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2000(3) Supreme 125
SUPREME COURT OF INDIA
(From Allahabad High Court)
S. Saghir Ahmad & Doraiswamy Raju, JJ.
Kush Sahgal & Ors. -Appellants
versus
M.C. Mitter & Ors. -Respondents
Civil Appeal No. 2274 of 2000
(@ SLP (C) No. 11366 of 1999)
Decided on 28-3-2000
Counsel for the Parties :
For the Appellants : Gopal Subramaniam, Sr. Advocate, Anees Ahmed Gopal Singh and S.K. Kaul, Advocates.
For the Respondents : G.L. Sanghi, Sr. Advocate, Dhruv Mehta, Ms. Shobha, S.K. Mehta, Advocates.
Held : The requirements for the applicability of Clause (rr) to Section 43(2) would be :
(a) There should have been a permission obtained under Section 3 of the old Act.
(b) Permission should have been obtained on any ground specified in Sub-section (1) or Sub-section (2) of Section 21.
(c) The permission should have become final
(i) either before the commencement of the new Act or
(ii) after the commencement of the new Act, under this sub-section.
If these conditions are satisfied, then the landlord may, even though a suit on the basis of the permission was filed or not filed, apply to the Prescribed Authority for the eviction of the tenant and the Prescribed Authority shall order eviction of the tenant from the accommodation in his tenancy. In this process, it will not be necessary for the Prescribed Authority to satisfy itself afresh as to the existence of "any ground aforesaid". These words, namely, "any ground aforesaid" refer to the grounds mentioned in the earlier part of this clause which in its turn refers to the grounds specified in sub-section (1) and sub-section (2) of Section 21. That is to say, if the permission granted under the old Act can be co-related or is referable to any ground specified in sub-section (1) or sub-section (2) of Section 21, it will not be necessary for the Prescribed Authority to be satisfied afresh of the existence of those grounds. In this situation, therefore, what is to be seen is whether the ground on which permission was granted to landlord under Section 3 of the old Act is a ground specified in Section 21(1) or Section 21(2) of the new Act. (Paras 27 and 28)
There is thus a difference between Clause (r) and Clause (rr) of Section 43(2) of the new Act. Clause (r) would apply to a situation where the ground on which permission was granted is not covered by Section 21(1) and Section 21(2) of the new Act and, therefore, in that situation, the suit if filed on the basis of that permission, has to be continued and concluded under the old Act which has been fictionally kept alive in spite of its repeal. Such a permission will not be executable under Clause (rr). On the contrary, if the ground on which permission was granted under Section 3 is covered by any of the grounds mentioned in Section 21(1) or Section 21(2), it will be executable under Clause (rr). This is almost akin to the provisions of Section 14 of the old Act under which a decree passed before coming into force of that Act could not be executed so long as the old Act, which was a temporary Act, was in force. But if the decree was passed on any of the grounds specified under Section 3 of the old Act, even though that decree was passed prior to the coming into force of the old Act, it would be executable under that Act and the tenant would be evicted from the accommodation in his occupation. These Clauses, namely, Clause (r) and Clause (rr) thus operate in two different fields. So interpreted and understood, there will be no conflict in the two Clauses. (Paras 29)
Under sub-section (1) of Section 21, a landlord can apply for eviction of a tenant on the ground that the building was bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family either for residential purposes or for purposes of any profession, trade or calling or on the ground that the building which was in a dilapidated condition was required for purposes of demolition and new construction. The second Proviso to sub-section (2) however provides that "An application under Clause (a) shall not be entertained in the case of any Residential building for occupation for business purposes". Thus, if an application is made by the landlord for eviction of the tenant on the ground that the building in occupation of that tenant which was used exclusively for residential purposes was required for business purposes or for any other commercial activity, it would not be a ground within the meaning of Section 21(1) of the new Act for the eviction of the tenant and the application will not be entertained. (Para 31)
In the instant case, as pointed out earlier, Dr. Kalindi Mitter had applied for permission under Section 3 for instituting a suit for the eviction of the tenant, Smt. Sushila Saigal, on the ground that she would shift her nursing home, already running in some other building, to the residential portion in occupation of Smt. Sushila Saigal. The application was allowed and the suit which was instituted on the basis of that permission was ultimately withdrawn without liberty to file a fresh suit on the same cause of action. After withdrawal, an application under Section 43(2) (rr) was filed for the eviction of the tenant which, as pointed out earlier, was rejected by the Prescribed Authority and also by the District Judge but was allowed by the High Court. In view of the above discussion, such an application could not have been entertained under Section 43(2)(rr) as the landlord wanted to occupy the residential portion of the building for non-residential purposes. It was, therefore, not a ground within the meaning of Section 21(1) or Section 21(2) and, therefore, the application under Section 43(2)(rr) was not maintainable. (Paras 32 & 33)
JUDGMENT
S. Saghir Ahmad, J.-Leave granted.
2. This appeal involves a little interpretative effort. Not like Themis, blindfolded, but like Astraea, the Roman Goddess of justice holding a Scale (Balance) without folds on the eyes and occupying the pride of place as "Libra" in the Zodiacal constellation. This would enable one to read all the words used in the Statutory provisions, so as to reach the correct conclusion on the true meaning intended to be conveyed by the Legislature by the use of those words.
3. Eastern residential portion of the property bearing No. 7/152, Swaroop Nagar, Kanpur, which is the accommodation in question, was allotted, some time in 1947, to Smt. Sushila Saigal, by an allotment order passed under the provisions of the United Provinces (Temporary) Control of Rent and Eviction Act, 1947 (for short, the old Act ). Dr. Kalindi Mitter who had purchased the property in 1959, filed an application for permission under Section 3 of the old Act for filing a suit for the eviction of Smt. Sushila Saigal. The application was allowed by the Rent Control and Eviction Officer by this order dated 23.4.1960 against which a revision was filed by Smt. Sushila Saigal before the Commissioner which was dismissed but a further revision filed by her before the State Government under Section 7-F of the old Act was allowed on 27th of June, 1961 and the application of Dr. Kalindi Mitter for permission under Section 3 of the old Act to file a suit for eviction was rejected. It appears that on the basis of the permission granted by the Rent Control and Eviction Officer on 23.4.1960, Dr. Kalindi Mitter instituted regular suit No. 1664 of 1961 which came to be disposed of by the IInd Addl. Munsif, Kanpur, by judgment dated 24.11.1965. In that suit, several issues were framed but three relevant issues are reproduced below :-
"1. Whether the State Government quashed the order of permission in favour of the plaintiff on 27.6.1961 under Section 7-F of the U.P. Act III of 1947?
2. Whether the operation of the order of the State Government dated 12.10.1961 has been stayed by the Hon ble High Court as alleged in para 15 of the written statement? If so its effect?
3. Whether the suit is barred under Section 3 of the U.P. Act III of 1947?"
4. It was found by the learned Munsif that the permission granted to Dr. Kalindi Mitter was set aside by the State Government on 27.6.1961. It was further found that the operation of the order dated 12.10.1961, by which the revision filed by Smt. Sushila Saigal before the State Government under Section 7-F was, at one stage, rejected, was stayed by the State Government itself on 13.10.1961 on which date the suit was also, incidentally, instituted. In view of the findings recorded by the learned Munsif on issue No. 2, it was held that the suit was not maintainable.
5. Dr. Kalindi Mitter filed another application under Section 3 of the old Act for permission to file a suit for eviction against Smt. Sushila Saigal but the application was rejected by the Rent Control and Eviction Officer on 30.11.1966. A revision filed against that order was allowed by the Commissioner, Allahabad Division, on 6.2.1968 and the case was remanded to the Rent Control and Eviction Officer for fresh disposal. After remand, the Rent Control and Eviction Officer by his order dated 9.12.1968 allowed the application and granted permission to the landlady, Dr. Kalindi Mitter, to file the suit for eviction and Dr. Kalindi Mitter, on the basis of this permission, filed regular suit No. 654 of 1969 for the eviction of Smt. Sushila Saigal.
6. The permission granted by the Rent Control and Eviction Officer on 9.12.1968 was challenged by Smt. Sushila Saigal in a revision filed before the Commissioner, Allahabad Division, but the revision was dismissed in default on 19.3.1969 on account of non-appearance of Smt. Sushila Saigal. This order was challenged by Smt. Sushila Saigal in a Writ Petition whi
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