DR. M. K. SALPEKARversusSUNIL KUMAR SHAMSUNDER CHAUDHARI AND OTHERS

                        DR. M. K. SALPEKAR
                                                                                A
                                     v.
SUNIL KUMAR SHAMSUNDER CHAUDHARI AND OTHERS

                           AUGUST 10, 1988

   [R.S. PATHAK, CJ AND LAUT MOHAN SHARMA, J.)                                  B

     C.P. & Berar Letting of Houses and Rent Control Order, 1949:
Clause 13(3)(v )-Whether confined to only residential houses.

      The respondent-landlords submitted two separate applications
before the Rent Controller for permission to determine the tenancy of           C
the appellant-tenant from their portions of the premises on the ground
that the tenant had built -a large house in the city and had thus secured
alternative accommodation. The Rent Controller allowed the prayer. A
Single Judge of the High Court dismissed the appellant's writ petition
and his Letters Patent Appeal was also dismissed.
                                                                                D
      Before this Court the appellant's main contention was that the
provisions of clanse 13(3)(v) of the C.P. & Berar Letting of Houses and
Rent Control Order, 1949 did not apply to non-residential buildings.
The argument was that by the addition of the Explanation to clause
13(3)(v), non-residential buildings have been, excluded from the
purview of the sub-clause.                                                      E
      Dismissing the appeals it was,

      HELD: (1) It cannot be reasonably suggested that by the addition
of the Explanation, which is confined to cases dealing with residential
buildings, a non-residential building is excluded even where the tenant         F
leaves the area for a period of four months and does not need the
house. [342G-H)

      If the position in regard to the second category of cases remained
unaffected, the Explanation cannot be construed to narrow down the
scope of the first category of cases where the tenant secures alternative       G
accommodation. [342H; 343A)

     (2) It is not possible to split the main sub-clause so as to apply it to
non-residential buildings where the tenant leaves the area for four
months and at the same time exclude it where he secures alternative
accommodation as the sub-clause deals with the two situations in the            H
                                     339
    340         SUPREME COURT REPORTS                 [1988] Supp. 2 S.C.R.

A   same language without making any distinction. [343A-B]

          (3) The Explanation operates within a very narrow area and does
    not cover the entire field governed by the main sub-clause. By the use of
    the expression "shall be deemed" a legal fiction has been employed for
    the purpose of including a particular situation within the sweep of the
B   sub-clause. [343Dl

          (4) It cannot be legitimately suggested that since in the majority
    of other States, similar provisions in the statutes on rent law are limited
    in operation to residential buildings, the same must be presumed to be
    the intention of the author of the Control Order. It is a question of
C   policy to be adopted by the different legislatures. [343G-H]
          Mansaram v. S.P. Pathak, [1984] I SCC 125 referred to.
         CIVIL. APPELLATE JURISDICTION: Civil Appeal Nos.
    1584-1585 of 1985.

D        From the Judgment and Order dated 16.6.1984 of the Bombay
    High Court in LP.A. Nos. 76 and 77 of 1984.

        V.A. Bobde, A.G. Ratnaparkhi, S.D. Mudaliar and Ms. Alanjit
    Chauhan for the Appellant.

E         U .R. Lalit and A.K. Sanghi for the Respondents.

          The Judgment of the Court was delivered by

          SHARMA, J. The main question in these cases is whether sub-
    clause (v) of Clause 13(3) of the C.P. & Berar Letting of Houses and
F   Rent Control Order, 1949, (hereinafter referred to as the Control
    Order), applied to all buildings whether residential or non-residential,
    or was confined only to residential houses.

          2. The civil appeals have arisen out of two proceedings initiated
    by the owners of the disputed premis~s for the eviction of the
G   appellant-tenant on the ground that he has secured alternative accom-
    modation and, therefore, does not reasonably need the house. The
    two premises are parts of the same building situate in Mahal Chowk in
    the city of Nagpur, and belong to a family of which the applicants,
    respondents before this Court, are members. The appellant-tenant Dr.
    M.K. Salpekar, who is a renowned doctor of Nagpur, has. been
H   occupying the premises as tenant for the purpose of his clinic since
                M.K. SALPEKAR v. SUNIL (SHARMA, J.]                  341

l944. Admittedly he has built in Ramdaspeth, another part of the city,
                                                                            A
a large double storeyed house, and has let out portions thereof to the
State Forest Department for running its office. On a partition amongst
the members of the family of the owners of the Mahal Building the
premises in possession of the appellant-tenant was allotted to the res-
pondents in the two appeals, in parts and th¢y started the present
proceedings by two separate applications for permission to determine        B
the tenancy of the appellant-tenant. The appellant defended the
actions but the Rent Controller allowed the prayer of the respondents.
The order was confirmed in· appeal. The appellant moved the High
Court under Article 226 of the Constitution. The writ petition was
heard by a learned single Judge and was dismissed by a reasoned
judgmeni. A Letters Patent Appeal was dismissed in limine. The appel-
lant then filed t!\e present civil appeals by special leave.                c
      3. The necessary findings on the various issues involving facts
were recorded in favour of the respondents by the Rent Controller as
well as the appellate court and have been endorsed by the learned
single Judge of the High Court.                                             D

      4. Mr. Bobde appearing fa support of the appeals has contended
that the provisions· of Clause 13(3)(v) quoted below, which are the
basis for the impugned decision, do not apply to non-residential
buildings:
                                                                            E
                 "13.(1) No landlord shall, except with the previous
           written permission of the Controller-

           (a) give notice to a tenant determining the lease or
               determining the lease if the lease is expressed to be
               determinable at his option; or                               F



                . (3) If after hearing the parties the Controller is
           satisfied-

                 w ........................................... . G
           (v) that the tenant has secured alternative accommoda-
               tion, or has left the area for a continuous period of four
               months and does not reasonably need the house;               H
    342         SUPREME COURT REPORTS               [1988] Supp. 2 S.C.R.

A              Explanation-For the purpose ofthis item the tenant shall
               be deemed to have secured an alternative accommodation
               if he owns a residential house in the city or town concerned
               and if such house is constructed on a site lying vacant on 1st
               January 1951 or on a site made vacant on or after that date
               by demolition of any structure standing on such site; or
B
                     (vi) .......................................... .


               he shall grant the landlord permission to give notice to
               determine the lease as requir.ed by sub-clause (1)."
c The courts were, therefore, in grave error in directing eviction of the
  appellant from the premises let out to him not for the purpose of his
  residence but for running a clinic. The argument is that the Explana-
  tion to the clause quoted above by referring to "a residential house in
  the city or town concerned" makes it abundantly clear that the clause
D cannot be applied to a non•residential house, for, a residential house
  cannot be considered as alternative accommodation to a non-residen-
  tial building.

        5. The original Control Order did not include the Explanation;
  it was added later by an amendment. Sub-clause (v) referred to
E "house" which by clause 2(3) means building or part of a building,
  whether residential or non-residential, and it cannot, therefore, be
  suggested that its application was limited to residential buildings only.
  While introducing the Explanation, the main sub-clause was left
  untouched. The substance of the argument addressed on behalf of the
  appellant is that by the addition of the Explanation, non-residential
F buildings have been excluded from the purview of the sub-clause. We
  do not find any justification for this interpretation. The 'expression
  "house" used in the Control Order in the wider sense is retained and
  envisages two situations in which the landlord becomes entitled to
  possession, namely, (i) where the tenant secures. alternative accommo-
  dation, and (ii) where he leaves the area for a continuous period of
G four months. It cannot be reasonably suggested that by the addition of
  the Expfanation, which is confined to cases dealing with residential
  buildings, a non-residential building is excluded even where the tenant
  leaves the area for a period of four months and does not need the
  house. If the position in regard to the second category of cases
  remained unaffected, the Explanation cannot be construed to narrow
H down the scope of the first category of cases where the tenant secures
                 M.K. SALPEKAR v. SUNIL [SHARMA, J.]                    343

alternative accomodation. It is not possible to split the main sub-clause      A
so as to apply it to non-residential buildings where the tenant leaves
the area for four months and at the same time exclude it where he
secures alternative accommodation, as the sub-clause deals with the
two situations in the same language without making any distinction. A
close look of the Explanation will also show that unlike the main
sub-clause it deals with only a very limited class of cases where the          B
tenant owns a residential house which was constructed on a site lying
vacant on 1.1.1951 or on a site which became available on or after that
date by demolition of any structure. Further, the main sub-clause is
not restricted to cases where the tenant is the owner of the alternative
building; it also applies where the tenant gets the alternative accom-
modation in another capacity, e.g., under a lease, or acquires the right       c
of residence for life under a bequest. It is, therefore, manifest that the
Explanation operates within a very narrow area and does not cover the
entire field governed by the main-sub-clause. By the use of the expres-
sion "shall be deemed" a legal fiction has .been employed for the
purpose of including a particular situation within the sweep of the
sub-clause. Without the Explanation there was some scope for con-              D
troversy about the precise meaning of the expression "has secured" in
the sub-clause, which by the inclusive nature of the Explanation is set
at rest.

         6. Mr. Bobde referred to several other State statutes on rent law
to show that similar provisions corresponding to those in sub-clause (v)       E
are limited in operation to residential buildings. It was urged that it
should, in the circumstances, be assumed that the State Gover'lment
while making the present Control Order also intended to limit the
scope of the present sub-clause (v). There is no merit in this argument
either. The list of the different State Acts prepared by the learned
counsel itself shows that in four of them the corresponding provisions         F
are applicable to both residential as well as non-residential premises.
l n the remaining Acts the relevant ground is restricted to residential
buildings but in clear and unambiguous terms in the body of the
section itself. They are, therefore, of no help to the appellant. Besides,
it is' a question of policy to be adopted by the different legislatures, and
it cannot be legitimately suggested that since the majority -of the State      G
legislature have followed a particular policy, the same must be
presumed to be the intention of the author of the Control Order in
question before us. We, therefore, do not find any merit in the argu-
ment of the appellant for restricting the application of sub-clause (v) to
residential buildings.
                                                                               H
    344         SUPREME COURT REPORTS                [1988] Supp. 2 S.C.R.

          7. Mr. Bobde pressed two additional points. It is urged that the
A
    clause "and does not reasonably need the house" applies as a neces-
    sary condition to both categories of cases, that is, where the tenant
    secures alternative accommodation as also where he has left the area
    for a period of four months, and this the courts below have failed to
    appreciate. We do not agree. The punctuation 'comma' in the sub-
B   clause after "alternative accommodation" and before the rest of the
    sentence indicates that the last part of the sub-clause namely "and
    does not reasonably need the house" governs only the second part of
    the sub-clause. However, this controversy is academic in nature
    because when a court is called upon to decide whether another build-
    ing available to the tenant can be treated as alternative accommo-
    dation, it has to consider whether the other building is capable of
c   reasonably meeting the requirements of the tenant on his vacating the
    disputed premises. The adjective "alternative" by itself imports this as
    a condition. And this aspect has been thoroughly gone into by the
    courts. below and necessary findings have been recorded against the
    appellant.
D
           8. The last ground uged is that since "Ramdaspeth" house was
    built several years before the institution of the present proceedings,
    the applications should have been dismissed on the ground of undue
    delay. Reliance has been placed on Mansaram v. S.P. Pathak and
    others, [1984] 1 SCC 125. The learned counsel for the respondents in
E   his reply contended that an action for enforcing a right filed within the
    period of limitation as fixed by law cannot be thrown out merely on the
    ground of delay. He also relied on the evidence in the present case
    indicating the special circumstances arising later justifying the belated
    filing of the application. Following a partition in the family of the
    landlord-respondents they became entitled to exclusive possession of
F   the respective portions of the premises which are subject-matter of the
    two cases. The evidence also indicates that the appellant was in the
    process of retiring from active practice and-was~attempting to establish
    his son, who is also a doctor, in the premises in question. In that view
    there is no substance in the point urged. The facts in which the decision
    in Mansaram's case was rendered clearly indicate th ..r it dod not
G   support the argument put forward on behalf of the appellant and no
    aid therefrom can be taken. The case of the plaintiff, there, was that
    the appellant-tanant had occupied the premises in question about 22
    years earlier illegally and was, therefore, liable to eviction. It was
    pointed out by this Court that before the application for eviction, out
    of which the appeal before the Supreme Court arose was filed, there
H   were numerous proceedings between the original landlord and the
                MX SALPEKAR v. SUNIL [SHARMA, J.]                   345

tenant and this question about the illegal entry of the appellant had      A
never been raised and it was only after the death of the original land-
lord that a "total stranger'' had come forward to raise the issue and it
was held that he was not entitled to do so. The principle of waiver was
clearly applicable. We, therefore, do not find substance in any of the
 points urged on behalf of the appellant. The appeals are accordingly
                                                                           B
.dismissed with costs.

R.S.S.                                              Appeals dismissed.