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TMI Blog1977 (3) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Control Act, 1958 (Act LIX of 1958) (for short, the Act), falls for our consideration in the present appeal by special leave. 2. A deeper understanding of the need for the new provisions just mentioned and the construction that they bear in the context necessitates stating a little more in detail the social setting. The seat of the capital of a vast country with varied activities naturally will be honeycombed with government offices, public organisations and growing armies of employees. The higher echelons in public , service, over the decades, have made generous use of the availability of government lands at low prices and of the know-how of utilising, to their advantage, the immense developmental potential in the years ahead if buildings were constructed with foresight. Thus many neatly organised colonies blossomed all around Delhi whose owners were in many instances officers who had the telescopic faculty to see the prospective spread out of Delhi of the future. Taking time by the forelock they wisely invested money (often on soft loans from Government) in buildings which secured ambitious rents when India's headquarters did, as it was bound to, explosively expand. Most ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s having to wait in a queue for years hoping against hope that some day some government quarters would be allotted. These latter, with broken domestic budgets, huddle together in small private tenements for even servants' quarters) paying rents beyond their means. The politics and economics of scarcity are well known. Out of this distressing situation was born Section 14A of the Act. 6. A fasciculus of clauses creating substantive and procedural provisions to meet the evil and advance the scheme in that behalf came in, first by Ordinance 24 of 1975 in December 1975, duly replaced by the Delhi Rent Control (Amendment) Act, 18 of 1976. The chronic disease needed drastic treatment and the legislative draftsmen created a chain of stiff provisions. Speaking generally, the government, after satisfying itself about the official having let out his residential building and occupying officially allotted quarters, directed the person to vacate government premises but he had quickly to get back his own house. So a new right (Section 14A) was created, accelerated remedial procedures were prescribed (Sections. 25A and 25B). This appeal turns on the meaning of Section 14A. 7. The purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion we make hoping that Parliament will programme for such a constructive change for the good of the community, in consultation with the Court and the Bar. That legal instrumentality alone truly sustains the rule of law which delivers justice with inexpensive celerity, finality and fullness. The big right-remedy gap is the bane of our system. We regard it our duty to mention this dimension of justice and this desideratum of systemic reform so that repetitive litanies to end law's delays may be intelligently heeded by the law makers instead of joining the chorus against the court. 9. Back to the statute. Section 14A, with a non obstante rider, follows upon and is partly supplemental to Section 14 which primarily governs eviction by landlords of tenants. We may extract a part of Section 14 and the whole of Section 14A: 14 (1) Notwithstanding anything to the contrary in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder him and no claim for such compensation shall be entertained by any court, tribunal or other authority: Provided that where the landlord had received,- (a) any rent in advance from the tenant, he shall, within a period of ninety days from the date of recovery of possession of the premises by him, refund to the tenant such amount as represents the rent payable for the unexpired portion of the contract, agreement or lease; (b) any other payment, he shall, within the period aforesaid, refund to the tenant a sum which shall bear the same proportion to the total amount so received, as the unexpired portion of the contract or agreement, or lease bears to the total period of contract or agreement or lease; Provided further that, if any default is made in making any refund as aforesaid, the landlord shall be liable to pay simple interest at the rate of six per cent per annum on the amount which he has omitted, or failed to refund. A summary remedy is provided by Section 25B which reads: 25B. Special procedure for the disposal of applications for eviction on the ground of bona fide requirement. (1) Every application by a landlord for the recovery of possession of any premi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 14A. (6)Where leave is granted to the tenant to contest the application, the Controller shall commence the hearing of the application as early as practicable. (7) Notwithstanding anything contained in Sub-section (2) of Section 17, the Controller shall, while holding an inquiry in a proceeding to which this Chapter applies, follow the practice and procedure of a Court of Small Causes, including the recording of evidence. (8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section: Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law call for the records of the case and pass such order in respect thereto as it thinks fit. (9) Where no application has been made to the High Court on revision, the Controller may exercise the powers of review in accordance with the provisions of Order XLVII of the First Schedule to the CPC, 1908 (5 of 1908). (10) Save as otherwise provided in this Chapter, the procedure for the disposal of an application for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubious ingenuities can circumvent it, we will later interpret the section eliminating the possible evil pointed out. 11. The short but insistent submission made by the counsel for the appellant was that the Controller could not shut him out from being heard, as he did, if only a triable issue emerged from the affidavit-in-opposition filed under Section 25B(4). Such an issue (in fact, more than one) was obviously present here, urged counsel. But we make it plain even at this stage that it is fallacious to approximate (as was sought to be done) Section 25B(5) with Order 37, Rule 3 of the CPC. The social setting demanding summary proceeding, the nature of the subject-matter and, above all, the legislative diction which has been deliberately designed, differ in the two provisions. The legal ambit and judicial discretion are wider in the latter while, in the former with which we are concerned, the scope for opening the door to defence is narrowed down by the strict words used. The Controller's power to give leave to contest is cribbed by the condition that the 'affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used as an office of the tenant's business, the manager also residing in a part thereof. Does user clinch the issue? At present, the main use to which the building is put is as residence of the manager. 16. The Delhi Development Authority granted the land to the government servant-respondent for construction of a residential building although he later let it out for nonresidential use, apparently for getting larger rents, silencing his compunction about the basis on which he secured the allotment of the land at low cost. But can the court conclude from the object of the land assignment whether the building later put up is residential or not? Marginal relevance there may be in these diverse factors, telling value they do not possess. Law, being pragmatic, responds to the purpose for which it is made, cognises the current capabilities of technology and life-style of the community and flexibly fulfils the normative role, taking the conspectus of circumstances in the Riven case and the nature of the problem to solve which the statute was made. Legislative futility is to be ruled out so long as interpretative possibility permits. Residentially depends for its sense on the context ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now for residence, is suitable otherwise for residence and is being credibly demanded for the respondent's residence. Residential suitability being the basic consideration, this building fills the bill. Nothing said in the affidavit-in-opposition puts it out of the pale of residential accommodation. A building which reasonably accommodates a residential user is a residential accommodation - nothing less, nothing else. The circumstances of the landlord are not altogether out of place in reaching a right judgment. The 'purpose test' will enable officers who own houses to defeat the government by pleading that they do not own 'residential premises, because the lease is for commercial use, built though it was and suitable though it is, for residence. Similarly the 'possibility test' may make nonsense of the provision. The contrast in the phraseology between Section 14(1)(e) and Section 14A strengthens our inference. The legislature has, in the former provision, used the expression 'premises let for residential purposes', thus investing the purpose of the lease with special significance. The deliberate omission of such words in Section 14A and, instead, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Mr. Bumble (in Oliver Twist) said, 'is a ass - a idiot'; but today the socio-economic project cannot be frustrated by legalistics. Underlying the whole legislative plan and provision is the fundamental anxiety to recover, for the officer's occupation, his own premises. Once we grasp this cardinal point, the officer's application for eviction under Section 14A can be entertained only on his averment that he, having been asked to vacate, must get into possession of his own. For instance, if he has a vacant house of his own and, on getting an order to vacate, he moves into his vacant house, he cannot thereafter demand recovery under Section 14A, The cause of action is not only the government order to vacate, but his consequential urgency to recover his own building. That is the ratione legis. To interpret otherwise is to vindicate Mr. Bumble! We hold that Shri Nariman's apprehension is unfounded and Section 14A is largely a rider to Section 14 and the condition indicated in Section 19 must, mutatis mutandis. bind the landlord. Parliament cannot be assumed not to intend the obvious, or to intend the ludicrous. Literality is not right where absurdity is the resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he test of reasonableness. But it has been the driving force behind many of the decisions." (1976) 39 Mod LR 379. We agree that, in the words of Lord Erskine. 'there is no branch of the jurisdiction of this Court more delicate than that, which goes to restrain the exercise of a legal right'. But the principle of unconscionability clothes the court with the power to prevent its process being rendered a parody. The justice of the law steps in and in the area of eviction of a tenant by a landlord, the tribunal cannot tolerate double-dealing or thwarting the real intendment of the statute. 24. The same conclusion can be reached through another line of ' reasoning expressed by Justice Jackson of the Supreme Court of the United States in D' Cench Duhme : Referred to in (1942) 318 US 363; Quoted in Univ. of Pennsylvania Law Review Vol. 117 (1968) p. 1, 63; If the judicial power is helpless to protect a legislative program from schemes for easy avoidance, then in deed it has become a handy implement of high finance....Once the purpose or effect of the scheme is clear, once the legislative policy is pl(sic) we would indeed forsake a great tradition to say we were he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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