ABDUL KHUDDUS versus H.M. CHANDIRAMANI (DEAD) THR LRS. & ORS. on 14 September 2021

[2021] 10 S.C.R. 643

ABDUL KHUDDUS

v.

H.M. CHANDIRAMANI (DEAD) THR LRS. & ORS.

(Civil Appeal No. 1833 of 2008)

SEPTEMBER 14, 2021

[HEMANT GUPTA AND A. S. BOPANNA, JJ.]

Karnataka Rent Control Act, 1961 – ss.5 and 21 – KarnatakaMunicipal Corporations Act, 1976 – ss. 322 and 462 – Transfer ofProperty Act – s.108(B)(e) – Plaintiff was inducted as tenant by anallotment order passed by the Rent Controller in a building –Ejectment petition filed on ground of bona fide use by landlord forimmediate purpose of demolition and erection of new building –Corporation served notice u/s.322 of the Act citing dilapidatedcondition of building – The said notice was challenged by filingwrit petition in the High Court – High Court dismissed the writ petitionwith direction to pass final order – Final Order passed by DeputyCommissioner and it directed that if the owner or occupier fails todemolish building within 3 days then action will be taken under theAct – Order served on plaintiff on 6.1.1995 at 5:20 PM anddemolition by the Corporation took place on 9.1.1995 at around 9AM – Order of demolition was not challenged in statutory appeal –Plaintiff filed first suit, seeking mandatory injunction and possessionafter demolition of building, followed by second suit claimingdamages – The trial Court granted decree of the quantified damages– In the first appeal, the High Court held that (i) there was a lack ofbona fide in issuing notice u/s.322 of the Act; (ii) there was no orderpassed u/s. 462 of the Act; (iii) building was demolished in a hastemanner without giving clear 3 days notice – Therefore, the plaintiffentitled to possession of premise comparable in size and form withthat of rented portion of suit property – On appeal, held: Thestatutory tenant cannot seek repossession after demolition of buildingu/s.108(B)(e) of the TP Act as the rights and liabilities of a statutorytenant are to be found under the Rent Act – Since, the premiseswere situated within the urban areas governed by the Rent Act, thetenant has a right to seek possession only in terms of s.27 of the Actif the decree for eviction was passed by the Court on the groundspecified under clause (j) of the proviso to sub-section (1) of s.21 –

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AIn the instant case, the petition for eviction filed by the landlordwas withdrawn – S.322 of the Act is a self-contained provision whichempowers the Commissioner for immediate evacuation of theproperty – The notice u/s.462 was not required to be issued – Thetime for complying with the order does not arise in the case of abuilding which was in a dilapidated condition endangering life ofBthe citizens – Therefore, judgment and decree of the High Court notsustainable – However, as the building was demolished within threedays of receipt of notice, appellant directed to compensate theplaintiff with the damages of Rs. 5 lakhs – Order of High Court setaside – Both the suits dismissed.C

Code of Civil Procedure, 1908 – Or. II, R.2 – A building in adilapidated condition demolished by the corporation – Plaintiff-tenant filed first suit, seeking mandatory injunction and possessionafter demolition of building, followed by second suit claimingdamages – The High Court held that suit is not barred by theDprinciples of Or.II, R.2 of CPC and cause of action in both the suitswas different – Held: Every suit shall include whole of the claimwhich the plaintiff is entitled to make in respect of the cause ofaction – The cause of action is a bundle of facts and relief of damagesis construed to be a component of such bundle of facts – The plaintifffiled first suit after demolition of the building, the right to claimEdamages for loss of the property including goods and machineswas available to the plaintiff on the said date – The plaintiff wasrequired to obtain leave of the Court before filing suit for damagessubsequently – The High Court has clearly erred in law in holdingthat the cause of action for both the suits is different.FAllowing the appeals, the Court

Conclusion

HELD: 1. The judgment of this Court in Shaha RatansiKhimji was dealing with the rights of contractual tenant, thestatutory tenant cannot seek repossession after the demolitionof building under Section 108(B)(e) of the Transfer of PropertyGAct as the rights and liabilities of a statutory tenant have to befound under the Rent Act alone. [Para 31][665-E]

2. The petition for eviction filed by the landlord waswithdrawn. Since the premises are situated within the urban areasgoverned by the Rent Act (Karnataka Rent Control Act, 1961),Hthe tenant has a right to seek possession only in terms of Section 27 of the Act if the decree for eviction has been passed by aCourt on the ground specified under clause (j) of the proviso tosub-section (1) of Section 21. Even if it is assumed that decree ofeviction was passed on the withdrawal of the eviction petition,the tenant has to seek possession of the premises from the dateon which he delivered vacant possession of the premises to thelandlord. The plaintiff filed first suit claiming right over the landafter demolition of the building but being a statutory tenant, hehad to avail the remedy under the Rent Act as the provisions ofthe TP Act are not applicable to the building and land situatedwithin urban area. In view of the provisions of the Act, the termsof the TP Act cannot be applied for in respect of statutory tenants.The High Court has returned a finding that the plaintiff was astatutory tenant. In view of the said fact, the remedy of the tenant,if any, has to be found within four corners of the Rent Act and notunder the TP Act. [Para 32][665-F-H; 666-A-B]

3. Section 322 of the Karnataka Municipal CorporationsAct, 1976 is a self-contained provision which empowers theCommissioner for immediate evacuation of the property and anyperson disobeying such orders was to be removed by any PoliceOfficer. Section 462 of the Act is in respect of execution of anywork or to take any measures or to do anything. The works andthe measures mentioned therein are in respect of other provisionsin the statute which contemplate compliance by the citizens.Section 322 of the Act is an independent provision. Therefore,the notice under Section 462 of the Act was not required to beissued. The time for complying with the order does not arise inthe case of a building which was in dilapidated conditionendangering life of the citizens. [Para 33][666-C-E]

4. The plaintiff had filed the first suit on 27.1.1995 after thetenanted premises were demolished. The right to claim damagesfor loss of the property including goods and machines was availableto the plaintiff on the said date. In fact, in the second suit, theplaintiff has pleaded that the cause of action arose to him on9.1.1995. Every suit shall include whole of the claim which theplaintiff is entitled to make in respect of the cause of action. Thecause of action is a bundle of facts and relief of damages is AB

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Aconstrued to be a component of such bundle of facts. The plaintiffwas conscious of the fact that he wants to sue for damages whichis evident from his averment in para 9 of the plaint of the first 27suit but the plaintiff was required to obtain leave of the Courtbefore filing suit for damages subsequently. The High Court hasclearly erred in law in holding that the cause of action for bothBthe suits is different. [Para 34, 35][666-E-F; 667-B-C]

5. The High Court has returned a finding that the Rent Actwill prevail over the Karnataka Municipal Corporations Act, 1976.However, this Court is unable to agree with this observation.Both the statutes are enacted by the State of Karnataka. The ActCdeals with the municipal functions which are wider and welfare-oriented towards the residents of the area of Corporation, whereasthe Rent Act has a limited application for determining the rightsof land owner and tenant. Both operate in separate spheresas both have different objectives to be achieved. [Para 38]D[668-G-H; 669-A-B]

6.1. The finding of the High Court that the building wasdemolished without giving clear three days’ notice is partlycorrect. The notice was served upon the plaintiff on 6.1.1995 andthe building was demolished on 9.1.1995. Thus, clear three days’Enotice was not served upon the plaintiff. The plaintiff was howeveraware of the proceedings initiated by the Corporation on theground that the building in question was in dilapidated conditionand unsafe for human inhabitation. The plaintiff had challengedsuch notice before the High Court. The High Court had givenfour weeks’ time to the Corporation to pass a speaking orderFafter giving an opportunity of hearing to the plaintiff. The buildingwas inspected by the Deputy Commissioner of the Corporationand opportunity of hearing was granted to the plaintiff as well.Therefore, it is not a case where there was any suddendevelopment leading to the demolition of the building but theGorder of demolition was a considerate action passed after thereport of the Court Commissioner was submitted before the HighCourt and the Corporation was given time to finally decide theshow cause notice issued on 24.5.1994. In fact, there is threedays’ notice from the date of the order but not from the date ofreceipt of the notice. [Para 41, 42][672-G-H; 673-A-D]H

6.2. Once the order was passed by the Corporation on5.1.1995 and was put on the means of communication, the date ofactual receipt of notice is insignificant as the receipt could bedelayed by the recipient, though there is no such attempt orfinding. The wife and daughter of the plaintiff had removed thegoods including sewing machines etc., hence the damages wouldinclude any loss of goods and the machines which were in thetenanted premises in question. Keeping in view the fact that thebuilding was demolished within three days of the receipt of notice,it is deemed appropriate to order the appellant to compensatethe plaintiff with the damages of Rs.5 lakhs. Such amount will bepayable to the legal heirs of the deceased plaintiff in accordancewith law. The appellant shall deposit a sum of Rs. 5 lakhs within aperiod of two months before the trial court. [Para 43][674-F-H;675-A]

Ashoka Marketing Ltd. v. Punjab National Bank (1990)4 SCC 406 : [1990] 3 SCR 649 – followed.

Vannattankandy Ibrayi v. Kunhabdulla Hajee (2001) 1SCC 564: [2000] 5 Suppl. SCR 630; V. DhanpalChettiar v. Yesodai Amma (1979) 4 SCC 214: [1980] 1SCR 334; Pradesh Kumar Bajpai v. Binod Behari Sarkar(Dead) by Lrs (1980) 3 SCC 348: [1980] 3 SCR 93; K.K. Krishnan v. M. K. Vijaya Ragavan (1980) 4 SCC88: [1981] 1 SCR 139; N. Motilal & Ors. v. Faisal BinAli & Anr (2020) 13 SCC 667 : [2020] 1 SCR 556;Suraj Rattan Thirani v. Azamabad Tea Co. Ltd. AIR1965 SC 295 : [1964] 6 SCR 192 ; State of Rajasthanv. Swaika Properties (1985) 3 SCC 217 : [1985] 3 SCR598; State of Punjab v. Khemi Ram (1969) 3 SCC 28 :[1970] 2 SCR 657 – relied on.

Shaha Ratansi Khimji and Sons v. Kumbhar Sons HotelPrivate Limited and Ors. (2014) 14 SCC 1 : [2014] 6SCR 1101; T. Lakshmipathi & Ors. v. P. NithyanandaReddy & Ors. (2003) 5 SCC 150 : [2003] 3 SCR 173;R.S. Grewal & Ors. v. Chander Prakash Soni & Anr(2019) 6 SCC 216 : [2019] 6 SCR 130; Allahabad Bankv. Canara Bank & Anr (2000) 4 SCC 406 : [2000] 2SCR 1102 – referred to.

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ACase Law Reference

From the Judgment and Order dated 28.09.2006 of the High CourtEof Karnataka at Bangalore in R.F.As No.88 of 2004, 1247 of 2005 and15 of 2004.

With

Civil Appeal No. 1834 of 2008.

FSanjay Parikh, Sr. Adv., Ms. Hetu Arora Sethi, Advs. for theAppellant.

Basava Prabhu Patil, Sr. Adv., Yatish Mohan, Subhash ChandraSagar, E. C. Vidya Sagar, Aman Gupta, Ms. Manjula Gupta, ShubhranshuPadhi, Advs. for the Respondents.

GThe Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The present appeals are directed against an order passed bythe Division Bench of the High Court of Karnataka on 28.9.2006 inthree First Appeals filed before it. The first appeal was against theH

judgment and decree passed by the Additional City Civil & SessionsJudge, Bangalore on 16.4.2005 in O.S. No. 10082 of 1995[1] whereby thesuit of plaintiff, now represented by his legal heirs, for permanent andmandatory injunction was dismissed on 16.4.2005. The other appeal arisesout of another suit filed by the plaintiff for claiming damages in O.S. No.16643 of 1999[2] which was decreed on 6.10.2003. The Plaintiff wasfound entitled to recover a sum of Rs.1,25,000/- as damages towardsthe loss/destruction of machineries, furniture, fittings and stock-in-tradeapart from the damages @ Rs.10,000/- per month towards the loss ofbusiness of plaintiff from 9.1.1995 till the possession is restored, subjectto final decision of first suit. The defendants, official respondents andthe owner, filed two separate appeals against the same. The third appealarises out of first suit decided by the Additional City Civil Judge, Bangaloreon 16.4.2005 whereby the suit of the plaintiff for permanent andmandatory injunction was dismissed.

2. All the three appeals were taken up and decided together bythe High Court. The High Court dismissed the appeals arising out of thejudgment and decree passed by the trial court in favour of the plaintiffwhereas, the appeal arising out of judgment and decree in first suit filedby the plaintiff was allowed.

3. The plaintiff was inducted as a tenant on 7.5.1974 by anallotment order passed by the Rent Controller under Section 5 of theKarnataka Rent Control Act, 1961[3]. The rented portion was on the firstfloor of the two-floor building of Premises No. 50, Ebrahim Saheb Street,Civil Station, Bangalore.

4. One Panduranga Shetty was the owner of the building. Suchbuilding was constructed in 1903 with Mangalore tiles and woodenbeams. The appellant Abdul Khuddus was arrayed as defendant No. 7in the first suit and defendant No. 1 in the second suit and was thepurchaser of the front portion of the building vide sale deed dated18.3.1994. Sheikh Hyder purchased the rear portion of the building onthe same date whereas one Sheikh Mohd. purchased the northern sideof the building on 9.12.1994. The Bangalore City Corporation[4] is theappellant in the third appeal.

1 Hereinafter referred to as the ‘first suit’

2 Hereinafter referred to as the ‘second suit’

3 For short, the ‘Rent Act’

4 For short, the ‘Corporation’

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A5. The appellant herein filed an ejectment petition seekingejectment of the plaintiff under Section 21(1)(j) of the Rent Act on theground that the premises were required for bonafide use by the landlordfor the immediate purpose of demolishing them and erecting a new buildingin place of the premises sought to be demolished.B6. A notice under Section 322 of the Karnataka MunicipalCorporations Act, 1976[5] was issued by the Corporation on the groundthat the building was in dilapidated condition, unsafe and dangerous. Theplaintiff challenged the said show cause notice in W.P. No. 20400 of1994 whereby an ad-interim stay was granted by the High Court. Later,Shri B. Ravi Kumar, Advocate was appointed as a Commissioner onC27.9.1994 to visit the property and submit a report which was done on16.11.1994. In the report, it was stated that the building was in a badcondition and that there were also cracks in the building, leakage ofwater etc.

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7. The High Court dismissed the writ petition on 8.12.1994 as theDsame was directed only against show cause notice. However, the HighCourt directed the officials of the Corporation not to demolish the buildingexcept pursuant to a final order to be made within four weeks. Theoperative part of the order of the High Court reads as under:

“5. Accordingly this petition is disposed of with a direction toErespondent-2 not to dismantle the building in question withoutmaking any final order pursuant to notice, Annexure-A and servinga copy of the final order on the petitioner. It is made clear thatnone of the respondents should take any steps to dismantle thebuilding except pursuant to a final order made by respondent-2. ItFis further made clear that if the petitioner sustains any injury onaccount of the alleged dilapidated condition of the building,respondents 7 to 10 shall not be held responsible. Respondent-2shall make the final order within four weeks to serve a copy ofthe same on the petition a week therefrom. Liberty is reservedpetitioner to take steps as are allowed against the final order.”G8. It is thereafter the Deputy Commissioner of the Corporationpassed an order on 5.1.1995 after personally inspecting the building andreturning a finding that the building was in poor condition. It was noticedthat it was the duty of the Corporation to take action in order to prevent H5 For short, the ‘Act’

any imminent danger to the public independently of the dispute, if any,between the parties. The operative part of the order reads as under:

“After careful consideration of all aspects the objections filed bythe occupier Sri. H.M. Chandiramani are overruled and it isordered and directed that the building situated at No. 50, IbrahimSaheb Street, Bangalore, which is in a dilapidated and dangerouscondition be taken down immediately to avoid any danger to thepassers by.

If the owner or occupier fails to take down the building within 3days action will be taken by the Bangalore Mahanagar Palikaunder Section 462(2) of the K.M.C. Act, 1976 to take down thebuilding at the cost of the owner and the said cost will be recoveredas per Section 470 of K.M.C. Act, 1976.”

9. The said order was served upon the plaintiff on 6.1.1995 at5.20 PM and the building was demolished by the Corporation on 9.1.1995at around 9 AM. The possession of vacant land was given to the owners.The order of demolition was not challenged in appeal in terms of Section444 of the Act or before any other authority or forum.

10. The appellant relies upon the communication dated 09.01.1995on behalf of Bina Chandiramani, wife of the deceased plaintiff, andSharmila Chandiramani, daughter of the deceased plaintiff which wasmade in the handwriting of the daughter. It was averred that they havecarried the goods such as garments, machinery, fittings etc., in theabsence of the plaintiff in vehicle No. CAS 337, thus it was an impliedsurrender of possession.

11. The first suit was filed on 27.1.1995 for permanent injunction,though the building stood demolished on 9.1.1995. Subsequently, the suitwas amended to claim relief for mandatory injunction and possession.The plaintiff had pleaded that he would be taking steps for contempt ofcourt for disobedience of the orders of Court and for damages incurred,actual or general. The cause of action was said to have arisen on25.01.1995 when the appellant attempted to commit criminal trespassinto the schedule property in possession of the plaintiff. The relevantextract from the plaint reads thus:

“9. …………The plaintiff will be taking steps against the defendantand corporation officials for contempt of court, disobedience oforders of Court and for damages incurred actual, general by theplaintiff separately.

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A10. In the meanwhile, the defendant, who, under law cannot be inpossession of schedule premises and is attempting to take forciblepossession of the same and letting out and alienate the same toothers and also to put up construction. He cannot do so under law,until disposal of the HRC Petition. The plaintiff has legal right tobe protected. The plaintiff is rudely shocked at the high handednessBof the defendant. In the evening of 25.01.95, alongwith hishenchmen, the defendant tried to commit criminal trespass intothe schedule property and wanted to put up wall etc. whereuponthe plaintiff made hue and cry and by which there was commotionand a oral complaint also given to the police, and in writing onC25.01.95 for which no acknowledgement was given, however thedefendant could not succeed in his attempt and the plaintiff hassent copy of the said complaint under certificate of posting todayto the police.

11. The cause of action for the suit arises within the jurisdiction ofDthis Hon’ble Court at Bangalore on 25.01.95 and subsequentlythereafter, when the plaintiff attempted to commit criminal trespassinto the suit schedule property, within the jurisdiction of this Hon’bleCourt.”

12. The second suit was filed on 30.10.1995 claiming damages,Ethough such right of damages was also available when the first suit wasfiled on 27.1.1995. As mentioned above, the first suit was decided on16.4.2005 which is later than the decree in the second suit. In the firstsuit, a finding was returned that the second suit was barred by theprovisions of Order II Rule 2 of the Code of Civil Procedure, 1908[6]. Thesecond suit was filed as an indigent person wherein the plaintiff claimedFthat he had 12 sewing machines, and other materials at the shop at thetime of demolition. The learned trial court assessed the value ofstock-in-trade of readymade garments and finished goods at aroundRs.50,000/- and another Rs.25,000/- for fittings, fixtures, furniture,electrical fittings etc. The trial court further found that he had lost hisearnings of Rs.10,000/- per month on the basis of Ex.P/40. The decreeGwas to grant quantified damages and to pay Rs. 10,000/- per month tillsuch time, the possession is handed over to the plaintiff.

13. In the first appeal, the Division Bench of the High Court inter-alia held that:H6 For short, the ‘Code’

(i) There is lack of bonafides in issuing notice under Section322 of the Act, therefore, the order passed is not legal andvalid.

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(ii) The notice has been issued without examining the fact thatthe plaintiff has got statutory protection under the Rent Act.The cause of action to demolish the building would ariseBonly after passing an order under Section 462 of the Actand that action of the Corporation is tainted with legalmalafide.

(iii) The building was demolished in haste as the order wasserved upon the plaintiff at 17:20 hours on 6.1.1995 and thebuilding was demolished on 9.1.1995 without giving clear 3days of notice period.

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(iv) Section 21 of the Rent Act has overriding effect underSection 322 of the Act as statutory protection is granted tothe tenant. Therefore, the proceeding under Section 322 ofthe Act was not permissible.

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(v) That the suit is not barred by the principles of Order II ofRule 2 of the CPC.

14. The High Court, thus, allowed the appeal holding that thebuilding in question was demolished in haste and the plaintiff was thusentitled to possession of the building as he was unlawfully dispossessedof the same. The Corporation and the appellant were therefore directedto restore the possession within two months of a shop comparable insize and form in the built portion of the suit property.

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15. Learned counsel for the appellant vehemently argued that theHigh Court proceeded on the assumption that there was an interiminjunction on 15.2.1995 in the first suit, however the building alreadystood demolished on 9.1.1995. The first suit was filed on 27.1.1995subsequent to the demolition. Still further, an application filed by theplaintiff under Order XXXIX Rule 2A of the CPC for violation of aninterim order dated 15.2.1995 was dismissed on 10.8.1998. Thereafter,the first suit was decided on 16.4.2005. Thus, there is a factual error inthe order passed by the High Court.

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16. The proceedings were initiated against the plaintiff under theAct vide notice issued on 24.5.1994. The said order was challenged bythe plaintiff before the Writ Court wherein a Court Commissioner was H

Aappointed who reported about the dilapidated condition of the building.The High Court had given four weeks’ time to the Corporation to passan order on the show cause notice issued. The order was passed on5.1.1995 after giving an opportunity of hearing to the plaintiff and aftervisiting the site by the Deputy Commissioner of the Corporation. Thus,the plaintiff was well aware of the proceedings initiated against him byBthe Corporation. The order of dismissal of the writ petition on 8.12.1994was not challenged by the plaintiff. Since the Corporation was givenfour weeks’ time to pass a final order, therefore, the Corporation wasbound to pass an order in terms of the direction of the High Court, whichwas passed on 5.1.1995. The said order was served on 6.1.1995. TheCbuilding was demolished on 9.1.1995, which was the third day of servingof the said order. Therefore, there is no violation neither of the order ofthe High Court nor the building was demolished in haste.

17. It was also argued that the plaintiff was bound to include hisclaim for damages in the first suit which was filed on 27.1.1995 after the Ddemolition had taken place. Since no grievance was raised in the firstsuit regarding damage to the property or to the loss of business, thesecond suit would be barred by the provision of Order II Rule 2 CPC.However, as per the plaintiff, the cause of action arose on 09.01.1995,when the plaintiff was dispossessed from the schedule property. Therelevant extract from the plaint of the second suit reads as under:E“The cause of action for the suit arises within the jurisdiction ofthis Hon’ble Court at Bangalore on 09.01.95 being date whenplaintiff was disposed from the schedule premises with hisbelongings etc. and as stated above and subsequently on variousdates when notices have been issued and acknowledged by theFdefendants-6. The value of the suit for purpose of (illegible) andjurisdiction is as per valuation (illegible) plaintiff is indigent personand he may be permitted to prosecute the above case in pharma(illegible) as he is unable to pay court fee.”

18. The finding of the High Court that notice under Section 322 ofthe Act was not bonafide as tenant has the protection of the Rent ActGwas assailed on the ground that the proceedings under the Rent Act arerestricted between landlord and tenant to seek ejectment on thepermissible grounds whereas the Act is much wider to ensure publicsafety on account of dilapidated building endangering the life and propertyof the occupants. Both the Acts operate in their assigned separate fieldsHand therefore, it cannot be said that the Rent Act has the preference

over the Act. It was also argued that the order passed by the Corporationon 5.1.1995 was keeping in view the building which was in old dilapidatedcondition and could be a cause of danger to the public. The finding of theHigh Court that the proceedings under the Act was an act of collusionbetween the owner and the Corporation is misconceived only for thereason that the appellant has withdrawn rent proceedings after thedemolition of the building on 6.2.1995. The tenanted portion had ceasedto exist after demolition; therefore, the relief of ejectment was no longeravailable to the appellant.

19. On the other hand, learned counsel for the respondents hereinargued that the order of demolition was served upon the deceased plaintiffon 6.1.1995 at 5:20 pm and the building was demolished on 9.1.1995 at9:00 am. Therefore, there was no clear three days’ notice granted to theplaintiff to vacate the premises nor to avail any legal remedy. It wasfurther argued that order under Section 322 of the Act could not beexecuted without passing an order under Section 462 of the Act. Learnedcounsel supported the findings of the High Court that it was highhandedness of the officials of the Corporation and the appellant whichled not only to loss of the premises but loss of business as well. Section322 and Section 462 of the Act read as under:

“322. Precautions in case of dangerous structures. – (1) If anystructure be deemed by the Commissioner to be in a ruinous stateor dangerous to passersby or to the occupiers of neighbouringstructures, the Commissioner may, by notice require the owner oroccupier to fence off, take down, secure or repair such structureso as to prevent any danger therefrom.

(2) If immediate action is necessary, the Commissioner mayhimself, before giving such notice or before the period of noticeexpires fence off, take down, secure or repair such structure orfence off a part of any street or take such temporary measuresas he thinks fit to prevent danger and the cost of doing so shall berecoverable from the owner or occupier in the manner providedin Section 470.

(3) If in the Commissioner’s opinion the said structure is imminentlydangerous to the inmates thereof, the Commissioner shall orderthe immediate evacuation thereof and any person disobeying maybe removed by any police officer.

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A462. Time for complying with order and power to enforce in default.– (1) Whenever by any notice, requisition or order made underthis Act or under any rule, bye-law or regulation made under it,any person in required to execute any work, or to take any measuresor do anything, a reasonable time shall be named in such notice,requisition or order within which the work shall be executed, theBmeasures taken, or the thing done.

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(2) If such notice, requisition or order is not complied with withinthe time so named, then whether or not a fine is provided for suchdefault and whether or not the person in default is liable topunishment or has been prosecuted or sentenced to any punishmentCfor such default, the Commissioner may cause such work to beexecuted, or may take any measure or do anything which may, inhis opinion, be necessary for giving due effect to the notice,requisition or order as aforesaid.

(3) If no penalty has been specially provided in this Act for failureDto comply with such notice, the said person shall, on conviction, be punished with fine not exceeding fifty rupees for such offence.”

20. The plaintiff asserted that the area of the subject shop was1000 sq. feet (approx.). Reliance was placed upon schedule of propertygiven in plaint of the first suit. It was submitted that the right of a tenantEsurvives even after demolition of tenanted premises. Reference wasmade to Section 27 of the Rent Act as well as three-judge bench judgmentof this Court reported as Shaha Ratansi Khimji and Sons v. KumbharSons Hotel Private Limited and Ors.[7] holding that in terms of Section108B(e) of the Transfer of Property Act, 1882[8], the destruction oftenanted property would not amount to determination of tenancy underFSection 111 of the TP Act. Reliance was also placed upon some judgmentsof the High Courts in support of such argument.

21. In respect of area of tenanted premises, the plaintiff reliedupon the schedule of the property in the suit for injunction. Such scheduledoes not show the area in possession but shows the boundaries of theGbuilding. As per the Court Commissioner, the entire building measuredabout 38 feet x 16 feet. The Commissioner had given the report thatnorthern side of the ground floor was damaged as in the inside wall,there were air cracks and leakage of water. Some of the portion of the 7 (2014) 14 SCC 1H8 For short, the ‘TP Act’

building towards the northern side had already fallen down. The westernside, adjacent to the northern wall was also in a very bad condition asthe roof of the room was damaged by the cracks and leakage of waterfrom the roof inside the northern wall. In the middle of northern wall onthe first floor, 1½” cracks appeared inside the wall from the top of theroof. The length of the said crack was about 6 feet from the top. Theleakage of the water from the roof of the first floor and cracks werecoming in the wall of the southern side as well. The Court Commissionerfound that there were cracks in the building and leakage of water on thenorthern side wall. The area of tenanted premises was not an issue,which would be relevant as to whether the tenanted premises had beendemolished without adequate notice or if the tenant has right to enterinto possession of building constructed on the site in question.

22. We have heard learned counsel for the parties and found thatthe judgment and decree of the High Court cannot be sustained. Theargument of the plaintiff was that in spite of demolition of the building bythe Corporation, the tenancy rights survive as the right of tenancy is notonly in building but also in the land. Thus, the plaintiff was entitled toequivalent size of shop in the building which has been constructed on theland of which the Plaintiff was a tenant on the first floor. Reliance hasbeen placed on judgment of this Court in Shaha Ratansi Khimji whereinthe godown in possession of the tenant was demolished. The assertionof the tenant in the said case was that the owner started digging ofbasement for construction of a hotel next to the wall of godown. Thetenant filed a suit for injunction claiming restraint order against the ownerfrom digging as it would endanger the godown. The tenant claimed byway of an amendment to reconstruct the walls of godown. The learnedtrial court dismissed the suit. The appeal as well as the second appealagainst the said judgment was also dismissed. This Court, in an appealdirected against the three orders passed by the courts below interpretedSection 108(B)(e) of the TP Act holding that right has not been conferredby the statute on the lessor for determination, therefore, it will not bepermissible for the Court to add another ground of base or fulcrum ofethicality, difficulty or assumed supposition. The tenancy rights wouldcontinue over the land even after the building was demolished. ThisCourt approved the judgment of this Court reported as T. Lakshmipathi& Ors. v. P. Nithyananda Reddy & Ors.[9] wherein the landlord initiatedeviction proceedings on the ground that he requires the premises for his AB

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Aown bona fide use and that tenant was in arrears of rent and had alsosub-let the premises. This Court overruled the judgment of this Courtreported as Vannattankandy Ibrayi v. Kunhabdulla Hajee[10]and heldas under:

“23. In Vannattankandy Ibrayi the learned Judges referred toBthe decision on common law, the principles in Americanjurisprudence, and various decisions of the High Courts andadverted to two categories of tenants, namely, a tenant under theTransfer of Property Act and the other under the State rent oflaws and proceeded to interpret Section 108(B)(e) to hold thatwhere a premises has fallen down under the circumstancesCmentioned therein, the destruction of the shop itself does not amountto determination of tenancy under Section 111 of the Act andthere is no automatic determination of tenancy and it continues toexist…….

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27……………………….On the touchstone of this analysis, werespectfully opine that the decision rendered in VannattankandyIbrayi (supra) does not correctly lay down the law and it is,accordingly, overruled.

E28. In the present case, it is not in dispute that the respondentpurchased the lessor’s interest. The lease continued eventhereafter and did not extinguish. The lease was subsisting whenthe shares of the land were purchased by the respondent. But theinterest of the lessee was not purchased by the respondent. Whathas been purchased by the respondent is the right and interest ofFownership of the property. The interest of the appellant as lesseehas not been vested with the respondent. Therefore, we are ofthe view that the tenancy of the appellant cannot be said to havebeen determined consequent upon demolition and destruction ofthe tenanted premises.

G29. In view of the facts and circumstances of the case, we haveno other option but to set aside the impugned judgment and decreedated 18-7-2006 passed by the High Court of Judicature ofBombay in Shaha Ratansi Khimji & Sons v. Proposed KumbharSons Hotel (P) Ltd. [Shaha Ratansi Khimji & Sons v. Proposed

Kumbhar Sons Hotel (P) Ltd., Second Appeal No. 109 of 2006,decided on 18-7-2006 (Bom)] and judgment and decree dated30-11-2005 passed by the Additional District Judge, Karad in RCANo. 86 of 2002. However, taking into consideration the fact thatthe appellant is not in possession of the suit property since long,we are not inclined to direct restoration of possession of suitproperty to the appellant. Instead we direct the respondent to paya sum of Rs 20,00,000 (Rupees twenty lakhs only) in favour ofthe appellant towards compensation for depriving the appellantfrom enjoying the suit property within two months, failing which itshall be liable to pay interest @ 6% per annum from the date ofthe judgment.”

23. A perusal of the above extract from the judgment shows thatthis Court noticed that there are two categories of tenants namely, atenant under the TP Act and the other under the State Rent Laws. Thereis no assertion that the property in question in the said case was governedby State Rent Laws. It was a case where the owner started digging aditch towards the northern side wall of the suit property. During therainy season, the water used to get accumulated in the said ditch andthat the owner closed the access road to the said property. It was alsoalleged that the owner went ahead with destruction of the godown anddemolished the western wall of the godown. The judgment does not dealwith statutory tenant protected by a particular statute but with theprinciples of a contractual tenancy in terms of Section 108(B)(e) of theTP Act. In fact, the para quoted in the three judge bench judgment is analternate argument raised in the Vannattankandy Ibrayi, which is evidentfrom the following para:- “20. From the aforesaid decisions there is no doubt that if a buildingis governed by the State Rent Act the tenant cannot claim benefitof the provisions of Sections 106, 108and 114of the Act.Let ustest the arguments of learned counsel for the appellant thaton the destruction of the shop the tenant can resist hisdispossession on the strength of Section 108B(e).In this casewhat was let out to the tenant was a shop for occupation to carryon business. On the destruction of the shop the tenant has ceasedto occupy the shop and he was no longer carrying on businesstherein. A perusal of Section 108(B)(e) shows that where apremises has fallen down under the circumstances mentionedtherein the destruction of the shop itself does not amount to AB

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[2021] 10 S.C.R.

Adetermination of tenancy under Section 111of the Act. In otherwords there is no automatic determination of tenancy and itcontinues to exist……………..”

(Emphasis Supplied)

24. In Shaha Ratansi Khimji, the Court has considered theBalternative argument assuming that Section 108(B)(e) of the TP Act isapplicable. However, the primary argument that being a statutory tenant,right has to be culled out only from the Rent Laws had not been raisedor considered. It is the alternative argument which has not found favourwith the three Judge Bench in Khimji case. In respect of the statutoryCtenant, different aspects of rights of statutory tenant need to be examined,which are not the same as rights of a lessee under the TP Act.

25. A Seven Judge Bench in the judgment reported as V. DhanpalChettiarv.Yesodai Ammal[11]was examining a question as to whether astatutory tenant is entitled to notice of termination of tenancy contemplatedDby Section 106 of the TP Act or not. It was held that since statutorytenant is entitled to protection under the Rent Act, therefore, theprocedure prescribed under the TP Act would not be applicable. TheCourt held as under:

“5. ....The subject being in the concurrent list, many State RentEActs have by necessary implication and many of them by startingcertain provisions with a non-obstante clause have done awaywith the law engrafted in Section 108 of the Transfer of PropertyAct except in regard to any matter which is not provided for inthe State Act either expressly or by necessary implication.

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13. ...The notice does not bring to an end such a relationshipbecause of the protection given to the tenant under the Rent Act.If that be so then it is not necessary for the landlord to terminatethe contractual relationship to obtain possession of the premisesfor evicting the tenant. If the termination of the contractual tenancyGby notice does not, because of the Rent Act provisions, entitle thelandlord to recover possession and he becomes entitled only if hemakes out a case under the special provision of the State RentAct, then, in our opinion, termination of the contractual relationship H11 (1979) 4 SCC 214

by a notice is not necessary. The termination comes into effectwhen a case is successfully made out for eviction of the tenantunder the State Rent Act. We say with utmost respect that on thepoint of requirement of a notice under Section 106 of the Transferof Property Act Mangilal case [AIR 1965 SC 101: (1964) 5 SCR239] was not correctly decided.

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16. ...Even if the lease is determined by a forfeiture under theTransfer of Property Act the tenant continues to be a tenant, thatis to say, there is no forfeiture in the eye of law. The tenantbecomes liable to be evicted and forfeiture comes into play only ifhe has incurred the liability to be evicted under the State RentAct, not otherwise. In many State statutes different provisionshave been made as to the grounds on which a tenant can beevicted and in relation to his incurring the liability to be so evicted.Some provisions overlap those of the Transfer of Property Act.Some are new which are mostly in favour of the tenants but someare in favour of the landlord also. That being so the dictum of thisCourt in Raj Brij case [AIR 1951 SC 115: 1951 SCR 145: 1951SCJ 238] comes into play and one has to look to the provisions oflaw contained in the four-corners of any State Rent Act to findout whether a tenant can be evicted or not. The theory of doubleprotection or additional protection, it seems to us, has been stretchedtoo far and without a proper and due consideration of all itsramifications.

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18. .…If we were to agree with the view that determination oflease in accordance with the Transfer of Property Act is a conditionprecedent to the starting of a proceeding under the State RentAct for eviction of the tenant, we could have said so with respectthat the view expressed in the above passage is quite correctbecause there was no question of determination of the lease againonce it was determined by efflux of time. But on the firstassumption we have taken a different view of the matter andhave come to the conclusion that determination of a lease inaccordance with the Transfer of Property Act is unnecessaryand a mere surplusage because the landlord cannot get eviction A

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Aof the tenant even after such determination. The tenant continuesto be so even thereafter. That being so, making out a case underthe Rent Act for eviction of the tenant by itself is sufficient and itis not obligatory to found the proceeding on the basis of thedetermination of the lease by issue of notice in accordance withSection 106 of the Transfer of Property Act.”B

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26. In a later judgment reported as Pradesh Kumar Bajpai v.Binod Behari Sarkar (Dead) by Lrs.[12], a three Judge Bench of thisCourt was examining the claim of tenant with respect to right to payarrears of rent in terms of Section 114 of the TP Act. The followingargument was examined:C

“9. …….The only question that arises and which was seriouslycontended for on behalf of the respondent is that in addition to thesafeguards provided to the tenant under the Act, he is also entitledto the benefits of Section 114 of the Transfer of Property Act.Section 3 of the U.P. (Temporary) Control of Rent and EvictionDAct 3 of 1947 restricts the rights of the landlord to have the tenantevicted. But for the statutory provisions, the landlord would beentitled to evict the tenant according to the terms of the contractor the provisions of the Transfer of Property Act. As the RentAct has restricted the power of the landlord to evict the tenantEexcept in accordance with the provisions of the Act, the terms ofthe contract and the provisions of the Transfer of Property Act tothat extent are no longer applicable.”

27. The question raised on the basis of the argument of the tenantwas found to be without any substance that he was entitled to doubleFprotection under the Rent Act and under the TP Act. The Court held asunder:

“12. …..If the relief provided for under the section is available, asthe lessee had tendered the rent in arrears along with the interestthereon and his full costs in the suit, it was open to the court toGpass an order relieving the lessee against the forfeiture. The pleaof the learned Counsel for the tenant is that this provision shouldalso be read into the U.P. (Temporary) Control of Rent and EvictionAct. In a decision of seven-Judges, Bench of this Court in V.Dhanapal Chettiar v. Yasodai Ammal [(1979) 4 SCC 214 : (1980)

1 SCR 334] the question as to whether in order to get a decreefor eviction, the landlord under the Rent Control Act should givenotice as required under Section 106 of the Transfer of PropertyAct was considered. This Court held that determination of thelease in accordance with the Transfer of Property Act isunnecessary and that if a case is made out for eviction under theRent Act, it is itself sufficient and it is not obligatory to determinethe lease by issue of notice as required in accordance with Section106 of the Transfer of Property Act. The learned Counsel for thetenant submitted that the decision is confined only to the questionas to whether notice under Section 106 of the Transfer of PropertyAct is necessary and did not decide as to whether the provisionsof the other sections of the Transfer of Property Act are applicable.It is to be noted, however, that the question of determination of alease by forfeiture under the Transfer of Property Act, wasspecifically dealt with by the court and it was held that the claimof the tenant that he is entitled to a double protection (1) under theRent Act and (2) under the Transfer of Property Act, is withoutany substance.

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In the case before us, it is not in dispute that after the Rent Actcame into force, the landlord cannot avail himself of clause 12which provides for forfeiture, even if the tenant neglected to paythe rent for over two months. The landlord cannot enter intopossession forthwith without notice. The only remedy for him isto seek eviction under the provisions of the Rent Act. In suchcircumstances the tenant cannot rely on Section 114 of Transferof Property Act and claim that he should be given an opportunityto pay the arrears of rent, even though the requirements of Section3(1) had been fulfilled.”

28. In another judgment reported as K. K. Krishnan v. M. K.Vijaya Ragavan[13] an argument was raised relying upon Section 108(j)of the TP Act that lessee has a right to sublease the whole or any part ofhis interest in the property. Therefore, the landlord cannot seek evictionon the ground of subletting under the Kerala Buildings (Lease and RentControl) Act. The Court held as under:

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A“8. It is clear from what has been said that not all the rightsconferred on landlord and tenant by Section 108 and otherprovisions of the Transfer of Property Act have been left in tactby the various State Rent Acts and that if a State Rent Act makesprovision for eviction on certain specified grounds, eviction cannotbe resisted on the basis of rights conferred by the Transfer ofBProperty Act. Section 108(j) of the Transfer of Property Act standsdisplaced by Section 11(4)(i) of the Kerala Buildings (Lease andRent Control) Act and is no defence to an action for evictionbased on Section 11(4)(i).”

29. In another judgment reported as R.S. Grewal & Ors. v.CChander Prakash Soni & Anr.[14], the Court was examining a casewhere a legatee under a Will was given life interest. It was argued thatcreation of a tenancy which will continue beyond the life of the legateewill amount to transfer of the interest beyond the life of the legatee. TheCourt held that the protection which is conferred upon the tenant againstDeviction, except on specified grounds, arises as a consequence of statutoryprescription under rent control legislation. The Court held as under:

“28. A statutory protection granted for the benefit of thetenants under specific tenancy laws is to be viewed from astandpoint of protecting the interests of a particular class.ERestrictions on recovery of possession of the premises let out tothe tenants have been imposed for the benefit of the tenants as amatter of legislative policy.

29. There is a fallacy in the submission which was urgedon behalf of the appellant. The appellant postulates that a lifeFinterest is personal to the person who possesses it and the creationof a tenancy which will enure beyond her life amounts to a transferof the life interest. What the submission overlooks is that thecreation of the tenancy was an act of the person enjoying a lifeinterest in the present case and was an incident of the authority ofthat individual to generate income from the property for her ownGsustenance. The creation of a tenancy is an incident of the exerciseof such an authority. The protection which is conferred upon thetenant against eviction, except on specified grounds, arises as aconsequence of statutory prescription under rent control legislation.The reason why the tenant is entitled to occupy the premises beyond the lifetime of the landlord who created the tenancy issimply as a result of a statutory enactment, in this case, the EastPunjab Rent Restriction Act, 1949. It is the intervention of alegislative mandate which enures to the benefit of the tenant. Oncethis has taken place, it was not open to the civil court to entertaina suit for possession founded on the hypothesis that the tenant isa trespasser.”

30. In another judgment reported as N. Motilal & Ors. v. FaisalBin Ali & Anr.[15], it was held that even during the period of contractualtenancy, if the premises are governed by the Rent Laws, the partieshave an option to seek determination of fair rent. It was held as under:

“14. The Constitution Bench judgment in Raval & Co. case [Raval& Co. v. K.G. Ramachandran, (1974) 1 SCC 424] as well as theseven-Judge Bench judgment in V. Dhanapal Chettiar case [V.Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214] arebinding which categorically had laid down that the application fordetermination of fair rent can be made both by the landlord andthe tenant which can be made even during currency of contractualtenancy. We, thus, find the submission made by the learned counselfor the appellants in the above regard without any substance.”

31. In view of the binding decisions of the larger bench and keepingin view the fact that the judgment of this Court in Shaha Ratansi Khimjiwas dealing with the rights of contractual tenant, the statutory tenantcannot seek repossession after the demolition of building under Section108(B)(e) of the TP Act as the rights and liabilities of a statutory tenanthave to be found under the Rent Act alone.

32. The petition for eviction filed by the landlord was withdrawn.Since the premises are situated within the urban areas governed by theRent Act, the tenant has a right to seek possession only in terms ofSection 27 of the Act if the decree for eviction has been passed by aCourt on the ground specified under clause (j) of the proviso to sub-section (1) of Section 21. Even if it is assumed that decree of evictionwas passed on the withdrawal of the eviction petition, the tenant has toseek possession of the premises from the date on which he deliveredvacant possession of the premises to the landlord. The plaintiff filed firstsuit claiming right over the land after demolition of the building but being A

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Aa statutory tenant, he had to avail the remedy under the Rent Act as theprovisions of the TP Act are not applicable to the building and land situatedwithin urban area. In view of the provisions of the Act, the terms of theTP Act cannot be applied for in respect of statutory tenants. The HighCourt has returned a finding that the plaintiff was a statutory tenant. Inview of the said fact, the remedy of the tenant, if any, has to be foundBwithin four corners of the Rent Act and not under the TP Act.

33. Another argument raised by the tenant was that a notice underSection 462 of the Act was not served. We do not find any merit in thesaid argument. Section 322 of the Act is a self-contained provision whichempowers the Commissioner for immediate evacuation of the propertyCand any person disobeying such orders was to be removed by any PoliceOfficer. Section 462 of the Act is in respect of execution of any work orto take any measures or to do anything. The works and the measuresmentioned therein are in respect of other provisions in the statute whichcontemplate compliance by the citizens. Section 322 of the Act is anDindependent provision. Therefore, the notice under Section 462 of theAct was not required to be issued. The time for complying with theorder does not arise in the case of a building which was in dilapidatedcondition endangering life of the citizens. Thus, we do not find any meritin the said argument as well.

E34. The plaintiff had filed the first suit on 27.1.1995 after thetenanted premises were demolished. The right to claim damages forloss of the property including goods and machines was available to theplaintiff on the said date. In fact, in the second suit, the plaintiff haspleaded that the cause of action arose to him on 9.1.1995. The Order IIRule 2 CPC reads thus:F

“2. Suit to include the whole claim. – (1) Every suit shall includethe whole of the claim which the plaintiff is entitled to make inrespect of the cause of action; but a plaintiff may relinquish anyportion of his claim in order to bring the suit within the jurisdictionof any Court.

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(2) Relinquishment of part of claim.—Where a plaintiff omitsto sue in respect of, or intentionally relinquishes, any portion of hisclaim, he shall not afterwards sue in respect of the portion soomitted or relinquished.

(3) Omission to sue for one of several reliefs.—A person entitledHto more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except withthe leave of the Court, to sue for all such reliefs, he shall notafterwards sue for any relief so omitted.”

35. A perusal of the above Rule would show that every suit shallinclude whole of the claim which the plaintiff is entitled to make in respectof the cause of action. The cause of action is a bundle of facts and reliefof damages is construed to be a component of such bundle of facts. Theplaintiff was conscious of the fact that he wants to sue for damageswhich is evident from his averment in para 9 of the plaint of the first suitbut the plaintiff was required to obtain leave of the Court before filingsuit for damages subsequently. The High Court has clearly erred in lawin holding that the cause of action for both the suits is different.

36. The cause of action as held in Suraj Rattan Thirani v.Azamabad Tea Co. Ltd.[16]is a bundle of facts which included the reliefof possession as well as the loss which occurred on account of allegeddemolition. This Court held as under:

“29. We consider that the test adopted by the Judicial Committeefor determining the identity of the causes of action in two suits inMohammed Khalil Khan v. Mahbub Ali Mian [75 IA 121] issound and expresses correctly the proper interpretation of theprovision. In that case Sir Madhavan Nair, after an exhaustivediscussion of the meaning of the expression “same cause of action”which occurs in a similar context in para (1) of Order 2 Rule 2 ofthe Civil Procedure Code observed:

“In considering whether the cause of action in the subsequent suitis the same or not, as the cause of action in the previous suit, thetest to be applied is/are the causes of action in the two suits insubstance — not technically — identical?”

30. The learned Judge thereafter referred to an earlier decisionof the Privy Council in Soorijomonse Dasee v. Suddanund[(1873) 12 Beng LR 304, 315] and extracted the following passageas laying down the approach to the question:

“Their Lordships are of opinion that the term ‘cause of action’ isto be construed with reference rather to the substance than to theform of action….”

16 AIR 1965 SC 295

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AApplying this test we consider that the essential bundle of factson which the plaintiffs based their title and their right to reliefwere identical in the two suits. The property sought to be recoveredin the two suits was the same. The title of the persons from whomthe plaintiffs claimed title by purchase, was based on the samefact…….”B

37. In State of Rajasthan v. Swaika Properties[17], this Courtheld that cause of action is a bundle of facts which taken with the lawapplicable to them gives the plaintiff a right to seek relief against thedefendant. The Court held as under:- C“8. The expression “cause of action” is tersely defined in Mulla’sCode of Civil Procedure:

“The ‘cause of action’ means every fact which, if traversed, itwould be necessary for the plaintiff to prove in order to supporthis right to a judgment of the court.”

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In other words, it is a bundle of facts which taken with the lawapplicable to them gives the plaintiff a right to relief against thedefendant. The mere service of notice under Section 52(2) of theAct on the respondents at their registered office at 18-B,Brabourne Road, Calcutta i.e. within the territorial limits of theEState of West Bengal, could not give rise to a cause of actionwithin that territory unless the service of such notice was an integralpart of the cause of action. The entire cause of action culminatingin the acquisition of the land under Section 52(1) of the Act arosewithin the State of Rajasthan i.e. within the territorial jurisdictionof the Rajasthan High Court at the Jaipur Bench. The answer toFthe question whether service of notice is an integral part of thecause of action within the meaning of Article 226(2) of theConstitution must depend upon the nature of the impugned ordergiving rise to a cause of action. The notification dated February 8,1984 issued by the State Government under Section 52(1) of theGAct became effective the moment it was published in the OfficialGazette as thereupon the notified land became vested in the StateGovernment free from all encumbrances. ……………………..”

38. The High Court has returned a finding that the Rent Act willprevail over the Act. However, we are unable to agree with this H17 (1985) 3 SCC 217

observation. Both the statutes are enacted by the State of Karnataka.The Act deals with the municipal functions which are wider and welfare-oriented towards the residents of the area of Corporation, whereas theRent Act has a limited application for determining the rights of landowner and tenant. Both operate in separate spheres as both have differentobjectives to be achieved.

39. In Ashoka Marketing Ltd. v. Punjab National Bank[18], aConstitution Bench held that where the literal meaning of the generalenactment covers a situation for which specific provision is made byanother enactment contained in the earlier Act, it is presumed that thesituation was intended to continue to be dealt with by the specific provisionrather than the later general one. The Court held as under:- “41. As a result of this comparison it can be said that certainpremises, viz. building or parts of buildings lying within the limitsof the New Delhi Municipal Committee and the Delhi CantonmentBoard and in urban areas within the limits of the MunicipalCorporation of Delhi, which belong to or are taken on lease byany of the companies or statutory bodies mentioned in clauses (2)and (3) of Section 2(e) of the Public Premises Act and which arein occupation of a person who obtained possession of the saidpremises as a tenant and whose tenancy has expired or has beenterminated but who is continuing in occupation of the same, wouldex-facie fall within the purview of both the enactments. Thequestion which, therefore, arises is whether the occupant of suchpremises can seek protection available under the provisions ofRent Control Act and he can be evicted from the premises only inaccordance with the said provisions and proceedings for evictionof such a person cannot be initiated under the provisions of thePublic Premises Act.

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49. This means that both the statutes, viz. the Public PremisesAct and the Rent Control Act, have been enacted by the samelegislature, Parliament, in exercise of the legislative powers inrespect of the matters enumerated in the Concurrent List. Weare, therefore, unable to accept the contention of the learnedAdditional Solicitor General that the Public Premises Act, having A

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been enacted by Parliament in exercise of legislative powers inrespect of matters enumerated in the Union List would ipso factooverride the provisions of the Rent Control Act enacted in exerciseof the legislative powers in respect of matters enumerated in theConcurrent List. In our opinion the question as to whether theprovisions of the Public Premises Act override the provisions ofthe Rent Control Act will have to be considered in the light of theprinciples of statutory interpretation applicable to laws made bythe same legislature.

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50. One such principle of statutory interpretation which is appliedis contained in the latin maxim : leges posteriores prioresconterarias abrogant (later laws abrogate earlier contrary laws).This principle is subject to the exception embodied in the maxim :generalia specialibus non derogant (a general provision doesnot derogate from a special one.) This means that where the literalmeaning of the general enactment covers a situation for whichspecific provision is made by another enactment contained in theearlier Act, it is presumed that the situation was intended tocontinue to be dealt with by the specific provision rather than thelater general one (Bennion, Statutory Interpretation pp. 433-34).

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55. The Rent Control Act makes a departure from the generallaw regulating the relationship of landlord and tenant contained inthe Transfer of Property Act inasmuch as it makes provision fordetermination of standard rent, it specifies the grounds on whicha landlord can seek the eviction of a tenant, it prescribes the forumFfor adjudication of disputes between landlords and tenants andthe procedure which has to be followed in such proceedings. TheRent Control Act can, therefore, be said to be a special statuteregulating the relationship of landlord and tenant in the Unionterritory of Delhi. The Public Premises Act makes provision for aspeedy machinery to secure eviction of unauthorised occupantsGfrom public premises. As opposed to the general law whichprovides for filing of a regular suit for recovery of possession ofproperty in a competent court and for trial of such a suit inaccordance with the procedure laid down in the Code of CivilProcedure, the Public Premises Act confers the power to pass anorder of eviction of an unauthorised occupant in a public premises G

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on a designated officer and prescribes the procedure to be followedby the said officer before passing such an order. Therefore, thePublic Premises Act is also a special statute relating to eviction ofunauthorised occupants from public premises. In other words, boththe enactments, namely, the Rent Control Act and the PublicPremises Act, are special statutes in relation to the matters dealtwith therein. Since, the Public Premises Act is a special statuteand not a general enactment the exception contained in the principlethat a subsequent general law cannot derogate from an earlierspecial law cannot be invoked and in accordance with the principlethat the later laws abrogate earlier contrary laws, the PublicPremises Act must prevail over the Rent Control Act.

56. We arrive at the same conclusion by applying the principlewhich is followed for resolving a conflict between the provisionsof two special enactments made by the same legislature. We mayin this context refer to some of the cases which have come beforethis Court where the provisions of two enactments made by thesame legislature were found to be inconsistent and each enactmentwas claimed to be a special enactment and had a non-obstanteclause giving overriding effect to its provisions.

61. The principle which emerges from these decisions is that inthe case of inconsistency between the provisions of twoenactments, both of which can be regarded as special in nature,the conflict has to be resolved by reference to the purpose andpolicy underlying the two enactments and the clear intendmentconveyed by the language of the relevant provisions therein. Wepropose to consider this matter in the light of this principle.

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64. It would thus appear that, while the Rent Control Act is intendedto deal with the general relationship of landlords and tenants inrespect of premises other than government premises, the PublicPremises Act is intended to deal with speedy recovery ofpossession of premises of public nature, i.e. property belonging tothe Central Government, or companies in which the CentralGovernment has substantial interest or corporations owned orcontrolled by the Central Government and certain corporations, AB

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SUPREME COURT REPORTS

Ainstitutions, autonomous bodies and local authorities. The effectof giving overriding effect to the provisions of the Public PremisesAct over the Rent Control Act, would be that buildings belongingto companies, corporations and autonomous bodies referred to inSection 2(e) of the Public Premises Act would be excluded fromthe ambit of the Rent Control Act in the same manner as propertiesBbelonging to the Central Government. The reason underlying theexclusion of property belonging to the Government from the ambitof the Rent Control Act, is that the Government while dealingwith the citizens in respect of property belonging to it would notact for its own purpose as a private landlord but would act inCpublic interest. What can be said with regard to government inrelation to property belonging to it can also be said with regard tocompanies, corporations and other statutory bodies mentioned inSection 2(e) of the Public Premises Act. In our opinion, therefore,keeping in view the object and purpose underlying both theenactments viz. the Rent Control Act and the Public PremisesDAct, the provisions of the Public Premises Act have to be construedas overriding the provisions contained in the Rent Control Act.”

40. In Allahabad Bank v. Canara Bank & Anr.[19], this Courtheld that there can be a situation in law where the same statute is treatedas a special statute vis-à-vis one legislation and again as a general statuteEvis-à-vis another legislation. Between the Act and the Rent Act, the Actis a general statute enacted as a third tier of local Governmentadministration. The functions of the Corporation, inter alia, includes theregulation and maintenance of the land and building, hygiene and health,public streets and other for a larger section of the inhabitants falling inFthe municipal area, whereas the Rent Act deals with the issues betweenthe landlord and the tenant conferring right to the landlord to seek evictionand correspondingly provide protection to the tenant. Therefore, the findingof the High Court that Rent Act would prevail over the Act is clearlyerroneous as both legislations operate in separate distinct spheres havingdifferent objectives in mind.G

41. The finding of the High Court that the building was demolishedwithout giving clear three days’ notice is partly correct. The notice wasserved upon the plaintiff on 6.1.1995 and the building was demolished on9.1.1995. Thus, clear three days’ notice was not served upon the plaintiff.

H19 (2000) 4 SCC 406

The plaintiff was however aware of the proceedings initiated by theCorporation on the ground that the building in question was in dilapidatedcondition and unsafe for human inhabitation. The plaintiff had challengedsuch notice before the High Court. The High Court had given four weeks’time to the Corporation to pass a speaking order after giving an opportunityof hearing to the plaintiff. The building was inspected by the DeputyCommissioner of the Corporation and opportunity of hearing was grantedto the plaintiff as well. Therefore, it is not a case where there was anysudden development leading to the demolition of the building but theorder of demolition was a considerate action passed after the report ofthe Court Commissioner was submitted before the High Court and theCorporation was given time to finally decide the show cause notice issuedon 24.5.1994.

42. In fact, there is three days’ notice from the date of the orderbut not from the date of receipt of the notice. This Court in State ofPunjab v. Khemi Ram[20] held as under:

“17. The question then is whether communicating the order meansits actual receipt by the concerned government servant. The orderof suspension in question was published in the Gazette thoughthat was after the date when the respondent was to retire. Butthe point is whether it was communicated to him before that date.The ordinary meaning of the word “communicate” is to impart,confer or transmit information. (Cf. Shorter Oxford EnglishDictionary, Vol. 1, p. 352). As already stated, telegrams, datedJuly 31, and August 2, 1958, were dispatched to the respondent atthe address given by him where communications by Governmentshould be dispatched. Both the telegrams transmitted or impartedinformation to the respondent that he was suspended from servicewith effect from August 2, 1958. It may be that he actually receivedthem in or about the middle of August 1958, after the date of hisretirement. But how can it be said that the information about hishaving been suspended was not imparted or transmitted to him onJuly 31 and August 2, 1958 i.e. before August 4, 1958, when hewould have retired? It will be seen that in all the decisions citedbefore us it was the communication of the impugned order whichwas held to be essential and not its actual receipt by the officerconcerned and such communication was held to be necessary A

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Abecause till the order is issued and actually sent out to the personconcerned the authority making such order would be in a positionto change its mind and modify it if it thought fit. But once such anorder is sent out, it goes out of the control of such an authority,and therefore, there would be no chance whatsoever of itschanging its mind or modifying it. In our view, once an order isBissued and it is sent out to the concerned government servant, itmust be held to have been communicated to him, no matter whenhe actually received it. We find it difficult to persuade ourselvesto accept the view that it is only from the date of the actual receiptby him that the order becomes effective. If that be the true meaningCof communication, it would be possible for a government servantto effectively thwart an order by avoiding receipt of it by onemethod or the other till after the date of his retirement even thoughsuch an order is passed and despatched to him before such date.An officer against whom action is sought to be taken, thus, maygo away from the address given by him for service of such ordersDor may deliberately give a wrong address and thus prevent ordelay its receipt and be able to defeat its service on him. Such ameaning of the word “communication” ought not to be given unlessthe provision in question expressly so provides. Actual knowledgeby him of an order where it is one of dismissal, may, perhaps,Ebecome necessary because of the consequences which thedecision in The State of Punjab v. Amar Singh contemplates.But such consequences would not occur in the case of an officerwho has proceeded on leave and against whom an order ofsuspension is passed because in his case there is no question ofhis doing any act or passing any order and such act or order beingFchallenged as invalid.”

43. Once the order was passed by the Corporation on 5.1.1995and was put on the means of communication, the date of actual receiptof notice is insignificant as the receipt could be delayed by the recipient,though there is no such attempt or finding. The wife and daughter of theGplaintiff had removed the goods including sewing machines etc., hencethe damages would include any loss of goods and the machines whichwere in the tenanted premises in question. Keeping in view the fact thatthe building was demolished within three days of the receipt of notice,we deem it appropriate to order the appellant to compensate the plaintiffHwith the damages of Rs.5 lakhs. Such amount will be payable to the legal heirs of the deceased plaintiff in accordance with law. The appellantshall deposit a sum of Rs. 5 lakhs within a period of two months beforethe trial court.

44. Consequently, the order of the High Court dated 28.09.2006 ishereby set aside and both the suits are dismissed, subject to payment ofRs. 5 lakhs to the legal representatives of the plaintiff within two months.The appeals are allowed.

Ankit Gyan

Appeals allowed.

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