TMI Blog1978 (11) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(1) have to be considered together or whether clause (ii) thereof can be construed independently of clause (iii) and without being fettered by it? The Change (a) Old Definition: 3. The original definition of 'tenant' in Section 2(1) in the principal Act was as follows: tenant' means any person by whom or on whose account or behalf the rent of any premises is, or but for a special contract would be payable and includes a sub-tenant and also any person continuing in possession after the termination of his tenancy but shall not include any person against whom any order or decree for eviction has been passed. (b) Its Interpretations 4. In Anand Nivas (AIR 1965 Sc 4147, followed in J, C. Chatterjee the words 'any person continuing in possession after the terminatio(AIR 1972 Sc 2626)n of his tenancy' were construed to mean a statutory tenant who was sharply distinguished from the contractual tenant. It was held that the possession of the statutory tenant was protected only during his lifetime by the rent control legislation. His legal representatives were not entitled to inherit either the tenancy or the statutory protection after his death This was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinarily living with the tenant in the premises as members of his family up to his death. It is to be noted that this amendment was made by the legislature when the majority decision in Anand Nivas followed in J. C. Chatterjee was the governing law and a person continuing in possession after the termination of his tenancy was not regarded as tenant but only as statutory tenant. THE FACTS: 8. The appellants before us are heirs of tenants of premises let out for nonresidential purposes. The tenancies have been held to have been terminated before the deaths of the tenants which took place prior to 1-12-1975. The heirs of the deceased tenants could not, therefore, be said to be living in the premises with the deceased at the time of their deaths, The decree for possession has been passed against the ground that the heirs (appellants herein) were not tenants and the Delhi Rent Control Act did not apply to them. Though the original tenants had died prior to 1-12-1975, the suit for possession by the landlord, Narain Dass against Mohd. Din and others was filed in 1967, while the suit for possession by the landlord. Mrs. Vinod Ahluwalia, against Haripal Singh and others was filed in 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not based on any general principle. On the contrary, it was the result of statutory provisions in the English legislation which had no parallel in the Indian legislation. That concept could not, therefore, be brought into Indian legislation either on principle or by analogy. It was, therefore, held that the legal representatives of a person who continued in possession after the termination of his tenancy were entitled to inherit his tenancy and the statutory protection against eviction, etc. attached to it. The Effect of Damadilal; 11. In respect of the definition of 'tenant' in the M. P. Act, the decision in Damadilal is preferable to the previous decisions in Anand Nivas and J. C. Chatterjee for the following reasons: (i) The definition of 'tenant' in the Bombay Act is arguably not quite the same as the definition of tenant in the M. P. Act and the Delhi Act. (ii) The decision in Damadilal is subsequent to the decision in Anand Nivas and J. C. Chatterjee. Though all these decisions are by Benches of three Judges, the latest decision has to be preferred to the earlier ones. (iii) The decision in Anand Nivas has been considered and discussed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, but the most significant provision of the Amending Act for our purpose is Section 2, which is as follows: In Section 2 of Delhi Rent Control Act, 1958 (59 of 1958) (hereinafter referred to as the principal Act), for clause (1), the following clause shall be, and shall be deemed always to have been substituted. 14. The old definition was substituted by the new definition with a retrospective effect which went back to the very commencement of the Delhi Rent Control Act of 1958. The effect was (as if the definition of 'tenant' right film the inception of the Delhi Act was the definition which was inserted in it by the amending Act of 1976. This cut both ways: (a) Those who could argue that prior to the decision of Anand Nivas the legal representatives of a person who continued in possession after the termination. of his tenancy inherit ed the tenancy were deprived of that argument with the consolation that only some of the legal representatives and that too for a period of only one year inherited that tenancy, (b) Those (who) could argue that in view of the decision in Anand Nivas the legal representatives of a person continuing in pos session after the termination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in Damadilal could not I apply to the Delhi Act at any time. This conclusion accords with that of A. B. Rohatgi J. in Mohan Lal v. Shri krishan, . Difference between Residential Non -Residential Letting: 17. The retrospective amendment also inserted a distinction between the letting of premises for residential purposes and the letting of premises for non-residential purposes in the definition of 'tenant' in Section 2(1) of the Delhi Act. The limited right of inheritance is granted only to some of the heirs living in the premises with the deceased person whose tenancy has been determined but not to those who could not be living with him because the letting was for a non-residential purpose. The words used in the amended definition of 'tenant' to give the limited right of inheritance to such persons 'as had been ordinarily living in the premises with such person as members of his family up to the date of his death' have to be construed to mean that the benefit of amendment is available only when the tenancy was for residential purpose. It is only then that the heirs of the tenants could live with him in the premises at the time of his death. If t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have made it possible for this Court to give effect to the true intention of Parliament in amending the law were unfortunately not raised and could not, there fore, be decided at this stage of the proceedings. I would, however, be failing in my duty if I did not draw attention to these questions, so that these could be raised before the Division Bench to which the matters go now for decision or on any other appropriate occasion and decided according to law, unless further legislative action intervenes in the meanwhile to restore the benefit to the legal representatives which is denied to them in the present state of the law. 20. Basically, tenancy is the creature of a contract between the landlord and the tenant. It is a minor mercy of the law of succession that when a contractual tenant of a residential premises dies, he does not take away with him the roof that he had provided for his family and when such a tenant of a commercial premises dies, it does not deprive the dependents of their source of sustenance. The position of a ' contractual tenant, however, was precarious until the Rent Control legislation in different parts of the country ensured to him a limited prote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile still larger numbers were threatened with eviction. It was this situation which was causing great hardship to the dependants of such tenants that evoked legislative intervention and first by an Ordinance and later by the Amending Act, the definition of the expression tenant' in Section 2(1) of the Act was amended by the addition Of clause (iii) to it which ex facie 1ntrOduced as element of limited heritability In relation to certain class of tenancies The subsequent pronouncement in the case of Damadilal (supra), however, restored the true legal Position when, while dealing with the Madhya Pradesh Accommodation Control Act, which is almost in pari materia with the Act , the Supreme Court held that the nature of the tenure of a tenant, whose contractual tenancy had been determined, was not dependent on any Principle Of English law but on the provisions of the concerned statute, and in the context of the Madhya Pradesh statute, it was held that the expression 'tenant' in that Act was wide enough to Include a person who continued In possession of the demised premises even after the termination of the contractual tenancy and the therefore, the heritability was unaffecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould it bring the legislative, action within the scope of the limited judicial review of legislation or would the Court be helpless because the existing principles of such judicial review would not cover such an eventuality? A possible way of looking at it would be that the Court would consider the enlargement of the traditional concept of judicial review of legislation to deal with the extraordinary situation that threatens to cause hardship. Principles of law are after all not of divine origin and were judicially or juristically evolved in the quest to do justice where the law or the existing principles were found to be inadequate. If new and extraordinary situations arise, which call for judicial action, new principles must be evolved to meet fresh challenges. Principles do not constitute a static concept but are the result of a continuous process of judicial thought. 22. Another aspect could be whether the twofold classification - one between the different class of heirs and the other between different natures of tenancies, on which the amendment is apparently based would or would not constitute hostile discrimination and attract Article 14 of the Constitution of India and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at such a tenant 'has no estate or property in the' demised premises, but 'has nonetheless an interest, a right in the premises occupied by him, which he may be empowered to transfer'. He found that Section 13 (1) (e) and some other provisions of the Bombay Act clearly indicated that a statutory tenant had been so empowered by that Act. But, Shah, J. speaking for himself and M. Hidayatullah J. observed as follows (at p. 422):- A person remaining in occupation of the premises let to him after the determination of or expiry of the period of tenancy is commonly though in law not accurately, called 'a statutory tenant'. Such a person is not a tenant at all; he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in, that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His rig to remain in possession after the determination of the contractual tenancy is personal: it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute. The right of a lessee from a land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of irremovability , and nothing more. But,- In England the statutory tenant's right to sublet is derived from specific provisions of the Acts conceding this right to him; in the Act we are concerned with in this appeal, the right flows from his status as tenant. This is the basic difference between the English Rent Restriction Acts and the Act under consideration and similar other Indian statutes. Earlier,- 'The definition makes a person continuning in possession after determination of his tenancy, a tenant ............ putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention. 29. The 'status' (of a tenant) occurring in the above passage, does not appear to have been used in the sense in which Scott, Lj, defined it in Re Luck's Settlement Trusts ((1940) 1 Ch D 864 at p. 891), as when created by the law of one country, it is or ought to be judicially recognised as being the case everywhere all the world over , nor does it appear to have been used in the sense that any judgment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son to whom a license, as defined by Section 52 of the Indian Easements Act, 1882 (5 of 1882), has been granted. Explanation I:- The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:- (a) firstly, his surviving spouse (b) secondly, his son or daughter, or both if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death; (c) thirdly, his parents, if there is no surviving spouse, son or daughter of the deceased person, or if such surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death; and (d) fourthly, his daughter-in-law, being the widow of his predeceased son, if there is no surviving spouse son, daughter or parents of the deceased person, or if such surviving spouse, son, any of them daughter, or parents or did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death. Explanation II:- If the person who acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Jaswant Singh, JJ. observed that it was obvious from the language that the intention of the legislature in giving protection to a member of the family of the tenant residing with him at the time of his death was to secure that on the death of the tenant the member of his family residing with him at the time of his death is not thrown out, and this protection would be necessary only in case of residential premises. When a tenant is in occupation of a business premises, there would be no question of protecting against dispossession a member of the tenant's family residing with him at the time of his death. The legislative, intent never was to confer protection in respect of business premises on a member of a tenant's family residing with him at the time of his death. The amendment applies only in respect of residential premises, and since the premises in question before us are admittedly business premises; the respondents could not claim to be tenants under the amended definition. 33. Another question that was mooted was whether in view of the elucidation made in Damadilal , the amendment of 1976 has become non est, and this Court can by extending the scope of judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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