# BRU KISHORE GUPTA v. VISHWAMITRA KAPUR

- **Citation:** [1965] 2 S.C.R. 705
- **Court:** Supreme Court of India
- **Decided:** 1965-01-08
- **Case number:** Civil Appeal No. 879 of 1962
- **Bench:** P. B. Ga.Tendragadkar, K. N. Wanchoo, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bru-kishore-gupta-v-vishwamitra-kapur-3437
- **Pages:** 8

## Headnote

Delhi & Ajmer Rent Control Act, 1952-Constructlon of unauthorised structures-Suit for ejectment-Removal of structures-pending proceedings-Whether court could grant relief-Repeal of the 1952 Act by
Delhi Rent Control Act, 1958-Sectlons 57(2) & 14(1) of new Act--
Scope of.
In each of the two appeals before the court, suits had been filed by
landlords under the Delhi and Ajmer Rent Control Act, 1952, for ejectment on the ground that the tenants had erected certain structures with·
out the authority of the landlords and in violation of the conditions of
lease between the landlord and the concerned authorities.
However, in
both these cases the tenants had removed the offending structures during
the pendency of the suits and the question for decision in both the cases
was whether the tenant could still be ejected after be had removed the
authorised structures and there was no further danger to the landlords'
leases being forfeited.
It was contended on behalf of the landlords that once a breach bad
Ileen committed by a tenant within the meaning of cl. (k) of the pro\iso
to s. 13(1) of the 1952 Act, he was liable to be ejected even though the
landlord may never have given him notice about the breach and may not
even have required him to remove it; and that his liability to ejectment
would continue even if he had removed the offending structure before
JC
the filing of the suit or while it was pending. Furthermore, by virtue of
the provisions of s. 57(2) of the Delhi Rent Control Act, 1958, (which
repealed the 1952 Act), these two appeals fell to be governed by cl. (k) of
the proviso to s. 13 (1) of the 1952 Act and not by cl. (k) of proviso to
s 14(1) of 1958 Act or bys. 14(11) of that Act which made 1t possible
fur the Controller not to make an order of eviction if the tenant complied with any requirements specified by the Controller; this was so becawe
the first proviso to s. 57(2) of the 1958 Act which required that in certain
r
circumstances regard shall be bad to the 1958 Act, was not applicable
to these 1wo cases,
· ·
HELD : ( i) While considering the scope of the 6rst proV!So to
s. 57(2), it was held in Karam Singh v. Sri Pratap Chand, A.I.R. 1964
S.C. 1305 that where, in the 1958 Act, there was a· radical departure
from the 1952 Act, the latter Act would continue to apply to pending
proceedings; but where the 1958 Act bad slightly modified or clarified
G
the previous provisions, then these modifications or clarifications would
apply. Section 14(11) of the 1958 Act did not provide a radical departure from the provisions of the 1952 Act. because when the latter Act
was in force, it would have been possible for the court in a suit based on
cl. (k) of the proviso to s. 13(1) to give relief against forfeiture in a proper case on the analogy of s. 114A of the Transfer of Property Act where
the tenant bas removed the offending structure before the suit was filed;
or even where he bad done so during the pendencv of the suit if reasonable
H
time was not allowed in the notice contemplated by cl. (k) of the pro\iso
to s. 13(1). Whens. 14(11) of the 1958 Act gave power to the Controller
to give relief to the tenant under the conditions mel)tioned therein, it
was in fact clarifying and slightly modifying what the court could
706
SUPRBMB COURT
REPORTS
[1965] 2 S.C.R.
already do under the 1952 Act. Therefore, regard could be had to the
1t.
provisions of s. 14( 11) of the 1958 Act and relief granted to the tenants
in both appeals.
(710 E-F; 711 F-H; 712 C-E]
(ii) Under the 1952 Act, the language of the proviso to s. 13(1)
was imperative and laid down that nothing in the Act applied
when
various clquses of the proviso were satisfied.
Although the language of
the proviso to s. 14(1) of the 1958 Act is not so imperative, there is no
difference in substance.
Where the requirements of the proviso under
B
the 1958 Act are satisfied, the Controller has to pass a decree for ejectment
unless there is provision otherwise in s. 14. (709 G-H; 910 A-Bl

## Text

A
B
D
BRU KISHORE GUPTA
v.
VISHWAMITRA KAPUR
January 8, 1965
[P. B. GA.TENDRAGADKAR, C.J., K. N. WANCHOO AND
J. C. SHAH, JJ.]
Delhi & Ajmer Rent Control Act, 1952-Constructlon of unauthorised structures-Suit for ejectment-Removal of structures-pending proceedings-Whether court could grant relief-Repeal of the 1952 Act by
Delhi Rent Control Act, 1958-Sectlons 57(2) & 14(1) of new Act--
Scope of.
In each of the two appeals before the court, suits had been filed by
landlords under the Delhi and Ajmer Rent Control Act, 1952, for ejectment on the ground that the tenants had erected certain structures with·
out the authority of the landlords and in violation of the conditions of
lease between the landlord and the concerned authorities.
However, in
both these cases the tenants had removed the offending structures during
the pendency of the suits and the question for decision in both the cases
was whether the tenant could still be ejected after be had removed the
authorised structures and there was no further danger to the landlords'
leases being forfeited.
It was contended on behalf of the landlords that once a breach bad
Ileen committed by a tenant within the meaning of cl. (k) of the pro\iso
to s. 13(1) of the 1952 Act, he was liable to be ejected even though the
landlord may never have given him notice about the breach and may not
even have required him to remove it; and that his liability to ejectment
would continue even if he had removed the offending structure before
JC
the filing of the suit or while it was pending. Furthermore, by virtue of
the provisions of s. 57(2) of the Delhi Rent Control Act, 1958, (which
repealed the 1952 Act), these two appeals fell to be governed by cl. (k) of
the proviso to s. 13 (1) of the 1952 Act and not by cl. (k) of proviso to
s 14(1) of 1958 Act or bys. 14(11) of that Act which made 1t possible
fur the Controller not to make an order of eviction if the tenant complied with any requirements specified by the Controller; this was so becawe
the first proviso to s. 57(2) of the 1958 Act which required that in certain
r
circumstances regard shall be bad to the 1958 Act, was not applicable
to these 1wo cases,
· ·
HELD : ( i) While considering the scope of the 6rst proV!So to
s. 57(2), it was held in Karam Singh v. Sri Pratap Chand, A.I.R. 1964
S.C. 1305 that where, in the 1958 Act, there was a· radical departure
from the 1952 Act, the latter Act would continue to apply to pending
proceedings; but where the 1958 Act bad slightly modified or clarified
G
the previous provisions, then these modifications or clarifications would
apply. Section 14(11) of the 1958 Act did not provide a radical departure from the provisions of the 1952 Act. because when the latter Act
was in force, it would have been possible for the court in a suit based on
cl. (k) of the proviso to s. 13(1) to give relief against forfeiture in a proper case on the analogy of s. 114A of the Transfer of Property Act where
the tenant bas removed the offending structure before the suit was filed;
or even where he bad done so during the pendencv of the suit if reasonable
H
time was not allowed in the notice contemplated by cl. (k) of the pro\iso
to s. 13(1). Whens. 14(11) of the 1958 Act gave power to the Controller
to give relief to the tenant under the conditions mel)tioned therein, it
was in fact clarifying and slightly modifying what the court could
706
SUPRBMB COURT
REPORTS
[1965] 2 S.C.R.
already do under the 1952 Act. Therefore, regard could be had to the
1t.
provisions of s. 14( 11) of the 1958 Act and relief granted to the tenants
in both appeals.
(710 E-F; 711 F-H; 712 C-E]
(ii) Under the 1952 Act, the language of the proviso to s. 13(1)
was imperative and laid down that nothing in the Act applied
when
various clquses of the proviso were satisfied.
Although the language of
the proviso to s. 14(1) of the 1958 Act is not so imperative, there is no
difference in substance.
Where the requirements of the proviso under
B
the 1958 Act are satisfied, the Controller has to pass a decree for ejectment
unless there is provision otherwise in s. 14. (709 G-H; 910 A-Bl
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 879 of
1962 etc.
Appeals by special leave from the judgment and .decrees dated
C
January 18, 1961, and December 13, 1960 of the Punjab High
Court Circuit Bench at Delhi, in Civil Revision No. 13-D of 1958
and Civil Revision Case No. 592-D of 1957.
M.S.K. Sastri and M. S. Narasimhan, for the appellant (in
C.A. No. 121/63)
M. C. Setalvad, S. Murty and B. P. Maheshwari, for the
D
appellants (in C.A. No. 879 of 1962) and respondents (in C.A.
No. 121 of 1962)
Raghbir Singh and M. I. Khowaja, for respondent (in C.A.
No. 879 of 1962).
The Judgment of the Court was delivered by
E
Wanchoo, J.
These two appeals by special leave from two
judgments of the Punjab High Court raise a common question with
respect to the application of the first proviso to s. 57 (2) of the
Delhi Rent Control Act, No; 59 of 1958, (hereinafter referred to
as the present Act).
They arise from decisions ·of two learned ll
Single Judges in revision applications under the Delhi and Ajmer
Rent Control Act, No. 38 of 1952 (hereinafter referred to as the
1952 Act.) In one of them (C.A. 879) the learned Judge has held
that in view of the first proviso to s. 57 (2), a decree for ejectment
against the tenant could not be passed. In the other appeal (No.
121), the other learned Judge has held that the tenant is liable to
G
ejectment in spite of the first proviso to s. 57 (2) of the present Act.
It will thus be seen that the two decisions are contradictory and
raise the question as to when the first proviso to s. 57 (2) precisely
applies to facts similar to the facts in the present two appeals which
are more or less the same.
Before we consider the question thus raised before us, we
may briefly indicate the facts in the two appeals. In appeal No.
H
BRI.J KISHORE v. v. KAPUR (Wanchoo, !.)
707
A 879 of 1962, the landlord sued for ejectment on the ground that
the tenant had erected certain structures in the shape of closing an
open verandah and erecting a partition therefu. On account of this,
notices were sent to the landlord as well as to the tenant by the
authorities concerned to remove the unauthorised structures. As
however the tenant did not do so, suit for ejectment was filed by
B
the landlord under cl. (k) to the proviso to s. 13 (1) of the 1952
Act, which ran as follows :-
c
D
E
"13 (1). Notwithstanding ~ythfug to the contrary
contained in any other law or any contract, no decree or
order for the recovery of possession of any premises shall
be passed by any court in favour of the landlord against
any tenant (including a tenant whose tenancy is terminated):
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-
(k) that the· tenant has, whether before or after the
commencement of this Act, "caused or permitted to be
caused substantial damage to the premises, or notwithstanding previous notice has used or dealt with the premises in a manner contrary to any condition imposed on
the landlord by the Government or the Delbi Improvement Trust while giving him a lease of the land on
which the premises are situated;"
The lease in favour of the landlord by the Government provided that
F
"the lessee will not without the previous consent in writing of the
Chief Commissioner of Delbi or such officer or body as the lessor
or the Chief Commissioner of Delhi may authorise in this behalf
erect or suffer to be erected on any part of the said demised premises any buildings other than and except the buildings erected
thereon at the date of these presents." The case of the landlord
G was that the tenant had made structures without authority which
made him liable to ejectment under cl. (k). During the pendency
of the suit, however, the tenant had removed the offending structures with the result that there was no longer any breach of the
condition of the lease.
H
In C.A. 121 of 1963, also the facts were similar and the suit
was filed on the basis of cl. (k) of proviso to s. 13 (1) of the 1952
Act. In this case also the tenant had closed the verandah without
708
SUPREME
COURT
REPORTS
(1965] 2 S.C.R.
the permission of the authorities concerned and notice was given
A
to the landlord on that count by the authorities and the landlord
in his turn asked the tenant to remove the unauthorised structure.
When the tenant did not do so, the landlord filed the suit. It
appears that during the trial of the suit, the tenant made certain
changes in the structure and removed the glazing and instead he
closed the verandah with wire-gauze net. It was stated by a witB
ness from the office of the Land Development Officer that the fixing
of wire-gauze net was not against the clause as to unauthorised construction which was the same in the case of this lease as in the
case of the lease in the other appeal. It may be added that no
further action has been taken by the Land Development Officer
C
after removal of the glazing and after fixing of the wire-gauze net.
In the circumstances the question that arose for decision in
both the cases was whether the tenant could still be ejected after
he had removed the unauthorised structure and there was no further danger to the landlord's lease being forfeited, and in that conD
nection the application of the first proviso to s. 57 (2) of the present Act arose. As we have already indicated, one of the learned
Judges held that the tenant could be ejected while the other held
that he could not.
In order to decide the point that has been raised before us it
is necessary to set out the corresponding section in the present Act
JI:
which is s. 14. The relevant part of this section is in these terms :-
"14. (1). Notwithstanding anything to the contrary
contained in any other law or contract, no order or decree
for the recovery of possession of any premises shall be ·
made by any court or Controller in favour of the land-
:r
lord against a tenant :
Provided that the Controller may, on an application
made to him in the prescribed manner, make an order
for the recovery of possession of the premises on one or
more of the following grounds only, namely :-
G
(k) that the tenant has, notwithstanding previous
notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the
Government_or the Delhi Development Authority or the
H
Muriicipal Corporation of Delhi while giving him a lease
of the land on which the premises are situate;"
B
c
D
E
BRIJ KISHORE v. v. KAPUR (Wanchoo, J.)
709
"14 (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."
Section 57(1) repeals the 1952 Act.
Section 57(2) which is
material for our purpose reads thus :-
"57 (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 the 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-ef 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.
It will be seen from a comparison of the 1952 Act and the present
Act with respect to ejectment on the ground contained in cl. (k)
of the first proviso that there are some differences in the language
JI
of the proviso to s. 13(1) of the 1952 Act and of the proviso to
s. 14(1) of the present Act.
In the first place the proviso to
s. 13(1) of the 1952 Act lays down that nothing in sub-section (1)
shall apply to any suit or other proceeding for such recovery of
possession while the proviso to s. 14 (1) lays down that the Controller may on an application made to him make an order for
G
the recovery of possession of the premises on one or more of the
grounds specified. The first difference is that the forum is changed
from the civil court to the Controller; but that is a question of
jurisdiction which we need not consider here. The second dillerence is that while under the 1952 Act the language of the proviS(I
was imperative and laid down that nothing in the Act applied
H
when the various clauses of the proviso were satisfied, the language
-Of the proviso to s. 14 (1) of the present Act is not so imperative.
Evett so, we are of opinion that there is no difference in substance,
710
SUPREME
COURT
Rl\PORTS
[1965] 2 S.C.R.
for where the requirements of the proviso are satisfied under the preA.
sent Act the Controller has to pass a decree for ejectment unless
there is provision otherwise in s. 14 which will be found with
reference to various clauses in the proviso as for examples. 14(2),
14 ( 10) and 14 (11 ) . Another difference -for our purjioses
between s. 13 of the 1952 Act and s. 14 of .the present Act is
the introduction of sub-s. (11) of s. 14 in the present Act while B
there was nothing in the 1952 Act corresponding to it. The main
argument on behalf of the landlords in the two cases is based on
this difference between the two Acts and it is contended that the
introduction of sub-s. (11) is a radical departure and therefore the
language of the first proviso to s. 57(2) would not apply to the C
present situation.
Now the first proviso to s. 57(2) came up for interpretation
before this Court in Karam Singh v. Sri Pratap Chand('). In that
case the majority held that the proviso must be read harmoniously
with the substantive provision contained in sub-s. (2) and the only D
way of harmonising the two was to read the expression "shall have
regard to the provisions of this Act" as merely meaning that where
the new Act has slightly modified c;ir clarified the previous provisions, these modifications and clarifications should be applied. It
was further held that these words did not take away what was provided by sub-s. (2) and that ordinarily the old Act would apply
E
to pending proceedings.
In substance therefore Karamsingh's
case(') decided that where in the present Act there is a radical
departure from the 1952 Act, the 1952 Act will continue to apply
to pending proceedings, but where the present Act had slightly
modified or clarified the previous provisions these modifications
and clarifications should be applied.
Y
The question that falls for consideration in the present appeals
therefore is whether the addition of sub-s. O 1) in s. ·14 is a radical
departure from what s. 13 (1) provided or whether it is a clarification and/ or modification of the previous provision. Whether subG
s. ( 11 ) is a clarification and/ or modification of the position as
existed when· the 1952 Act was in force would depend upon
whether when that Act was in force it was open to a court to give
relief to a tenant where the offending structure had been removed
by him during the pendency of the suit. In this connection s. 114-A
of the Transfer of Property Act (No .. ·4 of 1882) may be referred H
to. Section 114-A runs as follows :-
4 s.c. 1305.
A
B
c
D
BRIJ KISHORE V, v. KAPUR (Wanchoo, J.)
7il
"114-A. Relief against forfeiture in certain other
cases.-Where a lease of ii:nmovable property has determined by forfeiture for a breach of an express condition
which provides that on breach thereof the lessor may reenter, no suit for ejectment shall lie unless and until the
lessor has served on the lessee a notice in writing-
(a) specifying the particular breach complained of;
and
·
(b) if the breach is capable of remedy, requiring the
lessee to remedy the breach;
and the lessee fails, within a reasonable time from
the date of the service of the notice, to remedy the
breach, if it is capable of remedy.
"Nothing in this section shall apply to an express
condition against the assigning, under-letting, parting with
the possession, or disposing, of the property leased, or to
an express condition relating to forfeiture in case of nonpayment of rent."
It will be seen that s. 114-A gives power to court to give relief to
the tenant against forfeiture where it holds that the landlord did
E not give reasonable time to the tenant to remedy the breach. In
such case it can dismiss the suit as not maintainable. It is true
that s. 114-A would not in specific terms apply to cases like the
present; but ejectment on the ground specified in cl. (k) to the
proviso to s. 13 ( 1) of the 1952 Act was somewhat analogous to
forfeiture on breach of an express condition of a lease for it also
F required previous notice to the tenant before the suit is filed. (see
Uma Kumari v. Jaswant Rai Chopra) (1). We do not think that it
can be said that the 1952 Act forbade t}le court from granting
relief where the offending structures were removed by the tenant
even during the pendency of the suit for ejectment. What is reasonable time within which the breach should be remedied is always a
G question of fact and we think it would have been possible for the
court in a suit based on cl. (k) of the proviso to s. 13 ( 1) to give
relief against forfeiture in a proper case where the tenant had removed the offending structure before the suit was filed or even during the pendency of the suit if reasonable time was not allowed in
the notice contemplated by cl. (k) of the proviso to s. 13 (I). On
H the interpretation pressed before us on behalf of the landlords in
the two appeals it is argued that once the breach has been com-
(!) C.A. 246of1961, decided on 16-2-1962.
--:.;-
712
SUPREME
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REPORTS
[1965] 2 S.C.R.
mitted by the tenant by making an unauthorised structure he is
A
liable to ejectment even though the landlord may never have given
him notice about the breach and may not even have required him
to remove it and that his liability to ejectment would continue even
if he had removed the offending structure before the filing of the
suit. We do not think that such an interpretation can be given to
the provisions of an ameliorating statute like the 1952 Act, when B
it is clear that even under s. 114-A of the Transfer of Property
Act, the court has power to give relief against forfeiture in the
circumstances mentioned above. We are therefore of opinion that
even under the 1952 Act it would have been open to a court to
give relief to the tenant who had remedied the breach either before C
the suit was filed or even after the suit had been filed depending
upon what the court considered to be reasonable time. Therefore
when sub-s. (11) gave power to the Controller to give relief to the
tenant under conditions mentioned therein it was in fact clarifying
what the court could do under the 1952 Act on the analogy of
&. 114-A of the Transfer of Property Act and also modifying it D
slightly. Incidentally we may add that the addition of sub-ss. (10)
and (11) may explain the change in the form of the language of
the proviso to s. 14 ( 1) of the present Act to which we have already
referred. We are therefore of opinion that the introduction of
sub-s. (11) in s. 14 was clarificatory and slightly modificatory of
the power of the court under the 1952 Act to relieve against forE
feiture where the suit was brought without giving the tenant reasonable time in the notice contemplated in cl. (k) of the proviso to
s. 13{1). In this view C.A. 879 of 1962 must fail and is hereby
dismissed. C.A. 121 of 1963 succeeds and is hereby allowed and
the plaintiff-respondents' suit is dismissed. As in both these cases
the tenant has succeeded mainly on account of some change in I
law after the suit had been filed, we order parties to bear their
own costs throughout in both the appeals.
Appeal No. 879 dismiised and Appeal No. 121 allowed.