It was, therefore, admitted on 24-4-1967 when the said copy was filed. The copy was applied for on 29-11-1966 and was ready for delivery on 80-12-1966. Even, therefore, if the time spent in obtaining the certified copy of the order appealed against is excluded from computation for the purpose of period of limitation, there is no explanation why the memorandum of appeal accompanied with the certified copy of the order appealed against was not filed within limitation. Even, therefore, if the time spent in obtaining the certified copy of the order appealed against is excluded from computation for the purpose of period of limitation, there is no explanation why the memorandum of appeal accompanied with the certified copy of the order appealed against was not filed within limitation. The appeal is thus also barred by limitation. ( 13 ) AS the appellant had not made out any cause of action against the tenant either under the provisos to Section 29 (1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 or under the provisos to Section 14 (1) of the Delhi Bent Control Act, 1958, the appeal is dismissed but without any order as to costs.