-.--

•~ .

J.R. VOHRA

INDIA EXPORT HOUSE PVT.

LTD. AND ANOTHER

14th February, 1985

Delhi Rent Control Act, 1958 section 21 read with section 37 and Rule 5 of Delhi Rent Control Rules, 1959, scope of-Limited tenancy created with permission of the Rent Controller under section 2J-Whether a warrant for recovery of posse1sion can be issued In faYour of a landlord wtthOut notice to the tenant under section 21.

A tenancy for a limited period of three years commencing from 1.6. 79 in respect of a house at 34, Pascbimi Marg, Vasaot Vihar, New Delhi at a monthly rental of Rs. 51000 was created by the appe11ant in favour of the first respondent company for the residence of its Chairman, Shri C.L. Sachdev after obtaining the requisite permission under section 21 or tho Delhi Rent Control Act. In the application filed before the Rent Controller and io the proposed lea11edccd it was specificaUy stated that the appellant landlord in order to clear the loan taken by him for the construction of the premises was creating the limited tenancy for a period of three years. The appellant was desirous of getting pos1ession of the house at the expiry of the period i.e. 31st May, 198l but before applyina for posacssioo v.nder section 21 of the Act, by two registered letters one dated 1st March,

198l and the other dated Sth M.iy, 198l ho called upon the respondents to band over vacant possession of the leased premisoa on the due date. The respondent neither replied these letters nor did handover possession.

Therefore, the appellant filed an application under section 21 for recovery of possession before the Rent Controller on 1st July, 1982. On 9 ,7,82 the appellant took possession of the house through the bailiff and started residing therein with his family members.

On 14th July 1982 tho respondents filed a writ petition (CM No. (Main) 174 of 1982) in the Delhi High Court under Article 227 of the Constitution seeking to quash the warrant of possessior. issued by the Rent Controller on 6.7.1982 and-further proceedings taken in pursuance thereof on two grounds: (a) that the initial order dated 10th May, 1979 granting permission to create the limited tenancy was vitiated by fraud practised by the aPpcllant in as much as he had suppressed the fact that an earlier application for such permission has been declined on the ground that premises had been let out for commercial-cum-residential purposes and therefore, there was no executable order pursuant to which any w<1rraot for possession could bt issued under section 21 of the Act and (b) that the issuance of a warrant for recovery of possession on 6th July 1982 without notice to the tenant was erroneous in law and in violation of the princi~Ie1 of natural justice and such nonissuance of notice on the part of the Rent Controller bad deprived the tenant of an opportunity to prove his case of fraud. By his reply the appellant denied all the allegation made in the Writ Petition.

SUPREMB COURT REPORTS [1985) 2 s.c.a.

The High Court took the view that no warrant for recovery of possession under section 21 of the Act would be issued in favour of the landlord without issuance of a notice to the tenant, and by its judgment and order dated 18lh October, 1982 allowed the writ petition, quashed the warrant of possession issued by the Rent Controller and sent the matter back to him for hearing and adjudicating upon the objections of the tenant to the issuance of such warrant of possession and in the meanwhile it also directed that possession be restored to the tenant. Hence the appeal by special leave.

A Bowing the appeal, t be Court,

HELD : 1.J. Neither section 21 and 37 of the Delhi Rent Control Act 1958 nor the Rules framed under the Act require service of aoy prior notice upon the tenant before he is evicted and in the instant case, the order directin issuance of warrant of possession under section 21 without prior notice to the tenant, for the purpose of putting the landlord in possession of the leased premises at the expiry of the limited tenancy cannot be regarded as illegal, invalid or unwarranted. (908 E~F]

J.2. An analysis of section 21 of tbe Delhi Rent Control Act will show that iu regard to tenancies fer limited period mentioD.ed therein only two orders are contemplated; (i) an order by the Rent ControHer sanctioning or permitting the creation of a tenancy for a particular fixed Period only, and

(ii) an order by the Rent Controller putting the landlord in vacant possession of the leased premises by evicting the tenant and every other occupier thereof at the expiry of that period. Before passing the first order the Rent Controller is required to satisfy himself that the two conditions mentioned in the section are genuinely satisfied in every case, namely, (a) that the landlord does not require t'1e premises "for a particular period'' only and

(b) that the letting itself is for residential purposes and no other. The landlord's non-requirement of tbe premises for a particular pcri Jd may arise out of various circumstances for instance, being an officer he may be going on some other assignment for a particular period or being in occupation of official quarters he mri)' have to vacate the same on his retirement or having borrowed a loan for the same on his retirement or having borrow~ ed a loan for the construction he may desire to clear it of before occupying the premises for bis own use, etc. Both the conditions must be truly fulfilled and not by way of any make belief before the Rent Controller grants his permission for the creation of such limited tenancy but once such limited tenancy is properly created the second order of putting the landlord in vacant possession of tho leased premises by evicting the tenant at the expiry of the fixed peried has to be passed as a matter of course because the tenant, in view of the oon-obstante clause contained in section 21, has no right or protection whatsoever under law 10 continue in possession nor has he aay defence to eviction. The second order contemplated by section 21 is in the nature of a process inexecution whereunder landlord has to be put in possession of the leased premises by evicting the teaant and and every other occupant thereof, and no notice to the tenant is contemplated before issuing the warrant of possession for putting the landlord ill possession. '

[906 0-H; 907 AE)

.;, - •

J. R, VOIJRA v. IND/A EXPORT IJOUSE 901

1.3. Section 21 carve5 out tenancies of particular cateaory for special treatment and provides a special procedure that will ensure to the landlord vacdnt possession of the leased premises forthwitb at tbe rxpiry of th1 fixed p1riod of tenancy, 1victina "hoe\'er be in actual pG, ses1ioo. Such

btin~ the avowed objc:ct of prescribio1 1he special procedure, liervice of a ::uior notice on the t1nant upon receipt of the landlord's application for

recovery of postcs1ion and invitio1 his objections followed by an elaborate inquiry in which evidence may have to be recorded will really frustrate that object. [909F-G]

S. B. Norona~ v. Prem Kumui Xhan•a, [1980] I SCR 201, followed.

l.4 In case th1rc was in fact a mere ritualistic observance of tbo procedure while 1r1ntin1 permistion for the creation of a limited tenancy or where 1uch permission was procured by fraud practised by the landlord or as a result of collusion between the stronc and the weak:, the solution lies not in insisting upon service of a prior notice on the I en:int before the issuance of the warrant of possession to evict him but by insisting upon his approaching the Rent Controller during the currency of.the limited tenancy for adjudication of his Jtleas no soorJer he discovers facts and circum:uances that tend to vitiate abinitio the initial gr:11nt of permission, and certainly not to wait till the la1dlord makes bis application for recove1 y of possession after the expiry of the fixed period under section 21. The special procedure provided for 1he benefit of the landlord in 5ection 21 warraot.s such immediate approach on the p lrt of the tenant. Of course, if the tenant aliundc comes to know about landlord's e1pplicatioa for recovtry of possession and puts fonh hi.i plea of fraud or co!lussioo etc. at that stage the Rent Controller would inquire into suh plea but he may run lhe risk of getting it rejected as an after-thought. l912A-D]

t .S. Exec-pt Rule 5 which deals with applications made under s. 21 and which merely provides for period of limitation by saying that every application under section 21 shall be made by the landlord within six months from the date of the expiry of the period of tenancy, there is no other rule in Delhi Rent Control Rules 1959 framed by the Central Government under section 56 of the Delhi Rent Control Act, requiring a n0tice F boing served upon the tenant before !he issuance of warrant of possession to evict him. [907E-G]

1.6. Section 37 (1) 1f 1he Act also, cannot be construed as requiring service of a prior notice upon the tenant before isuance of a warrant of possession against him. All that sub-section (1) of section 37 of Delhi R•nt Control Act does is to incorporate a rule of natural justice, namely, that an order prejudicially affecting a person shall not be made without hearing him

aid consideriog bis objections if any to the proposed ('lfder. But an order can be said to affect a person prejudicially only if any right of bis would be affected adversely and in view of the nonobstaotoclause contained in section 21 the tenant oa the expiry of the limited period bas no right or protection whatsoever under any law to continue in possession and as such the issuances

of a warrant of posse11sion directing him to vacate the premises in his Qccupati,., n caqaot be regarded as one wbich prejudicially affect him.

[907H; 908CD}

902 SUPREME COURT RErORTS

[1985] 2. S.C.R.

CIVIL APPELLATE JURISD!CIION: Civil Appeal No. 3381of1982.

From the judgment and order dated 18.10.82 of the High Court of Dlhi in C.M. (M) No. 174/82.

V.M. Tarkunde, B. Datta and Mrs. & Mr. A. Minoclza for the Appellant.

L N. Sinha and Mr. Pc.rmod Dayal, for tl1e Re•pondent.

The Judgment of the Court wa• delivered by

TULZAPURS:AR. J. The only question raisd in thie appeal is whether a warrant for recovery of possession can be issued in favour ofa landlord without notice to the ten111t under s. 21 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act)?

A tenancy for a limited period of three years commencing from J.6.1979 in respect of a house at 34, Paschimi Marg, Vasant Vihar, New Delhi at a monthly 1e11tal of Rs. 5000/- was created by the appellant in favour of the first respondent-company for th! residence of its Chairmm, Shri C.L. Sachdev after obtaining the requisite permission under s.21 of the Act.

It appears that the said house was constru<:ted by the appellant for his own use and occupation but having taken a loan for its construction hJ was desirous of clearing the said loan before occupying the same and he, therefore, offered in writing the tenancy for a limited period of three years to the first respondent-company, 11nd

since the offer was accepted a joint application seeking permission of the Rent Controller under s.21 for creating such limited tenancy was made by the parties 011 9th May, 1979 in which it was expressly stated that three years tenancy was being created as the appellant had to clear the construction loan ; the proposed lease-deed containing the terms and conditions of letting was annexed thereto, clause 2 whereof expressly recited that the premises shall be used by the respondent Company only for the residential purposes of its Chairman, Shri C.L. Sachdev (second respondent). On 10th May 1979 the parties appeared before the Rent Contra Iler and their statements were recorded ; the second respondent stated on oath that the premises were being taken by the respondent company for the residence of its Chairman (i.e, himself) on a monthly rental 9f Rs. SOQO/- f9f

/'"-_lo

], R. VOllRA v. INDIA fXPORT llOUSI (Tu/zapurkar, J.) 903

three years with effect from !.6.[979 and the lessee shall vacate the prem ses on the expiry of that period.

By his order passed on that very day the Rent Controller, on being satisfied that the requirements of s.21 had been fulfilled, gr, rnted permission for the creation of the tenancy for the said period which was to expire oa 31st May 1982.

The appellant w1s desirou• of getting possession of the house at the expiry of tho period but before applying for possession under s.21 of the Act, by two registered letters one dated !st March 1982 and the other dated 5th May 1982 he called upon the respondents to hand over vacant possession of the leased premises on the due date as the period permitted by th'- Rent Controller was coming to an end and also because he required th: premises for himself. There was no reply to any of these letters nor was po3session h>nded over and, therefore, the appellant filed application under s.21 for recovery of possession before the Rent Controller on Ist Julyl982; the application was directed to be registered on that day and the appellant was directed to file a certified copy of the plan on 16.7.1982; the app~Uant, however, filed the certifiel cpy of the plan on the 6th July 1982; th' R'nt Coatroller, thoreforo c.meolled the date !6th July 1982 fixed for filing the plan, took on record certified copy of the pl1n and issuod wMrant of possession in favour of the appellant. On 9.7.1982 the appollant took possession of the house through the bailiff and started residing therein with his family members.

On 14th July 1982 the respondonts filed a writ petition (C.M.

No. (Main) 17.J of 1982) in tho DJ!hi High Court under Art. 227 of the Constitution seeking to quash the warrant of possession issued by the Rent Controller on 6.7.1982 and the further proceedin&s taken in pursuance thereof on two grounds : (a) that the initial order dated 10th May 1979 granting permission to create the limited tenancy was vitiated by fraud practbed by the appellant inasmuch as he had suppressed the fact that an earlier application for such permission has been doclined on the ground that permises had been let out for commrcial-cum-residential purposes and therefore, there wis no executable order pursuant to which any warrant for possession could be issued under s.21 of the Act and (b) that the issuance of a warrant for recovery of possession on 6th July 1982 without notice to the tenant was erroneous in law and in violation of principles of natural justice and such non issuance of notice on the part of the Rent Controller had deprived the tenant of an opportunity to prove his case of fraud. By this reply the appellant denied all the allegations made in the Writ Peti-

SUPREME COURT REPORTS

[1985] 2. S, C.R,

tion and particularly denied that the premises were Jet out for com mercialcum-residential purpo•e• or that permisoion on the earlier occasion had been declined on thd ground or that any fraud was practised by him llS alleged at the tim• when the order granting permission wa' passed on 10th May 1979 ; it wa• a•serted that the earlier application for permission was not rfu1ed but was got with drawn for technical defect. The appellant also disputed that any notice to the tenant wa• con templ&ted by s. 21 of the Act before issuing the warrant for recovery of posses•ion thereunder ; he also pleaded that on the fact• of the case the reopondento had ample opportunity to approch the Rent Controller to prove their case of alleged fraud inasmuch as the app:llant hld isoued two registered notices to the respondents.informing them that he was desirous of recovering possession at the expiry of the lease period and as such though there was no requirement ofa notice in law, the principles of natural justice could be said to have been substantially observed.

By its judgment and order dated 18th October 1982 the High Court allowed the writ petition, qua< bed the warrant of po•ses, ion issu_ed by the Rent Controller and sent the m•tter back to him for hearing and adjudicating upon the objections of the tenant to the issuance of such warrant of possession and in the me•nwhile it also directed that possession be restored to the tenant. In doing so tbe High Court took the view that no warrant for recovery of possession under s.21 of the Act could be issued in favour of the landlord with out issuance of a notice to the tenant. It i~ this view of the High Court that is being challenged before us by the appellant 10 this appeal.

In support of the appeal tho principal contention of the coun sel for the appellant has been that neither s.21 of the Act nor any Rules framed thereunder require or contemplate the service of a notice on the tenant before issuing the warrant of possession for the purpose of putting the landlord in vacant possession of the leased premises at the expiry of the limited period for which the tenancy has been permitted to be created under the Rent Control!er's order.

Counsel submitted that s.21 postulates summary eviction of the tenant by a process which is really in the nature of executing the earlier order creating a tenancy for a limited period as no fresh eviction order is contemplated and that insistence upon a prior notice to the tenant before issuing the warrant of possession followed by an elaborate inquiry would defeat the very object .; r purposes for which s.2J has been enacte\I and incorporated in the Act which,

,,,... . .,. ...

i. R. VOHRA v. INDfA EXPORT HOUSE (Tu/zapurkar, i.) 905

as explained by this Court in S.B. Noronah v. Prem Kumari Khanna,(') is to afford an assurance to the landlord that he will get back possession forthwith at the expiry of the fixed period of tenancy but for which a landlord would never kt out his premises and would continue to keep them vacant even though he may not require the premises for a fixed period. Counsel for the appellant pointed out that even under the Civil Procedure Code no prior notice is required to be served on a judgment-debtor when execution processes say for attachment and sale of his properties or even for dispossessing him are taken within two years of the decree. Counsel for the appellant, therefore, urged that the High Court was in error in taking the view that a warrant of possession could not bJ isrnel i.i fdv, ur ofthe landlord without service of a prior notice upon the tenant under s.21, and according to him the decision in Noronalz's case (supra) on which High Court h3S relied in this beh01lf is not on this poin.

Counsel for the appellant further urged that even in a case where fraud is alleged to have been practised by the landlord in obtaining the Rent Controller's sanction for creating the limited tenancy the section does not cast any duty or obligation upon the Rent Controller to invite a plea of fraud from the tenant by issuing notice to him after the landlord has applied for recovery of possession under that section. Furth er the counsel pointed out that in the facts of the instant case the fraud, if at all there was any, was known to the tenant right from the time the limited tenancy was cre"1ted under the Rent Controller's order and the respondents could have approach the Rent Controller to have the issue decided at a.1y time during the three years period and in any case at least imm, diately after the receipd of two registered letters fro:n th' app; ILrnt which were issuemonths ahead of the appellant's application for recovery of posses sion under s.21.

Counsel, therefore, urged both in law as well as on the facts of the present case the service of a notice by the Rent Controller upon the tenant before issuing warrant of possession was uncalled for and not required and the High Courl was in error in taking the view it did; in any case the High Court was wrong in directing the restoration of possession back to the respondents when the matter was remanded by it to the Rent Controller for hearing and adjudicating upon the tenant's objection and the appellant's

possmion need not have been disturbed pending such adjudication.

(I) [19EO] J S.C.R. 281.


On the other hand counsel for iherespondents stron.!l!!s up ported the view taken by the Higa Court and in that behalf rdbd upon this .Court's dcci.!ion in the Noronah's c1se (supra) which has th! view that even at the excction stage it is open to the. tenant to p•1t forw1rd a case of fraud in the matter of obtain{ng Rent Controller's permission at the i11iti•I stage for creating a limited tenancy an\I the Rent Coptro!ler h bound to hJld ln inquiry ; vhca such a plea of fraud is put forw.ird by the ten int and aceording to counsel s1clt i'lquiry iuto the plea of ltc1lld wold not be possible ualess notice i< served upo1 the tenant before inui11; the w4rrant of

possession . .

In order to decide the question raised in the appeal it will be necessary tc> set outs. 21 of the ;\ct. The section runs th!'l ;

"21..· Recovery .of possessio.1 ill case oflenandesfor lim'tti ptrioJ-Where a andlord dots not reuirc the whole or apy p•rt of any pniics for a particlu P"iod, and the llnJlorJ, after obtainin3 the permission of the Co4trollt; r i.1 tbe ple:; cribcd m~n!r, let; the who lo of the premi; e~ or pirt th:reof as a rosidence

0for such pcrio:l a~ mly be agreed to in writing between the landlord and the ten1nt and the ten1nt dcs not, on the expiry of th: said ptriod, vac1to such prcmiS>s then, notwithstanding anything contained in soctio1 Hor in any other !Jw, the Controller may, o:i an applicatio'.1 m1de to him in this beh1lf by tae llndlrd witain su~)l time as m1y be pre; cribed, place the Jandlrd in vac1nt po'5ession of the premises or part thereof by evicting the tenant and every other person

who m1y be in occupation of such premises."

An an1lysis of th! provisio1 will sho.v th1t .in r, glrd to tenan• cies for limited period mtntioned therein only two orders arc con

.1 tcm;>lated by the section : (i) an onler by the Rent C<>'.ltrolkr

Slnctioning or perm!ttiig the creation of a tcnapcy for a puticubr fhed period only, and (ii) a'1 order by the Rent Co1tr0Jl,, pulling the landlord in vacant possession of the.leased promises by evict- ing the tenant and every other occupier thereof at the expiry of th1t period. It is also ckar that bofore pa.sing the first orJer the Rent Controller is required to sati; fy himself that the two conditions mentioned in the section are genuinely satisfied in every

.: ..

G .•

. j, 1\. VOHRA I'. INDIA EXPORT HOUSE (Tu/zapurkar, J.) 901

case, namely, (a) th1t thi landlord does not require the premises 'for a plrticubr period' 0:1ly and (b) that the letting itself is for residential purposes and no oth'r. The landlord's non-requirement of the premises for a puticular period may arise out of various cir cumstances; for instance, biing an officer he m2y be going on some other assignment for a puticular period or being in occupation of official qu1rtcrs he may hav~ to VJC1t the same on his retirement or having borrowed a loln for the consttuction he may <lrsire to clear it of before occupying the premis; s for his own use, etc. lt cannot be disputed that both the conditions must be truely fulfilled and not by way of any m1l:.e-beld before thl Rent Controller grants his permission for the creation of such limited tenancy but once such lim; ted tenancy is properly created the second order of putting the landlord in vacant possession of the leased premiss by evicting the tenant at the expiry of the fixed period has to be passed as a matter

of course because the tenant, in view of the nonobstante clause contained in the section, has no right or protection whatsoever under law to continue in pvssession nor has he any defence to eviction and the section does not contempl1te th; passing of any order of eviction against the tenant before i>Suing the warrant of possession in favour of the bndlord. It is thus clear that the second order contemplated by the section is in the naturo of a prooess in execution whereundcr the landlord has to put in possession of the leased premises by evicting the tenant and every occupant threof, and no no lice to the tenant is contemplated before iS>uing the warrant of possession for putting the landlord in possession.

As far as the Delhi Rent Control Rules 1959 framed by the Central Governm; nt under section 56 of the Act are concerned there is only one rule being Rule 5 which merely provides for period of limitation by saying that every application for recovery of possession under sec. 2 l shall be m2de by the landlord within six months from the date of the expiry of the period of tenancy and there is no rule requiring a notice being served upon the tenant before the issuance of warrant of possession to evict him.

Counsel for the respondents reli,; d upon sec. 37 of the Act to canvas the contention that service of a prior notice upon the tenant

before he is evicted would be necessary but that deals with the practice and procedure required to be followed by the Rent Controller in pro ceedings before him and it mainly provides that subject to any rules

• A


[1985) 2. S.C.R.

that may be made under the Act the Controller shall, while holding an inquiry in any proceeding before him, follow a5 may be the practice and procedure of a court of small causes, including the recording of evidence.

In particular counsel relied upon sub-sec. (!) of sec. 37 which provides that "no order which prejudicially affects any person shall be made by the Controller under this Act without giv ing him a reasonable opportunity of showing cause against the order proposed to be made and until his objections, if any, and any evi dence he may produce in support of the same have been considered by the Controller." In our view all th1t sub sec. (l) does 1s to incorporate a rule of nltural justic>, n1nely, that an order preju dicially affecting a person shall not be made without hearing him and considering his objctions if any to the proposed order. But an ord<r can be said to affect a perso~ prej•.idicially only if any right of his would be affected adversly and as stated earlier in view of th~ non-obstante clause contained in sec. 21 the tenant on the expiry of the limited period has no right or protection whatsoever under any law to continue in possession and as such the issuance of a warrant of possession directing him to vacate the premises in his occupation cannot be regarded as one which prejudicially affects him.

Section 37 (I) therefore, ca1not be construed as requiring service of a prior notice upon the tenant before issuance of a WMrant of possession against him.

In other words neither sec. 21 nor sec. 37 nor the Rules framed under the Act require service of any prior notice upon the tenant before he is evicted and the order directing issuance of warrant of possession under sec. 21, without prior notice to the tenant, for the purpose of putting the landlord in possession of the leased premises at the expiry of the limited tenancy cannot be regarded as illegal, invalid or unwarranted.

The question at issue could also be considered by having regard to the object or purpose with whicl1 section 21 has been enacted and incorporated in the Act. It cannot be disputed that sec. 21 carves out tenancies of particular cateory for spcial treat ment and the raiso:1 d'etro of the provision has been explained by this Court in Noronah's cose (supra) in these words :

"Parliament was presumably keen on max1m1srng accommodation available for letting, realising the scarcity crises. One source of such spare accommodation which 1s usually shy is potentially vacant building or a part

, I •

c • •

J, R. VOHRA v. INDIA EXPORT HOUSE (Tulzapurkar, f) 90~

thereof which the landlord is able to let aut for a strictly limitod period provided 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 hi1 retirement he will be able to re occupy, such accomodation may add to the total lease-worthy hous, s. Tho 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 bonafide requirement is made out the litigative tiers are so many and the law's delays so tantalising that no realist in his, sense will trust the •weet promises of a tenant that ho will rel urn the building after the stipulated period. So , the law has to make itself credit-worthy. The long distance between institution of recovery proceeding> 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 th• ewner of a pr•mise available for letting for a particular or limited period by giving him ti" sp•cial assurance that at the •xpiry of that period the appointed agency will place the landlord in l'acant possession." (Emphasis supplied).

It is thus clear that the object of incorporated s. 21 in the Act is to provide a special proceduro th1t will ensurJ to the landlord vacant possession of the leased premises forth with at the expiry of the fixed period of tenancy but for which h' would be shy to let out his premises and would continue to keep them vacant even though he may not require the premises for a fixed period. Moreover the assurance of getting vacqnt possession forthwith is further strengthened by the provision that under the warrant of possession not merely the tenant but every person who may be in occupation is aho to be evicted. If such is the avowed object of prescribing the special procedure then service of a prior notice on the tenant upon receipt of lhe lanlord's application for recovery of possession and inviting his objections followed by an elaborate mquiry in which evidence may have to be recorded will really frustrate that object.

Jn our view precisely for this reason the scheme of sec. 21 and the connected relevant provisions do not require service of a prior notice on the tenant before issuing the warrant of possession against

910 SVPREiie couir REPORlS -'(i9ssj i. s.c.i. ·

him for patticig the landlord in possession of the foased premises, for, the law has to make it; elf credit worthy.

Strong reliance was placed by counse 1 for the re; pondents on the decision or th ii Court in Norana/i's case (supra) whore according to counsel a view has b.ecn taken th'lt oven at the second stago when the landlord applies for recovery of p; iss>Ssi<>n und!r &ec. ll~ the

Rent Controller must satisfy himself by such inquiry he m1y m1ke about the 'compulsive requirements or that provision that is to say, whether the twin cor.dition• requisite for granting the permission for the creation or limited tenancy had b:en really fullilled cir not and counsel argued th1t no such inquiry would \Je possible unless. on receipt of hndlord's applic1tions for recovery of possession a not'ce served is upon the tenrnt which would enable the tenant to put forth a plea that at the iai; ial stage a mindless order granting p:rmi>sion for the creation of limited tenncy h1d b:en m1de with

out the twin co:iditivns b:ing ro1lly satisfied or that th: said initial . order grJnting permission w.is_ tb.~' r..::sult of eilher fraud On the p.irt

or the hndlord or collu; ion b:twoen tho p:irtics. Counsel urged th1t a mere iitualistic enforcem:nt of th: conditions of the permission under s; c. 21 o: a m:;'.naic.al gr.nt of p'!missio:i thereunder would amount to suJverting th; who!~ elfoct of sec. 21 and it is

ell so1tled that fraud and collusion (especially collusion between two unequ1ls-the strong an'd the weak) will vitiate completely the parmiss_ioa sQ_ granted and ren.Ji:r it ilo.1-e.st. Th-;:refore; it would be th: d1ty of th> Rent Controller to hear and adjudicate upon such pleas of th: tenant b>fo:; issuin3 warrant of' possession in favour or the landlord. A.t th! outset we would like to observe that in Noronah's cas! the qu:stioo. w'.tether a prior notice is re quired to be served upon the tenant before issuance of warrant of possession in favour of the landlord under s:c. 21, did not arise for considerJtion. It w1s a c1se wh:re upo:l rec:ipt of landlord's application for recovery of possession under the section the tenut raised pleas that the permises h1d been let out for non residential pur poses and tlut th: sanctio:i oi p; rmission granted for the creation of the Limited tenancy was vitiated by fraud and collusion and the question that aro; e for consid:ration was whether at that stage the Ren\ Controller could &O i.1to and consiJer such pleas and this court has rukd that the Controll:r should consiJer thoso pleas even when raised at thlt stago. In othe.r words all that the Slid case decides is that if such pleJS are uised by the t:nant even at th: execution

i. R. \oHRA \'. iNDiA EXPORT HOUSE (Tuizapurker, i.)

stage (i.e. at the stage of passing the second order) the Rent Con troller should consider and adjudicate upon such pleas but the deci sion is no authority for the proposition that up:in receipt of landll)rd's application for r:covery of possession the Rent Controller must issu~ a notice to the tenant inviting from hi:n the pleas of fraud, collusion etc. and hold an inquiry into such pleas before issuing the warrant of possession in favour of the landlord; for there cannot be a presumption that in every case there was a mere ritualistic observance of the procdure co,1templated while passing the initial order granting permission or that the Control: er had passed a mindless ordor or that the order granting permission was the result of either fraud on the part of the bndlord or collusion between the strong and the weak. In fact even in Noronah's case this Court has observed that 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 hi111 before issuing the warrant of possession in favour of the land!, ird especially when the scheme of sec. 21 and the connected relevant provisio.1s do nJt require it.

What then is the remedy availablo to the tenant in a case where there was in fact a mere ritualistic observance of the proce dure while granting permission for thJ crea io:1 of a 1 imited tenancy or whore 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 pica being inquired into? The answer is obviously in the negative.

At the same time must he be permitted to protract the delivory of possession of the leased premises to the landlord on a false pka of fraud or collusion or that there was a mechanical grant of permission and thus defeat the v.ry subject of the special procedure provided for the benefit of the landlord in sec. 21 ? The answer must again be in the negative. In our view these two com peting claims must bo harmonised and the solution lies not in insisting upon service of a prior notice on the tenant bJfore 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 dis covers facts and circumstances that tend to vitiate ab initio the initial grunt of permission. Either it is a mechanical grantofpermis; ion

or it is procured by fraud practised by the landlord or it is the result H

9l2 SUPRE\IE cdliRt R'EPORTS

•, .. ' .,

(1985) 2. S, C.R.

of collusio'.1 between two unequals but in each case there is no reason for the tenant to wiit till the l1ndlord m1kes his application for recovory of possession aft<r the expiry of the fixed period under sec. 21 bot thore is every reason why the tenant should make an immediate approach to the Rent Controller to have his pleas adjudi CJted by him as soon as foct• and circ3mstances giving rise to such pleas come to his knowledge or are discovered by him with due diligence. The special procedure provided for the benefit of the landlord in sec. 21 warrants such immdiate app1oach on the part of the tenant. Of cou rs~ if th~ tenant aliuode comes to know about lanclord's application for rocovery 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. There is however no need to imply any obligation on the put of tho Rent Controll!r to serve a notice on the tenant inviting him to file his objections before issuing the warrant of possession in favour of the landlord.

Having regard to the a'Jove discussion we are clearly of the view that the High Court was in error in taking the view that no warrant for recovery of po•session under sec. 21 could bo i>sued without serving a notice on tho tenant.

We hold that tho Rent Controller's ord:r directing the h; uance of worrant of posses sion in favour of the app, llantl>ndlorJ herein and the further pro ccedings of putting him in possession of the suit premises in pur suance the1eof were valid and proper and ought not to have been quashed by the High Court. H0wevcr, si,1ce the High Court has remanded the matter b1ck tu the Rent Coatroller for adjudication upon pkas of the respond:nt tenant we .to not propose to interfere • with that part of the order and the adjudication of the objections raised by the respondent-tenant may be proceeded with and decided in accJrdance with the Jaw but on the facts of the instant case there was no justification for the direction issued by the High Court that pending such adjudication possession of the premises be resto- red to the respondent-tenant.

Admittedly in the instant case Jong before he applied for recovery of possession U'lder sec. 2l of the Act the appellant had sent two registered notices to the respondentcompany calling upon it to vacate tho premises as the period of the limited tenancy was about to expire and also because he wanted the premises for his own use and occupation and nothing was done by the respandents and it was only after the warrant of possession had been executed and the landlord got possession of the premises

" -

J . •

J. R. VOHRA v. ]~DIA lXPORT HCmE (Tulzapurker, J.) 913

in question tint the respondent-company approached the High Court by mean! o( a Writ Petition challenging the i'5uance of warrant of posse1sion on the ground that no prior notice had been served upon him and that tht Arst order granting permission for limite'd tenancy w•s th' result of frud practised by the landlord.

Obviously the resp:>ndent-co.npany hlS thought fit to raise the plea of fraud bolatedly. We WJuld therefore, quash that part of the High Court's order which direct• re1toration or po;, ession of the suit premises to the respondentcomp1ny during the pendency of the proceedings before th' Rent Contruller anl direct that the appellant's possession of the suit premises which he h1s secured in pursunce of th, WHrant of pJi>cssion sh1ll not be disturbed till the rcspondent-conpiny's objections and/or pleas are finally decided.

Since th' apeal rnbitaoti:dly moceed! the respondents are directed to p1y th' cGst of the appe1I to appellants.

S.R.

Appeal allowed.