# BUSCHlNG SCHMITZ PRIVATE LTD v. P. T. MENGHANI AND ANR

- **Citation:** [1977] 3 S.C.R. 312
- **Court:** Supreme Court of India
- **Decided:** 1977
- **Case number:** Civil Appeal No. 81 of 1977
- **Bench:** V. R. Krishna Iyer, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/buschlng-schmitz-private-ltd-v-p-t-menghani-and-anr-7221
- **Pages:** 15

## Headnote

/11tcrprctatiou of statute-Legislature can be assunied 1101 to intend obvious
literal interpretation resulting into obscurity-Whether statute can be mocked
at-Section 4(1)(c), Delhi Rent Control Act 1958- Sec. 14, 14A, 25B-Delhi
Rent Control Ordinance 24 of 1975-Delhi Rent Control (Amendment) Act,
1976-/(iglit of Govenunent Offu;er who i's asked to racate Govenunent accom111odation to evict his tenant.-Whether can apply to preniises let out for com1nercial purpose-What is residential purpose-Triable is.sues-Meaning of.
The respondent No. 1 landlord let out his building to the appellant, a company to carry on business and use part of it for its manager's residence.
The
landlord was occupying residential premises allotted by the Central
Govern_ment.
After the amendment of the Delhi Rent Control Act, 1958, by OrCh·
nance 24 of 1975 which was later replaced by Delhi Rent Control (Amen<tment)
1\ct, 1976, section 14A and 25B were added to the· Statute. Section 14 permits
a landlord to evict the tenant if the premises let for residential purpose are
required bonafide by the landlord for occupation as a residence for him.self or
for any member of hip family dependent upon him. Section 14A provides that
where a landlord is in occupation of any residential accommodation allotted to
him by the Central Gnvemment or any local authority and if he is required by
order made by that Government or authority to vacate such residential accom~
modation our the ground that he owns in the Union Territory of Delhi a residential accommOOation either in his own name or in the name of his wife or
dependent child, there shall accrue to the landlord a right to recover immew
diately possession of any premises let out by him. The said provision has been
given effect notwithstanding anythlng to the contrary in the Delhi Rent Act or
any other law or the, custom or usage..
Section 25B provides for a summarY
remedy.
It prnvides that the Controller shall give to the1 tenant leave to contest the application if the, affidavit filed by' the tenant discloses such facts as
would disentitle the landlord from obtaining an
order for the
recovery
of
possession on the ground specified in section 4(1)(c) or 14A.
The respondent
was directed by the Government to vacate the Government accommodation on
the ground that he had let out residential accon1modation of which he was
owner. The respondent No. 1 accordingly filed eviction proceedings against the
appellant· claiminf:.': possession under Section
14A.
'fhe appellant contended
before the Rent Control1er that the ground did D.ot fall within the sweep of section 14A since the. premises were let out for residential-cum-commercial purposes to a joint Stock Company which was carrying on business besides using
it forr the residence· of its Managing Director. This plea did not cut ice with
the Controller who refused leave to contest. The· appellant filed a writ petition
in the High Court under Art. 226 of the Constitution which was dismissed.
Tn appeal by special leave, the appellant contended that
1. Nothing in s.14A compels the landlord to occupy the premises after
evicting the tenant.
He could still let it for a higher rent take on
lease from the private sector a sn1a1l house and make <i gain' from the
difference flowing in rent.
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2. The· Controller could not shut him out from being heard if a triable
issue emerged from the affidavit in opposition.
In the pr~sent case
such issues were present and, therefore, the Rent Controller was not
justified in refusing leave to contest.
3. Section 14A does not apply in the present case since the
premises
were not residential premises as they were let out both for commercial and residential purposes.
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BUSCHING SCHMITZ (P) LTD. V. P. T. MENGHANI
313
(Krishna !yet, J.)
Dismissing the· appeal,
HELD : (I) It is fallacious to approximate section 25B(5) with Order 37
rule 3 ~f the Code of Civil Procedure. The social setting de1nan<ling summary
proceeding, the. nature of the subject matter an

## Text

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312
BUSCHlNG SCHMITZ PRIVATE LTD.
v.
P. T. MENGHANI AND ANR.
March, 17, 1977
[V. R. KRISHNA IYER AND JASWANT SINGH, JJ.]
/11tcrprctatiou of statute-Legislature can be assunied 1101 to intend obvious
literal interpretation resulting into obscurity-Whether statute can be mocked
at-Section 4(1)(c), Delhi Rent Control Act 1958- Sec. 14, 14A, 25B-Delhi
Rent Control Ordinance 24 of 1975-Delhi Rent Control (Amendment) Act,
1976-/(iglit of Govenunent Offu;er who i's asked to racate Govenunent accom111odation to evict his tenant.-Whether can apply to preniises let out for com1nercial purpose-What is residential purpose-Triable is.sues-Meaning of.
The respondent No. 1 landlord let out his building to the appellant, a company to carry on business and use part of it for its manager's residence.
The
landlord was occupying residential premises allotted by the Central
Govern_ment.
After the amendment of the Delhi Rent Control Act, 1958, by OrCh·
nance 24 of 1975 which was later replaced by Delhi Rent Control (Amen<tment)
1\ct, 1976, section 14A and 25B were added to the· Statute. Section 14 permits
a landlord to evict the tenant if the premises let for residential purpose are
required bonafide by the landlord for occupation as a residence for him.self or
for any member of hip family dependent upon him. Section 14A provides that
where a landlord is in occupation of any residential accommodation allotted to
him by the Central Gnvemment or any local authority and if he is required by
order made by that Government or authority to vacate such residential accom~
modation our the ground that he owns in the Union Territory of Delhi a residential accommOOation either in his own name or in the name of his wife or
dependent child, there shall accrue to the landlord a right to recover immew
diately possession of any premises let out by him. The said provision has been
given effect notwithstanding anythlng to the contrary in the Delhi Rent Act or
any other law or the, custom or usage..
Section 25B provides for a summarY
remedy.
It prnvides that the Controller shall give to the1 tenant leave to contest the application if the, affidavit filed by' the tenant discloses such facts as
would disentitle the landlord from obtaining an
order for the
recovery
of
possession on the ground specified in section 4(1)(c) or 14A.
The respondent
was directed by the Government to vacate the Government accommodation on
the ground that he had let out residential accon1modation of which he was
owner. The respondent No. 1 accordingly filed eviction proceedings against the
appellant· claiminf:.': possession under Section
14A.
'fhe appellant contended
before the Rent Control1er that the ground did D.ot fall within the sweep of section 14A since the. premises were let out for residential-cum-commercial purposes to a joint Stock Company which was carrying on business besides using
it forr the residence· of its Managing Director. This plea did not cut ice with
the Controller who refused leave to contest. The· appellant filed a writ petition
in the High Court under Art. 226 of the Constitution which was dismissed.
Tn appeal by special leave, the appellant contended that
1. Nothing in s.14A compels the landlord to occupy the premises after
evicting the tenant.
He could still let it for a higher rent take on
lease from the private sector a sn1a1l house and make <i gain' from the
difference flowing in rent.
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2. The· Controller could not shut him out from being heard if a triable
issue emerged from the affidavit in opposition.
In the pr~sent case
such issues were present and, therefore, the Rent Controller was not
justified in refusing leave to contest.
3. Section 14A does not apply in the present case since the
premises
were not residential premises as they were let out both for commercial and residential purposes.
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BUSCHING SCHMITZ (P) LTD. V. P. T. MENGHANI
313
(Krishna !yet, J.)
Dismissing the· appeal,
HELD : (I) It is fallacious to approximate section 25B(5) with Order 37
rule 3 ~f the Code of Civil Procedure. The social setting de1nan<ling summary
proceeding, the. nature of the subject matter and above all, the Jegislati\'e diction which has been deliberately designed, differ in the two
provisions.
Disclosure of facts which disentitle recovery of possession is a sine qua non for
grant of leave.
[320F-A, 321A]
(2) The definition of premises in section 2(i) covers any building or part of
the building leased for use, residential, commercial or other. To attract section
14A the landlord must be in occupation of residential pfemises allott"d to him
by the Central Government. He must be required by order of that Gove1nment to vacate his residential accommodation.
The Delhi Development Authority granted the land to respondent No. 1 for construction of a residcritial building although it \Vas let out for commercial purpose. Residential premises are
not only plots which are let out for residential purposes nor do all kinds of
structures where humans may manage to dwell are residential.
Use or purpose
of the letting is no conclusive test. Whatever is suitable or adaptable for residential use·, even by making son1e changes, can be designated residential premises.
Once it is residential in the liberal sense, section 14A stands attracted.
In the present case the house was built on land iiven for constructing a residence, is being used even now for residence is suitable otherwise for residence
and is being credibly demanded for the re:·pondenfs
residence.
Residential
suitability being the basic consideration, the. building is residential.
The 'purpose test' \\'ill enable officers who 0¥/n houses to defeat the statute that they
do not own residential premises though it was su~tably built for residence. The
scheme of section 14A definitely contemplates a specific
representation
from
landlord to the Controller that because he has been ordered to vacate the pre~
mises where he is residing he requires immediate possession for his occupation.
It's non-obstante clause, the vesting of a right to in1mediate recovery, the creation of a summary process and the package of connected provisions all (~n1pha
size that the· amendments. have· to be viewed as a "''hole. that the court cannot
be fooled and the statute mocked at.
The c<1usc of action is not only th~ Government orders to vacate but consequential urgency to recover his own building.
Parliament cannot be assumed not to intend the obvious, or to in~enJ th:
ludicrous.
Literality is not right where obscurity is the result. {321 C-D. G-H
322 C-D. 323 A-B, G-H]
Gillespie Brothers & Co. Ltd. v. Roy Bowles Transport Ltd. [1973] 1 Q.B.
400 quoted in 39' Mod. L.R. 379 (1976) and Anderson v. Abbott 321 US 349
at 366-67 quoted in Univ. of Pennsylvenia Law Review Vol. 117
(1968) p.
I. 63, quoted with approval.
(3) Judicial machinery •.vhile· enforcing the· law shall forbid its being misused.
[325 E]
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( 4) The possibility of the· power of Government to issue orders to vacate
being used discriminately should be carefully avoided. If exceptions are niade
in the case of bi.g officers, naturally the· middling and the lesser minions of Government may have a grievance. It n1ay perhaps be· proper for Government
when allotting_ good premises. for high officers who made fron1 their O\\'Il houses
large returns to pay into the Government coffe·rs some equitable part of the
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gain so made, giving consideration to circumstances like Joane;, investmenti;; and·
the like.
[325 G-H]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 81 of 1977.
(Appeal by Special Leave from
the Judgment and
Order dated
6-12-1976 of the Delhi High Court in C. R. No. 248/76).
F. S. Nariman, N. S. Sistani and K. C. Dua for the appellant.
K. K. Jain, S. K. Jain and P. Dayal, for respondent No. 1.
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314
SUPREME COURT REPORTS
[1977] 3 S.C.R.
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The Judgment of the Court was delivered by
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KRISHNA IYER, J.-Delhi, the home of Power and the
nidus of
paradoxes, presents many pathological problems to the students of
history, social science, politics and law, often inter-acting with each
other.
We are here concerned with the socio-legal malady of accommodation scarcity and the syndrome of long queues of government
employees waiting, μot knowing for how long, for allotment of government quarters at moderate rents and the co-existence of several wellto-do officers enjoying, by virtue of their office, State-allotted residential accommodation while owning their own but letting them out at
lucrative rents, making substantial incomes in the bargain.
The law
awoke to eind this unhappy development and to help the helpless nonallottces get government accommodation.
Such is the back-drop to
s. l 4A which, read along with s. 25B, of the Delhi Rent Control Act,
1958 (Act LIX of 1958) (for short, the Act), falls for our consideration in the present appeal by special leave.
A deeper understanding of the need for the new provisions just
mentioned and the construction that they bear in the context necessitates stating a little more in detail the social setting. The seat of the
capital of a vast country with varied activities naturally will be honeycombed with government offices, public organisations and
growing
armies of employees.
The higher echelons in public service, over the
decades, have made generous use of the availability of government
lands at low prices and of the know-how of utilising, to their advantage, the immense developmental potential in the years ahead if buildings were constructed with foresight.
Thus m~ny neatly organised
colonies blossomed all around Delhi whose owners were in many instances officers· who had the telescopic faculty to see the prospective
c ;ireadout of Delhi of the future.
Taking time by the forelock, they
wisely invested money (often on. soft loans from Government)
in
buildings which secured ambitious rnnts when
India's
headquarters
did, as it was bound to, explosively expand.
Most of such officials
let their premises for high rents to big businessmen, foreign establishments, company executives and others of the'r ilk.
Where did the officers themselves reside ? The strange advantage
of Delhi is that houses, with lawns,
servants' quarters and other
amenities, built by government long years back are allotted to goverμment servants on rents which are a fraction of what similar accommodation in the private sector may fetch oftentimes.
The bigger officials
according to the hierarch;cal system (almost perfected into some sort
of official castes and sub-castes based on status and position in the
mi,nistries and not on the heads of their families or office) occupied
the classified quarters, the official 'brahmins', of course, getting the
best.
The rents they paid as tenants were negligible compared to the
returns they made as landlords.
Indeed, a sociological research into
the whole system may perhaps unravel the semi-survival of quasifeudal life-styles and the unlovely phenomenon of public
servants
paying little and collecti,ng large.
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The socio-economic sequel was worse t'han this.
An ~stronomical
increase in the number of government servants Jed to a terrific pressure
for accommodation because, most of them-particularly at lhe lesser
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BUSCHING SCHMITZ (P) LTD. V. P. T. MENGHANI
315
(Krishna Iyer, !.)
levels-had no worthwhile salaries and were priced out of the private
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sector where rentals had unconscionably rocketed. This rack-renting
abuse can be checked, in some measure, by an activist policy of
relentlessly enforcing fair rents through penal tags. · That, of course,
depends on the will and wisdom of Parliament and Government, and
the court may not make any comment. Anyway, currently, controls
in this essential area of human accommodation, in the capital city
of our socialist republic, are a statute-book virtue.
Similarly, the
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suggestion, in the course of his submissions, made by counsel for the
appellants, that the true solution is for the State to build more accommodation for its servants and not eject tenants like his client is
commendable as a text book panacea but 'a consummation to be
wished' in practical expectations !
Nevertheless, the State took cognizance of the sinister developC
ment of several officers owning private residences and occupying government premises and making handsome dividends out of the d!Sparity
in rents and, ergo, a large nnmber of less fortunate officials having to
wait in a queue for years hoping against hope that some day some
government quarters would be allotted ! These latter, with broken
domestic budgets, huddle together in small private te,nements (or even
servants' quarters) paying rents beyond their means.
The
politics
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and economics of scarcity are we;] known.
Out of this distressing
situation was born s. 14A of the Act.
A f'asciculus of clauses creating substantive and procedural provisions to meet the evil and advance the scheme in that behalf came
in, first by ordinance 24 of 1975 in December 1975, duly replaced
by the Delhi Rent Control (Amendment) Act,
18 of 1976.
The
chronic disease needed drastic treatment and the legislative draftsmen
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created a chain of stiff provisions.
Speaking generally, the government, after satisfying itself about the official having let out his reisidential building and occupying officially allotted quarters, directed the
person to vacate government premises but he had quickly to get back
his own house.
So a new right ( s. 14A) was created, accelerated
remedial procedures were prescribed (s. 25A and 25B). This appeal
turns on the meaning of s. 14A.
The purpose of the project has been explained by Chandrachud J.
in Sarwan Singh(') :
"The object of Section 14A, as shown by its marginal
note, is to confer a right on certain landlords to recover
immediate possession of premises' belonging to
them and
which are in the pilssession of their tenants.
~n the significant language of the marginal note, such a right is
'to
accrue' to a class of persons. The same concept is pursued
and clarified in the body of Section 14A by providing that
in the contingencies mentioined in the section, a right will
accrue to the landlord 'to recover immediately possession
of any premises let out by him' ... "
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"Whatever be the merits of that philosophy, the theory
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is that an allottee from Central Government or a local
(I) Sarw>n Singh v. Kasturi Lal, A.LR. 1977 S.C. 265, 272.274.
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SUPREME COURT REPORTS
[1977] 3 S.C.R.
authority should not be at the mercy of law's delays while
being faced with instant eviction by his landlord save on
payment of what in practice is penal rent.
Faced with
a
Robson's choice, to quit the official residence or pay the
market rent for it, the allottee had in turn to be afforded a
quick and expeditious remedy against his own tenant. With
that end in view it was provided that nothing, not even the
Slum Clearance Act, shall stand in the way of the allottee
from evict~ng his tenant by resorting to the summary procedure prescribed by Chapter IHA.
The
tenant is
even
deprived of the elementary right of a defendant to defend
a proceeding brought against him, save on obtaining leave
of the Rent Controller. If 1he leave is refused, by section
· 25B ( 4) the statement made by the landlord in the application for eviction shall be deemed to be admitted by the
tenant and the landlord is entitled to an order for eviction. No
appeal or second appeal lies against that order. Section
25B(8) denies that right and provides \nstead for a revision
to the High Court whose jurisdiction is limited to finding
out whether the order complained of is according to law."
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It is a notorious fact that, vesting a right is long years' distance
away from getting the remedy, thanks to our legal process
with its
slow motion mood.
A jurisprudence of quick-acting and comprehensive remedies, demanding re-structuring and streamlining of the judicative apparatus and imparting operational speed and modernisation
of the whole adjectival law and practice, is urgent and important-an
observation we make hoping that Parliament will programme for such
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a constructive change for the good of the community, in consultation
with the Court and the Bar.
That legal instrumentality alone truly
sustains the rule of law which delivers justice with inexpensive colority,
finality and fullness.
The big right-remedy gap is the bane of our
system.
We regard it our duty to mention this dime
1nsion of justice
a,nd this desideratum of systemic reform so that repetitive Litanies to
end law's delays may be intelligently heeded by the law-makers insF
tead of joining the chorus against the court.
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Back to the statute.
Section 14-A, with a non-obstante rider,
follows upon and is partly supplemental to s.
14 which primarily
governs eviction by landlords of tenants.
We may extract a part of
s. 14 and the whole of s. 14A :
"14(1) Notwithstanding anything to the contrary 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 landlord against a tenant :
Provided that the Controller may,
on an
application
made to him in the prescribed manner make an order for
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the recovery of possession of the premises on one or more
of the following grounds only, namely,-
(a) to (d) *
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BUSCHING SCHMITZ (P) LTD. V. P. T. MENGHANI
317
(Krishna Iyer, J.)
( e) that the premises let for residential purposes
are
required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependeint
on him, if he is the owner thereof, or for any person for
whose benefit the premises are held and that the landlord or
such person has no other reasonably suitable residential
accommodation :
Explanation.-For the purposes of this clause, "premises
let for residential purposes, includes any
premises
Which
having been let for use as a residence arc, without the consent of the landlord, used incidentally for commercial or
other purposes, .... "
x
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x
x
"l 4A. Right to recover immediate possession of premises
to accrue to certain persons.-
( 1) Where a landlord who, being a person in occupation
of a,ny residential premises allotted to him by the
Central
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Government or any local authority is required, by,
or in
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pursuance of any general or special order made
by
that
Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations, on the
g,round that he owns, in the union territory of Delhi, a residential accommodation either in his own name or in the
name of his wife or dependent child, there shall accrue, on
and from the date of such order, to such landlord, notwithE
standing anything contained elsewhere in this Act or in any
other law for the time being in force or in any contract
(whether express or implied), custom or usage to the contrary, a right to recover immediately possession of any premises let out by him :
Provided that nothing in this section shall be construed
as conferring a right Oj11 a landlord owning, in the union
territory of Delhi two or more dwelling houses, whether in
his own name or in the name of his wife or dependent child,
to recover the possession of more than one dwelling house
and it shall be lawful for such landlord to indicate the dwelling house, possession of which he intends to recover.
(2) Notwithstanding anything contained
elsewhere
in
this Act or in any other law for the time being in force or
in any contract, custom or usage to the contrary, where the
landlord exercises the right of recovery conferred qn him by
sub-section (1), no compensation shall be payable by. him
to the tenant or any person claiming through or under him
and no claim for such compensation shall be entertained by
any court, tribunal or other authority :
Provided that where the landlord had received,-
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SUPREME COURT REPORTS
( 1977] 3 S.C.R.
(a) any rent in advance from the tenant, he shall, within
a period of ninety days from the da,te of recovery of possession of the premises by him, refnnd to the tenant such amount
as represents the rent payable for the unexpired portion of
the contract, agreement or lease;
(b) any other payment, he shall, within the period aforesaid, refund to the tenant a sum which shall bear the same
proportion to the total amount so received, as the unexpired
portion of the, contract or agreement, or lease bears to the
total period of contract or agreement or lease;
Provided further that, if any default is made in making
any refund as aforesaid, the landlord shall be liable to pay
simple interest at the rate of six per cent per annum on the
amount which he has omitted, or failed to refund."
A summary remedy is provided by s. 25B which reads :
"25.B. Special procedure for the disposal of applications for eviction
on the ground of bona fide requirement.-
( i) Every applicati~ by a landlord for the recovery of possession of any premises on the ground specified in clause (a) of the proviso to sub-section (1) of Section 14, or under Section 14A, shall be
dealt with in accordance with the procedure specified in this section.
(2) The Controller shall issue summons,
in relation to every
application referred to in sub-section ( 1), in the form specified in the
Third Schedule.
(3) (a) The Controller shall, in acquisition to, and
simultaneously with, the issue of summons for service on the
tenant, also direct the summons to be served by registered
post, acknowledgment due, addressed to the tenant or his
agent empowered to accept the service at the place where
the tenant or his agent actually and voluntarily resides or
carries on business or personally works for gain and may, if
the circumstances of the case so require, also direct the publication of the summons in a newspaper circulating in the
locality in which the tenant is last known to have resided
or carried on business or personally worked for gain.
(b) When an acknowledgment purporting to be signed
by the tenant or his agent is received by the Controller or the
registered article containing the summons is received 'Jack
with an endorsement purporting to have been made by a
postal employee to the effect that the tenant or his agent
had refused to take delivery of the registered article, the
Controller may declare that there has been a valid service
of snmmons.
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BUSCHING SCHMITZ (P)LTD. V. P. T. MENGHANI
319
(Krishna Iyer, J.)
( 4) The tenant on whom the summons is dully served
(whether in the ordinary way or by registered post) in the
form specied in the Third Schedule shall not contest the
prayer for eviction from the premises unless he files an aJfidavit stating the grounds on which he seeks to contest the
application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance
in pursuance of the summons or his obtaining such leave,
the statement made by the landlord in the application for
eviction shall be deemed to be committed by the tenant and
the applicant shall be entitled to an order for eviction on the
ground aforesaid.
(5) The Controller shall give
to the tenant leave to
contest the application if the affidavit filed by the tenant
discloses such facts as would disentitle the landlord from
obtaining an order for the recovery of possession of the premises on the ground specified in clause (a) of the proviso
to sub-section (1) of Section 14, or under Section 14A.
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(6) Where leave is granted to the tenant to contest the
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application, the Controller shall commence the hearing of
the application as early as practicable.
(7) Notwithstanding anything contained in sub-section
(2) of Section 17, the Controller ·shall, while holding an inquiry in a proceeding to which this Chapter applies, follow
the practice and procedure of a Court of Small Causes, inE
eluding the recording of evidence.
(8) 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 purpose of
sati'sfying 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 order in respect thereto as it thinks fit.
(9) Where no application has been made to the High
Court on revision, the Controller may exercise the powers
of review in accordance with the provisions of Order XL VIX
of the first Schedule to the Code of Civil Procedure, 1908
(5 of 1908).
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(10) Save as otherwise provided in this Chapter, the
procedure for the disposal of an application for eviction on
the ground specified in clause ( e) of the proviso to subH
section (1) of Section 14, or under Section 14A, shl\ll be
the same as the procedure for the disposal of applications by
Controllers."
320
SUPREME COURT REPORTS
(1977] 3 S.C.R.
A
The landlord-respondent no. 1 wa's a government servant who 'had
let !Us own building to the appellant-tenant (a company) to carry ou
busmess and use part of it for its manager's residence.
He himself
was occupying residential premises allotted by the Central Govern-
'T
ment and, since Jie was directed by that Government to vacate, on
the ground that he had let out 'residential accommodation' of which
B
he was own.er, he _'sought .refuge uuder s. 14A.
The eviction proceedm~ ;vas resisted, inter alw, on the score that the ground did uot fall
w1thm the sweep of s. 14A, the premises 'havina been Jet out for a
residential-cum-commercial purpose to a joint st~ck company which
was carrying ou its business .... besides using it for the residence of
its Managing Director'.
This plea did not cut ice with the Controller
who refused leave to contest under s. 25B(4l of the Act. The 1efusal
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would ordinarily have led to an order i'or eviction but this consequence
was intercepted by a writ petition uuder Art. 226 of the Constitution
and a revision to the High Court, a's provided by th~ proViso to subs. ( 8) of s. 25B of the Act.
Dismissal of these proceedings has
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brought the appellant, special leave having been granted, to this Court
as the last hope.
Of course, the issue is of some moment, legally and
otherwi'se.
For while solving the twin problems, viz., making more
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accommodation available to government servants in need and ending the
vice of officers gaining by letting their own residential houses, s. 14A
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creates another, viz., the ejectment of tenants by summary procedure
on a new ground.
Maybe, as between the two hardships Parliament
has made the ch,oice and the Court implements the law based on the
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policy deci'sion of the legislature. Mr. Nariman sought to expose the
weakness of this legislative policy by stating that nothing in s. 14A
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compelled the officer-landlorc! to occupy the premises after evicting
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the tenant.
He could still let it for a higher rent, take on lease from
the private sector a small house and make a gain flowing froni the
difference in rents.
While we, as Judges, cannot fail to apply the provision merely because dubious ingenuitieS can circumvent it, we will
later interpret the section eliminating the possible evil pointed out.
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The short but insistent submission made by the counsel for the
appellant was that tlJe Controller could not shut him out from being
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heard, as he did, if only a triable issue emerged from the affidavit-inopposition filed under s. 25B(4). Such an issue (in fact, more than
one) was obviously present here, urged counsel.
But we make it plain
even at this stage that it is fallacious to approximate (as was sought
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to be done) s. 25B(5) with Order 37, r. 3 of the Code of Civil Procedure.
The social setting demanding summary proceeding, the nature
of the subject-matter and, above all, the legislative diction which has -
been deliberately designed, differ in the two provisions.
The legal
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ambit and judicial discretion are wider in the latter while, in the former
with which we are concerned, the scope for opening the door to defence
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is narrowed down by the strict words used.
The Controller's power
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to give leave to contest is cribbed by the condition that the 'affidavit
filed by the tenant discloses such facfs as wouli dis.entitle the landl.ord
from obtaining an order for the recovery of possess10n of the premises
on the ground specified in cl. ( e) of the proviso to sub-s. (1) of s. 14
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32 I
(Krishna Iyer, J.)
or under s. 14A. Disclosure of facts which disentitle recovery
of
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possession is .a sine qua mm for grant of leave.
Are there facts disentitling the invocation of s. 14A?
The thrust of Shri Nariman's contention is that s. 14A does not
apply at all, as a matter of construction of the expression 'residential premises'. This is net something factual but essentially legal
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and perhaps the question deserves our decision. For, if we explain,
as declaratory of the law, what the true scope of s. 14A is, vis a vis
the premises involved, the Controller may then proceed on that footing and decide whether there is any fact disclosed which disentitlcs
eviction.
Let us break down s. 14A, to the basic components_ creative of c
the new right to recover possession of premises let to a tenant. 'Premises', by definition, covers any building or part of a building let for
use, residential, commercial or other (s. 2(i)). We confine ourselves to the considerations relevant to our case.
To attract s. 14A,
the landlord must be in occupation of 'residential premises' allotted
to him by the Central Government.
He mu·st be required by order
of that Government to vacate
such 'residential
accommodation'.
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These are fulfilled here.
The ground for such order to vacate must
be 'that he owns, in the Union Territory of Delhi, a residential accommodation'. If so, there accures to such landlord the right
'to recover immediately possession of any premises let out by him' ( emphasis added).
The bone of contention between the parties is as to whether the
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premises let out are 'residential
accommodation'.
It may be
a
pursuit of subtle nicety to chase the reason for using different expressions like 'residential premises' and 'residential accommodation' in the
sante section. If at all, 'accommodation' is ampler than 'premises'.
What is residential accommodation ? If the building in dispute answers that description, the tenant must 'submit to eviction.
So this is
the key question.
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Admittedly, the building was let out for commercial purpose also.
Is the purpose of the lease decisive of the character of the accommodation? For a long itme it was used as an office of the tenant's business,
the manager also residing in a part thereof. Docs user clinch the issue ?
At present, the main use to which the building is put is as residence of
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the manager.
The Delhi Development Authority granted the land to the government servant-respondent for construction of a residential building although he later let it out for non-residential use, apparently for getting large rent_s, silencing his compunction about the basis on which he
·secured the allotment of the land at low cost.
But can the court
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conclude from the object of the land assignment whether the building
later put up is residential or not ? Marginal relevance there may. be
in these diverse factors, telling value they do not possess. Law, bemg
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pragmatic, responds to the purpcise for which it is made, cognises the
current capabilities of technology and life-style of the community and
flexibly fulfils the normative role, taking the conspectus of circumstances in the given case and the nature of the problem to solve
which the statute was made.
Legislative futility is to be ruled out so
long as interpretative possibility permits.
Residentiality depends for
its sense on th~ conte1't and purpose of the statute and the project
promoted.
Guided by this project-ori~nted approach, we reject .the rival ex-
. treme positions urged before us by Shri Nariman and Shri Jain. Residential premises are not only these which are let out for residential
purposes as the appellant would have it. Nor do they cover
all
kinds of structures where humans may manage to dwell. If a beauhful bungalow were let out to a businessman to run a show-room or to
a meditation group or music society for meditational or musical uses,
it remains none-the-less a residential accommodation. Otherwise, premises may one day be residential, another day commercial and, on
yet a later day, religious. Use or purpose of the letting is no conclusive test.
Likewise, the fact that many poor persons may sleep
under bridges or live in large hume pipes or crawl into verandahs of
shops and bazars cannot make them residential premises.
That is a
case of reductio ad absurdum.
Engineering skills and architectural designing have advanced far
enough to make multi-purpose edifices and, by minor adaptations,
make a buildi11g serve a residential, commercial or other use. The
art of building is no longer rigid and the character of a -house is not
an 'either or'. It can be both, as needs demand. It iS so common
to see a rich home turned into a business house, a dormitory into a
factory.
Many smallCscale industries are
run
in
former
living
quarters. To petrify engineering concepts is to betray the law's purpose.
Whatever is suitable or adaptable for residential uses, even
by making some changes, can be designated 'residential
premises'.
And once it is 'residential' in the liberal sense, s. 14A stands attracted.
Dictionary meaning, commonsense understanding and
architectural
engineering concur in the correctness of this construction.
What falls outside the ambit of 'residential purposes' may be limited but not non-existent.
A shop in Connaught Place, a factory in
an area prescribed by any municipal regulation for residential use or
any sthlcture too patently non-residential such as a hothouse for botanical purposes or a bath and toilette or teashop by the road margin
are obvious instances.
We may visualise other cases but that is not
our purpose here.
The house we are considering wa·s built on land
given for constructing a residence is being used even now for residence, is suitable otherwise for residence and is being credibly demanded for the respondent's residence. Residential suitability being the
basic consideration, this building fills the bill.
Nothing said in the
affidavit-in-opposition puts it out of the pale of residential accommodation.
A building which reasonably accommodates a residen-
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BUSCHING SCHMITZ (P) LTD. V. P. T. MENGHANI
323
(Krishna Iyer, J.)
tial user is a residential accommodation-nothing less, nothing else.
The circumstances of the landlord are not altogether out of place in
reaching a right judgment.
The 'purpose test' will enable officers
who own houses to defeat the government by pleading that they do not
own 'residential premises' because the lease is for commercial use,
built though it was and suitable though it is, for residence. Similarly,
the 'possibility test' may make nonsense of the provision.
The contrast in the phraseology betweens. 14(1) (e) and s. 14A strengthens
our inference. The legislature has, in the former provision, used the
expression 'premises let for residential purposes', thus investing the
purpose of the lease with special significance.
The deliberate omission of such words in s. 14A and, instead, the use of the flexible but
potentially more comprehensive, though cryptic, expression 'residential accommodation' cannot be dismissed as accidental.
Shri Nariman argued that the court must have the power to consider whether the order of the government stating that the government servant's building is residential, is valid or no.t.
We do not
deny that in the last resort it i's within the Court's province to do so.
Bnt it must give due-not deadly-weight to the decision of the
government that the premises owned by its officer is residential. Perversity and mala {ides will, of course, invalidate government orders
here, as elsewhere. They are the exceptions but as a practical guideline, the government's order may be taken a·s correct.
For, after all,
while courts must finally pronounce, others familiar with the work-aday world and enquire before passing orders are not too inexpert or
incompetent to be brushed aside.
The power to render binding decisions vests in the judicial process, not because it is infallible or occult
but because it Is habitually independent and professionally trained to
consider contending view points aided by counsel for a adversaries.
The humility that makes for wisdom behoves the judge to show respect for-not obedience to-the view of an administrative agency.
There remains the conundrum raised by Shri Nariman. Supposing the landlord, after exploiting the easy process of s. 14A, re-lets the
premises for a higher rent; the social goal boomerangs because the
tenant is ejected and the landlord does not occupy, as he would have
been bonnd to do, if he had sought eviction for bona fide occupation
under s. 141(e). Section 19 obligates the landlord in this behalf.
In literal terms, that section does not apply to eviction obtained under
s. 14A. But the ~cheme of that section definitely contemplates
a
~ecific representation by the petitioner-landlord to the
Controller
that because he has been ordered to vacate the premises where he is
residing, therefore he requires immediate possession for his occupation.
The non-obstante clause, the ve'sting of a right to immediate
recovery, the creation of a summary process under s. 25B and the
package of connected provisions, a:u emphasize that ·the amendments
have to be viewed as a whole, that the Court cannot be fooled and
the stafute mocked at.
The law, as Mr. Bumble (in Oliver Twist)
said. 'is a ass-a idiot', but today the socio-economic project cannot
be frustrated by legalistics. Underlying the whole legislative plan and
provision is the fundamental anxiety to recover, for the officers occupation, his own premises.
Once we grasp this cardinal point, the
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officer's application for eviction under s. 14A can be entertained oniy
on his averment that he, having been asked to vacate, must get into
possession of his own.
For instance, if he has a vacant house
of
his own and, on getting an order to vacate, he moves into his vacant
house, he cannot thereafter demand recovery under s. 14A.
The
cause of action is not only the government order to vacate, but his
consequential urgency
to recover his own building.
That is
the
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ra~<onale legis. To interpret otherwise is to vindicate Mr. Bumble l We
hold that Shri Nariman's apprehension is unfounded and s. 14A is
largely a rider to s. 14 and the condition indicated in s. 19 must,
mutatis mutandis, bind the landlord.
Parliament cannot be assumed
not to intend the obvious, or to intend the ludicrous. Literality is
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not right where absurdity is the result.
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The same result is reached by reading into every application for
eviction by a landlord a necessarily implied representation to court
that for the reason of his being directed to get out he must be given
possession of his own residence for his own occupation with the aid of
the judicial process.