B. N. GAPTA v. GANGA RAM — 1992 DIGILAW 106 (HP)

JUDGMENT Devinder Gupta, J.—The circumstances giving rise to the reference and placing the case before us may be stated. 2. The petitioner, claiming himself to be a specified landlord within the meaning of the word as defined in section 2 (i) of the Himachal Pradesh Urban Rent Control Act, 1987 (Act No. 25 of 1987) (hereinafter referred to as the Act), sought the eviction of respondent-tenant under summary procedure provided in section 15 (2) of the Act. The petition was dismissed by Rent Controller (IV), Shimla. Feeling aggrieved, the petitioner preferred a revision under section 16 (8) of the Act to this Court. Notice, pending admission, was issued. The respondent, after having put in appearance raised a preliminary objection regarding the maintainability of the revision petition in view of the two judgments of this Court in R. K Sood v. Roshan Lal, 1992 (1) Sim LC 343 and Shiv Ram v. M. M. Bhatacharji (Civil Revision 213/88, decided on 25th April, 1989). 3. In R. K Soods case (supra), the learned single Judge of this Court (Mr Justice V. K Mehrotra, Acting Chief Justice, as he then was), construed section 16 (8) and section 24 (1) (b) of the Act and held that except in a case where an order of recovery of possession of any premises has been made by the Controller, in exercise of powers under section 16 of the Act, where the order can only be assailed by way of a revision under section 16 (8) before this Court, all other orders, including an order refusing the prayer for recovery of possession of any premises, of the Controller, under section 16 of the Act can be assailed only by way of an appeal Consequently, the revision in that case preferred by a landlord against the order of Rent Controller dismissing his petition for recovery of possession which he had claimed as a specified landlord was permitted to be returned to enable the landlord to prefer an appeal before the appellate authority. 4. In Shiv Rams case (supra), another learned single Judge of this court (Mr. Justice Bhawani Singh), held and directed that the civil revision petition be returned to the landlord to enable him to challenge the order rejecting the petition for eviction in a competent court of jurisdiction. 4. In Shiv Rams case (supra), another learned single Judge of this court (Mr. Justice Bhawani Singh), held and directed that the civil revision petition be returned to the landlord to enable him to challenge the order rejecting the petition for eviction in a competent court of jurisdiction. A short order recorded therein is reproduced hereunder: "Perusal of this petition shows that before filing this revision, the petitioner should have approached the appellate court. In view of this, this petition is not maintainable in this Court at this stage. The same be returned to the learned Counsel for the petitioner for being presented in the appropriate court of competent jurisdiction. Order accordingly. 5. Considering the preliminary objection raised, one of us (Mr Justice D. P. Sood), took notice of the decision of the Supreme Court in Vinod Kumar Chowdhry v Narain Devi Taneja, AIR 1980 SC 2012, and was of the view that the matter requires consideration by a larger Bench. The ratio of the judgment in Chowdhrys case, where the Supreme Court considered similar provisions of the Delhi Rent Control Act is that even an order of dismissal of petition for recovery of possession of any premises would be amenable to revision. 6. In the light of the aforementioned background the question which has to be answered is as to whether an order of dismissal of a petition for recovery of immediate possession of any premises made by the Controller on a petition filed by a specified landlord under section ) 5 of the Act would be appealable under section 24 (1) (b) or can be challenged only by filing a revision petition under section 16 (8) of the Act. 7. We have heard Mr. G. C. Gupta for the tenant and Mr. K. D. Sood for the petitioner-landlord. 8. Section 15 of the Act confers a right on a specified landlord’ to recover immediate possession of the premises. Section 14 is the general provision in the Act available to an ordinary landlord seeking eviction of his tenant. Section 16 of the Act enumerates the special procedure applicable for disposal of applications for eviction on the ground of bonafide requirement of premises by a specified landlord initiated under section 15 of the Act. Section 14 is the general provision in the Act available to an ordinary landlord seeking eviction of his tenant. Section 16 of the Act enumerates the special procedure applicable for disposal of applications for eviction on the ground of bonafide requirement of premises by a specified landlord initiated under section 15 of the Act. This procedure equally applies to petitions for eviction on the ground of bonafide personal requirements by such of the landlords who are covered by section 14 (3) (a) (iii) of the Act. Section 14 (3) (a) (iii) of the Act confers a right on a landlord, being a member of the Armed Forces of the Union of India, on production of a certificate of the prescribed authority referred to in section 7 of the Indian Soldiers (Litigation) Act, 1925, that he is serving under special conditions within the cleaning of section 3 of the Act or is posted in a non-family station, to recover immediate possession of the premises by resorting to the proce dure prescribed under section 16 of the Act. 9. After a petition is preferred seeking eviction under special provision and after a notice of the application is duly served upon the tenant, he has to obtain the leave of the Controller to contest the application, on an affidavit filed by him, stating the grounds on which the leave to contest is sought. The Controller by virtue of sub-section (5) of section 16 of the Act is required to satisfy himself about the prima fade nature of the grounds made out seeking leave to contest. In case of leave being granted, the Controller by virtue of sub-section (7) of section 16 of the Act is to commence hearing on the application by holding enquiry as per the procedure applicable to a court of Small Causes, including the recording of evidence. Sub-section (8) of section 16 of the Act says s "No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller In accordance with the procedure specified in this section. Provided that the High Court may, for the purposes of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such orders in respect thereto as it thinks fit." 10. Provided that the High Court may, for the purposes of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such orders in respect thereto as it thinks fit." 10. In case no revision is preferred against an order made by the Controller, the Controller is empowered by virtue of sub-section (9) of section 16 to review its order in accordance with the provisions of Order 47 of the Code of Civil Procedure, Save as otherwise provided, the remaining procedure applicable is the same as is applicable to the other proceedings before a Controller. We may also notice the general provision for filing an appeal and revision against an order passed by the Controller under the Act before the appellate authority. It is in section 24 of the Act, which says that: "24 (1) (a) The State Government may, by a general or special order, by notification, confer on such officers and authorities, as it thinks fit, the powers of appellate authorities for the purposes of this Act, in such area or in such classes of cases as may be specified in the order, (b) Save as otherwise provided in this Act, any person aggrieved by an order passed by the Controller, except the orders for the recovery of possession made by the Controller in accordance with the procedure prescribed under section 16, may, within fifteen days from the date of such order or such longer period as the appellate authority may allow for reasons to be recorded in writing, prefer an appeal in writing to the appellate authority having jurisdiction, (In computing the period of fifteen days the time taken to obtain a certified copy of the order appealed against shall be excluded). (2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision on the appeal. (3) The appellate authority shall decide the appeal after sending for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller. (3) The appellate authority shall decide the appeal after sending for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller. 4) The decision of the appellate authority and subject only to such decision, an order, of the Controller shall be final and shall not be liable to be called in question in any court of law except as provided in sub-section (5) of this section, (5) The High Court may at any time, on the application of any aggrieved party or on its own motion call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation there as it may deem fit/9 11. The argument of the learned Counsel for the respondent is that applying the well settled and primary rule of interpretation of statutes, namely of literal construction, sub-section (8) of section 16 should be given its plain meaning. Only in such of the cases where the order of the Controller culminates in directing the recovery of possession that the same would be revisable and not an order passed, which culminates in dismissal of an application. According to the submission, the intention behind enacting this summary provision is that only in such of the cases, normal procedure is to be departed with where the Rent Controller is satisfied of the urgent need or requirement of a specified landlord. In case the Rent Controller, after having come to the conclusion that the specified landlord does not bonafide require the premises, in such cases, the landlord must pursue the ordinary remedy after dismissal of his application by challenging the order in appeal. It is further contended that the language used in section 16 (8) of the Act is clear and by use of the words for the recovery of possession, intention of the legislature is explicit. The words on its plain meaning are not capable of any other construction to include therein an order declining recovery of possession. It is further contended that the language used in section 16 (8) of the Act is clear and by use of the words for the recovery of possession, intention of the legislature is explicit. The words on its plain meaning are not capable of any other construction to include therein an order declining recovery of possession. Such an order where a petition for eviction taken out at the behest of a specified landlord or by such a landlord as is covered under section 14 (3) (a) (iii) is dismissed and an order of possession is not passed, the said order will not be revisable, but an appeal would lie against such an order. In support of his submission, learned Counsel placed reliance upon some of the observations made in the case of Smt Gian Devi Anand v. Jeevan Kumar and others, AIR 1985 SC 796, that the Rent legislations, 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 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 whoso benefit the Rent Acts arc essentially passed. 12. 12. In the light of these observations in Gian Devi’s case (supra), learned Counsel for the tenant-respondent has contended that since the ordinary procedure seeking eviction of the tenant is contained in section 14 of the Act and an appeal is provided in section 24, where a petition is either allowed or disallowed and against the order passed by the appellate authority allowing or disallowing the appeal, the matter can further be taken up in revision to the High Court under section 24 (5) of the Act, even in such of the cases, where the Controller, after having satisfied that the specified landlord or such of the landlord who is covered by section 14 (3) (a) (iii) of the Act is not to be allowed immediate possession of the premises by making an order of recovery of possession, the intention of the legislature is clear that such an order should also be subject to appeal under section 24 (1) (b) of the Act. 13. To meet these submissions, learned Counsel for the petitioner-landlord placed reliance upon Vinod Kumar Choudhry’s case (supra) and contended that departure from the normal rule of literal construction is invariably made so as to avoid any part of the statute becoming meaningless. To give effect to the intention of the legislature, it is permissible to read words in the statute. Intention of the legislature is to be gathered by reading of the Act as a whole. To give effect to the intention of the legislature, it is permissible to read words in the statute. Intention of the legislature is to be gathered by reading of the Act as a whole. For this proposition he has placed reliance upon Hameedia Hardware Stores v. B. Mohan Lal Sowcar, AIR 1988 SC 1060, in which while construing the provisions of T. N. Buildings (Lease and Rent Control) Act, 1960, the Supreme Court read the words ‘that if the landlord required it for his own use or for the use of any member of his family, which were not there in sub-clause (iii) but were there in sub-clause (ii) of section 10 (3) (a) of the said Act The court held that these words have to be read into sub-clause (iii) of section 10 (3) (a) of the Act also by saying that: ".........It is no doubt true that the Court while construing a provision should not easily read into it words which have not been expressly enacted but having regard to the context in which a provision appears and the object of the statute in which the said provision is enacted the Court should construe it in a harmoneous way to make it meaningful." 14. While holding so, the Supreme Court placed reliance upon the following passage from the judgment in Seaford Court Estates Ltd. v. Asher, (1949) 2 All ER 155 at page 164, made by Lord Denning LJ.: "When a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament........and then he must supplement the written word so as to give ‘force and life to the intention of the legislature.........A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they should have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven but he can and should iron out the creases." 15. This is what exactly was done in V.K. Chowdhrys case (supra), by the Supreme Court when they read the words deciding an application9 before the words for the recovery of possession9 in section 25-B (a) of the Delhi Rent Control Act, 1958. 16. This is what exactly was done in V.K. Chowdhrys case (supra), by the Supreme Court when they read the words deciding an application9 before the words for the recovery of possession9 in section 25-B (a) of the Delhi Rent Control Act, 1958. 16. In Vinod Kumar Chowdhrys case (supra) also, similar question had come up for consideration as to whether an order passed by the Rent Controller declining to order recovery of possession in favour of some specified landlord, entitled to seek eviction by summary procedure would be amenable to an appeal, since no appeal or second appeal lay against an order for recovery of possession of premises made by the Controller in a summary trial Sub-section (8) of section 25-B which came up for consideration before the Supreme Court under the Delhi Act was couched in similar words as section 16 (8) of the Act, which is under consideration in this case. The Supreme Court took notice of the arguments in the said case made by the Counsel for the tenant that only in such of the cases where an order is made for recovery of possession by the Controller that no appeal or second appeal would lie and if an order does not direct recovery of possession, the same is not an order which sub-section (8) would embrace in itself. This contention was negatived by the Supreme Court by holding that: "..Sub-section (8) no doubt in terms speaks only of an order for the recovery of possession of any premises9 and does not mention one which refuses the relief of eviction to the landlord; but then it appears to us that the expression order for the recovery of possession of any premises has to be construed, in the context in which it appears, as an order deciding an application for the recovery of the possession of any premises...” 17. The Court also considered the scheme of the Act and the object of introduction of summary procedure and held that on a true interpretation of sub-section (8) of section 25-B of the Act no appeal or second appeal would lie against an order deciding an application for recovery of possession, which would also include the order by which the Rent Controller declines recovery of possession. 18. 18. Having noticed the ratio of the judgment in Chowdhrys case (supra) in which case similar provisions were construed by the Supreme Court there is no reason why the term "the order for recovery of possession" used both in section 16 (8) and section 24 (1) (b) of the Act be not read as "the order deciding an application for the recovery of possession*9 by reading the words "deciding an application9 before the words "for recovery of possession". If the High Courts power of revision under section 16 (8) of the Act is held to cover only an order in favour of a specified landlord and not an order refusing relief to the landlord which as per the submission of the learned Counsel for the tenant that the same can be called in question only by way of an appeal and further revision under section 24 (l)(b) and section 24 (5), it would result in two procedures, one when the Controllers order is in favour of the landlord and one when it is against him thereby entailing discrimination and making the subsection invalid. To avoid the making of the provision as invalid, that construction should be preferred which upholds the legal and constitutional validity of the provisions. 19. The intention of the legislature is otherwise apparent by having enacted sub-section (9) of section 16, where similar words "the order for recovery of possession" are not used, namely, that where no application for revision under section 16 (8) is made to the High Court, the Controller may exercise the powers of review in accordance with the provisions of Order XLVIT of the Code of Civil Procedure with respect to an order passed by the Controller under section 16 of the Act. The legislature intended to make a special provision conferring right to recover immediate possession of the premises in favour of certain specified landlords and also made it clear that in such summary procedure the tenant can be permitted to contest on a leave having been obtained by him specifying the grounds of contest, for which procedure applicable is that of Small Causes Courts, including recording of evidence, so that such proceedings must expeditiously be disposed of. It is a matter of common knowledge that considerable time is taken in the disposal of the petitions for eviction taken out under the general provision The reason that the legislature intended that the scope of an order passed by the Controller for dealing with such application by specified landlords should be limited, when the High Court would call for the records and pass such an order in respect thereto as it thinks fit by examining the legality and validity of the order. When record has to be called and examined by the High Court to see the legality and validity of the order, there is no reason why the High Court, in such cases where the petition for eviction has been dismissed cannot examine the legality of the order passed by the Controller and make appropriate order in the circumstances of the case Suppose in case where some wholly untenable order is passed by the Rent Controller dismissing the application of the specified landlord and declining to order recovery of possession in favour of the landlord ; the record on the face of it might be revealing that the specified landlord is in dire and urgent need of accommodation In such a case, the High Court will be justified in examining the legality of the order and it will be within its competence to direct delivery of possession. Landlord need not resort to the general remedy of appeal etc When a provision is there in a summary jurisdiction, we can visualise that final order against such proceedings would not be subjected to a test in two separate proceedings—one in revisional jurisdiction to the High Court where there is an order for recovery of possession and the other in an appeal before the appellate authority when it is an order for dismissal of the said petition. 20. The submissions made on behalf of the learned Counsel for the tenant have otherwise to be negatived in view of upholding of the validity of such summary procedure of eviction in the cases of specified landlords under the Delhi Act by the Supreme Court in Kewal Singh v. Lajwanti, (1980) 1 SCC 290. 20. The submissions made on behalf of the learned Counsel for the tenant have otherwise to be negatived in view of upholding of the validity of such summary procedure of eviction in the cases of specified landlords under the Delhi Act by the Supreme Court in Kewal Singh v. Lajwanti, (1980) 1 SCC 290. The Court held that even though a summary procedure has been evolved, the tenant has been afforded full opportunity to defend the application for eviction provided he can disclose good ground for negativing the case of the landlord Further though no appeal or second appeal is provided for, the High Court has been given a wide power of revision and where no revision is filed the statute concers power of review on the Rent Controller. The Court took notice of the Statement of Objects and Reasons of the Delhi Rent Control (Amendment) Act 1976, which introduced the summary procedure and held that even though the specified landlord may have an immediate and imperative necessity for vacating the house, he is compelled to resort to the ordinary remedy which is time consuming and which takes year before the landlord is able to obtain possession. It was for these reasons that the legislature in its wisdom thought that a short and simple procedure should be provided to those landlords, who want the premises for their bonafide necessity. 21. By following the ratio of the judgment in V. K. Chowdhrys case (supra), we are of the view that the expression "order for recovery of possession" in sub-section (8) of section 16 and section 24 (1) (b) of the Act has to be read as an "order deciding an application for recovery of possession" and even in those cases where an application is dismissed, the order will be subject to the limitations provided in section 16 (8) of the Act. 22. Consequently, we answer the reference by holding that even an order by which the Rent Controller has dismissed an application for recovery of possession of the specified landlord or of the landlord covered by section, 14 (j) (a) (iii) of the Act would be subject to revision and no appeal under section 24 (1) (b) or further revision under section 24 (5) of the Act would lie against such an order. 23. 23. In view of what we have held, the judgment in R.K. Soods case (supra), can be said per incuriam since it did not consider the law laid down by the Supreme Court in V. K. Chowdhrys case (supra) and similarly in Shiv Kumars case (supra), also correct view cannot be said to have taken. Both these decisions cannot be said to laying down the correct law. Consequently, the same are hereby reversed. 24. We further hold that the revision petition filed by the petitioner under section 16 (8) of the Act is competent and maintainable. The same will now be listed before the learned single Judge for disposal in accordance with law. Revision petition allowed.