PETITIONER:
SMT. BIMLA DEVI ETC.
Vs.
RESPONDENT:
MST ADDITIONAL DISTRICT JUDGE AND OTHERS ETC.
DATE OF JUDGMENT27/03/1984
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
MISRA RANGNATH
CITATION:
1984 AIR 1376 1984 SCR (3) 315
1984 SCC (2) 582 1984 SCALE (1)578
ACT:
Uttar Pradesh Urban Buildings (Regulation of Letting,
Rent and Eviction) Act. 1972, Scope of - Words and Phrases-
Import, interpretation and meaning of the word "occupation"
occurring in Explanation (IV) to section 22(1)(b)- The words
used are not a rule of evidence-A tenant has no right to
question the mode in which the Landlord may choose to live
in.
HEADNOTE:
In both Civil Appeal No.41 of 1979 and Civil Appeal No.
379 of 1980, the appellants are the unsuccessful house-
owners to get an eviction order against their tenants from
the portions of their respective houses from the court's
below. In the first case, the questions arose whether the
portion of the premises sought to be vacated by the landlady
was one single unit or two separate units. In the second
case, the point involved was whether the word " occupation"
included actual residence of the landlord even though the
may not have been residing there.
Allowing the appeals, by special leave, the Court,
^
HELD: (C.A. No. 41/1979)
In view of the Trial Court's finding basing its
decision on the report of the Commissioner appointed for the
purpose, that the entire building constituted one single
unit, the appellant being in occupation of a portion of the
same, she is entitled to get release of the other portion
occupied by the tenant. [323F-G]
In C.A. No. 379/1980.
1:1. The case of the appellant is clearly covered by
the provisions of Explanation (iv) to section 21(1)(b) of
the Uttar Pradesh Urban Buildings (Regulation of Letting,
Rent and Eviction), Act 1972. [323C]
1:2. The policy of the law was to give a facility to
the landlord so to secure the entire building where he is in
occupation of a part of the same and wants to occupy the
whole house. [321D]
316
1:3. In Babu Singh Chauhan v. Rajkumari Jain & Ors.
[1982] 3 S.C.R. 114, the Supreme Court, while construing the
word "occupation" occurring in section 21(1)(b) of the 1972
Act, used the word "possession", treating the word
"possession" as synonym of "occupation" and since the word
"possession" or "occupation" may take various forms held
that even keeping the house-hold effects by the owner is an
act of occupation.
[319H, 320D-G]
Therefore, even if a landlord is serving outside or
living with his near relations but makes casual visits to
his house and thus retains control of over the entire area
or a portion of the property, he would in law be deemed to
be in occupation of the same. To accept the contention that
Explanation IV required actual physical occupation by the
landlord of the portion retained by him would destory the
very concept of constructive or actual possession or
occupation. [320H; 321A-B]
2:1. All the Rent Control Acts try to deprive and
curtail the right of an owner of his property and have put
constraints and restraints on his right by giving
substantial protection to the tenants in public interest,
otherwise if Rent Acts were to be abolished or were not
there, the landlord could get a tenant evicted only by a
notice after expiry of the tenancy in accordance with the
provisions of the Transfer of Property Act.[321E-F]
2:2. The words "shall be conclusive to prove" in
Explanation (iv) clearly indicate that it is a substantive
right which belongs to the landlord and which has been
affirmed and recognised if a part of an accommodation is
retained by the landlord. The words "conclusive to prove
that the building is bona fide required by the landlord"
does not constitute a rule of evidence. [321F-G]
2:3. The right to ejectment having accrued to the
appellant under Explanation (iv) was a vested right as an
owner and could not be affected by the 1976 amendment unless
it was couched in a language which was either expressly or
by necessary intendment meant to be operative
retrospectively. Explanation (iv) deals not merely with a
particular procedure but with the substantive rights of the
parties. The said Explanation has asserted and affirmed the
substantive right of a landlord to get portion of a building
vacated where he is in occupation of a part of it. Such a
substantive right cannot be taken away merely by a
procedural amendment nor does the language of the amendment
introduced the 1976. Act envisage or contemplate such a
position. Section 14 of the 1976 Act merely recites that
Explanation (ii) and (iv) of s.21(1)(b) shall be omitted.
There is nothing to show that the legislature intended to
give any retrospective effect to the deletion of Explanation
(iv). [321H, 322A-D]
3. The argument that merely because the landlord was
living with his son or his relation after retirement and,
therefore, was not in occupation of the house cannot be
accepted because it was not for the tenant to dictate to the
landlord as to how he should use his own premises. A tenant
to has got no right nor any business to interfere with the
mode or manner in which a landlord may choose to use his
property or live therein. [323 A-B]
317
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 41 of 1979.
(From the Judgment and Order dated 23rd August, 1978 of
Allahabad High Court in Writ Petition No, 1483 of 78)
WITH
Civil Appeal No. 379 of 1980.
From the Judgment and order dated 28th March, 1979 of
the Allahabad High Court in civil Misc-Writ No. 1287 of 1977
G.L. Saghi, V.A. Bobde & H.K. Puri for the appellant in
C.A. No. 41/79.
R.K. Jain for the appellant in C.A. No. 379/80.
K.P. Gupta for the respondents in C.A. No. 41/79.
Shanti Bhushan and R.B. Mehrotra for the respondent in
C.A. No. 379/80.
The Judgment of the Court was delivered by
FAZAL ALI J. We would first take up Civil appeal No.
379 of 1980 which is directed against an Order dated March
28, 1979 passed by the Allahabad High Court dismissing the
writ petition of the appellant and arises in the following
circumstances.
The appellant owns a house bearing No. 113, Amroha
Gate, Fruit Market, Moradabad, in a portion of which he had
inducted respondent No.3 (Vishwa Nath Kapoor) as a tenant
while retaining some portion for himself, when he
(appellant) was serving as a Judicial Officer in the State
of Uttar Pradesh. In the year 1968, the appellant retired as
a District Judge as a result of which he had to vacate his
official residence, which necessitated the present eviction
proceedings against respondent No.3. The application for
eviction was filed on 2.1.1973 under s.21(1) (b) of the
Uttar Pradesh Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 (hereinafter referred to as the
‘1972 Act’) in which the appellant prayed that the portion
occupied by respondent No.3 may be released on the ground of
personal requirement as after retirement he wanted to occupy
the entire house. The appellant further claimed that due to
shortage of accommodation he had to stay with his son
elsewhere. The eviction proceedings were contested by the
respondent on the following grounds:-
(a) that since the appellant was already living with
his son there was no particular urgency or
personal necessity for him to occupy the rented
portion also,
318
(b) that the appellant had in his occupation a part of
the house which was retained by him even after
inducting him (respondent) as a tenant and which
was sufficient for his needs, and
(c) that the appellant after keeping his household
effects in the portion retained by him had locked
up the same and was, therefore, not in actual
occupation of the house as required by Explanation
(iv) to s. 21 (1) (b).
In the same token, it was submitted as a point of law
that the essential ingredient of Explanation (iv) to s.21(1)
(b) was that the building must have been in occupation of
the landlord for residential purposes which alone would be a
conclusive proof of personal necessity. It was also
contended as a question of fact that as the appellant-
landlord was not in actual occupation of the premises,
Explanation (iv) would not be attracted in the instant case.
To buttress this argument it was submitted that the landlord
never occupied or possessed the premises but had locked up
the same and was residing elsewhere. This plea of the
respondent-tenant did not find favour with the Prescribed
Authority or the High Court.
The dominant question, therefore, turns upon the import
and interpretation of Explanation (iv) to s.21(1) (b),
particularly the nature and meaning of the word ‘occupation’
as used in Explanation (iv). The crux of the matter,
therefore, was as to whether or not the case of the
appellant squarely fell within the four corners of
Explanation (iv) and whether the word ‘occupation’ included
actual residence of the landlord even though he may not have
been residing there. We might mention that while the
eviction proceedings were pending before the Prescribed
Authority the 1972 Act was amended by U.P. Act No.28 of 1976
(for short to be referred to as the ‘1976 Act’) which came
into force with effect from 5th July 1976 and which deleted
Explanation (iv). The Prescribed Authority, relying on
Explanation (iv), held that the need of the landlord was
fully made out and accordingly passed an order of eviction
against the tenant, partly releasing some portion in
appellant’s favour. The appellant then filed an appeal
before the District Judge which was heard by an Additional
District Judge who accepted the offer of the tenant and
modified the Order of the Prescribed Authority by further
releasing some other portion in his favour. The appellant
then filed a writ
319
petition before the High Court which upheld the decision of
the District Judge and dismissed the writ petition.
Before we approach the question of law raised before us
it may be necessary to give a detailed picture of the
position of the premises retained by the landlord and that
rented out to the tenant. The house in question is a double-
storeyed one containing some rooms on the first floor and
some on the ground floor which were retained by the landlord
at the time of the lease and the rest of the portion was let
out to the tenant.
The learned counsel for the appellant contended that in
view of the requirements of the landlord he had a real and
bona fide need for occupying the entire house and therefore,
the entire portion occupied by the tenant should have been
released in favour of the appellant. This argument was
countered by Mr. Shanti Bhushan, counsel for the respondent,
who put forward the following legal submission:
In the first place, he contended that Explanation. (iv)
would not in terms apply to the facts of the present case
because on the findings of fact arrived at by the courts
below it was not shown that the appellant was in actual
occupation of the portion retained by him, which is a
prerequisite for the application of Explanation (iv) to s.21
(1) (b). In this connection, it was submitted that the
admitted position being that the application was previously
employed as a District Judge and was living elsewhere, he
could not be deemed to be in occupation of the portion
retained by him. In order to appreciate this argument, it
may be necessary to examine closely the language of
Explanation (iv) which may be extracted thus:
“(iv) the fact that the building under tenancy is
a part of a building, the remaining part thereof is in
the occupation of the landlord for residential
purposes, shall be conclusive to prove that the
building is bona fide required by the landlord.”
The pivotal argument of the counsel for the respondent
turns upon the interpretation of the word ‘occupation’.
This, however, does not present any difficulty because in a
recent decision in the case of Babu Singh Chauhan v.
Rajkumari Jain & Ors.(1) this Court while
320
construing a similar term in the same Act observed as
follows:
“We have gone through the judgment of the High
Court in the light of the arguments of the parties and
we are inclined to agree with the view taken by the
High Court that the mere fact that the lady did not
actually reside in the premises which were locked and
contained her household effects, it cannot be said that
she was not in possession of the premises so as to make
s. 17 (2) inapplicable. Possession by a landlord of his
property may assume various forms. A landlord may be
serving outside while retaining his possession over a
property or a part of the property by either leaving it
in-charge of a servant or by putting his household
effects or things locked up in the premises. Such an
occupation also would be full and complete possession
in the eye of law.”
It is true that the court used the word ‘possession’
but in Explanation (iv) to s.21(1) (b) the word used is
‘occupation’ and not ‘possession’ but this Court treated the
word ‘possession’ as being a synonym of ‘occupation’. In
Webster’s Third New International Dictionary the word
‘occupation’ has been defined at page 1560 thus:
“Occupation-to take possession of, occupy, employ”
The Black’s Law Dictionary (5th Edn.) defines
‘occupation’ at page 82 thus:
“occupation-possession; control; tenure; use.”
In Corpus Juris Secundum (vol.67) at page 74
‘occupation’ has been mentioned thus:
“The word may be employed as referring to the act
or process of occupying, the state of being occupied,
occupancy, or tenure.”
This Court in the observations, extracted above, has
clearly pointed out that ‘possession’ or ‘occupation’ may
take various forms and it was expressly held that even
keeping the household effects by the owner is an act of
occupation.
It is, therefore, manifestly clear that even if a
landlord is serving outside or living with his near
relations but makes casual
321
visits to his house and thus retains control over the entire
or a portion of the property, he would in law be deemed to
be in occupation of the same. Therefore, we are unable to
accept the argument of Mr. Shanti Bhushan that the essential
ingredient of Explanation (iv) has not been made out, there
being no actual physical occupation by the landlord of the
portion retained by him. Indeed, if the broad argument put
forward by the counsel is to be accepted then that would
destroy the very concept of constructive or actual
possession or occupation. For, instance, even if a house is
not let out to anybody but is locked up, can it be said that
the owner who is not living there but has kept his household
effects, would not be deemed to be in occupation of the
same? The answer must necessarily be in the negative.
It seems to us that the policy of the law was to give a
facility to the landlord so as to secure the entire building
where he is in occupation of a part of the same and wants to
occupy the whole house.
Mr. Shanti Bhushan then argued that Explanation (iv)
does not confer any substantive right but merely raises a
presumption that if a landlord is in occupation of a part of
the premises, his need would be deemed to be bona fide. We
are, however unable to agree with this argument. We must
remember that all the Rent Control Acts try to deprive and
curtail the legal right of an owner to his property and have
put constraints and restraints on his right by giving
substantial protection to the tenants in public interest,
otherwise if the Rent Acts were to be abolished or were not
there, the landlord could get a tenant evicted only by a
notice after expiry of the tenancy in accordance with the
provisions of the Transfer of Property Act. The words “shall
be conclusive to prove” in Explanation (iv) clearly indicate
that it is a substantive right which belongs to the landlord
and which has been affirmed and recognised if a part of an
accommodation is retained by the landlord. We are unable to
agree with Mr. Shanti Bhushan that the words “conclusive to
prove that the building is bona fide required by the
landlord” constitute a rule of evidence. In fact, this
argument was put forward before us because the learned
counsel wanted to submit that in view of the 1976 Amendment
Act, deleting Explanation (iv) to s.21(1) (b) of the 1972
Act, it would be deemed to be retrospective and therefore
the relief given by Explanation (iv) would disappear. We
cannot agree with this somewhat far-fetched submis-
322
sion because Explanation (iv) deals not merely with a
particular procedure but with the substantive rights of the
parties. The said Explanation has asserted and affirmed the
substantive right of a landlord to get a portion of a
building vacated where he is in occupation of a part of it.
Such a substantive right cannot be taken away merely by a
procedural amendment nor does the language of the amendment
introduced by the 1976 Act envisage or contemplate such a
position. Section 14 of the 1976 Act merely recites that
Explanations (ii) and (iv) of s.21(1) (b) shall be omitted.
There is nothing to show that the legislature intended to
give any retrospective effect to the deletion of Explanation
(iv).
In these circumstances, therefore, the right to
ejectment having accrued to the appellant under Explanation
(iv) was a vested right as an owner and could not be
affected by the 1976 amendment unless it was couched in a
language which was either expressly or by necessary
intendment meant to be operative retrospectively.
Lastly, it was argued by Mr. Shanti Bhushan that the
fact remains that the appellant, even after retirement, was
not in actual possession of the portion retained by him and
was living with his son or other relations most of the time
exception casual visits to the premises in dispute. A
further argument was raised in an additional Note supplied
by the counsel for the respondent that as the bathroom and
the latrine were in occupation of the tenant, the landlord
could not possibly have occupied the premises retained by
him and could not have lived there in the absence of these
facilities. The High Court rightly rejected these arguments
by observing thus:
“The last argument was that the view of the
Prescribed Authority that since the petitioner did not
occupy the portion retained by him and lived with his
son and, therefore, his need was not bona fide has no
merits in as much as the petitioner did not have either
a latrine or a bathroom and that he could not possibly
occupy the house in the position in which it had been
retained. There may be some truth in the submission
made by the learned counsel for the petitioner. But, as
neither the Prescribed Authority nor the Appellate
Authority based their judgment on this feature of the
case and they examined the merits of the claim of the
respective parties, it is not possible to interfere
with the judgments of the courts below.”
323
An attempt was made by the parties to come to a
settlement but, unfortunately, the efforts failed. The
argument of Mr. Shanti Bhushan that merely because the
landlord was living with his son or his relation after
retirement and, therefore, was not in occupation of the
house cannot be accepted because it was not for the tenant
to dictate to the landlord as to how he should use his own
premises. A tenant has got no right nor any business to
interfere with the mode or manner in which a landlord may
choose to use his property or live therein.
In these circumstances, therefore, we are satisfied
that the case of the appellant is clearly covered by the
provisions of Explanation (iv) to s.21(1) (b) and a decree
for release of the entire premises should have been passed
by the District Judge against the respondent. We, therefore,
allow this appeal, set aside the judgments of all the courts
below and order release of the entire premises in possession
of the respondent to the appellant. Time is granted to the
respondent to vacate the premises on or before 31st December
1984, subject to the usual undertaking to be given and filed
by him in the Court within four weeks from today, failing
which the grant of time shall stand revoked without further
reference to the Bench and the appellant would be entitled
to be put in possession forthwith.
Civil Appeal No. 41 of 1979
This appeal was heard alongwith civil appeal No. 379 of
1980 which we have decided by our judgment. The main point
involved in this appeal was as to whether the portion of the
premises sought to be vacated by the landlady was one single
unit or two separate units. This Court remanded the matter
to the trial court for examining this point and the trial
court has returned a finding, basing its decision on the
report of the Commissioner appointed for the Purpose, that
the entire building constituted one single unit.
It is, therefore, manifest that if the entire building
was one unit and the appellant being in occupation of a
portion of the same, she is entitled to get release of the
other portion also. In view of our decision in civil appeal
No. 379 of 1980, the appeal is allowed and we order release
of the entire portion in favour of the appellant. Time is
granted to the respondent to vacate the premises on or
before 31st October 1984, subject to the usual undertaking
being given and filed within four weeks from today, failing
which the grant of time
324
shall stand revoked without further reference to the Bench.
There will be no order as to costs.
Let a certified copy of this judgment be placed on the
file of civil appeal No.41 of 1979.
S.R. Appeals allowed.
325