Civil Appeal No 1472 of 1980
Appeal by Special leave from the judgment and order dated the 1st February 1980 of the Delhi High Court in Civil Revision Petition No 122 of 1980
Madan Bhatia Rajiv Behl and Sushil Kumar for the Appellant
LM Singhvi LR Gupta MV Goswami and LK Pandey for the Respondent
The Judgment of the Court was delivered by VARADARAJAN J
This appeal by special leave is directed against the one word order dated 121980 of the learned Single Judge of the 55 Delhi High Court dismissing Civil Revision Petition No 122 of 1980 in limine
The tenants who were respondents in the Rent Control Eviction Petition filed the Civil Revision Petition against the Rent Controller s order dated 30101979 declining to permit them to raise certain grounds of defence while granting leave to defend the eviction petition on certain other grounds
Special leave to appeal against the order of the learned Single Judge of the High Court has been granted by this Court only on the question whether section 14A of the Delhi Rent Control Act 1958 is applicable or not to the facts and circumstances of the case in view of the later Circular of 1977
The later Circular of 1977 mentioned in the special leave granted by this Court on 581980 is the Office Memorandum dated 1471977 of the Joint Secretary to the Government of India Ministry of Works and Housing Directorate of Estates hereinafter referred to as the second notification
The same Joint Secretary to the Government of India in the same Ministry had issued the earlier Memorandum dated 991975 hereinafter referred to as the first notification
The respondent landlord filed the Petition for eviction of the appellants under section 14A read with section 25B of the Delhi Rent Control Act 1958 hereinafter referred to as the Act
In the Eviction Petition the respondent had alleged that by virtue of his being a Government servant he has been allotted residential accommodation at No 83 Lodhi Estate New Delhi since November 1971
Under the first notification he is required to vacate the Government accommodation and shift to his own house No 11 B Maharani Bagh New Delhi which is now in the occupation of the appellants and if he failed to do so he is to incur the obligation of paying rentlicence fee of Rs 1448 per mensem on the ground that he owns a residential building in the Union Territory of Delhi and still continues to occupy Government accommodation
The appellants have not vacated the premises occupied by them in spite of several assurances given by them since February 1976
The respondent is paying a penal rent of Rs 1448 per mensem for the Government accommodation because he had not vacated that accommodation provided to him by the Government as a Government servant
After presentation of the Eviction Petition and service of notice under section 25B of the Act the appellants filed a Petition for grant of leave to defend the main Petition
One of the objections disallowed with which we are concerned in this appeal is that in view of the second notification the respondent is not required to vacate the 56 Government accommodation now available to him and that he is therefore not entitled to evict the appellants under the provisions of section 14A of the Act
The Civil Revision Petition filed by the appellants against the order of the Additional Rent Controller has been dismissed by the learned Single Judge of the High Court as mentioned above
The appellants have therefore filed this appeal by special leave against that order
We are concerned in this appeal with section 14A 1 of the Act which reads thus 14A 1 Where landlord who being a person in occupation of 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 residential 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 notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force 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 
There is no dispute that the respondent is the owner of the premises in question namely 11 B Maharani Bagh New Delhi now occupied by the appellants on a rent of Rs 2100 per mensem and that he is at present in occupation of Government accommodation at No 83 Lodhi Estate New Delhi and is obliged to pay 57 penal rentlicence fee of Rs 1448 per mensem
The relevant portion of the first notification reads thus That undersigned is directed to say that the question of allotment of Government residential accommodation to officers owing houses at or near the stations of their posting has been under consideration of Government for some time past
It has now been decided in supersession of all previous orders on the subject as follows i Those Government servants who build houses in future at the place of their posting within the limits of any local or adjoining municipality whether with or without Government assistance or who become owners of houses in future either in their own names or in the names of any members of their families shall be required to vacate Government accommodation in their occupation from the date their own houses are fit for occupation
ii Those Government servants who have already built houses at the place of their posting within the limits of any local or adjoining municipality whether with or without Government assistance or who own houses either in their own names or in the names of any members of their families shall be required to vacate the Government accommodation allotted to them within three months from the 1st of October 1975
If they do not vacate Government accommodation after that period they would be charged licence fee at market rates
iiiHence onward no Government accommodation should be allotted to an officer owning a house at the place of his posting within the limits of any local or adjoining municipality
A certificate shall be obtained from a prospective allottee that he has no house at the station of his posing within the limits of any local or adjoining municipality either in his own name or in name of any member of his family
iv   58 v   2  3
The Ministry of Home Affairs etc
are requested to bring the above decision of Government to the notice of all their attached and subordinate offices and ensure that the decision is implemented in respect of different pools of Government residence under their control
In so far as general pool accommodation is concerned the Ministry of Home Affairs etc are requested to bring this to the notice of all Government Servants who are eligible for general pool accommodation as well as those who have already been allotted accommodation from the general pool asking them by 15th October 1975 to indicate whether they have their own houses as covered by these orders
In case they have a declaration may be obtained from them in the prescribed proforma and forwarded to the Directorate of Estate Coordination I Section by 15th November 1975
Other officers who do not own houses should also furnish a declaration to that effect
All officials who have been allotted general pool accommodation may be advised that it is their responsibility to inform the Directorate of Estates when they or any member of their families become owners of houses in future within one month from the date of becoming such owners
All officers eligible for general pool accommodation may also be warned that severe action will be taken against them in case they furnish any incorrect information
In addition to this general first notification relating to Government accommodation in the occupation of Government employees there is a special order dated 2211976 of the Assistant Director of Estates New Delhi calling upon the respondent to vacate the Government accommodation No 83 Lodhi Estate allotted to him since 31121975 failing which he would be charged market rent with effect from 111976 at the rate fixed by Government from time to time and informing him that a bill at the market rate of licence fee for the said premises will follow
59 In the affidavit filed in support of the Petition for grant of leave to defend the main Eviction Petition the appellants have stated that the respondent is occupying a huge massive and palatial bungalow in the Lodhi Estate New Delhi built on an area of about two acres and allotted to him by the Government and that whereas he is paying an alleged rent of Rs 1448 per mensem for that accommodation he is getting a rent of Rs 2100 per mensem for his premises occupied by the appellants and he is thereby gaining a sum of Rs 652 per mensem
The appellants have further stated in that affidavit that there is a clear shift in the policy of the Government whereby Government accommodation is made available to even those employees who happen to have their own houses at Delhi and that Government have modified the notification relied upon by the respondent whereby house owing officials have become eligible for allotment of Government accommodation at the places of their posting with effect from 161977
The notification said to modify the first notification is the second notification
The relevant portion of that notification reads thus The undersigned is directed to say that the orders contained in this Ministry s office Memorandum No 12031 174 Pol
II dated 991975 as modified from time to time have been reconsidered
Government has decided that the restrictions on allotment of accommodation to houses owning officers should be modified with effect from 161977 making house owning officers eligible for Government accommodation as communicated in this Ministry s Office Memorandum of even number dated the 29th June 1977
It has also been decided that allotment of such accommodation to a house owning official will be on normal rent if the income from his own house does not exceed Rs 1000 pm or half the market rent if the income exceeds Rs 1000 pm but does not exceed Rs 2000 pm and on full market rent if the income is above Rs 2000 pm
Rent will be recovered on the same basis wef
161977 also from those house owing officials who are retaining Government accommodation on payment of market rents
These decisions will apply equally whether the house is owned by the officer or hisher wifehusband or by hisher dependent children
60 2  3
Allotment of accommodation to house owning officers who have already vacated Government accommodation
Such officers will be considered for allotment of accommodation in their turn on the basis of their priority date under the allotment rules
No preference should be shown to them in the matter of allotment in consideration of the fact that they were earlier in occupation of Government accommodation and had vacated it in compliance with the earlier orders to which the officers are normally entitled without restriction of any locality or without any reference to the types of accommodation which the officers were occupying previously
As usual officers eligible for types V and above should also be considered for allotment in the types next below on the basis of their priority for such types
After accepting initial allotment they will be eligible for change in the normal manner in accordance with the allotment rules
4  5  6
In so for as the general pool is concerned officers who have already vacated Government accommodation may submit fresh applications for allotment of accommodation in the prescribed application form indicating the details of the houses owned by them or their spouses or dependent children alongwith documentary proof of the income they derive from the houses they own
House owing officers who are continuing in Government accommodation should also furnish suitable documentary proof of the income they get from their private houses to enable the Director of Estates to fix the licence fee recoverable from them wef 161977
Mr Madan Bhatia learned counsel for the appellants submitted that while under the first notification the respondent was required to vacate the Government accommodation within three 61 months from 1101975 on pain of being liable to pay licence fee at the market rate if he failed to vacate within that time Government employees like respondent have become eligible for Government accommodation under the second notification and are therefore not obliged to vacate the Government accommodation and that the respondent is therefore not entitled to seek eviction of the appellants from his premises under section 14A of the Act though he may file a Petition for eviction under section 14 1 e of the Act which is a general provision applicable to all landlords who seek to evict their tenants on the ground that they require the premises for their own bonafide occupation
Section 14 1 e reads thus 141 Notwithstanding anything to the contrary contained 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   b   c   d   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 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 accommodation Explanation For the purposes of this clause premises let for residential purposes include any premises which having been let for use as a residence are without the con 62 sent of the landlord used incidentally for commercial or other purposes    In support of the contention that in view of the second notification the respondent is not entitled to have recourse to the provisions of section 14A of the Act Mr Madan Bhatia relied upon the decision of this Court in Busching Schmitz Private Ltd vs PT Menghani and Anr
where the Court has observed at page 323 thus Supposing the landlord after exploiting the easy process of section 14A relets 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 section 14 1 e
Section 19 obligates the landlord in this behalf
In literal terms that section does not apply to eviction obtained under section 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 occupation 
Once we grasp this cardinal point the officer s application for eviction under section 14A can be entertained only on his averment that he having been asked to vacate must get into possession of his own 
The cause of action is not only the government order to vacate but his consequential urgency to recover his own building Mr Madan Bhatia relied also on the decision of learned single Judge of the Delhi High Court in KD Singh vs Shri Hari Babu Kanwal where the learned Judge has observed thus At the time when this application was brought in February 1977 the Circular of 991975 held the field
Unfortunately for the landlord this position under went change when the Central Government issued a revised Circular dated 1471977 by which the orders contained in 63 the earlier circular dated 991975 were modified after reconsideration  
A vital change thus took place by the Circular of 1471977 namely that there is no direction to a person who owns a house and who is in occupation of a residential premises allotted to him by the Central Government to vacate such residential accommodation  
Once therefore the revised Circular of 1471977 has come the very basis on which the Eviction Application under s14 A of Act was brought has ceased to exist and cannot avail him  
It must be realised that s14A was brought in only for a limited purpose to enable the Government servants in getting immediate possession of their house when they had been directed to vacate the Government accommodation
The special legislation was made to serve special purpose in pursuance of the Circular of 991975
Once that purpose has been modified and the Government has revised its decision and there is no direction to vacate such residential accommodation it is impermissible in law to allow a Government servant to invoke s14A and frustrate the beneficial Act of the Rent Control legislation like the Delhi Rent Control Act
We do not agree with this view of the learned Judge
It is seen from paragraph 3 of the Order of the Additional Rent Controller which was sought to be revised by the High Court that the respondent is paying a rent of Rs 1448 per mensem for the Government accommodation No 83 Lodhi Estate New Delhi
In the reply affidavit filed in the Special Leave Petition the respondent has stated that he is liable to pay Rs 1543 per mensem for the Government accommodation as penal rent on account of his failure to vacate the same
The respondent has produced in this Court a communication addressed to him by the Assistant Director of Estates New Delhi saying that without prejudice to any other action which may be taken in respect of the Government accommodation which has been allotted to him his liability will continue to increase to Rs 2898 per mensem and three times that rate on the expiry of 15 days from the date of service of orders of eviction under the till he vacates and restores the premises to the Central Public Works Department
These facts and the liability of the 64 respondent to pay full market rent for the Government accommodation with effect from 161977 and the second notification in the light of his getting rental income exceeding Rs 2000 per mensem from his own premises show that the respondent has to incur certain obligations on his failure to vacate Government accommodation 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
We do not find anything in the second notification taking away the obligation which has been imposed on the respondent by the first notification to vacate the Government accommodation within three months from the 1st of October 1975
We are of the opinion that the second notification without taking away the obligation imposed by the first notification on Government employees owning houses in their own names or in the name of any other member of their families within the limits of their place of posting to vacate the Government accommodation within three months from the first of October 1975 has given an option to those employees to continue to occupy the Government accommodation subject to the obligation mentioned in the second notification namely that the house owning Government employee will have to pay normal rent for the Government accommodation if the income from his own house does not exceed Rs 1000 per mensem of half the market rent if the income from his own house exceeds Rs 1000 per mensem but does not exceed Rs 2000 per mensem and full market rent if the income from his house is above Rs 2000 per mensem with effect from 161977
In the present case the market rentlicence fee which the respondent had to pay for the Government accommodation occupied by him on the date of institution of Eviction Petition was Rs 1448 per mensem and it had been increased to Rs 1543 per mensem as stated in the counter affidavit filed by the respondent in the Special Leave Petition and it has been further enhanced to Rs 2898 per mensem by the letter dated 1718 7 1981 of the Assistant Director of Estates addressed to the respondent and referred to above
The respondent has thus an option to continue to occupy the Government accommodation subject to the said obligation without vacating the Government accommodation within a period of three months from the Ist of October 1975
We are of the opinion that it is not open to the appellants to compel the respondent to exercise his option and continue to occupy the Government accommodation in order that they may continue to occupy the premises in question as the tenants
Even apart from the first notification which is general in nature and has been modified by the 65 second notification as mentioned above there is the special order dated 2211976 which required the respondent to vacate the Government accommodation by 31121975 failing which he is to pay market rent with effect from 111976 as mentioned above
In these circumstances it is not possible for us to accept the argument of Mr Madan Bhatia that the respondent is not entitled to have recourse to section 14A of the Act for seeking eviction of the appellants from the premises in question having regard to first and second notifications and the special order dated 2211976
Dr LM Singhvi learned counsel for the respondent invited our attention to the decision of another learned Single Judge of the Delhi High Court in JL Paul vs Ranjit Singh supra where we find the following observations The last objection of the petitioner is that the notifications granting a right to the Government employee to seek eviction under Section 14A of the Act have been withdrawn that this defence raises a triable issue and therefore the Controller ought to have granted leave to contest so that he may produce evidence on record in support of this part of his defence
The right to claim eviction accrues to a landlord under section 14A of the Act and not under any notification issued by the Government
The Government notification general or special only requires a landlord Government allottee to vacate the accommodation as he owns his house or pay penal rent
The respondent submits that the general notification dated September 9 1975 and the special order dated December 26 1975 have never been withdrawn
His contention is that there has been a notification about the rate of rentlicence fee to be paid by a Government employee if he is also owner of his own house at the place of his posting and does not vacate allotted premises
In short his contention is that right of eviction is available to a landlord allottee of Government accommodation if he fulfils the conditions mentioned in section 14A of the Act
According to him there is modification that if the income of the landlord from his own house does not exceed Rs 1000 per month he is liable to pay only the normal rent of the Government allotted accommodation but if his income from his own house exceeds Rs 1000 and does not exceed Rs 2000 he is liable to pay half the market rent and in cases where his income from his own house is above 66 Rs 2000 per month he is liable to pay full market rent
The respondent contends that section 14A of the Act conferring upon a landlordGovernment allottee a right to get his own vacated has never been repealed
The learned counsel for the respondent further contends that mere assertion of the petitioner that the notifications have been withdrawn is vague and does not give him any right to leave to contest and lead any evidence If any notification has been withdrawn or cancelled such an order must be in writing
The petitionertenant in his application does not disclose any notification under which the Government notification requiring a landlordGovernment employee to vacate has been withdrawn  
Thus the notification dated September 9 1975 stands modified to the extent as to what rate of rent would be payable by the respondent Government allotteelandlord owning his own house if he retains the allotted premises that is if he fails to vacate the Government accommodation in pursuance of the general order dated September 9 1975 and the special order dated December 26 1975
The income of the respondent from his own house that is suit property No 164 Greater Kailash 1 New Delhi is Rs 1950 per month
He is getting Rs 850 per month from the petitioner occupying first floor and Rs 1100 per month from Escorts  occupying the ground floor
In accordance with the notification dated July 14 1977 the respondentlandlord is thus liable to pay half the market rent from June 1 1977 if he does not vacate the Government allotted accommodation
In fact after the issue of notification dated July 14 1977 the respondent has been directed to pay half the market rent by means of an order dated September 20 1977 issued by the Directorate of Estates Government of India with effect from June 1 1977
In short it is certain that there is the general notification dated September 9 1975 and the special order dated December 26 1975 requiring the respondentlandlord to vacate the Government allotted residential accommodation or in default to pay half the market rent
In other words he is to incur certain obligations The liability is on account of the fact that he owns 67 the house in suit in the Union Territory of Delhi his place of posting  
On December 12 1979 Directorate of Estates was required to state whether the notification dated September 9 1975 stands withdrawn or it was simply modified
The Directorate of Estates in his letter dated December 14 1979 informed that the Memorandum dated September 9 1975 was not withdrawn but was only modified by the Memorandum dated July 14 1977  
So if the two notifications dated September 9 1975 and July 14 1977 are read together it appears that there is no cancellation of the earlier notification and that it is only a notification of the rate of rent payable by an allottee owning his own house
Under this notification dated July 14 1977 it is further provided that with effect from June 1 1977 rent of allotted premises shall be recovered from the house owning officials retaining the premises at the rates mentioned therein
The respondent is therefore liable to pay the rent accordingly and thus liable to incur obligation in default of vacating the premises  
The respondent satisfies the requirement of section 14A of the Act
There is no defence available to the petitioner against the eviction application under section 14A of the Act  
In the present case also there is nothing on record to show that the obligation imposed upon respondent by the first notification to vacate the Government accommodation within three months from the Ist of October 1975 and by the special order dated 2211976 by 31121975 has been withdrawn
The respondent can continue to 68 occupy the Government accommodation only subject to certain obligations
We therefore hold that the respondent is entitled to have recourse to section 14A of the Act for evicting the appellants from the premises in question
Accordingly the appeal fails and is dismissed with costs
SR Appeal dismissed


Summary:
The respondent landlord filed a petition for eviction of the appellant under section 14A read with section 25B of the Delhi Rent Control Act 1958 on the ground of requirement for personal occupation in view of the fact that he was forced to pay penal rent of Rs 1448 from his Government accommodation as per Government of India notification dated 9 9 1975 and the special order dated 22 1 1976 requiring him to vacate the Government accommodation by 31 12 1975
After presentation of the eviction petition and service of notice under section 25B of the Act the appellant filed a petition for grant of leave to defend the main petition and raised several objections in the written statement
One such objection was that in view of the later circular of the Government dated 14 7 1977 the respondent was not required to vacate the Government accommodation and therefore he was not entitled to evict the appellants under the provisions of section 14A of the Delhi Rent Control Act
The said objection having been disallowed by the Additional Rent Controller the appellant filed Civil Revision Petition before the Delhi High Court which met with the same fate
Hence the appeal against that order by special leave
Dismissing the appeal the Court  HELD 1
The respondent landlord is entitled to have recourse to section 14A of the Delhi Rent Control Act 1958 for evicting the appellants from the premises in question
68 A B 2
The second notification dated 14 7 1977 of the Government without taking away the obligation imposed by the first notification dated 9 9 75 on Government employees owning houses in their own names or in the name of any other member of their families within the limits of their place of posting vacate the Government accommodation within three months from 1st of October 1975 has given an option to those employees to continue to occupy the Government accommodation subject to the obligation mentioned in the second notification namely that the house owning Government employee will have to pay normal rent for the Government accommodation if the income from his own house does not exceed Rs 1000 per mensem half the market rent if the 54 income from his own house exceeds Rs 1000 per mensem but does not exceed Rs 2000 per mensem and full market rent if the income from his house is above Rs 2000 per mensem with effect from 1 6 1977
64 C E 3
In the present case i even apart from the first notification dated 9 9 1975 which is general in nature and has been modified by the second notification dated 14 7 1977 there is the special order dated 22 1 1976 which required the respondent to vacate the Government accommodation by 31 12 1975 failing which he is to pay market rent with effect from 1 1 1976 ii the market rentlicence fee which the respondent had to pay for the Government accommodation on the date of institution of the Eviction Petition was Rs 1448 per mensem and it had been increased to Rs 1543 per mensem and further enhanced to Rs 2898 per mensem by the letter dated 1718 7 1981 of the Assistant Director of Estates addressed to the respondent iii there is nothing on record to show that the obligation imposed upon respondent by the first notification to vacate the Government accommodation within three months from 1st of October 1975 and by the special order dated 22 1 1976 by 31st December 1975 has been withdrawn iv the respondent has an option to continue to occupy the Government accommodation subject to certain obligations contained in the two notifications without vacating the Government accommodation within a period of three months from 1st of October 1975 and v it is not open to the appellants to compel the respondent to exercise his option and continue to occupy the Government accommodation in order that he may continue to occupy the premises in question as the tenant
64 E H 65 A B Busching Schmitz Private Ltd vs PT Menghani and Anr  referred to
KD Singh vs Shri Hari Babu Kanwal  overruled
JL Paul vs Ranjit Singh  approved