S. P. Jain v. Krishna Mohan Gupta — 1986 DIGILAW 620 (SC)

Judgment SABYASACHI MUKHARJI, J.:- In the administration of justice process often makes a mockery of the purpose. This appeal is an example of the same. 2. This appeal by special leave arises out of the judgment and order of the High Court of Allahabad dated 26th September, 1984. The question involved in this appeal is whether the appellant is entitled to take advantage of the procedure under S. 24-C, U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, as amended from time to time (hereinafter called the said Act) in respect of the first-floor of House No. 217-218 Machhli Bazar, Sadar, Meerut Cantonment, of which the appellant is the owner and the landlord. The first-floor of the said building was in the tenancy of respondent 1 on a monthly rent of Rs. 60/-. The appellant was at the relevant time posted as Superintendent, Military Farm, Meerut Contonment. In that capacity he was allotted Government quarter No. 47 belonging to the Union of India. On 8th November, 1979 he was given a notice to vacate the Government quarter by the Deputy Assistant Director intimating that since the appellant had his own house at Meerut Cantonment, he should vacate the government quarter allotted to him by the order dated 8th August, 1979. In view of that the appellant moved an application under S. 24-C of the said Act. It is the case of the appellant that he owns no other house except the one involved in the present appeal. Section 24-B(l) of the said Act which gives the right to move under S. 24-C of the said Act provides as follows : "S. 24-B . It is the case of the appellant that he owns no other house except the one involved in the present appeal. Section 24-B(l) of the said Act which gives the right to move under S. 24-C of the said Act provides as follows : "S. 24-B . (1) : Where a landlord who, being a person in occupation of any residential public building is required, by, or in pursuance of, any general or special order made by the Government or other authority concerned, to vacate such building, or in default, to incur certain obligations, on the ground that he owns, in the same city, municipality, notified area or town area, a residential building either in his own name or in the name of any member of his family, there shall accrue, on and from the date of such order, to such landlord, a right to recover immediately possession of any building let out by him : Provided that nothing in this section shall be construed as conferring a right on a landlord owning, in the same city, municipality, notified area or town area, two or more dwelling houses, whether in his own name or in the name of any member of his family, to recover the possession of more than one dwelling house and it shall be lawful for such landlord to indicate the dwelling house, possession of which he intends to recover." 3. In this appeal we are not concerned with other sub-sections and other provisos of the said section. 4. The said application was contested by the tenant on number of grounds including the ground that the accommodation in the possession of the appellant was sufficient to accommodate his family members. By an order dated 17th August, 1981, the application of the appellant was allowed by the Delegated Authority. He held that the appellant was in the government service and he was due to retire on 30th June, 1980 and he had moved an application under the provisions of S. 24B for getting his house vacated and getting possession of the same. It was further held by him that in this house there was a joint latrine which created difficulty for the appellant. Therefore the appellant had prayed that the possession of the first-floor of the house in dispute should be delivered to him at an early date. It was further held by him that in this house there was a joint latrine which created difficulty for the appellant. Therefore the appellant had prayed that the possession of the first-floor of the house in dispute should be delivered to him at an early date. On this, notice having been given to the respondent, he stated in his counter that the application was not maintainable and had further contended that the present proceedings under S. 24-C of the Act could not be taken, according to him, because the appellant did not need any residential accommodation whereas the tenant-objector and respondent in this case was a poor man and had no other house. 5. It was contended before the Delegated Authority that the applicant-landlord had two residential houses one in which the appellant-landlord was living and the other in which the respondent/tenant-objector was living. It was the submission of the respondent-tenant that the appellant-landlord was in possession of residential accommodation and as such had no right to get another residential accommodation vacated from the tenant. The Delegated Authority observed as follows : "It is admitted by both the parties that the entire house is one and in its first-floor tenant is living and the ground-floor is in possession of the landlord. Both the portions of the house are parts of one house and therefore there is no question of accepting it as a separate residential unit particularly when the tenant objector has himself in his own affidavit and objections stated that the bath-room and the latrine is on the ground-floor, i.e., it is situated in the portion of the landlord." 6. It may be stated that respondent-tenant had filed an affidavit showing his need. The Delegated Authority who was the Addl. District Magistrate held by his order dated 17th August, 1981 that the application of the appellant should be allowed and there should be an order for eviction. There was an appeal from the said order before the Additional District Judge. He, in his order, set out the facts referred to hereinbefore. He also referred to a report dated 11th December, 1979 by the Inspector who supported the appellants case. There was an appeal from the said order before the Additional District Judge. He, in his order, set out the facts referred to hereinbefore. He also referred to a report dated 11th December, 1979 by the Inspector who supported the appellants case. Before the appellate authority two points were urged namely, that the application was not maintainable under S. 24-B or under S. 24-C of the said Act, and secondly that the accommodation in the occupation of the landlord was sufficient for his need. The tenant-respondent contended before the learned District Judge mat as the landlord was already in occupation of the ground floor of the house in question, he was not entitled to move an application under the relevant sections. Reliance was placed on the definition of building and the interpretation of the dwelling house. It was contended on behalf of the landlord that the building as a whole had to be considered and not in part. The Delegated Authority was unable to accept the contention urged on behalf of the tenant and held that the building meant a single structure and might be in occupation of more than one person. It has also been held that the house having a common courtyard and a common entrance would be a single house and a landlord should not be forced to live with an outsider or with a person with whom he had no happy relations. The Appellate Authority held that the building in question was just on the head of the portion of the ground-floor in occupation of the landlord. The tenant had to pass daily from the courtyard on the ground-floor in order to attend the call of nature. 7. It was contended that no eviction of the landlord from the premises in his occupation had taken place but merely action had been indicated. Therefore, recourse to S. 24-B and S. 24-C of the Act was unwarranted. The learned District Judge was unable to accept those contentions. He accordingly dismissed the revision application. 8. An application was moved under Art. 226 of the Constitution before the High Court and the High Court by the impugned judgment and order has set aside the order of eviction. It held that the building was situated within the Contonment of Meerut. The learned District Judge was unable to accept those contentions. He accordingly dismissed the revision application. 8. An application was moved under Art. 226 of the Constitution before the High Court and the High Court by the impugned judgment and order has set aside the order of eviction. It held that the building was situated within the Contonment of Meerut. The U.P. Act No. 28 of 1976 added Chapter IV- A as to the question whether this Act would apply to buildings constructed and situated within the contonment limit, it was observed that by the notification issued in exercise of the powers conferred by S. 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957, the Central Government had extended to all the cantonments in Uttar Pradesh the provisions of the present Act in question as in force on the date of notification, and as a result of the issuance of the said notification. Chap. IV-A became applicable to the building in question, according to the High Court. It was, however, urged before the High Court on behalf of the respondent that Chapt. IV-A had been applied to the Cantonment areas on a subsequent date, i.e. 27th February, 1982, the Act being not applicable to the accommodation in question in November, 1979 when the application under S. 24-B of the Act was filed by the respondent and as such the same was liable to be dismissed. It was, however, conceded by respondent that the revision order had been passed by the Additional District Judge on 27th April, 1983. It was therefore submitted that the proper course in the circumstances of the instant case would have been to send back the case for fresh decision. Reliance had been placed by the appellant on the decision in the case of Jai Singh Jairam Tyagi, v. Mamanchand Ratilal Agarwal, (1980) 3 SCR 224 : ( AIR 1980 SC 1201 ). However, as the learned judge felt that on the second point the respondent was entitled to succeed, he did not decide this point taken in the writ petition by the respondent. The second point urged before the learned judge was that as the appellant landlord was living on the ground-floor of the said house, the application under S. 24-B was not maintainable. The second point urged before the learned judge was that as the appellant landlord was living on the ground-floor of the said house, the application under S. 24-B was not maintainable. The learned judge found that the central idea of conferring the power on such a landlord to recover immediately possession was that he was being evicted from his government quarter for residence. The learned judge observed that the legislature did not want to leave such a person at the mercy of the laws delay. Such a landlord was a class by himself and was entitled to take summary proceedings. His case had to be urgently dealt with. But, according to the High Court, if he had any house in the same building then he would not come within the purview of S. 24-B. of the Act. He was, however, not without a remedy. He can take recourse to S. 21(1A) of the said Act. It was noted while Chapt. IV-A which incorporated Ss. 24-B and 24-C provided summary trial, the object of the two provisions namely S. 21 on the one hand and Ss. 24-B and 24-C of the said Act on the other differ from each other. In this connection reliance was placed on certain decisions of this Court. After referring to certain decisions, it was held that the expression "to recover immediately" indicated the ground where S. 24-B could be applied there, there was consequential urgency to recover the possession of the building. According to the learned judge, there would be no consequential urgency to recover if he was already in possession of a dwelling house or where it could be made available to him at his choice. The High Court accordingly allowed the application under Art. 226 and set aside the orders of the delegated authority and the appellate authority. 9. Aggrieved by the said decision, the appellant has come up to this Court. 10. Two questions, therefore, arise in this appeal namely, firstly, whether the building with which we are concerned and which is situated in Cantonment of Meerut would be governed by the provisions of S. 24-B and S. 24-C of the Act, and secondly, whether in view of the facts and circumstances found, have the grounds been made out under S. 24B of the Act for eviction of the respondent from the premises in question in summary manner? If is not disputed that the building in question is within the cantonment limits. In the Act of 1972 (Act No. 13 of 1972), there was an amendment in 1976 and Chapt. IV-A was added by the U.P. Act No. 28 of 1976 with effect from 1976. Section 24-A, S. 24-B and S. 24-C are contained in the said chapter. The said Amendment Act No. 28 of 1976 did not state whether the said chapter would be applicable to buildings constructed and situated within the cantonment limit. The first question posed before the High Court but not answered by it was whether in view of the answer given to the second question, the provisions of those sections would be applicable to the building in question. 11. By notification issued in exercise of S. 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957, the Central Government had extended to all the cantonments in Uttar Pradesh the provisions of the Act in question, as in force on the date of that notification, in the State of U.P. The said notification being Notification No. S.R.O. 259 was issued in exercise of the powers conferred by S. 3 of the said Act and in supersession of the notification of the Government of India in the Ministry of Defence. The said Notification extended to all the Cantonments in the State of Uttar Pradesh the Act (U.P. Act No. 13 of 1972), as in force on the date of the notification with certain modifications with which we are not concerned. It was, therefore, contended that it could not have by virtue of that notification introduced the provisions of Chapt. IVA of the said Act to the Cantonment Area which themselves were introduced by Amendment Act No. 28 of 1976. There was another notification dated 17th February, 1982 being Notification No. S.R.O. 47. The said notification was also issued under S. 3 of the aforesaid Act of 1957, mentioned hereinbefore and it stated in supersession of the previous notification, the Government extended to all the cantonments in the State of Uttar Pradesh the provisions of the Act with certain modifications with which we are not concerned in this case. The 1957 Act authorises the Government to issue the notification as contemplated therein. 12. The 1957 Act authorises the Government to issue the notification as contemplated therein. 12. In the instant case, as noted hereinbefore, the appellant had moved an application under S. 24-C of the Act on 14th December, 1979 in respect of the premises in question on receipt of notice to quit the government premises in his occupation. The delegated authority made the order of release on 17th August, 1981. There was a revision application and it was disposed of by the Additional District Judge dismissing the revision on 27th April, 1983. Therefore when the order was made in this case and the application was filed the building in the cantonment area did not come within the ambit of the Act in question. When, however, the revisional order was passed by the Additional District Judge, the Act had come into operation and the building in question was within the purview of the operation of the Act. 13. In view of the ratio of Jai Singh Jairam Tyagi v. Mamanchand Ratilal Agarwal, ( AIR 1980 SC 1201 ) (supra) it must be held that the provisions of Chapt. IVA of the Act would be applicable. The amending Act was passed for the express purpose of saving decrees which had already been passed. Therefore action under S. 24-C of the Act in this case was justified. The High Court did not decide this point because it was of the opinion that the second point which we shall note presently, the High Court was in favour of the respondent. We are, however, of the opinion that the first point urged on behalf of the respondent cannot be accepted in view of the position in law as discussed hereinbefore. It was submitted on behalf of the respondent that S. 24-B gave substantive rights to the appellant and S. 24-C was the procedure for enforcing those substantive rights. Therefore, these were not only procedural rights. Therefore, there was no question of retrospective operation to take away vested right. We are, however, of the opinion that it would be an exercise in futility if the application is dismissed on this ground, it can be filed again and in view of the subsequent legislation as noted hereinbefore it was bound to succeed on this point. Therefore, there was no question of retrospective operation to take away vested right. We are, however, of the opinion that it would be an exercise in futility if the application is dismissed on this ground, it can be filed again and in view of the subsequent legislation as noted hereinbefore it was bound to succeed on this point. In exercise of our discretionary power under Art. 136 of the Constitution, it would not be proper to interfere in the facts and circumstances of the case on this ground. In the premises in view of the ratio of the decision of this Court in Jai Singhs case (supra) and reason mentioned hereinbefore this contention urged on behalf of the respondent must be rejected. 14. The second question which is the substantial question in this appeal is, whether in view of the fact that respondent 3 was in occupation of the ground-floor of premises No. 217-218 Machhli Bazar, Sadar, Meerut Cantt., the first-floor of which was in the tenancy of the appellant, the application under S. 24-B of the Act was maintainable. We have noted the provisions of S. 24-B of the Act. It may be mentioned that S. 24-A of the Act indicated that the provisions of Cahp. IV-A or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in the Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contarary. The whole purpose behind S. 24-A or S. 14-A, Delhi Rent Control, Act, 1958 which are in pari materia is that when a landlord or a person is in occupation of a government accommodation and has to leave that accommodation and yet he has residential building in the area in his own name or in the name of any member of his family, then such a person or landlord will have a right accrued to him to recover immediate possession of the building let out by him. The rationale behind these provisions or similar provisions is that when a government servant lets out his house and is without residential premises then if he is the owner of any residential building either in his name or in the name of any member of his family then he has a right to ask for immediate recovery of the said residential building. It is an urgency provision to help the government servant to have residential accommodation vacated if he is obliged to vacate his governmental residential accommodation. The proviso to S. 24-B deals with the situation where the landlord has more than one dwelling house, he will exercise a choice in respect of one. This is not the situation in the instant case. But it may be noted that sub-s. (1) of S. 24-B uses the expression if the landlord owns residential building and the proviso uses the expression dwelling houses. 15. Our attention was drawn to the definition of building and dwelling house appearing in some Acts. In the Act in question, however, there is no definition provided, except that building is defined in Cl. (i) to S. 3 which is not relevant for our present purpose. It is therefore necessary to determine what kind of a residential building or dwelling house must a landlord possess to be entitled to the urgency procedure of Ss. 24-A to 24-C of the Act to recover immediate possession. In this connection it will be necessary to examine the type of building in qustion in this case. Counsel for the appellant drew our attention to S. 3(i) and he further drew our attention to S. 12(4), S. 16(l)(b), S. 21(l), S. 21(1-A) of the Act in aid of the submission that whenever the legislature intended to mean part of the building the legislature has said so expressly. 16. Sarwan Singh v. Kasturi Lal, (1977) 2 SCR 421 : ( AIR 1977 SC 265 ) was dealing with the Slum Areas (Improvement and Clearance) Act, 1956. Dealing with S. 14A of the Delhi Rent Act, this Court observed that S. 14A provided that where the landlord who, being in occupation of residential premises allotted to him by the Central Government was required to vacate such residential accommodation on the ground that he owns residential accommodation within the Union Territory, there shall accrue to such a landlord notwithstanding anything contained in any other law for the time being in force right to recover immediately possession of the premises. In view of the facts in the case involved before us, where the landlord, the appellant was in possession of a part of the building in question which could be considered in certain circumstances to be a residential unit by itself, the observations made in that decision are not relevant for the present purpose. In this case we are concerned with the question whether the type of accommodation which was in the possession of the landlord would constitute residential building or dwelling unit in order to disentitle him to seek recourse to the urgency procedure of S. 24-A of the Act. 17. In Busching Schmitz Pvt. Ltd. v. P.T. Menghani, (1977) 3 SCR 312 : ( AIR 1977 SC 1569 ), Sec. 14A Delhi Rent Control Act, 1958, came up for consideration. This Court held in the said decision that S. 2(i) of the Delhi Act covered any building or part of the building leased for use, residential, commercial or other. To attract S. 14A of that Act the landlord must be in occupation of residential premises allotted to him by the Central Government. He must be required by order of that Government to vacate the said residential accommodation. Residential premises are not only plots which are let out for residential purposes nor do all kinds of structures where humans may manage to dwell are residential. Use or purpose of the letting is no conclusive test. Whatever is suitable or adaptable for residential use, even by making some changes, can be designated residential premises. 18. We are of the opinion that law should take pragmatic view of the matter and respond to the purpose for which it was made and also take cognizance of the current capabilities of technology and life-style of the community. It is well settled that the purpose of law provides a good guide to the interpretation of the meaning of the Act. We agree with the views of Justice Krishna Iyer in Busching Schmitz Private Ltd.s case (supra) that legislative futility is to be ruled out so long as interpretative possibility permits. Residentiality depends for its sense on the context and purpose of the statute of the project promoted. 19. Our attention was drawn to the decision of the learned single Judge of the Delhi High Court in Smt. V.L. Kashyap v. R.P. Puri, (1977) 1 Ren CR 449: (AIR 1977 NOC 205). Residentiality depends for its sense on the context and purpose of the statute of the project promoted. 19. Our attention was drawn to the decision of the learned single Judge of the Delhi High Court in Smt. V.L. Kashyap v. R.P. Puri, (1977) 1 Ren CR 449: (AIR 1977 NOC 205). The decision was dealing with S. 14A, Delhi Rent Control Act, 1958, which is more or less similar to Ss. 24-A to S. 24-C of the Act under consideration. The learned Judge obseved that in respect of exercise of right under S. 14A, Delhi Act, an important proviso had been inserted. It was with the effect that right of eviction under S. 14A of the Delhi Act was confined only to one dwelling house and the landlord has no right to recover possession of more than one dwelling house in exercise of S. 14A of the Delhi Act. Reference has to be made to another decision under the Delhi Rent Control Act by a learned single judge of the Delhi High Court in S.S. Makhijani v. V. K. Jotwani, 1977 Rajdhani LR 207. There the learned judge referred to another decision and expressed concurrence with the said decision where it was held that in order to determine whether two parts of a building consist of one or more dwelling houses, the tests to be applied were thus : (1) consider the building and see whether it constituted a whole house or a part of the house; (2) if one part was reasonably needed for convenient and comfortable occupation and enjoyment of the other part of the building then both the parts of the building constituted one dwelling house within the meaning of proviso to S. 14A of Delhi Act. To arrive at this finding, the learned Judge observed that the relevant factors to be taken into consideration were (a) the situation; (b) entrance; (c) the Municipal Number; (d) the nature of the construction; (e) inter communication between the two parts; (f) completeness and independence of each unit; and (g) other relevant material circumstances. None of these taken singly was decisive but the cumulative effect should be considered. We are of the opinion that the tests indicated above provide workable guide. 20. Stroud in his "Judicial Dictionary" Vol. None of these taken singly was decisive but the cumulative effect should be considered. We are of the opinion that the tests indicated above provide workable guide. 20. Stroud in his "Judicial Dictionary" Vol. 2 at page 858 (4th Edition) noted that dwelling house is obviously a house with the super-added requirement that it is dwelt in or the dwellers in which are absent only temporarily, having animus revertendi. 21. In this connection reference may be made to the meaning of dwelling house in Corpus Junis Secundum Vol. 28 pages 604-605 where dwelling place is mentioned. See also in this connection dwelling or dwelling house where it was mentioned that the term was not free from ambiguity, multiple meanings and many definitions have been given. The meaning must suit the purpose and the idea behind the statute in question in a particular case. For the meaning of dwelling house it may be instructive to refer to the Words and Phrases Legally Defined Second Edition, Volume 2 page 127 wherein it has been mentioned, inter alia, that dwelling house meant a building used or constructed or adapted to be used wholly or principally for human habitation and dwelling house included any part of a house where that part was occupied separately as a dwelling house. 22. Blacks Law Dictionary 1979 Edn. (Fifth Edition) page 454 defines Dwelling as the house or other structure in which a person or persons live. 23. Narain Khamman v. Parduman Kumar Jain, (1985) 1 SCR 1025 : ( AIR 1985 SC 4 ) was dealing with S. 14A, Delhi Rent Control Act, 1958 which is more or less similar to the section involved in the present appeal. At page 1032 (of SCR) : (at pp. 11-12 of AIR) of the report the position has been discussed. There it was observed that if a person had, however, other premises which he owned either in his own name or in the name of his wife or dependent child, which were available to him for residential accommodation or into which he had already moved in, he could not maintian an application under S. 14A, Delhi Rent Control Act. 24. We have considered the maps at Annexure 4 as well as at page 108 of the Paper Book. 24. We have considered the maps at Annexure 4 as well as at page 108 of the Paper Book. It appears that there is a staircase in the front which leads to the first-floor and one need not go to the ground-floor. There are two latrines on ground-floor. There is, however, a common passage and in order to come down to that passage, one has to use another staircase which is a common staircase. In this context the question is whether the premises in question could be separately used. In our opinion, the High Court in the facts of this case was not in error in holding that the two parts could be separately enjoyed. 25. After 1962 the mother of the appellant resided in the portion in the occupation of the landlord now used separately and independently and the same is in occupation of the appellant and at that time when the mother of the appellant was alive the appellant used to occupy the said portion. In our opinion the conduct of the parties is relevant in considering whether parts or portions of a building could be a dwelling house. It may also be mentioned that after the death of the mother of the appellant the portion was separately let out and a tenant used to occupy the said portion separately. Here in the instant case, Shri Mehrotra, counsel for the appellant, however, stressed that in order to be a dwelling house or residential accommodation, it must be capable of being separately enjoyed and separately locked up. It is true that without that facility, the concept of safe and separate dwelling gets hampered. Yet in view of the fact that premises can be enjoyed with common facilities for dwelling purposes would constitute a separate and independent dwelling houses. It has to be borne in mind that in this case the issue is not whether the premises is sufficiently comfortable or whether the portion in question was sufficiently comfortable for dwelling or residence of the appellant or a party but the question is whether the house or the portion can be separately considered to be dwelled in. If the portion in the occupation of the appellant could not be separately dwelled in by the appellant, it was only then that the extraordinary provisions of Ss. 24-A, 24-B and 24-C could be resorted to. If the portion in the occupation of the appellant could not be separately dwelled in by the appellant, it was only then that the extraordinary provisions of Ss. 24-A, 24-B and 24-C could be resorted to. Otherwise the owner or the landlord is entitled to take recourse to other provisions of Rent Act contending that the premises in question is reasonably required bona fide for the landlords use but in the situation like the present the landlord was not entitled to take recourse to the urgency provisions in Ss. 24-A, 24-B and 24-C of the Act. In our opinion to be the dwelling house or residential accommodation it must be capable of being separately enjoyed and whether or not the premises in question can be so enjoyed does not depend merely because that a portion cannot be locked up independently or separately. 26. In that view of the matter, having regard to the nature of the user, we are of the opinion that the High Court was right. Therefore while we affirm the decision of the High Court, in terms of the observations made by this Court in Busching Schmitz Pvt. Ltd. v. P.T. Menghani, ( AIR 1977 SC 1569 ) (supra), we direct that the appellant if he so wants or desires can make arrangements for separation of the two units and to this the respondent-tenant would not be entitled to take any objection. This, however, will not prevent the appellant to seek eviction by other provisions of the Act or by any other appropriate legal proceeding if he is otherwise entitled to. 27. In the premises this appeal fails with the aforesaid observations. In the facts and in the circumstances of this case, the parties will pay and bear their own costs. Appeal dismissed.