PETITIONER:
BUSCHING SCHMITZ PRIVATE LTD.
Vs.
RESPONDENT:
P.T. MENGHANI AND ANR.
DATE OF JUDGMENT17/03/1977
BENCH:
KRISHNAIYER, V.R.
SINGH, JASWANT
CITATION:
1977 AIR 1569 1977 SCR (3) 312
1977 SCC (2) 835
ACT
Interpretation of statute--Legislature can be assumed
not 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--Right of Government officer
who is asked to vacate Government accommodation to evict his
tenant.--Whether can apply to premises let out for commer-
cial purposes--What is residential Purpose--Triable
issues--Meaning of.
HEADNOTE
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 Government.
After the amendment of the. Delhi Rent Control Act, 1958, by
Ordinance 24 of 1975 which was later replaced by Delhi Rent
Control (Amendment) Act, 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 pur-
pose are required bonafide by the landlord for occupation
as a residence for himself or for any member of his family
dependent upon him. Section 14A provides that where a
landlord is in occupation of any residential accommodation
,allotted to him by the Central Government or any local
authority and if he is required by order made by that Gov-
ernment or authority to vacate such residential accommoda-
tion on the ground 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 to the landlord a right to recover immediately pos-
session of any premises let out by him. The said provision
has been given effect notwithstanding anything to the con-
trary in the Delhi Rent Act or any other law or the custom
or usage. Section 25B provides for a summary remedy. It
provides that 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
for obtaining an order for the recovery of possession on
the ground specified in section 4(1)(c) or 14A. The re-
spondent was directed by the Government to vacate the Gov-
ernment accommodation on the ground that he had let out
residential accommodation of which he was owner. The
respondent No. 1 accordingly filed eviction proceedings
against the appellant claiming possession under Section
14A. The appellant contended before the Rent Controller
that the ground did not fail within the sweep of section 14A
since the premises were let out for residential-rum-com-
mercial purposes to, a joint Stock Company which was carry-
ing on business besides using for the residence of its
Managing Director. This plea did not cut ice with the Con-
troller who refused leave to contest. The appellant filed a
writ petition in the High Court under Art 226 of the Consti-
tution which was dismissed.
In 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 small house
and make a gain, from the difference flowing
in rent.
2. The Controller could not shut him out
from being heard if a triable issue emerged
from the affidavit in opposition. In the
present case such issues were-present and,
therefore, the Rent Controller was not justi-
fied 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.
313
(Krishna lyer, J.)
Dismissing the appeal,
HELD: (1) It is fallacious to approximate section 25B(5)
with Order 37 rule 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. Disclosure of facts which disentitle recovery
of possession is a sine qua non for grant of leave. [320
F-A, 321A]
(2) The definition of premises in section 2(i) covers
any building or part of the building leased for use, resi-
dential, commercial or other. To attract section 14A the
landlord must be in occupation of residential premises
allotted to him by the Central Government. He must be
required by order of that Government to vacate his residen-
tial accommodation. The Delhi Development Authority granted
the land to respondent No. 1 for construction of a residen-
tial building although it was let out for commercial pur-
pose. 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
some changes, cart be designated residential premises. Once
it is residential in the liberal sense, section 14A strands
attracted. In the present case the house was 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, the
building is residential. The ‘purpose test’ will enable
officers who own houses to defeat the statute that they do
not own residential premises though it was suitably built
for residence. The scheme of section 14A definitely contem-
plates a specific representation from landlord to the
Controller that because he has been ordered to vacate the
premises where he is residing he requires immediate posses-
sion for his occupation. It’s non-obstante clause, the
vesting of a right to immediate recovery, the creation of a
summary process and the package of connected provisions all
emphasize that the amendments have to be viewed as a whole,
that the court cannot be fooled and the statute mocked at.
The cause of action is not only the Government orders to
vacate but consequential urgency to recover his own build-
ing. Parliament cannot be. assumed not to intend the obvi-
ous, or to. intend the 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 MUd. 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. 1, 63, quoted
with approval.
(3) Judicial machinery while enforcing the law shall
forbid its being misused. [325 E]
(4) The possibility of the power of Government to issue
orders to vacate being used discriminately should be care-
fully avoided. If exceptions are made in the case of big
officers, naturally the. middling and the lesser minions of
Government may have a grievance. It may’ perhaps be proper
for Government when allotting good premises for high offi-
cers who made from their own houses large returns to pay
into the Government coffers some: equitable part of the
gain so made, giving consideration to circumstances like
loans investment and the like. [325 G-H]
JUDGMENT
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.
314
The Judgment of the Court was delivered by
KRISHNA lYER, 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,
not knowing for how long, for allotment of government quar-
ters at moderate rents and the co-existence of several
well-to-do officers enjoying, by virtue of their office,
State-allotted residential accommodation while owning their
own but letting them out at lucrative rents, making sub-
stantial incomes in the bargain. The law awoke to end this
unhappy development and to help the helpless nonallottees
get government accommodation. Such is the back-drop to s.
14A 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 provi-
sions 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 many neatly organised colonies
blossomed all around Delhi whose owners were in many in-
stances officers who had the telescopic faculty to see the
prospective spread out of Delhi of the future. Taking time
by the forelock, they wisely invested money (often on soft
loans from Government) in buildings which secured ambi-
tious rents 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 estab-
lishments, company executives and others of their link.
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 government servants on rents
which are a fraction of what similar accommodation in the
private sector may fetch oftentimes. The bigger officials
according to the hierarchical system (almost perfected into
some sort of official castes and sub-castes based on status
and position in the ministries and not on the heads of
their families or office) occupied the classified quar-
ters, 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 collect-
ing large.
The socio-economic sequel was worse than this. An
astronomical increase in the number of government servants
led to a terrific pressure for accommodation because, most
of them--particUlarly at the lesser
315
(Krishna lyer, J.)
levels--had no worthwhile salaries and were priced out of
the private sector where rentals had unconscionably rocket-
ed. This rack-renting abuse can be checked, in some meas-
ure, 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 suggestion, in the course of
his submissions, made by counsel for the appellants, that
the true solution is for the State to build more accommoda-
tion for its servants and not eject tenants like his
client is commendable as a text book panacea but ‘a consum-
mation to be wished’ in practical expectations!
Nevertheless, the State took cognizance of the sinister
development of several officers owning private residences
and occupying government premises and making handsome
dividends out of the disparity in rents and, ergo, a large
number 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 tenements
(or even servants’ quarters) paying rents beyond their
means. The politics and economics of scarcity are well
known. Out of this distressing situation was born s. 14A
of the Act.
A fasciculus of clauses creating substantive and procedur-
al provisions to meet the evil and advance the scheme in
that behalf came in, first by ordinance 24 of 1975 in Decem-
ber 1975, duly replaced by the Delhi Rent Control (Amend-
ment) Act, 18 of 1976. The chronic disease needed dras-
tic treatment and the legislative draftsmen created a chain
of stiff provisions. Speaking generally, the government,
after satisfying itself about the official having let out
his residential 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(1):
"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 possession of their tenants. In the sig-
nificant 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 mentioned in the section, a
right will accrue to the landlord ’to recover
immediately possession of any premises let
out by him’..."
* * * *
"Whatever be the merits of that philoso-
phy, the theory is that an allottee from
Central Government or a local
(1) Sarwan Singh v. Kasturi Lal, A.I.R. 1977
S.C. 265, 272-274.
316
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 Hob-
son’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 expedi-
tious 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 evicting his
tenant by resorting to the summary procedure
prescribed by Chapter IIIA. 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 the 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 instead for a revision
to the High Court whose jurisdiction is limit-
ed to finding out whether the order complained
of is according to law."
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 a constructive change for the good of the communi-
ty, 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 dimension of
justice and this desideratum of systemic reform so that
repetitive litanies to end law’s delays may be intelligently
heeded by the law-makers instead of joining the chorus
against the court.
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 the recovery of
possession of the premises on one or more of
the following grounds only, namely,--
(a) to (d) * * *
*
317
(Krishna Iyer, J.)
(e) that the premises let for residential
purposes are required bona fide by the land-
lord for occupation as a residence for himself
or for any member of his family dependent 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 accom-
modation:
Explanation.--For the purposes of this
clause, "premises let for residential pur-
poses, includes. any premises which having
been let for use as a residence are, without
the consent of the landlord, used incidental-
ly fo.r commercial or other purposes, .... "
X X X X
"14A. Right to recover immediate posses-
sion of premises to accrue to certain
persons.--
(1) Where a landlord who, being a person in
occupation any residential premises allotted
to him by the Central Government or any local
authority is required, by, or in pursuance
of any general or special order made by that
Government or authority, to vacate such resi-
dential accommodation, or in default, to incur
certain obligations, on the ground 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, notwith-
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 on 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 on 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,--
318
(a) any rent in advance from the tenant,
he shall, within a period of ninety days from
the date of recovery of possession of the
premises by him, refund 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 inter-
est 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.--
(1) Every application 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 acquisi-
tion 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 actu-
ally 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 re-
ceived by the Controller or the registered
article containing the summons is received
back 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 summons.
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 specified in
the Third Schedule shall not contest the
prayer for eviction from the premises unless
he files an affidavit 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 Sec-
tion 14A.
(6) Where leave is granted to the tenant
to contest the 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 proceed-
ing to which this Chapter applies, follow the
practice and procedure of a Court of Small
Causes, including the recording of evidence.
(8) No appeal or second appeal shall lie
against an order for the recovery of posses-
sion 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 satisfying itself that an order
made by the Controller under this section is
according to law, call for the records of the
case and pass such 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).
(10) Save as otherwise provided in this
Chapter, the procedure for the disposal of an
application for eviction on the ground speci-
fied in clause (e) of the proviso to subsec-
tion (1) of Section 14, or under Section 14A,
shall be the same as the procedure for the
disposal of applications by Controllers."
320
The landlord-respondent no. 1 was a government servant
who had let his own building to the .appellant-tenant (a
company) to carry on business and use part of it for its
manager’s residence. He himself was occupying residential
premises allotted by the Central Government and, since he
was directed by that Government to vacate, on the ground
that he had let out ’residential accommodation’ of which he
was owner, he sought refuge under s. 14A. The eviction
proceeding was resisted, inter alia, on the score that the
ground did not fail within the sweep of s. 14A, the premises
’having been let out for a residential-cum-commercial pur-
pose to a joint stock company which was carrying on 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(4). of
the Act. The refusal would ordinarily have led to an order
for eviction but this consequence was intercepted by a writ
petition under Art. 226 of the Constitution and a revision
to the High Court, as provided by the proviso to subs. (8)
of s. 25B of the Act. Dismissal of these proceedings has
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 otherwise. For while solving the
twin problems, viz. making more accommodation available to
government servants in need and ending the vice of officers
gaining by letting their own residential houses, s. 14A
creates another, viz., the ejectment of tenants by summary
procedure on a new ground. Maybe, as between the two.
hardships Parliament has made the choice and the Court
implements the law based on the policy decision of the
legislature. Mr. Nariman sought to expose the weakness of
this legislative, policy by stating that nothing in s. 14A
compelled the officer-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 small
house and make a gain flowing from 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.
The short but insistent submission made by the counsel for
the appellant was that the Controller could not shut him out
from being heard, as he did, if only a triable issue emerged
from the affidavit-in-opposition 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 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 legis-
lative diction which has been deliberately designed, differ
in the two provisions. The legal ambit and judicial dis-
cretion are wider in the latter while, in the former with
which we are concerned, the scope for opening the door to
defence is narrowed down by the strict words used. The
Controller’s power to give leave to contest is cribbed by
the condition that the affidavit filed by the tenant dis-
closes such facts as would disentitle the landlord from
obtaining an order for the recovery of posession of the
premises on the ground specified in cl. (e) of the proviso
to sub-s. (1) of s. 14
321
(Krishna lyer, J.)
or under s. 14A. Disclosure of facts which disentitle
recovery of possession is a sine qua non 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 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
disentitles eviction.
Let us break down s. 14A, to the basic components crea-
tive of 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 considera-
tions 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 must be required by order
of that Government to vacate such ’residential accommoda-
tion’. 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 posses-
sion of any premises let out by him’ (emphasis added).
The bone of contention between the parties is as to
whether the premises let out are ’residential accommoda-
tion’. It may be a pursuit of subtle nicety to chase the
reason for using different expressions like ’residential
premises’ and ’residential accommodation’ in the same sec-
tion. 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.
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 time it was used
as an office of the tenant’s business, the manager also
residing in a part thereof. Does user clinch the issue ? At
present, the main use to which the building is put is as
residence of the manager.
The Delhi Development Authority granted the land to the
government servant-respondent for construction of a residen-
tial building although he later let it out for non-residen-
tial use, apparently for getting large rents, silencing his
compunction about the basis on which he secured the allot-
ment of the land at low cost. But can the court 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, being
6--436SCI/77
322
pragmatic, responds to the purpose 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 stat-
ute was made. LegiSlative futility is to be ruled out so
long as interpretative possibility permits. Residentiality
depends for its sense on the context and purpose of the
statute and the project promoted.
Guided by this project-oriented approach, we reject the
rival extreme position’s 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 beautiful 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 re-
mains 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 building 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 small-scale 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 ’residen-
tial’ in the liberal sense, s. 14A stands attracted. Dic-
tionary meaning, commonsense understanding and architectur-
al engineering concur in the correctness of this construc-
tion.
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 structure too patently
non-residential such as a hothouse for botanical purposes or
a bath and toilette or teashop by the road margin are obvi-
ous instances. We may visualise other cases but that is not
our purpose here. The house we are considering was 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 accommoda-
tion. A building which reasonably accommodates a residen-
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 stumble ,though it is, for
residence. Similarly, the ’possibility test’ may make
nonsense of the provision. The contrast in the phraseology
between s. 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 signifi-
cance. The deliberate omission of such words in s. 14A and,
instead, the use of the flexible but potentially more com-
prehensive, though cryptic, expression ’residential accom-
modation’ 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 not. We do not deny that in the last resort it is within
the Court’s province to do so. But 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 fides will, of course, invalidate government orders
here, as elsewhere. They are the exceptions but as a prac-
tical guideline, the government’s order may be taken as
correct. For, after all, while courts must finally pro-
nounce, others familiar with the work-a-day world and en-
quire before passing orders are not too inexpert or incompe-
tent 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 independ-
ent 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 bound 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 scheme of that section
definitely contemplates a specific 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 occupa-
tion. The non-obstante clause, the vesting of a right to
immediate recovery, the creation of a summary process under
s. 25B and the package of connected provisions, all empha-
size that the amendments have to be viewed as a whole, that
the Court cannot be fooled and the statute 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 officer’s occupation, his own premises. Once we
grasp this cardinal point, the
324
officer’s application for eviction under s. 14A can be
entertained only on his averment that he, having been asked
to vacate, must get into possession of his own. For in-
stance, 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 rationale legis. To interpret otherwise is to
vindicate Mr. Bumble ! We hold that Shri Nariman’s apprehen-
sion 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
not right where absurdity is the result.
The same result is reached by reading into every appli-
cation 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 judi-
cial process. If the finale is reached and possession
obtained, the Court will not allow a party to reduce its
process to a mere make-. believe, or a clever parody, break-
ing faith with the judicial process itself. Such paths can
be interdicted by the use of the inherent power of the
court. The re-letting to someone else or non-occupation,
even after a reasonable time or without reasonable cause,
will be regarded as an abuse of the process of the court
and, at the instance of the affected tenant or otherwise,
the eviction order cancelled and possession restored. We
affirm this legal position lest overly cute but qualmless
landlords should hopefully hoax the court and reduce its
decree to a joke. Every tribunal has the inherent power to
prevent its machinery from being made a sham, thereby run-
ning down the rule of law itself as an object of public
ridicule. It will and must prove any strategem self-defeat-
ing if a party indulges in making the law the laughing
stock, for, the court will call him to order.
We are not adventuring into any innovation of legal
principle in inhibiting unconscionability in the enforce-
ment of rights. Lord Denning M.R. said:
"What is the justification for the courts
in this or any other case, departing from the
ordinary meaning of words ? If you examine all
the cases you will, I think, find that at
bottom it.is because the clause (relieving a
man from his own negligence) is unreasonable
or is being applied unreasonably in the cir-
cumstances of the particular case. The judges
have then, time after time, sanctioned a
departure from the ordinary meaning ......
Are the courts then powerless ? Are they to
permit the party to enforce his unreasonable
clause, even when it is unconscionable, or
applied so unreasonably as to be unconscion-
able ? When it gets to this point, I would
say, as I said many years ago: ‘There is the
vigilance of the common law which, while
allowing freedom of contract, watches to see
that it is not abused.’"
X X X X
325
(Krishna Iyer, J.)
He continued:
"I know that the judges hitherto have
never confessed openly to the test of reasona-
bleness. But it has been the driving force
behind many of the decisions."(1)
We agree that, in the words of Lord Erakine,
’there is no branch of the jurisdiction of
this court more delicate than that, which goes
to restrain the exercise of a legal right’.
But the principle of unconscionability clothes
the court with the power to prevent its proc-
ess being rendered a parody. The justice of
the law steps in end,
the area of eviction of a tenant by a
landlord, the tribunal cannot tolerate
double-dealing or thwarting the real in-
tendment of the statute.
The same conclusion can be reached through
another line of reasoning expressed by
Justice Jackson of the Supreme Court of the
United States in D’ Cench Duhme:(2)
"If the judicial power is helpless to protect
a legislative program from schemes for easy
avoidance, then indeed it has become a handy
implement of high finance .... Once the
purpose or effect of the scheme is clear, once
the legislative policy is plain, we would
indeed forsake a great tradition to any we
were helpless to fashion the instruments for
appropriate relief."
The doctrine that the judicial machinery, while enforc-
ing the law, shall forbid its being misused is another
dimension of two deeply rooted, but inter-connected maxims.
Actus curiae neminem gravabit (An act of the court shall
prejudice no man: Jenk. Cent. 118) and Actus legis est
damnosus (The act of the law is hurtful to no one: 2 Inst.
287): Actus legis nemini facit in-juriam (The act of the law
does injury to no one: 5 Coke. 116). This principle is
fundamental to any system of justice and applies to our
jurisprudence.
An Afterword
The possibility of the power of government to issue
orders to vacate being used discriminatorily should be
carefully avoided. If exceptions are made in the case of big
officers, naturally the middling and the lesser minions of
government may have a grievance. It may perhaps be proper
if government, when allotting good premises for high offi-
cers who make from their own houses large returns by way of
rentals, makes them pay into government coffers some equita-
ble part of the gain so made, giving consideration to cir-
cumstances like loans, investments and the like. This,
again, is a matter falling with-
(1) 39 Mod. L.R. 379 (1976)
(2) Referred to in 318 U.S. 366, at 366-67; Quoted in Univ.
of Pennsylvania Law Review VoL. 117 (1968) p. 1, 63.
326
in the province of the sense of justice of the Administra-
tion. But we mention it only to save the legislation from
the aspersion of invidiousness in the exercise of the power.
In the view we have already taken, it follows that the
appeal must be dismissed and we hereby do so; but the par-
ties, in the circumstances, will bear their own costs
throughout.
P.H.P. Appeal dismissed.
327