1. Heard Smt. Abha Gupta, learned counsel for the petitioner and Sri Shesh Kumar, learned counsel appearing for respondent No.2.
2. This writ petition though by referring to Article 226 of Constitution has been filed but in substance it has invoked supervisory jurisdiction of this Court under Article 227 of Constitution assailing judgment dated 25th February, 1999 (Annexure 4 to the writ petition) passed by District Judge, Mahoba in S.C.C. Revision No.01 of 1998 (Laxman Prasad Tamakar Vs. Subhash Chandra Purwar) whereby Revisional Court while allowing revision has set aside the judgment and decree dated 23rd December, 1997 passed by Small Cause Court/Civil Judge (Junior Division) Mahoba in S.C.C. Suit No.01/1995.
3. The facts in brief are as under:
4. The petitioner Subhash Chandra Purwar, S/o Badri Prasad Purwar filed suit No.1/95 under Section 20(2) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972) (hereinafter referred to as "Act, 1972") impleading Sri Laxman Prasad Tamakar as sole defendant, who has now been substituted by his legal heirs in this writ petition. The aforesaid suit was filed with a prayer for recovery of arrears of rent and ejectment from the shop in question situated at Tamarayee Bazar, Mahoba. It is alleged that defendant-tenant committed default in payment of rent since January, 1995 and his tenancy was terminated by notice dated 4th May, 1995. Despite demand, rent was not paid and therefore he is liable for eviction and payment of arrears of rent. The tenant has a residential accommodation at Subhash Chowk. The petitioner landlord claimed Rs.621.86 towards rent besides damages, water tax, house tax and expenses for filing suit and also mesne profits.
5. The suit was contested by defendant-tenant denying any default in payment of rent. It is said that rent was paid upto May, 1995 though landlord did not furnish any receipt despite repeated demand. It is also stated that house tax and water tax not payable separately but were included in the rent itself. Though it was not disputed that tenant had a residential building (house) at Subhash Chowk, Mahoba but there is no shop therein. The place where the house is situated is not suitable for market. The other grounds regarding goodwill, long continuance of tenancy were also taken.
6. The Trial Court decreed the suit vide judgment dated 23.12.1997 holding tenant defaulter in payment of rent. The Court also observed that entire rent claimed by landlord alongwith expenses, interest etc. was deposited by tenant through Tender submitted before Trial Court on 22.8.1995 and passed on 23.8.1995. The amount was actually deposited on 24th August, 1995. However benefit cannot be extended under Section 20(4) in view of the proviso which denies such benefit to a tenant who has a residential accommodation in the same locality, city etc..
7. The tenant's revision has been allowed by Revisional Court holding that proviso is applicable in respect to a "residential building" though property in question was a shop. The Revisional Court has said that taking recourse to proviso, benefit under sub-section (4) of Section 20 could not have been denied to the tenant when ejectment proceedings are related to a non residential building. Since the tenant had deposited entire dues as contemplated under sub section (4) of Section 20, the Revisional Court held that decree of eviction ought not have been passed. Accordingly it reversed Trial Court's decree and allowed the revision. Hence this writ petition.
8. The question, which has been seriously argued before this Court is that "Revisional Court could not have altered a finding of fact recorded by the Trial Court; the scope of proviso to Section 20(4) could not have been restricted; and, that even otherwise the deposit having not made on first date of hearing namely 22.8.1995, Section 20(4) was inapplicable".
9. Coming to the first issue, however, I do not find any such finding of Trial Court which was a pure finding of fact and has been reversed by Revisional Court. The issues which have been considered by Revisional Court are either pure question of law or mixed question of law and facts. Moreover it is formation of particular opinion or inference from the admitted/proved facts which could have been derived from the existing facts and material on record and if higher Court finds that such inference drawn by Trial Court is not legally sustainable; it is well within its revisional power to correct it.
10. The next argument advanced by Smt. Abha Gupta, Advocate, for the petitioner is that first date of hearing was 22nd August, 1995 though payment was actually made on 24th August, 1995. Hence there was no compliance of Section 20(4). She however could not dispute that the tenant submitted a tender for payment of entire dues including rent, interest and expenses seeking permission of the Court on 22nd August, 1995 which was the "first date of hearing". The order could be passed by Trial Court on the said tender on 23rd August, 1995. Obviously the tenant came to make payment on the first date of hearing i.e. on 22nd August, 1995 but it is on account of procedural delay on the part of Trial Court that he could make payment on 24th August, 1995. It is well established that act of the Court shall prejudice none. The tenant in substance has complied with the requirement of Section 20(4) and in these circumstances, in my view, there is no reason to interfere with the findings of Court below holding that payment actually made by the tenant on 24th August, 1995, in the above facts and circumstances, must be held a sufficient compliance of Section 20(4) entitling the tenant for benefit thereof provided he is not otherwise disqualified or disentitled by any other provision.
11. While construing Section 17 proviso to Provincial Small Cause Court Act, 1887 and its compliance the Apex Court in Kedarnath Vs. Mohan Lal Kesarwari and others, 2002(2) SCC 16 though held that aforesaid provision is mandatory and an application filed requesting for setting aside an ex parte decree passed by a court of Small Causes or for review of its judgement must be accompanied by a deposit of a court of amount due from applicant under decree or in pursuance of a judgment but having said so it further observed that where an application for dispensation is filed thereafter it is for the Court to make a prompt order thereupon and delay on the part of court in passing such an order would not go against the applicant to hold him guilty of non-compliance. The Court said that "delay on the part of the Court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the Court."
12. The compliance of Section 20(4) in order to call for its benefit is mandatory in words and substance but it cannot be stretched to an extent of hyper technicality and conceiving every situation for which the tenant is not responsible yet to hold him guilty of non-compliance. Law does not contemplate compliance of something to the extent of impossibility. It is in this context the Courts have observed that a substantial and virtual compliance would be deemed to be sufficient instead of sticking to every i's and dots. In taking the view, I find support from Apex Court's decision in Mam Chand Pal Vs. Smt. Shanti Agarwal, 2002(1) ARC 370 (SC). Considering Section 20(4) the Court observed "While considering the import of such provisions, it may have to be seen that the requirement of law is substantially and virtually stands satisfied. A highly technical view of the matter will have no place in construing compliance of such a provision. We may, however, hasten to add that it is not intended to lay down that non compliance of any of the requirements of the provision in question is permissible. All the dues and amounts liable to be paid have undoubtedly to be paid or deposited on the date of first hearing but within that framework virtual and substantial compliance may suffice without sticking to mere technicalities of law." (Para 11) (emphasis added)
13. In the context of a petty shortage, a Division Bench of this Court in Amar Nath Agarwal Vs. Ist Addl. District Judge and others 1982 ARC 734 affirmed this Court's decision in Dinesh Chandra Gupta Vs. Kashi Nath Seth, 1976 ALJ 124 that the rule of deminimis can be applied to a case of such petty shortfall. Though the above judgment was in respect to a question if there is a very small or trifling shortfall, principle of deminimis can be brought into aid or not. In this matter it is not the question of shortfall but actual payment made after two days from the date of first hearing but applying the above principle particularly when reason for actual payment is not attributable to tenant but to the procedural delay taken before the Court below, the tenant cannot be made to suffer. Therefore actual payment made by him on 24th August, 1995 would relate back to the date on which he rendered Tender seeking permission of the Court for making payment i.e. 22.8.1995.
14. The last question is, whether proviso to Section 20(4) of Act, 1972 could have been applied in the present case or not.
15. It is not in dispute that the tenant had a residential house in Subhash Chowk, Mahoba i.e. in the same city. It is also not in dispute that eviction proceedings were initiated in respect to an accommodation which is commercial in nature namely "a shop" and not a "residential building".
16. Section 20(4) and its proviso reads as under:
"In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground :
Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area.
Explanation- For the purposes of this sub-section-
(a) the expression "first hearing" means the first date for any step or proceeding mentioned in the summons served on the defendant;
(b) the expression "cost of the suit" includes one-half of the amount of counsel's fee taxable for a contested suit."
(emphasis added)
17. The contention is that application of sub section (4) of Section 20 has been excluded in its entirety in case the tenant or any member of his family has built or otherwise acquired in a vacant state, or has got vacated after acquisition, a "residential building" in the same city, municipality, notified area or town area. It does not talk of the suit whether filed for residential building or commercial or non residential building or otherwise. It excludes the application of Section 20(4) only on occurrence of a particular instance namely construction or acquisition by the tenant or any member of his family, "residential building". The submission is that sub section 4 is in the nature of an exception and therefore it has to be read strictly. Once the tenant admits to have acquired a residential accommodation in the same city, benefit under Section 20(4) is excluded and could not have been applied by Revisional Court.
18. The argument made initially was found quite attractive but on deeper consideration, I find no substance therein and it must be rejected not only being misconceived but also unjust and unreasonable.
19. It is no doubt true that a bare and a literal reading of proviso to Section 20(4) shows that if a tenant or any member of his family has built or otherwise acquire a residential building in a vacant condition in the same city etc. and is contesting a suit under Section 20(1)(a) for eviction on the ground of default in payment of rent, he shall not be given the benefit of sub-section (4) even if he pays the entire dues and expanses etc. on the first date of hearing in the suit. It does not talk of the category of building for which the suit has been filed or pending and only on getting a residential building available, sub-section (4) of Section 20 gets ousted. The petitioner landlord derive this Court to construe the aforesaid provision so as to cover a case where the tenancy in question though non-residential, and ejectment is sought on the ground of default in payment of rent, the tenant has deposited the entire dues etc. on the first date of hearing yet he should not be protected from the decree of eviction giving the benefit under sub-section (4) of Section 20 on the ground that he or his family has acquired or built a residential building in the same city etc. though the residential building as such would not have or may not have any connection with non-residential activities carrying on in the accommodation under tenancy. Can such an unjust, absurd consequence be conceived by reading proviso of Section 20(4) literally. In my view it would have to be answered in negative. Legislature cannot be conceived of such a bizarre consequence which may result in grave injustice to the tenants whose protection has been dominant purpose and intention in the enactment of Act, 1972. It is well established principle of interpretation that language when is plain and explicit, does not admit of any doubtful interpretation, the Court shall not by making reference to an assumed legislative intent or otherwise do violence with the explicit interpretation and meaning of the legislation but resort can be head to legislative intent etc. when the language employed is doubtful, susceptible of meanings more than one or his likely to cause such consequence which cannot be conceived from the bare study of statute in question. The need for interpretation resorting to various parts of statute to gather legislative intention, objective etc. arises when words used in statute are on their own terms ambivalent and so not manifest the intention of legislature clearly.
20. Construing rent control legislations the Apex Court in Malpe Vishwanath Acharya and others Vs. State of Maharashtra and others, 1998(2) SCC 1 said that a social legislation, like the Rent Control Act, the law must strikes a balance between rival interests and it should try to be just to all. The consequence of enactment and enforcement of its provisions cannot be unjust to one and give a disproportionate benefit or protection to another section of the society. Socially progressive legislation must have a holistic perspective approach and not to have narrow or short sighted parochial approach.
21. Similarly construing the role of proviso the Court in Institute of Chartered Financial Analysts of India and others Vs. Council of Institute of Chartered Accountants of India and others, AIR 2007 SC 2091 said that a proviso may restrict the operation of main provision but by reason thereof the rights and liabilities contained in the main provision cannot altogether be taken away.
22. Can it be said that the legislature irrespective of nature of accommodation under tenancy has intended to deprive benefit of sub-section (4) of Section 20 to a tenant on his acquiring or having built a residential accommodation himself or by any member of his family in the same city etc. though it is true that acquisition of a residential building may have consequence in respect to tenant's need to continue in the rented residential accommodation but the same thing would not be true if the accommodation in tenancy is of some different kind, namely, non residential.
23. Cumulative reading of various provisions of Act, 1972 makes it clear that legislature is well aware of different categories of accommodation under tenancy. The term "building" has been defined in Section 3(i) of Act 1972 so as to denote a "residential" or "non-residential" roofed structure and it includes certain other structure specified in the said definition. It reads as under:
"Building", means a residential or non-residential roofed structure and includes-
(i)any land (including any garden), garages and out-houses, appurtenant to such building;
(ii)any furniture supplied by the landlord for use in such building;
(iii)any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof.
24. A building can be let out for various purposes. Broadly it can be categorized as, (i) Residential; (ii) Business; and, (iii) Manufacturing. The above later two categories are also termed as commercial and industrial. The categories (ii) and (iii) collectively may be said "non residential" in contradistinction to the term 'residential. It is no doubt true that in sub-section (1) and sub section (2) of Section 20 only the term "building" has been used enabling the landlord to file suit on specific grounds for eviction of a tenant but in proviso to sub section 4 the legislature has used the word "residential building". Can it be said that a tenant can be allowed to be evicted under Section 20(1) or (2) on the ground of default in payment of rent from a building let out for commercial/manufacturing/industrial purposes if he has built or acquired a "residential accommodation" in the same city etc. where he cannot carry on commercial/industrial/manufacturing activity. There may be various reasons therefor. One of such reason may be that it amounts to change of user and ordinarily the laws of local bodies within whose jurisdiction the building is situated restrain change of user at the discretion of owner of such residential building. A residential building if is used for business or manufacturing activities, it amounts to change of user as held in Bharat Lal Baranwal Vs. Virendra Kumar Agarwal, (2003) 2 SCC 343.
25. The legislature therefore knowing that term "building" applies to both "residential" and "non-residential" cannot be conceived of such unjust and absurd consequences. It has used both the words separately but in proviso to sub section (4) of Section 20 it has used only the word "residential building" and not the mere word "building". It has some reasons therefore which can be gathered from other provision of the Act. In case any literal interpretation is given, as suggested and argued on behalf of the petitioner, it is bound to cause grave injustice to the tenants where they are occupying non residential building and are also not in default yet can be ousted therefrom on possessing a mere residential building. If the contention is accepted, it would amount to evict a tenant for something which has no connection with the building in question for which proceedings are initiated. It would amount to punishing a tenant depriving him his livelihood only on the ground that he has been able to provide shelter to himself and family by owing a residential building.
26. Having gone through the Act, 1972 I find some co-relation to the words "residential building" in proviso to Section 20(4) when read it alongwith Section 12(3). The Court finds that residential and non residential building at different places have been dealt separately. Section 12 deal with "deemed vacancy" of "building". Sub-section (2) provides for a "deemed vacancy" in respect of "non residential building" where a tenant carrying on business in a building admits a person who is not member of his family as partner or new partner. Sub section (3) of Section 12 talks of a "deemed vacancy" in a "residential building" if the tenant or any member of his family built or otherwise acquires a residential building in the same city. Thus where a "residential building" is under tenancy, Section 12 declares a "deemed vacancy" if the tenant or any member of his family has acquired or otherwise got another residential building in the same city, area etc.
27. The language of Section 12(3) and proviso to Section 20(4) is almost similar except a few words, as would be evident from the following:
Section 12(3) Proviso to Section 20(4) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy.
Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area.
28. The above comparison shows that distinction in few words is only contextual but makes no difference in substance. Both the provisions connote to a same situation but in the former, i.e., Section 12(3) it results in a deemed vacancy and in the later, i.e., Section 20(4) proviso, it results in denial of benefit of sub-section (4) of Section 20.
29. Though under Section 20(4) there is no reference to Section 12(3) but it is also a well established principle of interpretation that wherever there is any ambiguity or doubt, the entire statute must be read conjointly and no provision should be given an interpretation in isolation which may cause some violence or result in unwarranted consequences vis a vis other provisions. In case the contention advanced is accepted it is likely to result in strange consequences. In one case the tenant is likely to suffer in respect to a non-residential building despite having paid the entire dues as stated in sub-section (4) of Section 20 and may face ejectment for reason of having built or acquired a residential building in the same city etc. which has nothing to do with the building under tenancy, used for non-residential purposes, and in a different case the landlord gets another ground for eviction of a tenant having built or acquired a residential accommodation in the same city though for a non residential building this fact otherwise is irrelevant.
30. In my view, the proviso to Section 20(4) would be attracted only when the suit under Section 20(1)(a) relates to ejectment of tenant from a residential building only and for taking the aforesaid view this Court could be justified in taking recourse and refer to Section 12(3) also.
31. When a tenant of a "residential building" acquires a "residential building" or build in a vacant condition in a same same city, it results in a "deemed vacancy" and probably for this reason, in a suit for eviction, no benefit has been allowed of sub section 4 to such a tenant who is already deemed to have ceased to occupy a building under his tenancy by virtue of sub section 3 of Section 12.
32. Even otherwise, a purposive interpretation must be given to a statute when its plain reading on the face is bound to create anomalous situation and unjust results, which cannot be conceived of the intention of social welfare of legislation.
33. The Apex Court has also held that Act 1972 is a statute enacted basically to protect interest of tenants and the only provision which shows some sympathy to landlord is relating to release on the ground of bona fide need (See Siddalingama Vs. M. Shenoy, (2001) 8 SCC 561.
34. Further I find support in taking the above view that proviso to Section 20 to sub-section (4) would apply if building sought to be vacated is residential only from a Single Judge judgment of this Court rendered by Hon'ble N.D.Ojha J. (as his Lordship then was) in Sunil Kumar, Mukherji Vs. Kabiraj Bindu Madho Bhattacharaya & others, 1978 ARC 74. The Court observed as under:
"I may here point out that the explanation to the proviso was inserted by Section 13 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976: On a perusal of the proviso, I am of opinion that it applies only to a residential building for otherwise the use of the word 'residential' before the word 'building' in the proviso will have no meaning. If the intention was to make the proviso applicable to every building the word 'residential' would not have been used before the word 'building'. It is an established rule of interpretation that no part of an enactment is to be held as surplusage. In the instant case since admittedly the premises in question were not held by the applicant for residential purposes, his having built a residential building within the meaning of the proviso would be of no consequence. The purpose of the proviso is clear and it is that in case the tenant has an alternative accommodation which he can use for the purpose for which he is occupying the building under his tenancy, he should not be given the benefit of sub-section (4). In the instant case, however, since the premises in question were occupied by the applicant admittedly not for residential purpose but for running a press, namely for commercial purpose, his having built a residential building in the year 1958 would not deprive him of the benefit which he was entitled to in view of his having made the deposit as contemplated by sub-section (4)."
35. In view of the discussion made above, in my view, the Revisional Court has not erred in law or otherwise in giving benefit of sub section (4) of Section 20 to the tenant and thereby dismissing the landlord's suit for eviction by setting aside Trial Court's judgment.
36. The writ petition is devoid of merit. Dismissed.
37. No costs.
Order Date :- 16.8.2012 KA/AK