1. Ejectment suits for unauthorized construction under the 1952-Act — removal of structures during pendency — application of the first proviso to Section 57(2) of the 1958-Act. (Para 2 , 3 )
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1965 Supreme(SC) 3
SUPREME COURT OF INDIA
8th January 1965
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO AND J.C. SHAH, JJ.
(1) Brij Kishore and others (In C. A. No. 879 of 1962), (2) Roop Narain (In C. A. No. 121 of 1963), Appellants
Versus
(1) Vishwa Mitter Kapur (In C. A. No. 879 of 1962), (2) Brij Kishore and others (In C. A. No. 121 of 1963), Respondents.
Civil Appeals Nos.879 of 1962 and 121 of 1963.
Advocates appeared
M/s. M. S. K. Sastri and M. S. Narasimhan, Advocates, for Appellant, (In C. A. No.121 of 1963), Mr. M. C. Setalvad, Senior Advocate (M/s S. Murty and B. P. Maheshwari, Advocates, with him), for Appellants (In C. A. No. 879 of 1962), and Respondents (In C. A. No. 121 of 1963), and Respondents (In C.A. No.121 of 1963), Mr. Raghbir Singh, Senior Advocate (Mr. M. I. Khowaja, Advocate, with him), for Respondent (In C. A. No. 879 of 1962).
Important Points
A provision in a new Rent Act allowing relief to a tenant who remedies a lease breach is a clarificatory modification, not a radical departure, and thus applies to pending proceedings initiated under the repealed Act.
Subject
Civil Law - Landlord-Tenant / Rent Control
Act Referred
Headnote
(A) Rent Control Act, 1958 - Sections 14(1)(k), 14(11) and 57(2) - Rent Control Act, 1952 - Section 13(1)(k) - Transfer of Property Act, 1882 - Section 114-A - Ejectment of tenant for unauthorized construction - Removal of unauthorized structure during pendency of suit - Whether the provision allowing relief to the tenant upon compliance with conditions is a radical departure or a clarification of the previous law - If the previous law did not forbid the court from granting relief where the breach was remedied, the new provision is clarificatory and modificatory - Such provisions apply to pending proceedings. (Paras 5, 6, 7)
(B) Interpretation of Statutes - Repeal and Savings - When a new Act provides that pending proceedings shall be continued under the old Act but the court shall "have regard to the provisions of this Act", modifications and clarifications in the new Act apply, whereas radical departures do not. (Para 6)
Facts of the case:
Two appeals were filed regarding the ejectment of tenants who had erected unauthorized structures in violation of lease conditions. In both cases, the tenants removed the offending structures or modified them to be compliant during the pendency of the suits. The lower courts gave contradictory rulings on whether the tenants could still be ejected in light of the savings clause and the proviso to the repeal section of the new Act.
Findings of Court:
The court found that the introduction of a provision allowing the authority to grant relief if the tenant complies with the lease conditions is a clarification and slight modification of the law as it existed under the 1952 Act, rather than a radical departure.
Issues: Whether the addition of a provision allowing for relief if the tenant remedies the breach constitutes a radical departure from the previous Act or a clarification/modification, and consequently, whether it applies to suits pending at the time of the new Act's commencement.
Ratio Decidendi: The court reasoned that under the Transfer of Property Act, relief against forfeiture is available if a breach is remedied within a reasonable time. Since the previous Rent Act did not expressly forbid the court from granting relief when unauthorized structures were removed, the new provision merely codified and slightly modified this existing principle. Therefore, it is not a radical departure and must be applied to pending proceedings.
Result: C.A. 879/1962 dismissed. C.A. 121/1963 allowed.
(B) Interpretation of Statutes - Repeal and Savings - When a new Act provides that pending proceedings shall be continued under the old Act but the court shall "have regard to the provisions of this Act", modifications and clarifications in the new Act apply, whereas radical departures do not. (Para 6)
Facts of the case:
Two appeals were filed regarding the ejectment of tenants who had erected unauthorized structures in violation of lease conditions. In both cases, the tenants removed the offending structures or modified them to be compliant during the pendency of the suits. The lower courts gave contradictory rulings on whether the tenants could still be ejected in light of the savings clause and the proviso to the repeal section of the new Act.
Findings of Court:
The court found that the introduction of a provision allowing the authority to grant relief if the tenant complies with the lease conditions is a clarification and slight modification of the law as it existed under the 1952 Act, rather than a radical departure.
Issues: Whether the addition of a provision allowing for relief if the tenant remedies the breach constitutes a radical departure from the previous Act or a clarification/modification, and consequently, whether it applies to suits pending at the time of the new Act's commencement.
Ratio Decidendi: The court reasoned that under the Transfer of Property Act, relief against forfeiture is available if a breach is remedied within a reasonable time. Since the previous Rent Act did not expressly forbid the court from granting relief when unauthorized structures were removed, the new provision merely codified and slightly modified this existing principle. Therefore, it is not a radical departure and must be applied to pending proceedings.
Result: C.A. 879/1962 dismissed. C.A. 121/1963 allowed.
Legal Category Hierarchy
Table of Contents
2. Whether the introduction of Section 14(11) of the 1958-Act is a radical departure from the 1952-Act or a clarification regarding relief against forfeiture. (Para 5 )
3. Section 14(11) of the 1958-Act clarifies the court's power under the 1952-Act and Section 114-A of the Transfer of Property Act to grant relief against forfeiture. (Para 4 , 6 , 7 )
4. Clarificatory or modificatory provisions of a repealing Act apply to pending proceedings, whereas radical departures from the previous law do not. (Para 6 , 7 )
5. Does the first proviso to Section 57(2) of the Delhi Rent Control Act, 1958, apply to all pending eviction suits?
It requires courts to have regard to the 1958 Act. However, only modifications or clarifications of previous provisions apply to pending proceedings; radical departures from the 1952 Act do not. (Para 6 )
6. Is the power to grant relief to a tenant who removes unauthorized structures a radical departure from the 1952-Act?
No. Such power is a clarification and slight modification of existing principles, as courts could already grant relief against forfeiture under the 1952-Act by analogy with Section 114-A of the Transfer of Property Act. (Para 7 )
7. How does Section 114-A of the Transfer of Property Act influence relief against forfeiture in lease agreements?
It provides that no suit for ejectment shall lie if the lessee remedies a capable breach within a reasonable time after receiving a written notice specifying the breach. (Para 7 )
Judgment
WANCHOO, J. : These two appeals by special leave from two judgments of the Punjab High Court raise a common question with respect to the application of the first proviso to S. 57(2) of the Delhi Rent Control Act, No. 59 of 1958 (hereinafter referred to as the present Act). They arise from decisions of two learned single Judges in revision applications under the Delhi and Ajmer Rent Control Act, No. 38 of 1952 (hereinafter referred to as the 1952-Act). In one of them (C. A. 879) the learned Judge has held that in view of the first proviso to S. 57(2), a decree for ejectment against the tenant could not be passed. In the other appeal (No.121), the other learned Judge has held that the tenant is liable to ejectment in spite of the first proviso to S. 57(2) of the present Act. It will thus be seen that the two decisions are contradictory and raise the question as to when the first proviso to S. 57(2) precisely applies to facts similar to the facts in the present two appeals which are more or less the same.
2. Before we consider the question thus raised before us, we may briefly indicate the facts in the two appeals. In appeal No. 879/1962, the landlord sued for ejectment on the ground that the tenant had erected certain structures in the shape of closing an open verandah and erecting a partition therein. On account of this, notices were sent to the landlord as well as to the tenant by the authorities concerned to remove the unauthorised structures. As, however the tenant did not do so, suit for ejectment was filed by the landlord under cl.(k) to the proviso to S.13(1) of the 1952-Act, which ran as follows:-
"13(1). Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):
Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the court is satisfied-
* * * *
(k) that the tenant has, whether before or after the commencement of this Act, "caused or permitted to be caused substantial damage to the premises, or notwithstanding previous notice has used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Improvement Trust while giving him a lease of the land on which the premises are situated;"
The lease in favour of the landlord by the Government provided that
"the lessee will not without the previous consent in writing of the Chief Commissioner of Delhi or such officer or body as the lessor or the Chief Commissioner of Delhi may authorise in this behalf erect or suffer to be erected on any part of the said demised premises any buildings other than and except the buildings erected thereon at the date of these presents". The case of the landlord was that the tenant had made structures without authority which made him liable to ejectment under cl.(k). During the pendency of the suit, however, the tenant had removed the offending structures with the result that there was no longer any breach of the condition of the lease.
3. In C. A. 121 of 1963, also the facts were similar and the suit was filed on the basis of cl. (k) of proviso to S. 13(1) of the 1952-Act. In this case also the tenant had closed the verandah without the permission of the authorities concerned and notice was given to the landlord on that count by the authorities and the landlord in his turn asked the tenant to remove the unauthorised structure. When the tenant did not do so, the landlord filed the suit. It appears that during the trial of the suit, the tenant made certain changes in the structure and removed the glazing and instead he closed the verandah with wire-gauze net. It was stated by a witness from the office of the Land Development Officer that the fixing of wire-gauze net was not against the clause as to unauthorise
