Shri Jhabar Mal Chokhani vs Shri Jinendra Pershad

Dulat, J.—The five petitions (Civil Revision 612-D of 1960, Civil Revision 613-D of 1960, Civil Revision 287-D of 1961, Civil Revision 358-D of 1961 and Civil Revision No. 135-D of 1962) arise out of five suit for the eviction of tenants from certain premises brought under the Delhi and Ajmer Rent Control Act, 1952. While the suits were pending in the trial Court, that Act was repealed and replaced by the Delhi Rent Control Act, 1958. One question, therefore, which arose in these cases, was about the extent to which the provisions of the new Act were to apply: and, because there was some difficulty about understanding the meaning of Section 57 of the new Act which had directed the repeal of the previous Act with certain savings, the learned Single Judges, who first dealt with these revision petitions, felt that a more authoritative opinion of a larger Bench was necessary and in this manner these petitions have come before us.

The controversy is about the interpretation of Section 57 of the Delhi Rent Control Act, 1958, and that is the only question which has been argued before us, it being understood that after the decision of this question these revision petitions can on the other matters be settled by a Single Bench.

The Delhi and Ajmer Rent Control Act, 1952, under which the litigation started, had created a complete bar against the eviction of any tenant from any premises. This was provided by Section 13 of that Act. There was, however, a proviso to Section 13, Sub-section (1) which said-

"Provided that nothing in this Sub-section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied," and it thereafter mentioned the various grounds which, if satisfied entitled a landlord to evict his tenant. Sub-section (2) of that section further made some modifications to the various grounds. This Act, as I have mentioned, was repealed by the Delhi Rent Control Act, 1959, which set up a different kind of machinery for the eviction of tenants and also made certain alterations in the grounds for eviction. The operative provision in the new Act is to be found in Section 14 which is drafted somewhat on the same lines as Section 13 of the previous Act, but some of the grounds have been changed and some modified. One main difference in the two Acts is this that while under the Act of 1952 relief could be obtained by a landlord by filing an ordinary suit, the new Act of 1958 sets up a Controller and relief under the Act is to be afforded by the Controller, subject to an appeal to the Rent Control Tribunal which, in terms, is subject to a second appeal in the High Court on a substantantial question of law. Section 57 of the new Act of 1958, whose meaning is in dispute, says this.-

(1) The Delhi and Ajmer Rent Control Act, 1952, in so far as it is applicable to the Union territory of Delhi, is hereby replead.

(2) Notwithstanding such repeal, all suits and other proceedings under the said Act pending, at the commencement of this Act, before any court or other authority shall be continued and disposed of in accordance with provisions of the said Act, as if the said Act had continued in force and this Act had not been passed:

Provided that in any such suit or proceeding for the fixation of standard rent or for the eviction of a tenant from any premises to which Section 54 does not apply the court or other authority shall have regard to the provisions of this Act:

Provided further that the provisions for appeal under the said Act shall continue in force in respect of suits and proceedings disposed of thereunder.

Section 54 does not apply to any of the present cases.

Three views about the meaning of Section 57 have been put forward before us. The first is that suits for eviction filed under the previous Act of 1952 must be settled in accordance with the provisions of that Act and the provisions of the new Act of 1958 must be ignored. The second view is that as far as eviction suits are concerned, the the provisions of the new Act of 1951 alone are to govern such suits and the provisions of the previous Act of 1952 must be ignored. The third view is that in substance the provisions applicable to such eviction suits are the provisions of the previous Act of 1952, but, while applying those provisions, the court must also take into consideration the provisions of the new Act of 1958, but the Court is not bound by the new provisions. To amplify this view, it is said that if the conflict between the old and the new provisions be serious or irreconcilable, then the new provisions should be ignored but where there is no conflict in substance and the new Act has merely explained the old provisions or slightly modified them without substantially affecting any right, then reasonable assistance may be sought from the new provisions in understanding and applying the old ones. That, of course, sounds somewhat vague and imprecise, but that, it is said, is intentionally so left by the Legislature which has deliberately used the expression "shall have regard to" in the proviso.

Taking up the language of S. 57, it would appear that Sub-section (2) containing the saving clause was put in by the Legislature to clarify as well as limit the extent of what is saved. I say ''limit'' because by expressly saying that the repeal will not effect suits and proceedings pending at the commencement of the new Act, the Legislature intended to limit the saving to the pending suits and proceedings alone and left no room from the suggestion that the General saving clause contained in Section 6 of the General Clauses Act would be applicable. It is, therefore, reasonably clear that when the Legislature enacting the Delhi Rent Control Act, 1958, repealed the previous Act of 1952, it meant to save from the repeal only the suits and proceedings pending on the date of the new enactment. Then comes the controversial proviso which says-

* * *in any such suit or proceeding for the fixation of standard rent or for the eviction of a tenant from any premises * * * the Court or other authority shall have regard to the provisions of this Act.

We are pressed to hold that the meaning of this proviso is that as far as suits and proceedings for the fixation of standard rent or for the eviction of a tenant are concerned, they have to be determined in accordance with the provisions of the new Act alone, and that only other kinds of suits and proceedings are to be continued in accordance with the provisions of the old Act. According to this argument, the words "shall have regard to" mean that the Court shall be bound by the provisions of the new Act. It is, however, somewhat curious that if such was the intention, the Legislature should have used this particular expression "shall have regard to" instead of what the Legislature had itself done in the purview by saying that suits "pending, at the commencent of this Act shall be continued and disposed of in accordance with the provisions of the said Act." Also, it would appear that if the intention was that eviction and fixation of standard rent matters were to be settled in accordance with the new Act and only other matters pending under the old Act in accordance with that old Act, the result could have been very easily achieved by saying in the purview itself that all suits and proceedings, except suits and proceedings for the fixation of standard rent or for the eviction of tenants, shall be disposed of in accordance with the provisions of the old Act. The actual drafting of Section 57, runs contrary to the suggested interpretation of the proviso, for in the proviso the Legislature appears to have deliberately departed from the usual expressions usually employed to ensure a compelling effect which expressions were in fact used in Sub-section (2) itself. The expression "shall have regard to" is perhaps in the particular context unhappy, but I cannot find any firm ground for holding that its actual import is that the Court must not only consider the provisions of the new Act but is also bound by those provisions instead of the provisions of the previous Act. This unhappy aspect of the drafting of Section 57 of the Delhi Rent Control Act. 1958, was noticed by Falshaw J. in F. Bulaqi Dass Madan Mohan v. Ram Sarup (1960) 62 P.L.R. 231 and he had then occasion to observe:

It certainly cannot be said that Sub-section (2) of Section 57 is a master piece of clear draftsmanship since it is evidently not easy to reconcile the provisions that suits and other proceedings under the Act of 1952 should be continued and disposed of in accordance with the provisions of that Act as if it continued in force and the Act of 1958 had not been passed, with the proviso that in cases under the old Act relating to fixation of standard rent and eviction of tenants the Court shall have regard to the provisions of the new Act.

He, therefore, concluded in the same case that "it is obvious that the proviso in Sub-section (2) of Section 57 was intended to have same meaning and force, and in my opinion it was intended that where the old provisions have been repeated with modifications of this kind the old Act should be interpreted in the light of the fresh provisions as long as it docs not involve creating new rights and liabilities." Falshaw J. was in that case considering whether the words "arrears of rent then due" used in Section 13 of the Act of 1952 should be interpreted in the light of the provisions of the new Act of 1958 which used the expression "arrears legally recoverable", and he held that the expression "shall have regard to" entitled the Court to interpret the old Act in the light of the new provisions. It is said in this connection that the proviso could not have been put into the Act merely as a rule of interpretation, and that, if the Legislature said that regard must be had to the provisions of the new Act in deciding eviction suits, the meaning can only be that full effect should be given to those provisions. The fact, however, is that the Legislature appears to have deliberately refrained from using the emphatic command with which it was well familiar, and instead used another kind of expression also fairly familiar, but which has never been accepted as the equivalent of an exclusive mandate. As the Privy Council put it in AIR 1943 164 (Privy Council)

* * *the requirement to have regard to ''the provisions in question has no more definite or technical meaning than that of ordinary usage, and only requires that these provisions must be taken into consideration.

and a little later-

In these circumstances their Lordships think it impossible to say that the duty to have regard inter alia to the prohibition contained in proviso (b) of Clause (1) of Section 30 is a duty to keep rigidly within the limit there imposed for cases to which the section of its own force applies.

Reference was made to a decision by Gosain J., sitting alone, in Shri Chuni Lal Nanda v. Shri Des Raj Kapoor Civ. Rev. 663-D of 1961, decided on the 29th September 1961. Gosain J. held while considering the meaning of the proviso to Sub-section (2) of Section 57, that the Legislature knew that some of the provisions of the new Act were entirely different from those of the old Act and while enacting the proviso they intended to say that in two matters, mentioned in the proviso, that is, eviction of tenants and fixation of standard rent the Courts shall decide cases in accordance with the provisions of the new Act. The learned Judge was aware that this involved giving somewhat unusual meaning to the words "shall have regard to", but he thought that the context justified that unusual interpretation of the words as, otherwise, he felt that the meaning of the whole Sub-section would remain extramely vague. I am not, however, convinced that if the expression "shall have regard to" is taken in its ordinary meaning, there would be any necessary vagueness left about the meaning of Sub-section (2) of Section 57 or its proviso, for the meaning, in my opinion is clear enough and it is this that, in spite of the repeal of the Act of 1952 pending suits will continue to be governed by the provisions of the old Act, but, whenever the Court seized of those suits comes to consider the question of the eviction of a tenant or the fixation of standard rent, it must while applying the provisions of the old Act, also take into consideration the relevant provisions of the new Act. This does not, of course, mean that the Court is required merely to look at and then ignore the provisions of the new Act. On the other hand, the Court must, where reasonably possible, give effect to such provisions, provided they can, in reasonable consistency with the old Act, be given effect to, and that seems to have been the view of Falshaw J. in Mt. Bhagwati Vs. Sant Lal, He had occasion to say very nearly the same thing in Hari Singh v. Man Singh Patel Civ. Rev. No. 106-D of 1960, thus-

The exact scope of this proviso has already been considered in several cases with regard to a number of different provisions of the new Act, and in these decisions the general principle had been followed that where the provisions of the new Act merely modified or clarified provisions which previously existed in the old Act they should be applied even in deciding revision petitions in case where the suits and the appeals were decided before the new Act came into force, but this does not apply where the new Act creates new rights or liabilities.

In an earlier case, Shri Krishna Aggarwal v. Satya Dev (1959) 61 P.L.R. 574. Bishan Narain J. had expressed himself concerning the phrase "shall have regard to" in this way-

The pharase "shall have regard to the provisions of this" Act only indicates that the Court shall take the provisions of the new Act into account in regulating its decision. This phrase cannot mean that the Courts are bound (sic) to enforce the provisions of the new Act. Reading Section 57(2) and the first proviso together I am of the opinion that the Courts and the authorities under the old Act are bound to decide the case in accordance with the provisions of that Act but discretion has been conferred on then to take into consideration the provisions of the new Act when it considers it necessary in a proper case and in the interests of justice.

Objection has been taken to the word ''discretion'' used in these observations, the suggestion being that if it is unlimited discretion, then different cases may come to be decided differently. I do not understand Bishan Narain J. to have used the word ''discretion'' in that sense at all, and his observations seem very nearly to accord with what Falshaw J. has said. Pandit J in a later case, Shri Sultan Singh v. Shri Mehar Chand Civ. Rev. No 197-D of 1961, found himself in agreement with the view of Falshaw J. in Mt. Bhagwati Vs. Sant Lal, , Reference has also been made to a decision by Grover J. in Nanak Chand v. Kesar Kaur Civ. Rev. 374-D of 1959, where he followed the decision of Bishan Narain J and was not persuaded that the words "shall have regard to" meant that the Court was bound by the provisions of the new Act in matters of eviction and fixation of standard rent. It would thus appear that apart from Gosain J., the other learned Judges of this Court have generally agreed that the proviso to Section 57, Sub-section (1), does not demand that a suit for the eviction of a tenant filed under the previous Act of 1952 must be governed entirely by the provisions of the new Act but that, on the other hand, the provisions applicable continue to be the provisions of the old Act with this addition that, where the new Act has slightly modified or clarified the previous provisions, those modifications and clarifications should be applied, but, where entirely new rights and new liabilities have been created, the new provisions must not be allowed to override the provisions of the previous Act, and nearly all the cases have been decided on that basis. I find myself in respectful agreement with that view. This view can now be illustrated with reference to the various provisions of the two Acts which happen to be involved in the present cases.

In Civil Revision No. 612-D of 1960 Lakshmi Chand v. N.N. Chaudhri and Civil Revision No. 613-D of 1960 Lakshmi Chand v. G.S. Ghosh, the landlords claim to evict the tenants from two shops on the ground that the tenants have used the premises in a manner contrary to a condition imposed on the landlord by the Government while giving him a lease of the land which the premises are situated within the meaning of Clause (k) of Sub-section (1) of Section 13 of the Act of 1952. It is said that the lease of the land was granted by Government on the condition that, without the previous consent of the Chief Commissioner of Delhi, the tenant will not erect or suffer to be erected on any part of the demised property any building other than and except the building erected thereon, but that the tenants have made certain constructions in the verandas in front of the two shops by fixing certain wooden structures. The Courts below have found as a matter of fact that the enclosing of the verandas by wooden structures was not in violation of any condition of the lease. If that finding stands, no other question would really arise in these two cases. Since, however, the larger question, whether the corresponding provisions of the new Act of 1958 were to be applied or not, was raised before the learned Single Judge, it is, I think, proper to express our opinion. Clause (k) of Section 13(1) of the Act of 1952 provided that a tenant could be evicted if, notwithstanding previous notice, the tenant is shown to have used or dealt with the premises in a manner contrary to any condition of the lease by which the land was leased by the Government to the landlord. The corresponding provision in the new Act of 1958 is contained in Section 14, and although Clause (k), which is the corresponding clause in'' the new Act, is worded in substance in the same way as the clause in the previous Act, there has been a modification made in Sub-section (11) of Section 14 which says-

(11) No order for the recovery of possession of any premises shall be made on the ground specified in Clause (k) of the proviso to Sub-section (1), if the tenant within such time as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.

It is obvious that in substance there has been no real change as far as the mischief intended to be prevented is concerned, and all that the new Act has done is to modify to some extent the rig our of the provision in the previous Act, for it has now afforded the tenant another opportunity to undo the mischief within the time allowed by the Controller, in which case the tenant will not be evicted. Further, a provision has been made that should the Controller think that the mischief done by the tenant can be adequately compensated by payment of compensation, recourse may be had to such compensation in preference to the tenant''s eviction. The alterations thus are merely slight modifications of the previous rights and liabilities as between the parties and there has been no radical change in that respect. In my opinion, therefore, the new rivision contained in the present Act of 1958 is fully applicable even to suits for eviction filed under the previous Act of 1952 like the two eviction suits in these two cases.

Civil Revision No. 358-D of 1961 (Jhabar Mal Chokhani v. Jinendra Parshad) arises out of an order of eviction made on the ground that the residential premises in question are required by the landlord himself for occupation by himself and his family. It is contended on behalf of the tenant that proper regard has not been had to the provision of the new Act which says in Section 14, Sub-section (6) that in case a landlord has acquired any premises by transfer and they are let for residential purposes, no application for the recovery of possession shall lie unless a period of five years has elapsed from the date of the acquisition. In the present case the landlord acquired the premises by purchase in July 1958 while the suit for the tenant''s eviction was filed in 1959. The question is whether this particular provision of the new Act has to be applied or ignored. That depends on whether this particular provision makes a radical alteration in the rights of the parties. In the previous Act of 1952, under which the eviction suit was filed, there was no such limitation placed on the landlord''s right, so that, when in the present case the landlord filed the eviction suit, he had and would have had no idea that his claim was not maintainable. The change in the law was made while the suit was pending, and what is important is that the alteration appears to have been radical and not merely a slight modification or a clarification of the existing rights, for the new provision entirely prevents a landlord for a period of five years from seeking any relief on the ground of personal requirement. It is not, in my opinion, the intention of Section 57 of the Act of 1958 that any effect should be given to the new provision while deciding a claim for eviction properly brought under the previous Act. that was the view adopted by Bishan Narain J. in Shri Krishna Aggarwal v. Satya Dev5, which view Falshaw J. in a later decision accepted as correct. I would, therefore, hold that as far as the new provision in Sub-section (6), of Section 14 of the Act of 1958 is concerned, effect cannot be given to it in connection with suits filed under the previous Act of 1952, and the rights of the parties must be determined in accordance with the previous Act of 1952.

In Civil Revision 287-D of 1961 Jasa Ram Malik v. Lalit Kumar and others, the question concerns the user of certain premises by a tenant for a purpose other than the purpose for which they were let. The premises consist of a room, along with a bathroom and veranda, being a portion of a large building. The landlords claimed that the premises were let to the tenant for residence and such indeed was the recital in the deed of lease. The allegation was that the tenant had been using the premises as an office for his business and he had in this manner used the premises for a purpose other than that for which they were let within the meaning of Section 13(1)(b) (ii). The tenant pleaded that, in fact, the premises were let for business, although the lease deed said that the letting was for residence. another ground taken for eviction was that the tenant had subsequently acquired for himself another place to live in while the tenant''s defence was that his acquisition of residential premises for himself elsewhere cannot affect the matter because the disputed premises were meant for business and not residence.

On the evidence the trial Court found that, as a matter of fact, the disputed premises had all along been used as an office, and that the letting was, in fact, for such a purpose and not for residence. In spite f that conclusion, the Court felt that it was bound to ignore the evidence leading to that conclusion because of the express terms in the lease deed which document, according to the trial Court, excluded oral evidence contrary to its terms. The Court, therefore, held, as a matter of law, that the letting was for residence, and, as change in user was clearly established and even admitted, the Court ordered eviction on both grounds, that is, the ground of change in user and the ground that the tenant had acquired for himself other residential premises. On appeal by the tenant, the appellate Court affirmed the conclusion of the trial Court holding, however, on the evidence that the letting was for residence and not for business, although this conclusion of fact rested on the view that the documentary evidence of the lease deed was to be preferred to the oral evidence showing to the contrary. The appeal was thus dismissed.

On behalf of the tenant it is contended in support of the present revision petition that under the terms of the new Act of 1958 eviction cannot be ordered on the ground of change of user unless it is further shown that such change constitute a public nuisance or caused damage to the premises or was otherwise detrimental to the interests of the landlord. Reliance is placed on Sub-section (5) of Section 14 of the Act of 1958, and the question is whether these new provisions are properly applicable. Under the previous Act of 1952, it is clear that the tenant was liable to be evicted as soon as it was shown that he had hired the premises for one purpose but used them for another. This has been modified in the new Act by Sub-section (5) of Section 14 which says that eviction on the ground of change of user will not be ordered unless "the Controller is satisfied that the misuse of the premises is of such a nature that it is a public nuisance or that it causes damage to the premises or is otherwise detrimental to the interests of the landlord." These are, of course, questions of fact and we are not at this stage concerned with the determination of the relevant facts. All we have to decide is whether the tenant is entitled to have the new provision applied. This particular provision does not radically change the rights of the parties, for the foundation remains the same, namely, misuser, and all that the new Act has done is to clarify the precise meaning of misuser and perhaps modified the concept of misuser to a slight extent by limiting it only to certain kinds of misuser. It is, I think, reasonable to say that when misuser was made a ground for eviction under the previous Act of 1952, the object of the Legislature was to prevent such misuser of the premises as would be detrimental to the interests of the landlord, and it was that kind of mischief which the particular provision in the previous Act aimed at. This has now been clarified and slightly modified in the new Act of 1958 by saying that merely technical misuser, which does not affect the landlord''s interests will not result in the tenant''s eviction but only that kind of misuser which has become a public nuisance or dam-aged the property or is otherwise detrimental to the interests of the landlord. These modifications in the new Act must, in my opinion, be given full effect to when deciding eviction suits brought under the previous Act of 1952, as there is, in my opinion, no real alteration in the substance of the parties rights.

In Civil Revision No. 135-D of 1962 (Tek Chand v. Hari Krishana Bhargava), the question is very similar. A shop on the grounds floor of a building was let to a tenant. The land under the building was on lease with the owner from Government, and one of the conditions of he lease was that the ground-floor of the building to be constructed on the land would be used only for commercial purposes. The landlord sued for the tenant''s eviction on four grounds, of which only two are at present material. It was alleged that the shop had been let for the purposes of running a cycle repairer''s business, but that the tenant had subsequently fixed certain machines in the shop for other purposes and had thus converted the user. Further, it was alleged that in the back portion of the shop the tenant had started living himself with his family. These allegations have been believed by the Courts below and it has been found that the tenant has been using the shop in contravention of the terms of the lease and also that he has been using it for a purpose other than that for which it was let, and the case is thus hit by Section 13(1)(b)(ii) as well as Section 13(1)(k) of the Delhi and Ajmer Rent Control Act, 1952. The question is whether those provisions of the previous Act alone are to govern the matter, or whether effect has to be given to the corresponding provisions as modified by the new Act of 1958. The modifications made in respect of misuser by a tenant are contained in Section 14, Sub-section (5), of the Act of 1958, which provides that eviction will be ordered only if the misuser in question is a public nuisance or causes damage to the property or is otherwise detrimental to the interests of the landlord, while regarding the breach of the terms of a lease the modified provision is in Sub-section (11) of Section 14, which says that eviction shall not be ordered if within such time as the controller may fix the tenant complies with the condition or pays such amount by way of compensation as the Controller may direct. As I have already said in the previous case, the modification regarding misuser is largely a clarification of the previous provision with slight alteration and full effect to the new provision should be given. The modification contained in Sub-section (11) of Section 14 of the Act of 1958 is, similarly, a slight modification, for the mischief to be prevented under both the Acts is the same, namely, that the tenant should not be allowed to use the premises against the terms of the lease of the land.

The only modification made in the new Act of 1958 is that further time may be allowed to the tenant to make such compliance, and in a suitable case compensation may be found an adequate remedy. There has, in my opinion, been no radical alteration in the rights of the parties by the provisions of the new Act and there is, therefore, no reason why full effect should not be given to the provisions of the new Act of 1958 as far as Sub-section (11) of Section 14 of the new Act is concerned. I would, therefore, hold that in cases of alleged misuser of the premises or the alleged breach of a condition of the lease of the land the provisions of the new Act of 1958, that is, Section 14, Sub-sections (5) and (11) must be given full effect to.

These five revision petitions can now go back to a Single Bench for their decision on the merits in the light of our conclusion as to the meaning of Section 57 of the Delhi Rent Control Act, 1958.

Capoor, J.

I agree.