Supreme Court of India
J.R. VOHRAversusINDIA EXPORT HOUSE PVT. LTD. AND ANOTHER
- Citation
- 1985 INSC 25
- Decided
- 14 February 1985
- Disposal
- Appeal(s) allowed
- Bench
- V D TULZAPURKAR
Holding
A warrant of possession under Section 21 of the Delhi Rent Control Act, 1958 may be issued without prior notice to the tenant, as neither the Act nor the Rules require such notice, rendering the warrant valid.
Summary
The appellant landlord created a three‑year limited tenancy for the first respondent under Section 21 of the Delhi Rent Control Act, 1958, and sought possession of the premises at the tenancy's expiry. After the tenant failed to vacate despite two registered notices, the landlord obtained a warrant of possession from the Rent Controller and took possession. The tenant challenged the warrant in the Delhi High Court, arguing that the landlord had obtained the limited tenancy by fraud and that the Rent Controller should have served prior notice to the tenant before issuing the warrant, invoking Section 37 and principles of natural justice. The High Court quashed the warrant, holding that notice was required, and restored possession to the tenant. On appeal, the Supreme Court examined the language of Section 21, Section 37, and the 1959 Rules, concluding that neither the statute nor the Rules mandate prior notice before a warrant of possession is issued, and that the warrant was therefore valid. The Court allowed the appeal, set aside the High Court’s order, and directed that the landlord’s possession not be disturbed pending any further adjudication of the tenant’s objections.
Issues considered
- Whether Section 21 of the Delhi Rent Control Act, 1958 requires prior notice to the tenant before a warrant of possession can be issued.
- Whether Section 37(1) of the Act imposes a requirement of notice or hearing before such a warrant is issued.
- Whether the Delhi Rent Control Rules, 1959 (Rule 5) mandate service of notice to the tenant prior to issuance of a warrant of possession.
- Whether alleged fraud in obtaining permission for a limited tenancy invalidates the subsequent warrant of possession.
- What remedy is available to a tenant when fraud or collusion is alleged in the grant of a limited tenancy?
Legislation cited
Subjects
rent controllimited tenancySection 21warrant of possessionnotice requirementnatural justicefraudlandlord-tenant
Judgment
899
J.R. VOHRA
A
v
INDIA EXPORT HOUSE PVT.
-.-- LTD. AND ANOTHER
14th February, 1985
B
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
c
Delhi at a monthly rental of Rs. 5 1000 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 lea11e·dccd it was specificaUy stated that the·
appellant landlord in order to clear the loan taken by him for the construc-
tion 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 E
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 resid-
ing therein with his family members.
On 14th July 1982 tho respondents filed a writ petition (CM No. F
(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 G
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. H
900 SUPREMB COURT REPORTS [1985) 2 s.c.a.
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
ll 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
c 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] l
J.2. An analysis of section 21 of tbe Delhi Rent Control Act will
D 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
E 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 occupa-
F tion 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
G 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
II the warrant of possession for putting the landlord ill possession.
' [906 0-H; 907 A·E)
J. R, VOIJRA v. IND/A EXPORT IJOUSE 901
1.3. Section 21 carve5 out tenancies of particular cateaory for A
special treatment and provides a special procedure that will ensure to the
landlord vacdnt possession of the leased premises forth~witb 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 B
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 c
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 adjudica-
tion of his Jtleas no soorJer he discovers facts and circum:uances that tend to
vitiate ab~initio the initial gr:11nt of permission, and certainly not to wait till
the la1dlord makes bis application for recove1 y of possession after the D
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 su~h plea but he may run lhe risk of getting it rejected
as an after-thought. l912A-D] E
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 Govern-
ment 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 is~uance 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 G
order prejudicially affecting a person shall not be made without hearing him
ai~d 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 non·obstaoto- clause 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. 11
.. [907H; 908C·D}
902 SUPREME COURT RErORTS [1985] 2. S.C.R.
A
CIVIL APPELLATE JURISD!CIION: Civil Appeal No. 3381of1982.
From the judgment and order dated 18.10.82 of the High
Court of D~lhi in C.M. (M) No. 174/82.
V.M. Tarkunde, B. Datta and Mrs. & Mr. A. Minoclza for the
Appellant.
B
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 rais~d in thie appeal is
c 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
D 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.
E 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 con-
struction 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
F 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 contain-
ing the terms and conditions of letting was annexed thereto, clause 2
whereof expressly recited that the premises shall be used by the
G
respondent Company only for the residential purposes of its Chair-
man, 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 pre-
mises were being taken by the respondent company for the residence
of its Chairman (i.e, himself) on a monthly rental 9f Rs. SOQO/- f9f
], R. VOllRA v. INDIA fXPORT llOUSI (Tu/zapurkar, J.) 903
three years with effect from !.6.[979 and the lessee shall vacate the A
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 B
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 c
and, therefore, the appellant filed application under s.21 for reco-
very of possession before the Rent Controller on Ist July·l982; the
/'"-_lo
application was directed to be registered on that day and the appel-
• lant was directed to file a certified copy of the plan on 16.7.1982;
the app~Uant, however, filed the certifiel c~py of the plan on the
6th July 1982; th' R'nt Coatroller, thoreforo c.meolled the date D
!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 appel-
lant. On 9.7.1982 the appollant took possession of the house through
the bailiff and started residing therein with his family members.
E
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
F
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 comm~rcial-cum-residential pur-
poses and therefore, there wis no executable order pursuant to
which any warrant for possession could be issued under s.21 of the
G
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 is-
suance 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- H
904 SUPREME COURT REPORTS [1985] 2. S,C.R,
A
tion and particularly denied that the premises were Jet out for com·
mercial·cum-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 r~fu1ed but was got with·
B
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 appro~ch the Rent Controller to prove their case of
alleged fraud inasmuch as the app:llant hld isoued two registered
c 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
D 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·
E 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
F 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
G
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,
H
i. R. VOHRA v. INDfA EXPORT HOUSE (Tu/zapurkar, i.) 905
as explained by this Court in S.B. Noronah v. Prem Kumari Khanna,(') A
is to afford an assurance to the landlord that he will get back pos-
session 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 B
)
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 c
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
D
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 sec-
tion. 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 Con- E
troller'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 issue-
months ahead of the appellant's application for recovery of posses
sion under s.21. Counsel, therefore, urged both in law as well as F
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
G
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 adjudica-
tion.
H
(I) [19EO] J S.C.R. 281.
;
906 SUPREME COURT REPORTS
A On the· other hand counsel for ihe·respondents 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 excc~tion stage it is open to the. tenant to
p•1t forw1rd a case of fraud in the matter of obtain{ng Rent Con-
troller's permission at the i11iti•I stage for creating a limited tenancy
B 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
s·1clt i'lquiry iuto the plea of ltc1lld wo~ld not be possible ualess
notice i< served upo1 the tenant before inui11; the w4rrant of
possession . .
Cl
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 re~uirc the
whole· or apy p•rt of any p~niics for· a partic~lu
.. .:
D
P"iod, and the llnJlorJ, after obtainin3 the permis-
sion 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 for
0
such pcrio:l a~ mly be agreed to in writing between the land-
lord and the ten1nt and the ten1nt d~cs not, on the expiry
F of th: said ptriod, vac1to such prcmiS>s then, notwithstand-
ing anything contained in soctio1 Hor in any other !Jw, the
Controller may, o:i an applicatio'.1 m1de to him in this be-
h1lf by tae llndl~rd witain su~)l time as m1y be pre;cribed,
place the Jandl~rd in vac1nt po'5ession of the premises or
F
.. 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
G 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 {
G .•
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 con-
H ditions mentioned in the section are genuinely satisfied in every
.
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
B
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 c
such lim;ted tenancy is properly created the second order of putting
the landlord in vacant possession of the leased premis~s 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 non·obstante clause
contained in the section, has no right or protection whatsoever un-
der law to continue in pvssession nor has he any defence to eviction D
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 execu-
tion whereundcr the landlord has to put in possession of the leased
premises by evicting the tenant and every occupant th~reof, and no E
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
F
there is only one rule being Rule 5 which merely provides for period
of limitation by saying that every application for recovery of posses-
sion 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.
G
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
H
908 SUPREME COURT REPORTS [1985) 2. S.C.R.
•
A 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·
B
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·
c dicially affecting a person shall not be made without hearing him and
considering his obj~ctions if any to the proposed order. But an
ord<r can be said to affect a perso~ prej•.idicially only if any right ,I •
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
D 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 --
E 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.
F
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 cate~ory for sp~cial treat·
ment and the raiso:1 d'etro of the provision has been explained by
G 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
H
J, R. VOHRA v. INDIA EXPORT HOUSE (Tulzapurkar, f) 90~
A 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· occu-
B py, 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 be-
come 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
c the •weet promises of a tenant that ho will rel urn the buil-
• • ding 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.
D
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).
E
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
F
though he may not require the premises for a fixed period. More-
over 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
G
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 no-
H tice on the tenant before issuing the warrant of possession against
910 SVPREiie couir REPORlS -'(i9ssj i. s.c.i. ·
A 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
n 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
c 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
u . 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
E ~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
F. · 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 appli-
cation for recovery of possession under the section the tenut raised
pleas that the permises · h1d been let out for non· residential pur·
G pose·s 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
H 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· A
troller should consider and adjudicate upon such pleas but the deci·
sion is no authority for the proposition that up:in receipt of land-
ll)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 B
there cannot be a presumption that in every case there was a mere
ritualistic observance of the proc~dure 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
c
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
D
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 1imited tenancy
or whore such permission was procured by fraud practised by the E
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 F
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 in-
sisting upon service of a prior notice on the tenant bJfore the
issuance of the warrant of possession to evict him but by insisting
G
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.
A 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
B 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 imm~diate 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
c 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.
D
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·
E sion in favour of the app,llant·l>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
F • 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
G Act the appellant had sent two registered notices to the respondent-
company 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. R. VOHRA v. ]~DIA lXPORT HCmE (Tulzapurker, J.) 913
in question tint the respondent-company approached the High A
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 fr~ud 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 B
High Court's order which direct• re1toration or po;,ession of the
)
suit premises to the respondent·comp1ny 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 c
rcspondent-conpiny's objections and/or pleas are finally decided.
Since th' ap~eal rnbitaoti:dly moceed! the respondents are directed
to p1y th' cGst of the appe1I to appellants.
S.R. Appeal allowed.
J .
•
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