Atma Steels (P) Ltd. vs Harbir Singh
1985 Latest Caselaw 441 Del

JUDGMENT

J.D. Jain, J.

(1) The controversy in this second appeal against order dated 8th August 1984 of the Rent Control Tribunal lies in a narrow compass ; the crucial question which falls for consideration bearing whether an order under Section 15(2) of the Delhi Rent Control Act (hereinafter referred to as 'the Act') can be made in a petition for recovery of possession of the demised premises under a limited tenancy created under Section 21 of the Act.

(2) The facts germane to the disposal of this appeal succinctly are that a limited tenancy for a period of three years with effect from 1st August 79 was created in respect of premises bearing No. E-25, defense Colony, New Delhi, pursuant to the permission granted by an Additional Rent Controller, Delhi, vide order dated 31st July 1979 under Section 21 of the Act. On the expiry of the period of tenancy the respondent-landlord moved an application through his General Attorney Mrs. Sushila Lochan Singh for being put back into possession of the demised premises. The execution application was, however, hotly contested by the appellant-tenant who called in question the legality and validity of the order of the Additional Rent Controller granting permission for creation of a limited tenancy on various grounds. During the course of the said proceeding the respondent-landlord made an application under Section 15(2) of the Act for a direction to the appellant to pay the arrears of rent at the agreed rate of rent with effect from 1st December 1932 and also to pay future rent month by month regularly as contemplated in Section 15(2) of the Act. The said application was opposed by the appellant on two grounds, namely, (1) that provisions of Section 15(2) of the Act could not be invoked in a proceeding under Section 21, and (2) that there was no valid power of attorney in favor of Mrs. Sushila Lochan Singh and as such she was not a competent to take out execution of the order as contemplated in Section 21 of the Act much less ask for payment of arrears of rent. However, both the objections were repelled by the learned Additional Rent Controller vide order dated 28lh May 1984 and a direction was issued to the appellant to pay to the petitioner or deposit in Court the entire arrears of rent at Rs. 7,650!- per mensem with effect from 1st December 1982 uptil date and also to pay future rent month by month by 15th of each succeeding month as contemplated in Section 15(2) of the Act.

(3) Feeling aggrieved the appellant-tenant preferred an appeal in the Court of the Rent Controller Tribunal but met with no success and the same was dismissed vide order dated 8th August 1984 of the Rent Control Tribunal. Still not satisfied he has come up in second appeal.

(4) In order to appreciate the precise argument put forth by Shri Hari Shankar, the learned counsel for the appellant, it may be useful to extract below the relevant provisions of Sections 15 & 21 of the Act : "15.When a tenant can get the benefit of protection against eviction- (1) In every proceeding 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, the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate. (2) If, in any proceeding for the recovery of possession of any premises on any ground other than that referred to in Sub-section (1), the tenant contexts the claim for eviction, the landlord may, at any stage of the proceeding, make an application to the Controller for an order on the tenant to pay to the landlord an amount of rent legally recoverable from the tenant and the Controller may, after giving the parties an opportunity of being heard, make an order in accordance with the provisions of the said Sub-section. 21. Recovery of possession in case of tenancies for limited period- Where a landlord does not require the whole or any part of any premises for a particular period, and the. landlord, after obtaining the permission of the Controller in the prescribed manner, lets the whole of the premises or part there of as a residence for such period as may be agreed to in writing between the landlord and tenant and the tenant does not, on the expiry of the said period, vacate such premises, then, notwithstanding anything contained in section 14 or in any other law the Controller may, on an application made to him in this behalf by the landlord within such time as may be prescribed, place the landlord in vacant possession of the premises or part thereof by evicting the tenant and every other person who may be in occupation of such premises."

(5) The submission of the learned counsel for the appellant is that while Sub-section (1) contemplates an order for payment of rent to the landlord during the pendency of an eviction proceeding on the ground of nonpayment of rent falling under clause (a) of the proviso to Section 14(1) of the Act Sub-section (2) of Section 15 is designed to cover all other grounds on which eviction of the tenant can be sought under Section 14 of the Act inasmuch as the said Section prohibits passing of any order or decree for recovery of possession of any demised premÿises except on one or more of the grounds enumerated in the proviso to Section 14(1). This inference, according to him, will be well warranted from the words "on any ground other than that referred to in Sub-section (1)" appearing in Sub-section (2) of Section 15. His second line of argument is that section 15(2) can be pressed into service only where the tenant contests the "claim for eviction" which would obviously imply eviction under Section 14(1) of the Act for in a proceeding under Section 21 there is no such thing as "claim for eviction" Hence, the question of contesting the same does not arise.

(6) On a closer examination and analysis of the provisions reproduced above, I am unable to endorse the view expressed by the learned counsel for the petitioner. Both Sub-sections (1) and (2) of Section 15 open with the words "in every proceeding for the recovery of possession of any premises" So, the essential postulate for invocation of these provisions is the existence of any proceeding for the recovery of possession of any premises. Section 21 too speaks of recovery of possession in case of tenancies for limited period as would be manifest fr the heading of the Section itself. This furnishes an important key to the proper construction of the Section. Even' otherwise the language of the Section is quite clear and unambiguous. On its plain language the Section contemplates two orders in regard to tenancies for limited period envisaged therein ; (a) an order by the Rent Controller sanctioning or prohibiting the creation of a tenancy for a particular fixed period only, and (b) an order by the Rent Controller putting the landlord in vacant possession of the lease premises by evicting the tenant and every other occupier thereof at the expiry of that period. Evidently the second order deals with recovery of possession of the premises on the expiry of the period of limited tenancy. Of course, such an order is in the nature of a process in execution whereunder the landlord had to be put into possession of the leased premises by evicting the tenant and every other occupant there of. So, by no stretch of reasoning it can be said that a proceeding under Section 21 is not one for recovery of possession of the premises or that eviction of the tenant from the demised premises is not contemplated under its This legal position seems to be well established by a long catena of decisions of this Court as well as of the Supreme Court. (Reference in this context may be made with advantage to S B.Noronah v.Prem Kumari Khanna. . VijayKumar Bajaj v. lnder Sain Minocha & another, , (a Division Bench decision of this Court) and J.R. Vohra v. India Export House Pvt. Ltd. & another, , which is the latest, on the ambit and scope of Section 21 of the Act). No doubt, there are certain observations in the last mentioned authority which may apparently tend to support, the contention of the learned counsel for the appellant that an application for delivery of possession to the landlord under Section 21 of the Act cannot in the strict legal sense bo called an application for eviction of the tenant but on a careful perusal of the same such an inference would not be well warranted. Said the Supreme Court : "BUT once such limited tenancy is property created the second order of putting the landlord in vacant possession of the leased premises by evicting the tenant at the expiry of the fixed period has to be passed as a matter of course because the tenant, in view of the non-obstante clause contained in the section, has no right or protection whatsoever under law to continue in possession nor has he any defense to eviction and the section does not contemplate the passing of any order of eviction against the tenant before issuing the warrant of possession in favor of the landlord. Tt is thus clear that the second order contemplated by the section is in the nature of a process in execution whereunder the landlord has to be put in possession of the leased premises by evicting the tenant and every other occupant thereof............ ..."

(7) This observation of the Supreme Court has to be read in the context of its earlier decision in SB. Noronah's case (supra) wherein it was hold that even where a limited tenancy is created with the permission of the court it is still open to the tenant, when an application is made by the landlord for recov(r)ry of possession of the demised premises, to challenge the validity of the order granting permission if it is mindless i e. made without application of judicial mind or has been procured by fraud or collusion. In the words of Krishna Iyer, J. : "THE point is that the sanction granted under Section 21, if it has been procured by fraud or collusion, cannot with stand invalidity because, otherwise, high public policy will be given as hostage to successful collusion. .......................................We have said enough to make the point that it is open to the tenant in the present case to pleader and prove that the sanction under Section 21 is invalid, and if it is void the executing court is not debarred from holding so. ............We hold that it is perfectly open to the Controller to examine whether the sanction under Section 21 is a make believe, vitiated by fraud and collusion." It may be pertinent to notice that the Supreme Court has concurred in this view in J.R. Vohra v. India Export House Pvt. Ltd. & Another (supra) While explaining that the decision in S.R Noronah's case is no authority for the proposition that upon receipt of landlord's application for recovery of possession the Rent Controller must issue a notice to the tenant inviting from him the pleas of fraud, collusion etc. alleged to have been practiced by the landlord in obtaining permission for creation of a limited tenancy and hold an inquiry into such pleas before issuing the warrant of possession in favor of the landlord, it said, "Where, however, there is a mechanical grant of permission or it is procured by fraud practiced by the landlord or it is the result of collusion between two unequals, the remedy available to the tenant is by way of his approaching the Rent Controller during the currency of the limited tenancy for adjudication of his pleas no sooner he discovers facts and circumstances that tend to vitiate abilities the initial grant of permission, instead of waiting till the landlord makes his application for recovery of possession after the expiry of the fixed period under Section 21. Of course if the tenant aliunde comes to know about landlord's application for recovery of possession .and puts forth his plea of fraud or collusion etc. at that stage the Rent Controller would inquire into such plea but he may run the risk of getting it rejected as an afterthought."

(8) It is thus abundantly clear that even at the stage of so-called execution proceeding under Section 21 of the Act it is open to the tenant to resist his eviction from the demised premises on the grounds envisaged in S.B. Noronah's case. It may be noticed that the first proceeding under Section 21 is confined to the grant or refusal of permission by the Controller for creation of a limited tenancy. It does not envisage passing of an order of eviction as such which is executable on the expiry of the limited tenancy. However, the Section itself confers a right on the landlord that if a limited tenancy for a particular period is created pursuant to the permission given by the Controller, be may apply for being put into possession of the demised premises in case the tenant does not, on the expiry of the said period, vacate the same. The Section nowhere talks of an application for execution but having regard to the nature and scope of the second proceeding it is said to be analogous to execution proceeding. So, the principle that the executing court cannot go behind the decree is not attracted stricto sensu to such proceeding but as observed by Krishna Iyer, J. in S.B. Noronah's case (supra), "but leave it open to the executing court to go into such pleas as are permissible at the execution stage. Beyond that he has no jurisdiction but within that he has a duty to decide." It is, therefore, futile to contend cither that the second proceeding under Section 21 of the Act is not a proceeding for recovery of possession or that it does not tantamount to a proceeding for eviction of the tenant. The Section in terms speaks of the landlord being put into vacant possession of the premises by evicting the tenant and every other person who may be in occupation of such premises. So, there is no valid reason why an order under Section 15(2) cannot be made in a case like the presents Needless to say that Sections 14A, 22 & 34 also contain special provisions for recovery of possession of the demised premises by evicting the tenants. Section 14A confers a right on a landlord to evict his tenant if the landlord happens to be in occupation of any residential premises allotted to him by the Central Government or any local authority and he is required to vacate the same. Section 22 entitles a company of other body corporate, a local authority and a public institution to recovery possession by evicting the tenants if the accommodation is required for the use of their employees. In the case of a public institution an additional ground of eviction is provided, namely, for the furtherance of its activities. Section 34 entitles a manager of a hotel or the owner of a lodging house to recovery possession of the accommodation provided by him to a lodger in certain circumstances. Evidently Section 15(2) will be available and can be pressed into service by a Landlord in all such cases if the tenant contests the claim for recovery of possession. There is no valid reason why a landlord cannot seek a direction contemplated by Section 15(2) of the Act when his claim for recovery of the possession under Section 21 is contested by the tenant, the ground of eviction in such a case being failure on the part of the tenant to surrender vacant possession of the premises in question on the expiry of the limited tenancy. Needless to say that an application for recovery of possession has to be made within six months from the date of expiry of period of tenancy as envisaged in Rule 5 of the Delhi Rent Control Rules failing which the landlord cannot avail of the special provision to get back the possession of the demised premises contained in this Section and his only remedy would be to take recourse to Section 14 for eviction of his tenant on the grounds specified therein. In other words, on the expiry of the limited tenancy created under Section 21 of the Act the relationship of the landlord and tenant does not ipso facto come to an end and the tenant would "continue to be a tenant" as defined in Section 2(1) of the Act (See A.S Sahney v.Smt. Suhag Rani, S.A.O. No 66/74, decided on 7th March 1974 by R.N. Aggarwal, J.) Thus, there is no substance in the contention of the learned counsel for the petitioner that on the expiry of the limited tenancy the relationship of landlord and tenant comes to an end. Indeed, his sole purpose in contesting the application of the landlord for recovery of possession is to seek a verdict that grant of permission for limited tenancy was invalid because in the event of his succeeding he would become a regular tenant. Hence, lam of the considered view that resort to Section 15(2) can be had by a landlord in case the tenant contests the claim of the landlord for recovery of possession of the demised premises on the expiry of the limited tenancy.

(9) M.L. Jain, J. had an occasion to deal with precisely the same question S. Sharma v. M.L. Sawhney, 1980 Rlr 523. Said His Lordship :    "AFTERconsideration, it appears to me that the order can be covered by Sub-section (2) of Section 15 of the Act because the recovery of possession is on the basis of a ground other than the one mentioned in Clause (a) of the proviso to Sub-section (1) of Section 14 of the Act. It cannot be said that the said Sub-section (2) is confined only to the grounds given in Section 14 of the Act. There is also no difficulty in holding that upon failure of the payment, defense against eviction under Section 21. of the Act, can be struck out under Section 15(7)."  

(10) I am in respectful agreement with this view. The learned Rent Control Tribunal has relied upon this authority and there is absolutely nothing to find fault with the reasoning of the learned Tribunal on this point.   

(11) The learned counsel for the petitioner has fairly and frankly conceded that in case it is held that the landlord is not competent to invoke the provisions of Section 15(2) at the second stage of proceeding under Section 21 of the Act, it would be open to the Rent Controller as an executing court to pass an order for payment of arrears of rent as a condition precedent to the grant of stay of dispossession. In view of specific provisions contained in Section 42 of the Act which confers all the powers of the civil court on the Controller while executing an order of eviction, he may also pass such an order in exercise of his inherent powers. In the words of Avadh Behari, J.:    "TO deny such power to any tribunal would be to paralyse it. It would render that tribunal incapable of properly deciding the matters entrusted to it. The only limitation to this power is that this be necessary for the ends of justice, or to prevent an abuse of its process."  

(See Gurditta Mal v. Bal Sarup, 1980 Rlr 136)   

(12) Indeed, the only anxiety of the learned counsel for the petitioner is that an order under Section 15(2) entails serious consequences as in the event of non-compliances with or breach thereof he may be visited with the penal provisions contained in Section 15(7) of the Act. Having regard to the view expressed by me above on this aspect of the matter, I need not dwell further on the subject.   

(13) The next contention of the learned counsel for the petitioner is that Smt. Sushila Lochan Singh, who is the mother of the respondent-landlord has no authority to take eviction proceedings against him under the Power of Attorney dated 24th June 1970. a copy of which has been placed on record. The relevant portion of the said Power of Attorney is extracted below for ready reference :    "......I,Mr. Harbir Singh son of......hereby appoint Mrs Sushila Lochan......to be my attorney in my name and on my behalf for my house, E-25, defense Colony. New Delhi and in this respect to sign all forms, plans, documents, applications etc. with the corporation. Land and Development Office, Electricity and Water Department, and all other authorities that may be necessary for the above mentioned house, to lease and rent etc. to collect and receive rent from them on my behalf, and to carry out maintenance repairs etc for all these acts, I hereby undertake to ratify all such deeds done on my behalf by my attorney under power herein before contained in virtue of these presents... "  

(14) The submission of the learned counsel for the petitioner in short is that this Power of Attorney authorises Smt. Sushila Lochan Singh simply "to lease and rent etc. and to collect and receive rent from the tenant" on his behalf. Further she can carry out maintenance, repairs etc. but she has no authority to initiate proceeding against the tenant for eviction. Relying upon Syed Abdul Khader v. Rami Reddy & Others, , he has urged that where someone other than the person who has a right to act in respect of certain things has, under a contract of agency, the right to act on behalf of principal the authority conferred by the written instrument has to be strictly construed. Ordinarily a Power of Attorney is construed strictly by Courts.   

(15) Surely there can be no quarrel with this proposition of law. However, the intendment of the principal who delegates his authority to bids agent under a power of attorney has to be gathered from all the circumstances of the case. Admittedly the respondent-landlord wag residing in London at the relevant time. Smt. Sushila Lochan Singh is his mother. The Power of Attorney specifically alludes to the premises in question and she has been authorised to lease the property to a tenant. It would be implicit in the authority so conferred that in the exercise of her power to let out and manage the property in question she would also have the authority to remove the tenant, if need be, more so when the lease itself has been granted under Section 21 of the Act and the proceeding for eviction of the tenant of the is also being taken under that very Section. As observed earlier, this Section contemplates two proceedings which arc inter-related in the sense that right to evict a tenant on the expiry of the limited tenancy automatically flows from the grant of permission by the Controller and as such it would be anomalous to hold that she does not have the power to enforce the order which she herself obtained from the Controller i.e. creation of tenancy for a specified period. Even otherwise the respondent has since executed a registered General Power of Attorney in favor of his mother Smt. Sushila Lochan Singh as well as his father Shri Lochan Singh. It is dated 12th September 1984 and its true copy has been placed on record. He has expressly conferred the power of granting leases and filing suits for rent and ejectment against his tenants. Since the proceedings are still pending the execution of fresh General Power of Attorney by the respondent-landlord would evidently amount to ratification of the acts done by his attorney Smt. Sushila Lochan Singh.

(16) There is yet another aspect of the matter, namely, that the definition of the word "landlord" as given in Section 2(e) of the Act is of very wide amplitude and includes not only the owner of the premises but also his agent who has let the premises or has the authority to receive rent on behalf of the owner. It this view of the matter too, there is no escape from the conclusion that Smt. Sushila Lochan Singh is competent to move the present application for eviction of the petitioner in her own right i.e. as landlord, it is not necessary that the application must be by the owner landlord as such which is a requirement contemplated under clause (e) of proviso to Section 14(1) etc. only. Hence, looked at from my angle, this contention is devoid of any substance.

(17) The upshot of the whole discussion, therefore, is that there is no merit in this revision petition. It is accordingly dismissed with costs. Pleader fee Rs. 250.00 .