ABDUL KHUDDUS versus H.M. CHANDIRAMANI (DEAD) THR LRS. & ORS.
[2021] 10 S.C.R. 643, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
A
B
C
D
E
F
G
H
643
[2021] 10 S.C.R. 643
643
ABDUL KHUDDUS
v.
H.M. CHANDIRAMANI (DEAD) THR LRS. & ORS.
(Civil Appeal No. 1833 of 2008)
SEPTEMBER 14, 2021
[HEMANT GUPTA AND A. S. BOPANNA, JJ.]
Karnataka Rent Control Act, 1961 – ss.5 and 21 – Karnataka
Municipal Corporations Act, 1976 – ss. 322 and 462 – Transfer of
Property Act – s.108(B)(e) – Plaintiff was inducted as tenant by an
allotment order passed by the Rent Controller in a building –
Ejectment petition filed on ground of bona fide use by landlord for
immediate purpose of demolition and erection of new building –
Corporation served notice u/s.322 of the Act citing dilapidated
condition of building – The said notice was challenged by filing
writ petition in the High Court – High Court dismissed the writ petition
with direction to pass final order – Final Order passed by Deputy
Commissioner and it directed that if the owner or occupier fails to
demolish building within 3 days then action will be taken under the
Act – Order served on plaintiff on 6.1.1995 at 5:20 PM and
demolition by the Corporation took place on 9.1.1995 at around 9
AM – Order of demolition was not challenged in statutory appeal –
Plaintiff filed first suit, seeking mandatory injunction and possession
after demolition of building, followed by second suit claiming
damages – The trial Court granted decree of the quantified damages
– In the first appeal, the High Court held that (i) there was a lack of
bona fide in issuing notice u/s.322 of the Act; (ii)
there was no order
passed u/s. 462 of the Act; (iii) building was demolished in a haste
manner without giving clear 3 days notice – Therefore, the plaintiff
entitled to possession of premise comparable in size and form with
that of rented portion of suit property – On appeal, held: The
statutory tenant cannot seek repossession after demolition of building
u/s.108(B)(e) of the TP Act as the rights and liabilities of a statutory
tenant are to be found under the Rent Act – Since, the premises
were situated within the urban areas governed by the Rent Act, the
tenant has a right to seek possession only in terms of s.27 of the Act
if the decree for eviction was passed by the Court on the ground
specified under clause (j) of the proviso to sub-section (1) of s.21 –
A
B
C
D
E
F
G
H
644
SUPREME COURT REPORTS
[2021] 10 S.C.R.
In the instant case, the petition for eviction filed by the landlord
was withdrawn – S.322 of the Act is a self-contained provision which
empowers the Commissioner for immediate evacuation of the
property – The notice u/s.462 was not required to be issued – The
time for complying with the order does not arise in the case of a
building which was in a dilapidated condition endangering life of
the citizens – Therefore, judgment and decree of the High Court not
sustainable – However, as the building was demolished within three
days of receipt of notice, appellant directed to compensate the
plaintiff with the damages of Rs. 5 lakhs – Order of High Court set
aside – Both the suits dismissed.
Code of Civil Procedure, 1908 – Or. II, R.2 – A building in a
dilapidated condition demolished by the corporation – Plaintiff-
tenant filed first suit, seeking mandatory injunction and possession
after demolition of building, followed by second suit claiming
damages – The High Court held that suit is not barred by the
principles of Or.II, R.2 of CPC and cause of action in both the suits
was different – Held: Every suit shall include whole of the claim
which the plaintiff is entitled to make in respect of the cause of
action – The cause of action is a bundle of facts and relief of damages
is construed to be a component of such bundle of facts – The plaintiff
filed first suit after demolition of the building, the right to claim
damages
for loss of the property including goods and machines
was available to the plaintiff on the said date – The plaintiff was
required to obtain leave of the Court before filing suit for damages
subsequently – The High Court has clearly erred in law in holding
that the cause of action for both the suits is different.
Allowing the appeals, the Court
HELD: 1. The judgment of this Court in Shaha Ratansi
Khimji was dealing with the rights of contractual tenant, the
statutory tenant cannot seek repossession after the demolition
of building under Section 108(B)(e) of the Transfer of Property
Act as the rights and liabilities of a statutory tenant have to be
found under the Rent Act alone. [Para 31][665-E]
2. The petition for eviction filed by the landlord was
withdrawn. Since the premises are situated within the urban areas
governed by the Rent Act (Karnataka Rent Control Act, 1961),
the tenant has a right to seek possession only in terms of Section
A
B
C
D
E
F
G
H
645
27 of the Act if the decree for eviction has been passed by a
Court on the ground specified under clause (j) of the proviso to
sub-section (1) of Section 21. Even if it is assumed that decree of
eviction was passed on the withdrawal of the eviction petition,
the tenant has to seek possession of the premises from the date
on which he delivered vacant possession of the premises to the
landlord. The plaintiff filed first suit claiming right over the land
after demolition of the building but being a statutory tenant, he
had to avail the remedy under the Rent Act as the provisions of
the TP Act are not applicable to the building and land situated
within urban area. In view of the provisions of the Act, the terms
of the TP Act cannot be applied for in respect of statutory tenants.
The High Court has returned a finding that the plaintiff was a
statutory tenant. In view of the said fact, the remedy of the tenant,
if any, has to be found within four corners of the Rent Act and not
under the TP Act. [Para 32][665-F-H; 666-A-B]
3. Section 322 of the Karnataka Municipal Corporations
Act, 1976 is a self-contained provision which empowers the
Commissioner for immediate evacuation of the property and any
person disobeying such orders was to be removed by any Police
Officer. Section 462 of the Act is in respect of execution of any
work or to take any measures or to do anything. The works and
the measures mentioned therein are in respect of other provisions
in the statute
which contemplate compliance by the citizens.
Section 322 of the Act is an independent provision. Therefore,
the notice under Section 462 of the Act was not required to be
issued. The time for complying with the order does not arise in
the case of a building which was in dilapidated condition
endangering life of the citizens. [Para 33][666-C-E]
4. The plaintiff had filed the first suit on 27.1.1995 after the
tenanted premises were demolished. The right to claim damages
for loss of the property including goods and machines was available
to the plaintiff on the said date. In fact, in the second suit, the
plaintiff has pleaded that the cause of action arose to him on
9.1.1995. Every suit shall include whole of the claim which the
plaintiff is entitled to make in respect of the cause of action. The
cause of action is a bundle of facts and relief of damages is
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
A
B
C
D
E
F
G
H
646
SUPREME COURT REPORTS
[2021] 10 S.C.R.
construed to be a component of such bundle of facts. The plaintiff
was conscious of the fact that he wants to sue for damages which
is evident from his averment in para 9 of the plaint of the first 27
suit but the plaintiff was required to obtain leave of the Court
before filing suit for damages subsequently. The High Court has
clearly erred in law in holding that the cause of action for both
the suits is different. [Para 34, 35][666-E-F; 667-B-C]
5. The High Court has returned a finding that the Rent Act
will prevail over the Karnataka Municipal Corporations Act, 1976.
However, this Court is unable to agree with this observation.
Both the statutes are enacted by the State of Karnataka. The Act
deals with the municipal functions which are wider and welfare-
oriented towards the residents of the area of Corporation, whereas
the Rent Act has a limited application for determining the rights
of land owner and tenant. Both operate in separate spheres
as both have different objectives to be achieved. [Para 38]
[668-G-H; 669-A-B]
6.1. The finding of the High Court that the building was
demolished without giving clear three days’ notice is partly
correct. The notice was served upon the plaintiff on 6.1.1995 and
the building was demolished on 9.1.1995. Thus, clear three days’
notice was not served upon the plaintiff. The plaintiff was however
aware of the proceedings initiated by the Corporation on the
ground that the
building in question was in dilapidated condition
and unsafe for human inhabitation. The plaintiff had challenged
such notice before the High Court. The High Court had given
four weeks’ time to the Corporation to pass a speaking order
after giving an opportunity of hearing to the plaintiff. The building
was inspected by the Deputy Commissioner of the Corporation
and opportunity of hearing was granted to the plaintiff as well.
Therefore, it is not a case where there was any sudden
development leading to the demolition of the building but the
order of demolition was a considerate action passed after the
report of the Court Commissioner was submitted before the High
Court and the Corporation was given time to finally decide the
show cause notice issued on 24.5.1994. In fact, there is three
days’ notice from the date of the order but not from the date of
receipt of the notice. [Para 41, 42][672-G-H; 673-A-D]
A
B
C
D
E
F
G
H
647
6.2. Once the order was passed by the Corporation on
5.1.1995 and was put on the means of communication, the date of
actual receipt of notice is insignificant as the receipt could be
delayed by the recipient, though there is no such attempt or
finding. The wife and daughter of the plaintiff had removed the
goods including sewing machines etc., hence the damages would
include any loss of goods and the machines which were in the
tenanted premises in question. Keeping in view the fact that the
building was demolished within three days of the receipt of notice,
it is deemed appropriate to order the appellant to compensate
the plaintiff with the damages of Rs.5 lakhs. Such amount will be
payable to the legal heirs of the deceased plaintiff in accordance
with law. The appellant shall deposit a sum of Rs. 5 lakhs within a
period of two months before the trial court. [Para 43][674-F-H;
675-A]
Ashoka Marketing Ltd. v. Punjab National Bank (1990)
4 SCC 406 : [1990] 3 SCR 649 – followed.
Vannattankandy Ibrayi v. Kunhabdulla Hajee (2001) 1
SCC 564: [2000] 5 Suppl. SCR 630; V. Dhanpal
Chettiar v. Yesodai Amma (1979) 4 SCC 214: [1980] 1
SCR 334; Pradesh Kumar Bajpai v. Binod Behari Sarkar
(Dead) by Lrs (1980) 3 SCC 348: [1980] 3 SCR 93; K.
K. Krishnan v. M. K. Vijaya Ragavan (1980) 4 SCC
88: [1981] 1 SCR 139; N. Motilal & Ors. v. Faisal Bin
Ali & Anr (2020) 13 SCC 667 : [2020] 1 SCR 556;
Suraj Rattan Thirani v. Azamabad Tea Co. Ltd. AIR
1965 SC 295 : [1964] 6 SCR 192 ;
State of Rajasthan
v. Swaika Properties (1985) 3 SCC 217 : [1985] 3 SCR
598; State of Punjab v. Khemi Ram (1969) 3 SCC 28 :
[1970] 2 SCR 657 – relied on.
Shaha Ratansi Khimji and Sons v. Kumbhar Sons Hotel
Private Limited and Ors. (2014) 14 SCC 1 : [2014] 6
SCR 1101; T. Lakshmipathi & Ors. v. P. Nithyananda
Reddy & Ors. (2003) 5 SCC 150 : [2003] 3 SCR 173;
R.S. Grewal & Ors. v. Chander Prakash Soni & Anr
(2019) 6 SCC 216 : [2019] 6 SCR 130; Allahabad Bank
v. Canara Bank & Anr (2000) 4 SCC 406 : [2000] 2
SCR 1102 – referred to.
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
A
B
C
D
E
F
G
H
648
SUPREME COURT REPORTS
[2021] 10 S.C.R.
Case Law Reference
[2014] 6 SCR 1101
referred to
Para 20
[2003] 3 SCR 173
referred to
Para 22
[2000] 5 Suppl. SCR 630
relied on
Para 22
[1980] 1 SCR 334
relied on
Para 25
[1980] 3 SCR 93
relied on
Para 26
[1981] 1 SCR 139
relied on
Para 28
[2019] 6 SCR 130
referred to
Para 29
[2020] 1 SCR 556
relied on
Para 30
[1985] 3 SCR 598
relied on
Para 37
[1990] 3 SCR 649
followed
Para 39
[2000] 2 SCR 1102
referred to
Para 40
[1970] 2 SCR 657
relied on
Para 42
CIVIL APPELLATE JURISDICTION: Civil Appeal No.1833 of
2008.
From the Judgment and Order dated 28.09.2006 of the High Court
of Karnataka at Bangalore in R.F.As No.88 of 2004, 1247 of 2005 and
15 of 2004.
With
Civil Appeal No. 1834 of 2008.
Sanjay Parikh, Sr. Adv., Ms. Hetu Arora Sethi, Advs. for the
Appellant.
Basava Prabhu Patil, Sr. Adv., Yatish Mohan, Subhash Chandra
Sagar, E. C. Vidya Sagar, Aman Gupta, Ms. Manjula Gupta, Shubhranshu
Padhi, Advs. for the Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The present appeals are directed against an order passed by
the Division Bench of the High Court of Karnataka on 28.9.2006 in
three First Appeals filed before it. The first appeal was against the
A
B
C
D
E
F
G
H
649
judgment and decree passed by the Additional City Civil & Sessions
Judge, Bangalore on 16.4.2005 in O.S. No. 10082 of 19951 whereby the
suit of plaintiff, now represented by his legal heirs, for permanent and
mandatory injunction was dismissed on 16.4.2005. The other appeal arises
out of another suit filed by the plaintiff for claiming damages in O.S. No.
16643 of 19992 which was decreed on 6.10.2003. The Plaintiff was
found entitled to recover a sum of Rs.1,25,000/- as damages towards
the loss/destruction of machineries, furniture, fittings and stock-in-trade
apart from the damages @ Rs.10,000/- per month towards the loss of
business of plaintiff from 9.1.1995 till the possession is restored, subject
to final decision of first suit. The defendants, official respondents and
the owner, filed two separate appeals against the same. The third appeal
arises out of first suit decided by the Additional City Civil Judge, Bangalore
on 16.4.2005 whereby the suit of the plaintiff for permanent and
mandatory injunction was dismissed.
2. All the three appeals were taken up and decided together by
the High Court. The High Court dismissed the appeals arising out of the
judgment and decree passed by the trial court in favour of the plaintiff
whereas, the appeal arising out of judgment and decree in first suit filed
by the plaintiff was allowed.
3. The plaintiff was inducted as a tenant on 7.5.1974 by an
allotment order passed by the Rent Controller under Section 5 of the
Karnataka Rent Control Act, 19613. The rented portion was on the first
floor of the two-floor building of Premises No. 50, Ebrahim Saheb Street,
Civil Station, Bangalore.
4. One Panduranga Shetty was the owner of the building. Such
building was constructed in 1903 with Mangalore tiles and wooden
beams. The appellant Abdul Khuddus was arrayed as defendant No. 7
in the first suit and defendant No. 1 in the second suit and was the
purchaser of the front portion of the building vide sale deed dated
18.3.1994. Sheikh Hyder purchased the rear portion of the building on
the same date whereas one Sheikh Mohd. purchased the northern side
of the building on 9.12.1994. The Bangalore City Corporation4 is the
appellant in the third appeal.
1 Hereinafter referred to as the ‘first suit’
2 Hereinafter referred to as the ‘second suit’
3 For short, the ‘Rent Act’
4 For short, the ‘Corporation’
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
650
SUPREME COURT REPORTS
[2021] 10 S.C.R.
5. The appellant herein filed an ejectment petition seeking
ejectment of the plaintiff under Section 21(1)(j) of the Rent Act on the
ground that the premises were required for bonafide use by the landlord
for the immediate purpose of demolishing them and erecting a new building
in place of the premises sought to be demolished.
6. A notice under Section 322 of the Karnataka Municipal
Corporations Act, 19765 was issued by the Corporation on the ground
that the building was in dilapidated condition, unsafe and dangerous. The
plaintiff challenged the said show cause notice in W.P. No. 20400 of
1994 whereby an ad-interim stay was granted by the High Court. Later,
Shri B. Ravi Kumar, Advocate was appointed as a Commissioner on
27.9.1994 to visit the property and submit a report which was done on
16.11.1994. In the report, it was stated that the building was in a bad
condition and that there were also cracks in the building, leakage of
water etc.
7. The High Court dismissed the writ petition on 8.12.1994 as the
same was directed only against show cause notice. However, the High
Court directed the officials of the Corporation not to demolish the building
except pursuant to a final order to be made within four weeks. The
operative part of the order of the High Court reads as under:
“5. Accordingly this petition is disposed of with a direction to
respondent-2 not to dismantle the building in question without
making any final
order pursuant to notice, Annexure-A and serving
a copy of the final order on the petitioner. It is made clear that
none of the respondents should take any steps to dismantle the
building except pursuant to a final order made by respondent-2. It
is further made clear that if the petitioner sustains any injury on
account of the alleged dilapidated condition of the building,
respondents 7 to 10 shall not be held responsible. Respondent-2
shall make the final order within four weeks to serve a copy of
the same on the petition a week therefrom. Liberty is reserved
petitioner to take steps as are allowed against the final order.”
8. It is thereafter the Deputy Commissioner of the Corporation
passed an order on 5.1.1995 after personally inspecting the building and
returning a finding that the building was in poor condition. It was noticed
that it was the duty of the Corporation to take action in order to prevent
5 For short, the ‘Act’
A
B
C
D
E
F
G
H
651
any imminent danger to the public independently of the dispute, if any,
between the parties. The operative part of the order reads as under:
“After careful consideration of all aspects the objections filed by
the occupier Sri. H.M. Chandiramani are overruled and it is
ordered and directed that the building situated at No. 50, Ibrahim
Saheb Street, Bangalore, which is in a dilapidated and dangerous
condition be taken down immediately to avoid any danger to the
passers by.
If the owner or occupier fails to take down the building within 3
days action will be taken by the Bangalore Mahanagar Palika
under Section 462(2) of the K.M.C. Act, 1976 to take down the
building at the cost of the owner and the said cost will be recovered
as per Section 470 of K.M.C. Act, 1976.”
9. The said order was served upon the plaintiff on 6.1.1995 at
5.20 PM and the building was demolished by the Corporation on 9.1.1995
at around 9 AM. The possession of vacant land was given to the owners.
The order of demolition was not challenged in appeal in terms of Section
444 of the Act or before any other authority or forum.
10. The appellant relies upon the communication dated 09.01.1995
on behalf of Bina Chandiramani, wife of the deceased plaintiff, and
Sharmila Chandiramani, daughter of the deceased plaintiff which was
made in the handwriting of the daughter. It was averred that they have
carried the goods such as garments, machinery, fittings etc., in the
absence of the plaintiff in
vehicle No. CAS 337, thus it was an implied
surrender of possession.
11. The first suit was filed on 27.1.1995 for permanent injunction,
though the building stood demolished on 9.1.1995. Subsequently, the suit
was amended to claim relief for mandatory injunction and possession.
The plaintiff had pleaded that he would be taking steps for contempt of
court for disobedience of the orders of Court and for damages incurred,
actual or general. The cause of action was said to have arisen on
25.01.1995 when the appellant attempted to commit criminal trespass
into the schedule property in possession of the plaintiff. The relevant
extract from the plaint reads thus:
“9. …………The plaintiff will be taking steps against the defendant
and corporation officials for contempt of court, disobedience of
orders of Court and for damages incurred actual, general by the
plaintiff separately.
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
652
SUPREME COURT REPORTS
[2021] 10 S.C.R.
10. In the meanwhile, the defendant, who, under law cannot be in
possession of schedule premises and is attempting to take forcible
possession of the same and letting out and alienate the same to
others and also to put up construction. He cannot do so under law,
until disposal of the HRC Petition. The plaintiff has legal right to
be protected. The plaintiff is rudely shocked at the high handedness
of the defendant. In the evening of 25.01.95, alongwith his
henchmen, the defendant tried to commit criminal trespass into
the schedule property and wanted to put up wall etc. whereupon
the plaintiff made hue and cry and by which there was commotion
and a oral complaint also given to the police, and in writing on
25.01.95 for which no acknowledgement was given, however the
defendant could not succeed in his attempt and the plaintiff has
sent copy of the said complaint under certificate of posting today
to the police.
11. The cause of action for the suit arises within the jurisdiction of
this Hon’ble Court at Bangalore on 25.01.95 and subsequently
thereafter, when the plaintiff attempted to commit criminal trespass
into the suit schedule property, within the jurisdiction of this Hon’ble
Court.”
12. The second suit was filed on 30.10.1995 claiming damages,
though such right of damages was also available when the first suit was
filed on 27.1.1995. As mentioned above, the first suit was decided on
16.4.2005 which is later than
the decree in the second suit. In the first
suit, a finding was returned that the second suit was barred by the
provisions of Order II Rule 2 of the Code of Civil Procedure, 19086. The
second suit was filed as an indigent person wherein the plaintiff claimed
that he had 12 sewing machines, and other materials at the shop at the
time of demolition. The learned trial court assessed the value of
stock-in-trade of readymade garments and finished goods at around
Rs.50,000/- and another Rs.25,000/- for fittings, fixtures, furniture,
electrical fittings etc. The trial court further found that he had lost his
earnings of Rs.10,000/- per month on the basis of Ex.P/40. The decree
was to grant quantified damages and to pay Rs. 10,000/- per month till
such time, the possession is handed over to the plaintiff.
13. In the first appeal, the Division Bench of the High Court inter-
alia held that:
6 For short, the ‘Code’
A
B
C
D
E
F
G
H
653
(i)
There is lack of bonafides in issuing notice under Section
322 of the Act, therefore, the order passed is not legal and
valid.
(ii)
The notice has been issued without examining the fact that
the plaintiff has got statutory protection under the Rent Act.
The cause of action to demolish the building would arise
only after passing an order under Section 462 of the Act
and that action of the Corporation is tainted with legal
malafide.
(iii)
The building was demolished in haste as the order was
served upon the plaintiff at 17:20 hours on 6.1.1995 and the
building was demolished on 9.1.1995 without giving clear 3
days of notice period.
(iv)
Section 21 of the Rent Act has overriding effect under
Section 322 of the Act as statutory protection is granted to
the tenant. Therefore, the proceeding under Section 322 of
the Act was not permissible.
(v)
That the suit is not barred by the principles of Order II of
Rule 2 of the CPC.
14. The High Court, thus, allowed the appeal holding that the
building in question was demolished in haste and the plaintiff was thus
entitled to possession of the building as he was unlawfully dispossessed
of the same. The Corporation and the appellant were therefore directed
to restore the possession within two months of a shop comparable in
size and form in the built portion of the suit property.
15. Learned counsel for the appellant vehemently argued that the
High Court proceeded on the assumption that there was an interim
injunction
on 15.2.1995 in the first suit, however the building already
stood demolished on 9.1.1995. The first suit was filed on 27.1.1995
subsequent to the demolition. Still further, an application filed by the
plaintiff under Order XXXIX Rule 2A of the CPC for violation of an
interim order dated 15.2.1995 was dismissed on 10.8.1998. Thereafter,
the first suit was decided on 16.4.2005. Thus, there is a factual error in
the order passed by the High Court.
16. The proceedings were initiated against the plaintiff under the
Act vide notice issued on 24.5.1994. The said order was challenged by
the plaintiff before the Writ Court wherein a Court Commissioner was
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
654
SUPREME COURT REPORTS
[2021] 10 S.C.R.
appointed who reported about the dilapidated condition of the building.
The High Court had given four weeks’ time to the Corporation to pass
an order on the show cause notice issued. The order was passed on
5.1.1995 after giving an opportunity of hearing to the plaintiff and after
visiting the site by the Deputy Commissioner of the Corporation. Thus,
the plaintiff was well aware of the proceedings initiated against him by
the Corporation. The order of dismissal of the writ petition on 8.12.1994
was not challenged by the plaintiff. Since the Corporation was given
four weeks’ time to pass a final order, therefore, the Corporation was
bound to pass an order in terms of the direction of the High Court, which
was passed on 5.1.1995. The said order was served on 6.1.1995. The
building was demolished on 9.1.1995, which was the third day of serving
of the said order. Therefore, there is no violation neither of the order of
the High Court nor the building was demolished in haste.
17. It was also argued that the plaintiff was bound to include his
claim for damages in the first suit which was filed on 27.1.1995 after the
demolition had taken place. Since no grievance was raised in the first
suit regarding damage to the property or to the loss of business, the
second suit would be barred by the provision of Order II Rule 2 CPC.
However, as per the plaintiff, the cause of action arose on 09.01.1995,
when the plaintiff was
dispossessed from the schedule property. The
relevant extract from the plaint of the second suit reads as under:
“The cause of action for the suit arises within the jurisdiction of
this Hon’ble Court at Bangalore on 09.01.95 being date when
plaintiff was disposed from the schedule premises with his
belongings etc. and as stated above and subsequently on various
dates when notices have been issued and acknowledged by the
defendants-6. The value of the suit for purpose of (illegible) and
jurisdiction is as per valuation (illegible) plaintiff is indigent person
and he may be permitted to prosecute the above case in pharma
(illegible) as he is unable to pay court fee.”
18. The finding of the High Court that notice under Section 322 of
the Act was not bonafide as tenant has the protection of the Rent Act
was assailed on the ground that the proceedings under the Rent Act are
restricted between landlord and tenant to seek ejectment on the
permissible grounds whereas the Act is much wider to ensure public
safety on account of dilapidated building endangering the life and property
of the occupants. Both the Acts operate in their assigned separate fields
and therefore, it cannot be said that the Rent Act has the preference
A
B
C
D
E
F
G
H
655
over the Act. It was also argued that the order passed by the Corporation
on 5.1.1995 was keeping in view the building which was in old dilapidated
condition and could be a cause of danger to the public. The finding of the
High Court that the proceedings under the Act was an act of collusion
between the owner and the Corporation is misconceived only for the
reason that the appellant has withdrawn rent proceedings after the
demolition of the building on 6.2.1995. The tenanted portion had ceased
to exist after demolition; therefore, the relief of ejectment was no longer
available to the appellant.
19. On the other hand, learned counsel for the respondents herein
argued that the order of demolition was served upon the deceased plaintiff
on 6.1.1995 at 5:20 pm and the building was demolished on 9.1.1995 at
9:00 am. Therefore, there was no clear three days’ notice granted to the
plaintiff to vacate the premises nor to avail any legal remedy. It was
further argued that order under Section 322 of the Act could not be
executed without passing an order under Section 462 of the Act. Learned
counsel supported the findings of the High Court that it was high
handedness of the officials of the Corporation and the appellant which
led not only to loss of the premises but loss of business as well. Section
322 and Section 462 of the Act read as under:
“322. Precautions in case of dangerous structures. – (1) If any
structure be deemed by the Commissioner to be in a ruinous
state
or dangerous to passersby or to the occupiers of neighbouring
structures, the Commissioner may, by notice require the owner or
occupier to fence off, take down, secure or repair such structure
so as to prevent any danger therefrom.
(2) If immediate action is necessary, the Commissioner may
himself, before giving such notice or before the period of notice
expires fence off, take down, secure or repair such structure or
fence off a part of any street or take such temporary measures
as he thinks fit to prevent danger and the cost of doing so shall be
recoverable from the owner or occupier in the manner provided
in Section 470.
(3) If in the Commissioner’s opinion the said structure is imminently
dangerous to the inmates thereof, the Commissioner shall order
the immediate evacuation thereof and any person disobeying may
be removed by any police officer.
xx
xx
xx
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
656
SUPREME COURT REPORTS
[2021] 10 S.C.R.
462. Time for complying with order and power to enforce in default.
– (1) Whenever by any notice, requisition or order made under
this Act or under any rule, bye-law or regulation made under it,
any person in required to execute any work, or to take any measures
or do anything, a reasonable time shall be named in such notice,
requisition or order within which the work shall be executed, the
measures taken, or the thing done.
(2) If such notice, requisition or order is not complied with within
the time so named, then whether or not a fine is provided for such
default and whether or not the person in default is liable to
punishment or has been prosecuted or sentenced to any punishment
for such default, the Commissioner may cause such work to be
executed, or may take any measure or do anything which may, in
his opinion, be necessary for giving due effect to the notice,
requisition or order as aforesaid.
(3) If no penalty has been specially provided in this Act for failure
to comply with such notice, the said person shall, on conviction,
be punished with fine not exceeding fifty rupees for such offence.”
20. The plaintiff asserted that the area of the subject shop was
1000 sq. feet (approx.). Reliance was placed upon schedule of property
given in plaint of the first suit. It was submitted that the right of a tenant
survives even after demolition of tenanted premises. Reference was
made to Section 27 of the Rent Act as
well as three-judge bench judgment
of this Court reported as Shaha Ratansi Khimji and Sons v. Kumbhar
Sons Hotel Private Limited and Ors.7 holding that in terms of Section
108B(e) of the Transfer of Property Act, 18828, the destruction of
tenanted property would not amount to determination of tenancy under
Section 111 of the TP Act. Reliance was also placed upon some judgments
of the High Courts in support of such argument.
21. In respect of area of tenanted premises, the plaintiff relied
upon the schedule of the property in the suit for injunction. Such schedule
does not show the area in possession but shows the boundaries of the
building. As per the Court Commissioner, the entire building measured
about 38 feet x 16 feet. The Commissioner had given the report that
northern side of the ground floor was damaged as in the inside wall,
there were air cracks and leakage of water. Some of the portion of the
7 (2014) 14 SCC 1
8 For short, the ‘TP Act’
A
B
C
D
E
F
G
H
657
building towards the northern side had already fallen down. The western
side, adjacent to the northern wall was also in a very bad condition as
the roof of the room was damaged by the cracks and leakage of water
from the roof inside the northern wall. In the middle of northern wall on
the first floor, 1½” cracks appeared inside the wall from the top of the
roof. The length of the said crack was about 6 feet from the top. The
leakage of the water from the roof of the first floor and cracks were
coming in the wall of the southern side as well. The Court Commissioner
found that there were cracks in the building and leakage of water on the
northern side wall. The area of tenanted premises was not an issue,
which would be relevant as to whether the tenanted premises had been
demolished without adequate notice or if the tenant has right to enter
into possession of building constructed on the site in question.
22. We have heard learned counsel for the parties and found that
the judgment and decree of the High Court cannot be sustained. The
argument of the plaintiff was that in spite of demolition of the building by
the Corporation, the tenancy rights survive as the right of tenancy is not
only in building but also in the land. Thus, the plaintiff was entitled to
equivalent size of shop in the building which has been constructed on the
land of which the Plaintiff was a tenant on the first floor. Reliance has
been placed on judgment of this Court in Shaha Ratansi
Khimji wherein
the godown in possession of the tenant was demolished. The assertion
of the tenant in the said case was that the owner started digging of
basement for construction of a hotel next to the wall of godown. The
tenant filed a suit for injunction claiming restraint order against the owner
from digging as it would endanger the godown. The tenant claimed by
way of an amendment to reconstruct the walls of godown. The learned
trial court dismissed the suit. The appeal as well as the second appeal
against the said judgment was also dismissed. This Court, in an appeal
directed against the three orders passed by the courts below interpreted
Section 108(B)(e) of the TP Act holding that right has not been conferred
by the statute on the lessor for determination, therefore, it will not be
permissible for the Court to add another ground of base or fulcrum of
ethicality, difficulty or assumed supposition. The tenancy rights would
continue over the land even after the building was demolished. This
Court approved the judgment of this Court reported as T. Lakshmipathi
& Ors. v. P. Nithyananda Reddy & Ors.9 wherein the landlord initiated
eviction proceedings on the ground that he requires the premises for his
9 (2003) 5 SCC 150
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
658
SUPREME COURT REPORTS
[2021] 10 S.C.R.
own bona fide use and that tenant was in arrears of rent and had also
sub-let the premises. This Court overruled the judgment of this Court
reported as Vannattankandy Ibrayi v. Kunhabdulla Hajee10 and held
as under:
“23. In Vannattankandy Ibrayi the learned Judges referred to
the decision on common law, the principles in American
jurisprudence, and various decisions of the High Courts and
adverted to two categories of tenants, namely, a tenant under the
Transfer of Property Act and the other under the State rent of
laws and proceeded to interpret Section 108(B)(e) to hold that
where a premises has fallen down under the circumstances
mentioned therein, the destruction of the shop itself does not amount
to determination of tenancy under Section 111 of the Act and
there is no automatic determination of tenancy and it continues to
exist…….
xx
xx
xx
27……………………….On the touchstone of this analysis, we
respectfully opine that the decision rendered in Vannattankandy
Ibrayi (supra) does not correctly lay down the law and it is,
accordingly, overruled.
28.  In the present case, it is not in dispute that the respondent
purchased the lessor’s interest. The lease continued even
thereafter and did not extinguish. The lease was subsisting when
the shares of the land were purchased by the respondent. But the
interest of the lessee was not purchased by the respondent. What
has been purchased by the respondent is the right and interest
of
ownership of the property. The interest of the appellant as lessee
has not been vested with the respondent. Therefore, we are of
the view that the tenancy of the appellant cannot be said to have
been determined consequent upon demolition and destruction of
the tenanted premises.
29. In view of the facts and circumstances of the case, we have
no other option but to set aside the impugned judgment and decree
dated 18-7-2006 passed by the High Court of Judicature of
Bombay in Shaha Ratansi Khimji & Sons v. Proposed Kumbhar
Sons Hotel (P) Ltd. [Shaha Ratansi Khimji & Sons v. Proposed
10 (2001) 1 SCC 564
A
B
C
D
E
F
G
H
659
Kumbhar Sons Hotel (P) Ltd., Second Appeal No. 109 of 2006,
decided on 18-7-2006 (Bom)] and judgment and decree dated
30-11-2005 passed by the Additional District Judge, Karad in RCA
No. 86 of 2002. However, taking into consideration the fact that
the appellant is not in possession of the suit property since long,
we are not inclined to direct restoration of possession of suit
property to the appellant. Instead we direct the respondent to pay
a sum of Rs 20,00,000 (Rupees twenty lakhs only) in favour of
the appellant towards compensation for depriving the appellant
from enjoying the suit property within two months, failing which it
shall be liable to pay interest @ 6% per annum from the date of
the judgment.”
23. A perusal of the above extract from the judgment shows that
this Court noticed that there are two categories of tenants namely, a
tenant under the TP Act and the other under the State Rent Laws. There
is no assertion that the property in question in the said case was governed
by State Rent Laws. It was a case where the owner started digging a
ditch towards the northern side wall of the suit property. During the
rainy season, the water used to get accumulated in the said ditch and
that the owner closed the access road to the said property. It was also
alleged that the owner went ahead with destruction of the godown and
demolished the western wall of the godown. The judgment does not deal
with statutory tenant protected by a particular statute but
with the
principles of a contractual tenancy in terms of Section 108(B)(e) of the
TP Act. In fact, the para quoted in the three judge bench judgment is an
alternate argument raised in the Vannattankandy Ibrayi, which is evident
from the following para:-
“20. From the aforesaid decisions there is no doubt that if a building
is governed by the State Rent Act the tenant cannot claim benefit
of the provisions of Sections 106, 108 and 114 of the Act. Let us
test the arguments of learned counsel for the appellant that
on the destruction of the shop the tenant can resist his
dispossession on the strength of Section 108B(e). In this case
what was let out to the tenant was a shop for occupation to carry
on business. On the destruction of the shop the tenant has ceased
to occupy the shop and he was no longer carrying on business
therein. A perusal of Section 108(B)(e) shows that where a
premises has fallen down under the circumstances mentioned
therein the destruction of the shop itself does not amount to
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
660
SUPREME COURT REPORTS
[2021] 10 S.C.R.
determination of tenancy under Section 111 of the Act. In other
words there is no automatic determination of tenancy and it
continues to exist……………..”
(Emphasis Supplied)
24. In Shaha Ratansi Khimji, the Court has considered the
alternative argument assuming that Section 108(B)(e) of the TP Act is
applicable. However, the primary argument that being a statutory tenant,
right has to be culled out only from the Rent Laws had not been raised
or considered. It is the alternative argument which has not found favour
with the three Judge Bench in Khimji case. In respect of the statutory
tenant, different aspects of rights of statutory tenant need to be examined,
which are not the same as rights of a lessee under the TP Act.
25. A Seven Judge Bench in the judgment reported as V. Dhanpal
Chettiarv.Yesodai Ammal11 was examining a question as to whether a
statutory tenant is entitled to notice of termination of tenancy contemplated
by Section 106 of the TP Act or not. It was held that since statutory
tenant is entitled to protection under the Rent Act, therefore, the
procedure prescribed under the TP Act would not be applicable. The
Court held as under:
“5. ....The subject being in the concurrent list, many State Rent
Acts have by necessary implication and many of them by starting
certain provisions with a non-obstante clause have done away
with the law engrafted in Section 108 of the Transfer of Property
Act except in regard
to any matter which is not provided for in
the State Act either expressly or by necessary implication.
xxx
xxx
xxx
13. ...The notice does not bring to an end such a relationship
because of the protection given to the tenant under the Rent Act.
If that be so then it is not necessary for the landlord to terminate
the contractual relationship to obtain possession of the premises
for evicting the tenant. If the termination of the contractual tenancy
by notice does not, because of the Rent Act provisions, entitle the
landlord to recover possession and he becomes entitled only if he
makes out a case under the special provision of the State Rent
Act, then, in our opinion, termination of the contractual relationship
11 (1979) 4 SCC 214
A
B
C
D
E
F
G
H
661
by a notice is not necessary. The termination comes into effect
when a case is successfully made out for eviction of the tenant
under the State Rent Act. We say with utmost respect that on the
point of requirement of a notice under Section 106 of the Transfer
of Property Act Mangilal case [AIR 1965 SC 101: (1964) 5 SCR
239] was not correctly decided.
xxx
xxx
xxx
16. ...Even if the lease is determined by a forfeiture under the
Transfer of Property Act the tenant continues to be a tenant, that
is to say, there is no forfeiture in the eye of law. The tenant
becomes liable to be evicted and forfeiture comes into play only if
he has incurred the liability to be evicted under the State Rent
Act, not otherwise. In many State statutes different provisions
have been made as to the grounds on which a tenant can be
evicted and in relation to his incurring the liability to be so evicted.
Some provisions overlap those of the Transfer of Property Act.
Some are new which are mostly in favour of the tenants but some
are in favour of the landlord also. That being so the dictum of this
Court in Raj Brij case [AIR 1951 SC 115: 1951 SCR 145: 1951
SCJ 238] comes into play and one has to look to the provisions of
law contained in the four-corners of any State Rent Act to find
out whether a tenant can be evicted or not. The theory of double
protection or additional protection, it seems to us, has been stretched
too far and without a proper and due consideration of all its
ramifications.
xxx
xxx
xxx
18. .…If we were to agree with the view that determination of
lease in accordance with the Transfer of Property Act is a condition
precedent to the starting of a proceeding under the State Rent
Act for eviction of the tenant, we could have said so with respect
that the view expressed in the above passage is quite correct
because there was no question of determination of the lease again
once it was determined by efflux of time. But on the first
assumption we have taken a different view of the matter and
have come to the conclusion that determination of a lease in
accordance with the Transfer of Property Act is unnecessary
and a mere surplusage because the landlord cannot get eviction
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
662
SUPREME COURT REPORTS
[2021] 10 S.C.R.
of the tenant even after such determination. The tenant continues
to be so even thereafter. That being so, making out a case under
the Rent Act for eviction of the tenant by itself is sufficient and it
is not obligatory to found the proceeding on the basis of the
determination of the lease by issue of notice in accordance with
Section 106 of the Transfer of Property Act.”
26. In a later judgment reported as Pradesh Kumar Bajpai v.
Binod Behari Sarkar (Dead) by Lrs.12, a three Judge Bench of this
Court was examining the claim of tenant with respect to right to pay
arrears of rent in terms of Section 114 of the TP Act. The following
argument was examined:
“9. …….The only question that arises and which was seriously
contended for on behalf of the respondent is that in addition to the
safeguards provided to the tenant under the Act, he is also entitled
to the benefits of Section 114 of the Transfer of Property Act.
Section 3 of the U.P. (Temporary) Control of Rent and Eviction
Act 3 of 1947 restricts the rights of the landlord to have the tenant
evicted. But for the statutory provisions, the landlord would be
entitled to evict the tenant according to the terms of the contract
or the provisions of the Transfer of Property Act. As the Rent
Act has restricted the power of the landlord to evict the tenant
except in accordance with the provisions of the Act, the terms of
the contract and the provisions of the Transfer of
Property Act to
that extent are no longer applicable.”
27. The question raised on the basis of the argument of the tenant
was found to be without any substance that he was entitled to double
protection under the Rent Act and under the TP Act. The Court held as
under:
“12. …..If the relief provided for under the section is available, as
the lessee had tendered the rent in arrears along with the interest
thereon and his full costs in the suit, it was open to the court to
pass an order relieving the lessee against the forfeiture. The plea
of the learned Counsel for the tenant is that this provision should
also be read into the U.P. (Temporary) Control of Rent and Eviction
Act. In a decision of seven-Judges, Bench of this Court in V.
Dhanapal Chettiar v. Yasodai Ammal [(1979) 4 SCC 214 : (1980)
12 (1980) 3 SCC 348
A
B
C
D
E
F
G
H
663
1 SCR 334] the question as to whether in order to get a decree
for eviction, the landlord under the Rent Control Act should give
notice as required under Section 106 of the Transfer of Property
Act was considered. This Court held that determination of the
lease in accordance with the Transfer of Property Act is
unnecessary and that if a case is made out for eviction under the
Rent Act, it is itself sufficient and it is not obligatory to determine
the lease by issue of notice as required in accordance with Section
106 of the Transfer of Property Act. The learned Counsel for the
tenant submitted that the decision is confined only to the question
as to whether notice under Section 106 of the Transfer of Property
Act is necessary and did not decide as to whether the provisions
of the other sections of the Transfer of Property Act are applicable.
It is to be noted, however, that the question of determination of a
lease by forfeiture under the Transfer of Property Act, was
specifically dealt with by the court and it was held that the claim
of the tenant that he is entitled to a double protection (1) under the
Rent Act and (2) under the Transfer of Property Act, is without
any substance.
xxx
xxx
xxx
In the case before us, it is not in dispute that after the Rent Act
came into force, the landlord cannot avail himself of clause 12
which provides for forfeiture, even if the tenant neglected to pay
the rent for over two months. The landlord cannot enter into
possession forthwith without notice. The only remedy for him is
to seek eviction under the provisions of the Rent Act. In such
circumstances the tenant cannot rely on Section 114 of Transfer
of Property Act and claim that he should be given an opportunity
to pay the arrears of rent, even though the requirements of Section
3(1) had been fulfilled.”
28. In another judgment reported as K. K. Krishnan v. M. K.
Vijaya Ragavan13 an argument was raised relying upon Section 108(j)
of the TP Act that lessee has a right to sublease the whole or any part of
his interest in the property. Therefore, the landlord cannot seek eviction
on the ground of subletting under the Kerala Buildings (Lease and Rent
Control) Act. The Court held as under:
13 (1980) 4 SCC 88
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
664
SUPREME COURT REPORTS
[2021] 10 S.C.R.
“8. It is clear from what has been said that not all the rights
conferred on landlord and tenant by Section 108 and other
provisions of the Transfer of Property Act have been left in tact
by the various State Rent Acts and that if a State Rent Act makes
provision for eviction on certain specified grounds, eviction cannot
be resisted on the basis of rights conferred by the Transfer of
Property Act. Section 108(j) of the Transfer of Property Act stands
displaced by Section 11(4)(i) of the Kerala Buildings (Lease and
Rent Control) Act and is no defence to an action for eviction
based on Section 11(4)(i).”
29. In another judgment reported as R.S. Grewal & Ors. v.
Chander Prakash Soni & Anr.14, the Court was examining a case
where a legatee under a Will was given life interest. It was argued that
creation of a tenancy which will continue beyond the life of the legatee
will amount to transfer of the interest beyond the life of the legatee. The
Court held that the protection which is conferred upon the tenant against
eviction, except on specified grounds, arises as a consequence of statutory
prescription under rent control legislation. The Court held as under:
“28.  A statutory protection granted for the benefit of the
tenants under specific tenancy laws is to be viewed from a
standpoint of protecting the interests of a particular class.
Restrictions on recovery of possession of the premises let out to
the tenants have been
imposed for the benefit of the tenants as a
matter of legislative policy.
29. There is a fallacy in the submission which was urged
on behalf of the appellant. The appellant postulates that a life
interest is personal to the person who possesses it and the creation
of a tenancy which will enure beyond her life amounts to a transfer
of the life interest. What the submission overlooks is that the
creation of the tenancy was an act of the person enjoying a life
interest in the present case and was an incident of the authority of
that individual to generate income from the property for her own
sustenance. The creation of a tenancy is an incident of the exercise
of such an authority. The protection which is conferred upon the
tenant against eviction, except on specified grounds, arises as a
consequence of statutory prescription under rent control legislation.
The reason why the tenant is entitled to occupy the premises
14 (2019) 6 SCC 216
A
B
C
D
E
F
G
H
665
beyond the lifetime of the landlord who created the tenancy is
simply as a result of a statutory enactment, in this case, the East
Punjab Rent Restriction Act, 1949. It is the intervention of a
legislative mandate which enures to the benefit of the tenant. Once
this has taken place, it was not open to the civil court to entertain
a suit for possession founded on the hypothesis that the tenant is
a trespasser.”
30. In another judgment reported as N. Motilal & Ors. v. Faisal
Bin Ali & Anr.15, it was held that even during the period of contractual
tenancy, if the premises are governed by the Rent Laws, the parties
have an option to seek determination of fair rent. It was held as under:
“14. The Constitution Bench judgment in Raval & Co. case [Raval
& Co. v. K.G. Ramachandran, (1974) 1 SCC 424] as well as the
seven-Judge Bench judgment in V. Dhanapal Chettiar case [V.
Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214] are
binding which categorically had laid down that the application for
determination of fair rent can be made both by the landlord and
the tenant which can be made even during currency of contractual
tenancy. We, thus, find the submission made by the learned counsel
for the appellants in the above regard without any substance.”
31. In view of the binding decisions of the larger bench and keeping
in view the fact that the judgment of this Court in Shaha Ratansi Khimji
was dealing with the rights of contractual tenant, the statutory tenant
cannot seek repossession after the demolition of building under Section
108(B)(e) of the TP Act as the rights and liabilities of a statutory tenant
have to be found under the Rent Act alone.
32. The petition for eviction filed by the landlord was withdrawn.
Since the premises are situated within the urban areas governed by the
Rent Act, the tenant has a right to seek possession only in terms of
Section 27 of the Act if the decree for eviction has been passed by a
Court on the ground specified under clause (j) of the proviso to sub-
section (1) of Section 21. Even if it is assumed that decree of eviction
was passed on the withdrawal of the eviction petition, the tenant has to
seek possession of the premises from the date on which he delivered
vacant possession of the premises to the landlord. The plaintiff filed first
suit claiming right over the land after demolition of the building but being
15 (2020) 13 SCC 667
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
666
SUPREME COURT REPORTS
[2021] 10 S.C.R.
a statutory tenant, he had to avail the remedy under the Rent Act as the
provisions of the TP Act are not applicable to the building and land situated
within urban area. In view of the provisions of the Act, the terms of the
TP Act cannot be applied for in respect of statutory tenants. The High
Court has returned a finding that the plaintiff was a statutory tenant. In
view of the said fact, the remedy of the tenant, if any, has to be found
within four corners of the Rent Act and not under the TP Act.
33. Another argument raised by the tenant was that a notice under
Section 462 of the Act was not served. We do not find any merit in the
said argument. Section 322 of the Act is a self-contained provision which
empowers the Commissioner for immediate evacuation of the property
and any person disobeying such orders was to be removed by any Police
Officer. Section 462 of the Act is in respect of execution of any work or
to take any measures or to do anything. The works and the measures
mentioned therein are in respect of other provisions in the statute which
contemplate compliance by the citizens. Section 322 of the Act is an
independent provision. Therefore, the notice under Section 462 of the
Act was not required to be issued. The time for complying with the
order does not arise in the case of a building which was in dilapidated
condition endangering life of the citizens. Thus, we do not find any merit
in the said
argument as well.
34. The plaintiff had filed the first suit on 27.1.1995 after the
tenanted premises were demolished. The right to claim damages for
loss of the property including goods and machines was available to the
plaintiff on the said date. In fact, in the second suit, the plaintiff has
pleaded that the cause of action arose to him on 9.1.1995. The Order II
Rule 2 CPC reads thus:
“2. Suit to include the whole claim. – (1) Every suit shall include
the whole of the claim which the plaintiff is entitled to make in
respect of the cause of action; but a plaintiff may relinquish any
portion of his claim in order to bring the suit within the jurisdiction
of any Court.
(2) Relinquishment of part of claim.—Where a plaintiff omits
to sue in respect of, or intentionally relinquishes, any portion of his
claim, he shall not afterwards sue in respect of the portion so
omitted or relinquished.
(3) Omission to sue for one of several reliefs.—A person entitled
to more than one relief in respect of the same cause of action
A
B
C
D
E
F
G
H
667
may sue for all or any of such reliefs; but if he omits, except with
the leave of the Court, to sue for all such reliefs, he shall not
afterwards sue for any relief so omitted.”
35. A perusal of the above Rule would show that every suit shall
include whole of the claim which the plaintiff is entitled to make in respect
of the cause of action. The cause of action is a bundle of facts and relief
of damages is construed to be a component of such bundle of facts. The
plaintiff was conscious of the fact that he wants to sue for damages
which is evident from his averment in para 9 of the plaint of the first suit
but the plaintiff was required to obtain leave of the Court before filing
suit for damages subsequently. The High Court has clearly erred in law
in holding that the cause of action for both the suits is different.
36. The cause of action as held in Suraj Rattan Thirani v.
Azamabad Tea Co. Ltd.16 is a bundle of facts which included the relief
of possession as well as the loss which occurred on account of alleged
demolition. This Court held as under:
“29. We consider that the test adopted by the Judicial Committee
for determining the identity of the causes of action in two suits in
Mohammed Khalil Khan v. Mahbub Ali Mian [75 IA 121] is
sound and expresses correctly the proper interpretation of the
provision. In that case Sir Madhavan Nair, after an exhaustive
discussion of the meaning of the expression “same cause of action”
which occurs in a similar
context in para (1) of Order 2 Rule 2 of
the Civil Procedure Code observed:
“In considering whether the cause of action in the subsequent suit
is the same or not, as the cause of action in the previous suit, the
test to be applied is/are the causes of action in the two suits in
substance — not technically — identical?”
30. The learned Judge thereafter referred to an earlier decision
of the Privy Council in Soorijomonse Dasee v. Suddanund
[(1873) 12 Beng LR 304, 315] and extracted the following passage
as laying down the approach to the question:
“Their Lordships are of opinion that the term ‘cause of action’ is
to be construed with reference rather to the substance than to the
form of action….”
16 AIR 1965 SC 295
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
668
SUPREME COURT REPORTS
[2021] 10 S.C.R.
Applying this test we consider that the essential bundle of facts
on which the plaintiffs based their title and their right to relief
were identical in the two suits. The property sought to be recovered
in the two suits was the same. The title of the persons from whom
the plaintiffs claimed title by purchase, was based on the same
fact…….”
37. In State of Rajasthan v. Swaika Properties17, this Court
held that cause of action is a bundle of facts which taken with the law
applicable to them gives the plaintiff a right to seek relief against the
defendant. The Court held as under:-
“8. The expression “cause of action” is tersely defined in Mulla’s
Code of Civil Procedure:
“The ‘cause of action’ means every fact which, if traversed, it
would be necessary for the plaintiff to prove in order to support
his right to a judgment of the court.”
In other words, it is a bundle of facts which taken with the law
applicable to them gives the plaintiff a right to relief against the
defendant. The mere service of notice under Section 52(2) of the
Act on the respondents at their registered office at 18-B,
Brabourne Road, Calcutta i.e. within the territorial limits of the
State of West Bengal, could not give rise to a cause of action
within that territory unless the service of such notice was an integral
part of the cause of action. The entire cause of action culminating
in the acquisition of the land under Section 52(1) of the Act
arose
within the State of Rajasthan i.e. within the territorial jurisdiction
of the Rajasthan High Court at the Jaipur Bench. The answer to
the question whether service of notice is an integral part of the
cause of action within the meaning of Article 226(2) of the
Constitution must depend upon the nature of the impugned order
giving rise to a cause of action. The notification dated February 8,
1984 issued by the State Government under Section 52(1) of the
Act became effective the moment it was published in the Official
Gazette as thereupon the notified land became vested in the State
Government free from all encumbrances. ……………………..”
38. The High Court has returned a finding that the Rent Act will
prevail over the Act. However, we are unable to agree with this
17 (1985) 3 SCC 217
A
B
C
D
E
F
G
H
669
observation. Both the statutes are enacted by the State of Karnataka.
The Act deals with the municipal functions which are wider and welfare-
oriented towards the residents of the area of Corporation, whereas the
Rent Act has a limited application for determining the rights of land
owner and tenant. Both operate in separate spheres as both have different
objectives to be achieved.
39. In Ashoka Marketing Ltd. v. Punjab National Bank18, a
Constitution Bench held that where the literal meaning of the general
enactment covers a situation for which specific provision is made by
another enactment contained in the earlier Act, it is presumed that the
situation was intended to continue to be dealt with by the specific provision
rather than the later general one. The Court held as under:-
“41. As a result of this comparison it can be said that certain
premises, viz. building or parts of buildings lying within the limits
of the New Delhi Municipal Committee and the Delhi Cantonment
Board and in urban areas within the limits of the Municipal
Corporation of Delhi, which belong to or are taken on lease by
any of the companies or statutory bodies mentioned in clauses (2)
and (3) of Section 2(e) of the Public Premises Act and which are
in occupation of a person who obtained possession of the said
premises as a tenant and whose tenancy has expired or has been
terminated but who is continuing in occupation of the same, would
ex-facie fall within the purview of both the
enactments. The
question which, therefore, arises is whether the occupant of such
premises can seek protection available under the provisions of
Rent Control Act and he can be evicted from the premises only in
accordance with the said provisions and proceedings for eviction
of such a person cannot be initiated under the provisions of the
Public Premises Act.
xx
xx
xx
49. This means that both the statutes, viz. the Public Premises
Act and the Rent Control Act, have been enacted by the same
legislature, Parliament, in exercise of the legislative powers in
respect of the matters enumerated in the Concurrent List. We
are, therefore, unable to accept the contention of the learned
Additional Solicitor General that the Public Premises Act, having
18 (1990) 4 SCC 406
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
670
SUPREME COURT REPORTS
[2021] 10 S.C.R.
been enacted by Parliament in exercise of legislative powers in
respect of matters enumerated in the Union List would ipso facto
override the provisions of the Rent Control Act enacted in exercise
of the legislative powers in respect of matters enumerated in the
Concurrent List. In our opinion the question as to whether the
provisions of the Public Premises Act override the provisions of
the Rent Control Act will have to be considered in the light of the
principles of statutory interpretation applicable to laws made by
the same legislature.
50. One such principle of statutory interpretation which is applied
is contained in the latin maxim : leges posteriores priores
conterarias abrogant (later laws abrogate earlier contrary laws).
This principle is subject to the exception embodied in the maxim :
generalia specialibus non derogant (a general provision does
not derogate from a special one.) This means that where the literal
meaning of the general enactment covers a situation for which
specific provision is made by another enactment contained in the
earlier Act, it is presumed that the situation was intended to
continue to be dealt with by the specific provision rather than the
later general one (Bennion, Statutory Interpretation pp. 433-34).
xx
xx
xx
55. The Rent Control Act makes a departure from the general
law regulating the relationship of landlord and tenant contained in
the Transfer of Property Act inasmuch as
it makes provision for
determination of standard rent, it specifies the grounds on which
a landlord can seek the eviction of a tenant, it prescribes the forum
for adjudication of disputes between landlords and tenants and
the procedure which has to be followed in such proceedings. The
Rent Control Act can, therefore, be said to be a special statute
regulating the relationship of landlord and tenant in the Union
territory of Delhi. The Public Premises Act makes provision for a
speedy machinery to secure eviction of unauthorised occupants
from public premises. As opposed to the general law which
provides for filing of a regular suit for recovery of possession of
property in a competent court and for trial of such a suit in
accordance with the procedure laid down in the Code of Civil
Procedure, the Public Premises Act confers the power to pass an
order of eviction of an unauthorised occupant in a public premises
A
B
C
D
E
F
G
H
671
on a designated officer and prescribes the procedure to be followed
by the said officer before passing such an order. Therefore, the
Public Premises Act is also a special statute relating to eviction of
unauthorised occupants from public premises. In other words, both
the enactments, namely, the Rent Control Act and the Public
Premises Act, are special statutes in relation to the matters dealt
with therein. Since, the Public Premises Act is a special statute
and not a general enactment the exception contained in the principle
that a subsequent general law cannot derogate from an earlier
special law cannot be invoked and in accordance with the principle
that the later laws abrogate earlier contrary laws, the Public
Premises Act must prevail over the Rent Control Act.
56. We arrive at the same conclusion by applying the principle
which is followed for resolving a conflict between the provisions
of two special enactments made by the same legislature. We may
in this context refer to some of the cases which have come before
this Court where the provisions of two enactments made by the
same legislature were found to be inconsistent and each enactment
was claimed to be a special enactment and had a non-obstante
clause giving overriding effect to its provisions.
xx
xx
xx
61. The principle which emerges from these decisions is that in
the case of inconsistency between the provisions of two
enactments, both of which can be regarded as special in nature,
the
conflict has to be resolved by reference to the purpose and
policy underlying the two enactments and the clear intendment
conveyed by the language of the relevant provisions therein. We
propose to consider this matter in the light of this principle.
xx
xx
xx
64. It would thus appear that, while the Rent Control Act is intended
to deal with the general relationship of landlords and tenants in
respect of premises other than government premises, the Public
Premises Act is intended to deal with speedy recovery of
possession of premises of public nature, i.e. property belonging to
the Central Government, or companies in which the Central
Government has substantial interest or corporations owned or
controlled by the Central Government and certain corporations,
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
672
SUPREME COURT REPORTS
[2021] 10 S.C.R.
institutions, autonomous bodies and local authorities. The effect
of giving overriding effect to the provisions of the Public Premises
Act over the Rent Control Act, would be that buildings belonging
to companies, corporations and autonomous bodies referred to in
Section 2(e) of the Public Premises Act would be excluded from
the ambit of the Rent Control Act in the same manner as properties
belonging to the Central Government. The reason underlying the
exclusion of property belonging to the Government from the ambit
of the Rent Control Act, is that the Government while dealing
with the citizens in respect of property belonging to it would not
act for its own purpose as a private landlord but would act in
public interest. What can be said with regard to government in
relation to property belonging to it can also be said with regard to
companies, corporations and other statutory bodies mentioned in
Section 2(e) of the Public Premises Act. In our opinion, therefore,
keeping in view the object and purpose underlying both the
enactments viz. the Rent Control Act and the Public Premises
Act, the provisions of the Public Premises Act have to be construed
as overriding the provisions contained in the Rent Control Act.”
40. In Allahabad Bank v. Canara Bank & Anr.19, this Court
held that there can be a situation in law where the same statute is treated
as a special statute vis-à-vis one legislation and again as a general
statute
vis-à-vis another legislation. Between the Act and the Rent Act, the Act
is a general statute enacted as a third tier of local Government
administration. The functions of the Corporation, inter alia, includes the
regulation and maintenance of the land and building, hygiene and health,
public streets and other for a larger section of the inhabitants falling in
the municipal area, whereas the Rent Act deals with the issues between
the landlord and the tenant conferring right to the landlord to seek eviction
and correspondingly provide protection to the tenant. Therefore, the finding
of the High Court that Rent Act would prevail over the Act is clearly
erroneous as both legislations operate in separate distinct spheres having
different objectives in mind.
41. The finding of the High Court that the building was demolished
without giving clear three days’ notice is partly correct. The notice was
served upon the plaintiff on 6.1.1995 and the building was demolished on
9.1.1995. Thus, clear three days’ notice was not served upon the plaintiff.
19 (2000) 4 SCC 406
A
B
C
D
E
F
G
H
673
The plaintiff was however aware of the proceedings initiated by the
Corporation on the ground that the building in question was in dilapidated
condition and unsafe for human inhabitation. The plaintiff had challenged
such notice before the High Court. The High Court had given four weeks’
time to the Corporation to pass a speaking order after giving an opportunity
of hearing to the plaintiff. The building was inspected by the Deputy
Commissioner of the Corporation and opportunity of hearing was granted
to the plaintiff as well. Therefore, it is not a case where there was any
sudden development leading to the demolition of the building but the
order of demolition was a considerate action passed after the report of
the Court Commissioner was submitted before the High Court and the
Corporation was given time to finally decide the show cause notice issued
on 24.5.1994.
42. In fact, there is three days’ notice from the date of the order
but not from the date of receipt of the notice. This Court in State of
Punjab v. Khemi Ram20 held as under:
“17. The question then is whether communicating the order means
its actual receipt by the concerned government servant. The order
of suspension in question was published in the Gazette though
that was after the date when the respondent was to retire. But
the point is whether it was communicated to him before that date.
The ordinary meaning of the word “communicate” is to impart,
confer or transmit information. (Cf. Shorter
Oxford English
Dictionary, Vol. 1, p. 352). As already stated, telegrams, dated
July 31, and August 2, 1958, were dispatched to the respondent at
the address given by him where communications by Government
should be dispatched. Both the telegrams transmitted or imparted
information to the respondent that he was suspended from service
with effect from August 2, 1958. It may be that he actually received
them in or about the middle of August 1958, after the date of his
retirement. But how can it be said that the information about his
having been suspended was not imparted or transmitted to him on
July 31 and August 2, 1958 i.e. before August 4, 1958, when he
would have retired? It will be seen that in all the decisions cited
before us it was the communication of the impugned order which
was held to be essential and not its actual receipt by the officer
concerned and such communication was held to be necessary
20 (1969) 3 SCC 28
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
674
SUPREME COURT REPORTS
[2021] 10 S.C.R.
because till the order is issued and actually sent out to the person
concerned the authority making such order would be in a position
to change its mind and modify it if it thought fit. But once such an
order is sent out, it goes out of the control of such an authority,
and therefore, there would be no chance whatsoever of its
changing its mind or modifying it. In our view, once an order is
issued and it is sent out to the concerned government servant, it
must be held to have been communicated to him, no matter when
he actually received it. We find it difficult to persuade ourselves
to accept the view that it is only from the date of the actual receipt
by him that the order becomes effective. If that be the true meaning
of communication, it would be possible for a government servant
to effectively thwart an order by avoiding receipt of it by one
method or the other till after the date of his retirement even though
such an order is passed and despatched to him before such date.
An officer against whom action is sought to be taken, thus, may
go away from the address given by him for service of such orders
or may deliberately give a wrong address and thus prevent or
delay its receipt and be able to defeat its service on him. Such a
meaning of the word “communication” ought not to be given unless
the provision in question expressly so provides. Actual knowledge
by him of an order where it is one of dismissal, may,
perhaps,
become necessary because of the consequences which the
decision in The State of Punjab v. Amar Singh contemplates.
But such consequences would not occur in the case of an officer
who has proceeded on leave and against whom an order of
suspension is passed because in his case there is no question of
his doing any act or passing any order and such act or order being
challenged as invalid.”
43. Once the order was passed by the Corporation on 5.1.1995
and was put on the means of communication, the date of actual receipt
of notice is insignificant as the receipt could be delayed by the recipient,
though there is no such attempt or finding. The wife and daughter of the
plaintiff had removed the goods including sewing machines etc., hence
the damages would include any loss of goods and the machines which
were in the tenanted premises in question. Keeping in view the fact that
the building was demolished within three days of the receipt of notice,
we deem it appropriate to order the appellant to compensate the plaintiff
with the damages of Rs.5 lakhs. Such amount will be payable to the
A
B
C
D
E
F
G
H
675
legal heirs of the deceased plaintiff in accordance with law. The appellant
shall deposit a sum of Rs. 5 lakhs within a period of two months before
the trial court.
44. Consequently, the order of the High Court dated 28.09.2006 is
hereby set aside and both the suits are dismissed, subject to payment of
Rs. 5 lakhs to the legal representatives of the plaintiff within two months.
The appeals are allowed.
Ankit Gyan
Appeals allowed.
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]