ivil Appeal No 1319 of 1990
717 From the Judgment and Order dated 791987 of Delhi High Court in SAO No 991987
Dr LM Singhvi and Dalveer Bhandari for the Appellant
Dr YS Chitale and AK Sangal for the Respondent
The Judgment of the Court was delivered by RANGANATH MISRA J
Special Leave granted
This is an appeal by the landlady whose application for being put in possession of the premises on the expiry of a limited tenancy of two years under section 21 of the Delhi Rent Control Act hereinafter referred to as the Act  has been dismissed by the Rent Controller the Rent Control Tribunal and the High Court
On 30th September 1976 the appellant landlady and the respondent tenant appeared before Shri MA Khan Additional Rent Controller for creation of a tenancy under section 21 of the Act
The Additional Rent Controller recorded the statements of both the landlady and the prospective tenant and made the following order Having regard to the facts stated in the petition and the statement of the parties made above permission under section 21 of the Delhi Rent Control Act is granted to Yamuna Maloo applicant to let out ground floor of her premises No B 2104 Safderjung Enclave New Delhi comprising of drawing cum dining hall two bed rooms with attached bath room kitchen parking place and a small  lawn delineated in the enclosed plan exhibit AI to Mr
Anand Swarup respondent for residential purposes for a limited period of two years with effect from 11076
 After the expiry of the two year period when the re spondent did not vacate the premises the landlady moved the Rent controller for issuance of warrant of possession to which the tenant filed his objection
The Additional Rent Controller entertained the objection and dismissed the landlady s petition for being put into possession
There upon the landlady moved the Rent Control Tribunal in appeal and when she failed before it a second appeal was filed before the High Court which was dismissed in limine
718 The Controller relied upon the judgment of this Court in SBNoronah vs
Prem Kumari Khanna1980 1 SCR 281 and came to hold I have carefully gone through the execution appli cation the objections the evidence on record the original file in which the permission was granted and have heard the learned counsel for parties
I am of the view that the order dated 30975 granting permission was not in accordance with law and that the applicantpetitioner is not entitled to obtain possession of the premises in dispute under section 21 of the Delhi Rent Control Act
 Noronah s case had stated Of course there will be presumption in favour of the sanction being regular but it will Still be open to a party to make out his case that in fact and in truth the conditions which make for a valid sanction were not present
 It is interesting to note that by the time the appel lant s appeal came up for hearing before the Tribunal Shri MA Khan who as an Additional Rent Controller had approved the tenancy by his order dated 30th September 1976 on being judicially satisfied that the tenancy under section 21 of the Act could be created had become the Rent Control Tribu nal
He noticed this fact in his appellate order dated 11th April 1986 by stating In this appeal the validity and executability of the order dr 30976 is disputed which was passed by me as Addl
Rent Controller
Since there is no other Rent Control Tribunal therefore in exigency of the situation I have no option but to proceed to decide this appeal
 He concluded The appellant in the application and in her statement did not give the reason for letting out the premises for two years only
She even did not give the reason in application for recovery or  possession
In reply to the objection of the respondent she states that she was residing in Vasant Vihar at a house which was allotted to her husband by the employer
There was no possibility of her vacating the said 719 house and shifting to the disputed premises
The first floor of the disputed premises was also let out by her to another tenant for a limited period
She did not disclose that she intended to create a limited tenancy in respect of the first floor also
Further the premises were let after an adver tisement of to let  in Hindustan Times dt
25976
It is conceded that in the advertisement it was not specified that the premises were available for letting for two years only
All these facts proved that the appellant did not require the premises for occupation after two years and that these premises could have been let out for an indefinite period
She made a wrong statement before the court
She also con cealed the material facts from the court
She obtained the permission from the court under section 21 by playing fraud
The order passed under section 21 is therefore invalid and in execution thereof the respondent cannot be evicted
 We have already said that the second appeal was dis missed in limine
Lengthy arguments were advanced at the hearing in support of the respective stands
Counsel for the landlady argued that the Additional Rent Controller should not have entertained the objection of the tenant to the execution of the eviction order as the same had not been filed during the currency of the tenancy it was further argued that some of the considerations which weighed with the Rent Control Tribunal were  not at all relevant for judging the bona fides and genu ineness of actions taken on 30th of September 1976 at the time of creation of the tenancy
On theside of the tenant the contentions which had prevailed with the Additional Rent Controller and the Rent Control Tribunal were reiterated
Section 14 of the Act deals with a normal tenancy and protects the tenant against unreasonable eviction
Section 21 of the Act on the other hand places tile tenant outside the purview of section 14 and provides for an order of eviction at the time of creation of the tenancy
There is a purpose behind enacting section 21 of the Act
The Legislature considered it appropriate that should a landlord not need his residen tial premises for a period instead of keeping the same vacant the same could be available for a tenant s use on being let out for a limited period condi 720 tional upon the tenant s surrendering possession as soon as the tenancy terminates by efflux of time and the need of the landlord revives
The conditions to be fulfilled at the time of creation of such a tenancy are three namely i the landlord would not require the premises for a particular period ii the Controller must be satisfied about that position and iii the tenant agrees to vacate at the end of the period
In Noronah s case supra two Judge Bench dealt with this question
This Court then said
We must notice that section 21 runs counter to the general scheme and therefore must be restricted severely to its narrow sphere
Secondly we must place accent on every condition which attracts the section and if any one of them is absent the section cannot apply and therefore cannot arm the landlord with a resistless eviction process
Third ly we must realise that the whole effect of section 14 can be subverted by ritualistic enforcement of the conditions of sanction under section 21 or mechanical grant of sanction therein
Section 21 overrides section 14 precisely because it is otherwise hedged in with drastic limitations and safeguards itself against landlords  abuses
It is true that the judgment of this Court which is dated August 16 1979 was not in existence when Sri Khan sanctioned the tenancy but the law then in force was not different
In fact the orders out of which that appeal arose had also taken the same view
This Court Noronah s case further said When an application under section 21 is filed by the land lord andor tenant the Controller must satisfy himself by such inquiry as he may make about the compulsive require ments of that provision
If he makes a mindless order the Court when challenged at the time of execution will go into the question as to whether the twin conditions for sanction have really been fulfilled
 A three Judge Bench of this Court in JR Vohra vs India Export House Pvt Ltd  Anr  was examin ing the requirement of notice to the tenant when at the expiry of the period of tenancy the landlord had applied for being put in possession
While so examining that question this Court approved the following observations in Noronah s case 721 Parliament was presumably keen on maximising accommodation available for letting realising the scarcity crises
One source of such spare accommodation which is usually shy is potentially vacant building or part thereof which the land lord is able to let out for a strictly limited period pro vided he has some credible assurance that when he needs he will get it back
If an officer is going on other assignment for a particular period or the owner has official quarters so that he can let out if he is confident that on his re tirement he will be able to re occupy such accommodation may add to the total lease worthy houses
The problem is felt most for residential uses
But no one will part with possession because the lessee will become a statutory tenant and even if bona fide requirement is made out the litiga tive tiers are so many and the law s delays so tantalising that no realist in his sense will trust the sweet promises of a tenant that he will return the building after the stipulated period
So the law has to make itself credit worthy
The long distance between institution of recovery proceedings and actual dispossession runs often into a decade or more a factor of despair which can be obviated only by a special procedure
Section 21 is the answer
The law seeks to persuade the owner of premises available for letting for a particular or limited period by giving him the special assurance that at the expiry of that period the appointed agency will place the landlord in vacant possession
 Noronah s judgment was approved to this extent
In the three succeeding paragraphs in Vohra s decision
Noronah s case was also referred to
Dealing with the contentions relied upon in Noronah s case Tulzapurkar J who delivered the judgment of the Court observed At the outset we would like to observe that in Noronah s case the question whether a prior notice is required to be served upon the tenant before issuance of warrant of posses sion in favour of the landlord under section 21 did not arise for consideration
It was a case where upon receipt of landlord s application for recovery of possession under the section the tenant raised pleas that the premises had been let out for non residential purposes and that the sanction or permission granted for the creation of the limited tenan cy was vitiated by fraud and collusion and the question that 722 arose for consideration was whether at that stage the Rent Controller could go into and consider such pleas and this court has ruled that the Controller should consider those pleas even when raised at that stage
 A little later Justice Tulzapurkar further observed In fact even in Noronah s case this Court has observedthat there will be a presumption in favour of the sanction or permission being regular and if that be so we fail to appreciate as to why the Rent Controller should invite such pleas of fraud collusion etc
at the instance of the tenant by being required to serve a notice upon him before issuing the warrant of possession in favour of the landlord espe cially when the scheme of sec
21 and the connected relevant provisions do not require it
 The three Judge Bench thereafter went to consider the remedy available to the tenant in a case where the objec tions were as in the present case What then is the remedy available to the tenant in a case where there was in fact a mere ritualistic observance of the procedure while granting permission for the creation of a limited tenancy or where such permission was procured by fraud practised by the landlord or was a result of collusion between the strong and the weak Must the tenant in such cases be unceremoniously evicted without his plea being inquired into The answer is obviously in the negative
At the same time must he be permitted to protract the delivery of possession of the leased premises to the landlord on a false plea of fraud or collusion or that there was a mechan ical grant of permission and thus defeat the very subject of the special procedure provided for the benefit of the land lord in section 217 The answer must again be in the nega tive
In our view these two competing claims must be harmo nised and the solution lies not in insisting upon service of a prior notice on the tenant before the issuance of the warrant of possession to evict him but by insisting upon his approach 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 ab initio the initial grant of permission
Either it is a 723 mechancial grant of permission or it is procured by fraud practised by the landlord or it is the result of collusion between two unequals but in each case there is no reason for the tenant to wait till the landlord makes his application for recovery of possession after the expiry of the fixed period under section 21 but there is every reason why the tenant should make an immediate approach to the Rent Con troller to have his pleas adjudicated by him as soon facts and circumstances giving rise to such pleas come to knowledge or are discovered by him with the diligence
The special procedure provided for the benefit of the landlord in section 21 warrants such immediate approach on the part of the tenant
 What followed thereafter perhaps is more in the nature of an obiter than a part of the decision proper namely Of course if the tenant alliunde comes to know about land lord 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
 It may be pointed out that in Vohra s case the objec tions on the ground of fraud and collusion were raised after the claim by the landlord for being put in possession but were rejected as belated
The question that came for consid eration before the three Judge Bench was whether notice was necessary when the landlord applied to be put in possession after the termination of the tenancy
In that context the observation that tenant s objections could be enquired into if the tenant aliunde came to know of the landlord s move and objected was not relevant for the decision
There are certain observations in Inder Mohan Lal vs Ramesh Khanna  which are relevant An analysis of this judgment Noronah s case which has been applied in the various cases would indicate that sec tion 21 only gives sanction if the landlord makes a state ment to the satisfaction of the court and the tenant accepts that the landlord does not require the premises for a limit ed period this statement of the landlord must be bona fide
The purpose must be residence
There must not be 724 any fraud or collusion
There is a presumption of regulari ty
But it is open in particular facts and circumstances of the case to prove to the satisfaction of the executing court that there was no collusion or conspiracy between the land lord and the tenant and the landlord did not mean what he said or that it was a fraud or that the tenant agreed be cause the tenant was wholly unequal to the landlord
In the instant case none of these conditions were fulfilled
There is no evidence in this case that when the landlord stated that he did not require the premises in question for a particular period he did not mean what he stated or that he made a false statement
There was no evidence in this case at any stage that the tenant did not understand what the landlord was stating or that he did not accept what the landlord stated
There was no evidence that either the tenant was in collusion or perpetrating any fraud with the landlord or the tenant was unequal to the landlord in bar gaining powers
It is manifest that there is no evidence to show that the Controller did not apply his mind
If that is so then on the principle enunciated by this Court in Noro nah s case this sanction cannot be challenged
It is not necessary to state under section 21 the reasons why the landlord did not require the premises in question for any particular period
Nor is there any presumption that in all cases the tenants are the weaker sections
The presumption is on the contrary in favour of sanction it is he who challenges the statement and the admission of the landlord or the tenant who has to establish facts as indicated in Nagindas case
 In paragraph 22 of the judgment Mukharji J as he then was speaking for the Court held out a caution that the residue must be understood in its proper perspective
We may point out that the respondent apart from being highly quali fied held the position of a Deputy Secretary to Government and therefore was not a tenant of the type in Noronah s case
As has been stated in Inder Mohan Lal s case the rule in Noronah s case has to be confined to a particular set of facts and should not be freely extended so as to take away the effect of section 21
Fraud is an allegation which can easily be made but unless the allegations are clearly pleaded and some evidence either direct or circumstantial is avail able a charge of fraud would not succeed
We may refer to another judgment of this Court in the case of Shiv Chander Kapoor
vs Amar Bose JT where the 725 validity of the permission under section 21 of the Act came up for consideration
Noronah s case was also referred to
In paragraph 15 of the judgment this Court pointed out that there is nothing in this decision to support the respondent tenant s contention in that appeal that the scope of enquiry is wider permitting determination of the land lord s bona fide need of the premises as if such a ground for eviction specified in section 14 of the Act was required to be proved
Extending the enquiry to that field would indeed be against the express prohibition enacted in section 21 of the Act
Referring to Vohra s case the latest judgment indi cates It is obvious from the decision in JR Vohra s case that the tenant is expected to raise such a plea during currency of the limited tenancy and on such a plea being raised by the tenant enquiry into it is contemplated
Even though it is not expressly said in Vohra s case it is implicit that on such an application being made by the tenant requiting adjudication by the Controller it is the Controller s obligation to issue notice of the same to the landlord and then to make the adjudication with opportunity to both sides to prove their respective contentions
Both in Vohra s case and in Shiv Chander Kapoor s case though not arising for determination in either it has been stated while laying down the rule that proceeding to chal lenge limited tenancy has to be taken during the cunency of the tenancy an objection filed by the tenant could be looked into is indeed an obiter
We would like to make it clear that the rule having been stated to the contrary in Vohra s case there was indeed no warrant to indicate the contra situation
Perhaps to meet the eventuality which might arise in a particular case neither of the two Benches of this Court wanted to close the avenue of enquiry totally and that is why in both the cases decided by coordinate Benches the exception has also been indicated
It must be understood on the authority of the said two decisions and our judgment now that if the tenant has objection to raise to the validity of the limited tenancy it has to be done prior to the lapse of the lease and not as a defence to the landlord s application for being put into possession
We would like to reiterate that even if such an exercise is available that must be taken to be very limited and made applicable to exceptional situations
Unless the tenant is able to satisfy the Controller that he had no opportunity at all to know the facts earlier and had come to be aware of them only then should such an objection be entertained
726 On the application of those tests to the present facts we must hold that the belated objections of the tenant should not have been entertained and prayer for possession made by the landlady after the limited tenancy ran out should have been granted
The appeal is allowed the decisions of the Controller Rent Control Tribunal and the High Court are reversed and the landlady is directed to be put into possession of the premises by 31st of March 1990
The appellant would be entitled to her costs in the proceedings throughout
Hearing fee is assessed at Rs2000
GN Appeal al lowed


Summary:
The lands in question are situate in lot Ahiyapur which is one of the villages forming part of the permanently settled estate of Burdwan and had been set apart as Chaukidari Chakaran lands to be held by the Chaukidars for rendering service in the village as watchmen
At the time of the permanent settlement the income from these lands was not taken into account in fixing the jama payable on the estate
Some time before the enactment of the Bengal Patni Taluks Regulation 1819 the entire village of Ahiyapur was granted by the then 1310 Zamindar of Burdwan to the predecessors in title of the defendants on Patni settlement
In 1870 the Village Chaukidari Act came into force and acting under the provisions of that Act the Government put an end to the services of the Chaukidars resumed the lands and imposed an assessment thereon and subject to it transferred the lands to the Zamindar
On June 3 899 the Zamindar granted the suit lands on Patni to the predecessors in title of the defendants who were the then holders of the village in Patni
In proceedings taken by the Zamindar under the provisions of the Bengal Patni Taluks Regulation 1819 the suit lands were brought to sale for arrears of rent and purchased by him
On February I3 1941 the Zamindar sold the lands to the appellant who sued to recover possession thereof from the defendants
The defendants resisted the suit on the ground inter alia that the effect of the grant of the Chaukidari Chakaran lands on June 3 1899 was to make them part and parcel of the Patni settlement of the village of Ahiyapur and that in consequence the sale of those lands apart from the village of Ahiyapur was bad as being a sale of a portion of the Patni
Held that when the Zamindar made a grant of the Chaukidari Chakaran lands which formed part of a village which had previously been settled in Patni it was open to the parties to agree that those lands should form a new and distinct Patni and the result of such an agreement would be that while the grantee would hold those lands in Patni right that is to say that the tenure would be permanent heritable and alienable so far as his liability to pay jama and the corresponding right of the Zamindar to sell it under the Regulation if there was a default in the payment thereof were concerned the new grant would be a distinct Patni independent of the original Patni
Held further that construing the grant dated June 3 899 as a whole the intention of the parties as expressed therein was that the Chaukidari Chakaran lands were to be treated as a distinct Patni and that therefore the sale of the lands for arrears of rent was valid