Abdul Khuddus vs H.M. Chandiramani(Dead) Thr Lrs. on 14 September, 2021


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Supreme Court of India

Abdul Khuddus vs H.M. Chandiramani(Dead) Thr Lrs. on 14 September, 2021

Author: Hemant Gupta

Bench: Hemant Gupta, V. Ramasubramanian

                                                                                            REPORTABLE

                                              IN THE SUPREME COURT OF INDIA

                                                CIVIL APPELLATE JURISDICTION


                                               CIVIL APPEAL NO. 1833 OF 2008



                         ABDUL KHUDDUS                                                         .....APPELLANT(S)

                                                                             VERSUS

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

                                                                  WITH

                                               CIVIL APPEAL NO. 1834 OF 2008

                                                         JUDGMENT

HEMANT GUPTA, J.

1. The present appeals are directed against an order passed by

the Division Bench of the High Court of Karnataka on

28.9.2006 in three First Appeals filed before it. The first

appeal was against the judgment and decree passed by the

Additional City Civil & Sessions Judge, Bangalore on

16.4.2005 in O.S. No. 10082 of 19951 whereby the suit of

plaintiff, now represented by his legal heirs, for permanent

and mandatory injunction was dismissed on 16.4.2005. The
Signature Not Verified
other appeal arises out of another suit filed by the plaintiff for
Digitally signed by R
Natarajan
Date: 2021.09.14

claiming damages in O.S. No. 16643 of 1999 2 which was
17:19:39 IST
Reason:

1 Hereinafter referred to as the ‘first suit’
2 Hereinafter referred to as the ‘second suit’

1
decreed on 6.10.2003. The Plaintiff was found entitled to

recover a sum of Rs.1,25,000/- as damages towards the

loss/destruction of machineries, furniture, fittings and stock-

in-trade apart from the damages @ Rs.10,000/- per month

towards the loss of business of plaintiff from 9.1.1995 till the

possession is restored, subject to final decision of first suit.

The defendants, official respondents and the owner, filed two

separate appeals against the same. The third appeal arises

out of first suit decided by the Additional City Civil Judge,

Bangalore on 16.4.2005 whereby the suit of the plaintiff for

permanent and mandatory injunction was dismissed.

2. All the three appeals were taken up and decided together by

the High Court. The High Court dismissed the appeals arising

out of the judgment and decree passed by the trial court in

favour of the plaintiff whereas, the appeal arising out of

judgment and decree in first suit filed by the plaintiff was

allowed.

3. The plaintiff was inducted as a tenant on 7.5.1974 by an

allotment order passed by the Rent Controller under Section 5

of the Karnataka Rent Control Act, 1961 3. The rented portion

was on the first floor 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. Such
3 For short, the ‘Rent Act’

2
building was constructed in 1903 with Mangalore tiles and

wooden beams. The appellant Abdul Khuddus was arrayed as

defendant No. 7 in the first suit and defendant No. 1 in the

second suit and was the purchaser of the front portion of the

building vide sale deed dated 18.3.1994. Sheikh Hyder

purchased the rear portion of the building on the same date

whereas one Sheikh Mohd. purchased the northern side of the

building on 9.12.1994. The Bangalore City Corporation4 is the

appellant in the third appeal.

5. The appellant herein filed an ejectment petition seeking

ejectment of the plaintiff under Section 21(1)(j) of the Rent

Act on the ground that the premises were required for

bonafide use by the landlord for the immediate purpose of

demolishing them and erecting a new building in place of the

premises sought to be demolished.

6. A notice under Section 322 of the Karnataka Municipal

Corporations Act, 19765 was issued by the Corporation on the

ground that the building was in dilapidated condition, unsafe

and dangerous. The plaintiff challenged the said show cause

notice in W.P. No. 20400 of 1994 whereby an ad-interim stay

was granted by the High Court. Later, Shri B. Ravi Kumar,

Advocate was appointed as a Commissioner on 27.9.1994 to

visit the property and submit a report which was done on

4 For short, the ‘Corporation’
5 For short, the ‘Act’

3
16.11.1994. In the report, it was stated that the building was

in a bad condition and that there were also cracks in the

building, leakage of water etc.

7. The High Court dismissed the writ petition on 8.12.1994 as

the same was directed only against show cause notice.

However, the High Court directed the officials of the

Corporation not to demolish the building except pursuant to a

final order to be made within four weeks. The operative part

of the order of the High Court reads as under:

“5. Accordingly this petition is disposed of with a
direction to respondent-2 not to dismantle the building
in question without making any final order pursuant to
notice, Annexure-A and serving a copy of the final
order on the petitioner. It is made clear that none of
the respondents should take any steps to dismantle
the building except pursuant to a final order made by
respondent-2. It is further made clear that if the
petitioner sustains any injury on account of the
alleged dilapidated condition of the building,
respondents 7 to 10 shall not be held responsible.
Respondent-2 shall make the final order within four
weeks to serve a copy of the same on the petition a
week therefrom. Liberty is reserved petitioner to take
steps as are allowed against the final order.”

8. It is thereafter the Deputy Commissioner of the Corporation

passed an order on 5.1.1995 after personally inspecting the

building and returning a finding that the building was in poor

condition. It was noticed that it was the duty of the

Corporation to take action in order to prevent any imminent

danger to the public independently of the dispute, if any,

between the parties. The operative part of the order reads as

4
under:

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

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

9. The said order was served upon the plaintiff on 6.1.1995 at

5.20 PM and the building was demolished by the Corporation

on 9.1.1995 at 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 Section 444 of the Act or

before any other authority or forum.

10. The appellant relies upon the communication dated

09.01.1995 on behalf of Bina Chandiramani, wife of the

deceased plaintiff, and Sharmila Chandiramani, daughter of

the deceased plaintiff which was made in the handwriting of

the daughter. It was averred that they have carried the goods

such as garments, machinery, fittings etc., in the absence of

the plaintiff in vehicle No. CAS 337, thus it was an implied

surrender of possession.

5

11. The first suit was filed on 27.1.1995 for permanent injunction,

though the building stood demolished on 9.1.1995.

Subsequently, the suit was amended to claim relief for

mandatory injunction and possession. The plaintiff had

pleaded that he would be taking steps for contempt of court

for disobedience of the orders of Court and for damages

incurred, actual or general. The cause of action was said to

have arisen on 25.01.1995 when the appellant attempted to

commit criminal trespass into the schedule property in

possession of the plaintiff. The relevant extract from the

plaint reads thus:

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

10. In the meanwhile, the defendant, who, under law
cannot be in possession of schedule premises and is
attempting to take forcible possession of the same
and letting out and alienate the same to others and
also to put up construction. He cannot do so under
law, until disposal of the HRC Petition. The plaintiff has
legal right to be protected. The plaintiff is rudely
shocked at the high handedness of the defendant. In
the evening of 25.01.95, alongwith his henchmen, the
defendant tried to commit criminal trespass into the
schedule property and wanted to put up wall etc.
whereupon the plaintiff made hue and cry and by
which there was commotion and a oral complaint also
given to the police, and in writing on 25.01.95 for
which no acknowledgement was given, however the
defendant could not succeed in his attempt and the
plaintiff has sent copy of the said complaint under
certificate of posting today to the police.

11. The cause of action for the suit arises within the
jurisdiction of this Hon’ble Court at Bangalore on

6
25.01.95 and subsequently thereafter, when the
plaintiff attempted to commit criminal trespass into
the suit schedule property, within the jurisdiction of
this Hon’ble Court.”

12. The second suit was filed on 30.10.1995 claiming damages,

though such right of damages was also available when the

first suit was filed on 27.1.1995. As mentioned above, the

first suit was decided on 16.4.2005 which is later than the

decree in the second suit. In the first suit, a finding was

returned that the second suit was barred by the provisions of

Order II Rule 2 of the Code of Civil Procedure, 1908 6. The

second suit was filed as an indigent person wherein the

plaintiff claimed that he had 12 sewing machines, and other

materials at the shop at the time of demolition. The learned

trial court assessed the value of stock-in-trade of readymade

garments and finished goods at around Rs.50,000/- and

another Rs.25,000/- for fittings, fixtures, furniture, electrical

fittings etc. The trial court further found that he had lost his

earnings of Rs.10,000/- per month on the basis of Ex.P/40.

The decree was to grant quantified damages and to pay Rs.

10,000/- per month till such 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:


         (i)         There is lack of bonafides in issuing notice under
6     For short, the ‘Code’

                                                                                7

Section 322 of the Act, therefore, the order passed is

not legal and valid.

(ii) The notice has been issued without examining the

fact that the plaintiff has got statutory protection

under the Rent Act. The cause of action to demolish

the building would arise only after passing an order

under Section 462 of the Act and that action of the

Corporation is tainted with legal malafide.

(iii) The building was demolished in haste as the order

was served upon the plaintiff at 17:20 hours on

6.1.1995 and the building was demolished on

9.1.1995 without giving clear 3 days of notice

period.

(iv) Section 21 of the Rent Act has overriding effect

under Section 322 of the Act as statutory protection

is granted to the tenant. Therefore, the proceeding

under Section 322 of the Act was not permissible.

(v) That the suit is not barred by the principles of Order

II of Rule 2 of the CPC.

14. The High Court, thus, allowed the appeal holding that the

building in question was demolished in haste and the plaintiff

was thus entitled to possession of the building as he was

unlawfully dispossessed of the same. The Corporation and the

appellant were therefore directed to restore the possession

within two months of a shop comparable in size and form in

8
the built portion of the suit property.

15. Learned counsel for the appellant vehemently argued that

the High Court proceeded on the assumption that there was

an interim injunction on 15.2.1995 in the first suit, however

the building already stood demolished on 9.1.1995. The first

suit was filed on 27.1.1995 subsequent to the demolition.

Still further, an application filed by the plaintiff under Order

XXXIX Rule 2A of the CPC for violation of an interim 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 in the order passed by the High Court.

16. The proceedings were initiated against the plaintiff under the

Act vide notice issued on 24.5.1994. The said order was

challenged by the plaintiff before the Writ Court wherein a

Court Commissioner was appointed who reported about the

dilapidated condition of the building. The High Court had

given four weeks’ time to the Corporation to pass an order on

the show cause notice issued. The order was passed on

5.1.1995 after giving an opportunity of hearing to the plaintiff

and after visiting the site by the Deputy Commissioner of the

Corporation. Thus, the plaintiff was well aware of the

proceedings initiated against him by the Corporation. The

order of dismissal of the writ petition on 8.12.1994 was not

challenged by the plaintiff. Since the Corporation was given

9
four weeks’ time to pass a final order, therefore, the

Corporation was bound to pass an order in terms of the

direction of the High Court, which was passed on 5.1.1995.

The said order was served on 6.1.1995. The building was

demolished on 9.1.1995, which was the third day of serving

of the said order. Therefore, there is no violation neither of

the order of the High Court nor the building was demolished

in haste.

17. It was also argued that the plaintiff was bound to include his

claim for damages in the first suit which was filed on

27.1.1995 after the demolition had taken place. Since no

grievance was raised in the first suit regarding damage to the

property or to the loss of business, the second 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. The relevant extract from the plaint of the second

suit reads as under:

“The cause of action for the suit arises within the
jurisdiction of this Hon’ble Court at Bangalore on
09.01.95 being date when plaintiff was disposed from
the schedule premises with his belongings etc. and as
stated above and subsequently on various dates when
notices have been issued and acknowledged by the
defendants-6. The value of the suit for purpose of
(illegible) and jurisdiction is as per valuation (illegible)
plaintiff is indigent person and he may be permitted to
prosecute the above case in pharma (illegible) as he is
unable to pay court fee.”

10

18. The finding of the High Court that notice under Section 322 of

the Act was not bonafide as tenant has the protection of the

Rent Act was assailed on the ground that the proceedings

under the Rent Act are restricted between landlord and

tenant to seek ejectment on the permissible grounds whereas

the Act is much wider to ensure public safety on account of

dilapidated building endangering the life and property of the

occupants. Both the Acts operate in their assigned separate

fields and 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 Corporation on 5.1.1995 was keeping in view

the building which was in old dilapidated condition and could

be a cause of danger to the public. The finding of the High

Court that the proceedings under the Act was an act of

collusion between the owner and the Corporation is

misconceived only for the reason that the appellant has

withdrawn rent proceedings after the demolition of the

building on 6.2.1995. The tenanted portion had ceased to

exist after demolition; therefore, the relief of ejectment was

no longer available to the appellant.

19. On the other hand, learned counsel for the respondents

herein argued that the order of demolition was served upon

the deceased plaintiff on 6.1.1995 at 5:20 pm and the

building was demolished on 9.1.1995 at 9:00 am. Therefore,

11
there was no clear three days’ notice granted to the plaintiff

to vacate the premises nor to avail any legal remedy. It was

further argued that order under Section 322 of the Act could

not be executed without passing an order under Section 462

of the Act. Learned counsel supported the findings of the

High Court that it was high handedness of the officials of the

Corporation and the appellant which led not only to loss of

the premises but loss of business as well. Section 322 and

Section 462 of the Act read as under:

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

(2) If immediate action is necessary, the
Commissioner may himself, before giving such notice
or before the period of notice expires fence off, take
down, secure or repair such structure or fence off a
part of any street or take such temporary measures as
he thinks fit to prevent danger and the cost of doing
so shall be recoverable from the owner or occupier in
the manner provided in Section 470.

(3) If in the Commissioner’s opinion the said structure
is imminently dangerous to the inmates thereof, the
Commissioner shall order the immediate evacuation
thereof and any person disobeying may be removed
by any police officer.

xx xx xx

462. Time for complying with order and power to
enforce in default. – (1) Whenever by any notice,
requisition or order made under this Act or under any
rule, bye-law or regulation made under it, any person
in required to execute any work, or to take any
measures or do anything, a reasonable time shall be

12
named in such notice, requisition or order within
which the work shall be executed, the measures
taken, or the thing done.

(2) If such notice, requisition or order is not complied
with within the time so named, then whether or not a
fine is provided for such default and whether or not
the person in default is liable to punishment or has
been prosecuted or sentenced to any punishment for
such default, the Commissioner may cause such work
to be executed, or may take any measure or do
anything which may, in his 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 failure to 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 was

1000 sq. feet (approx.). Reliance was placed upon schedule

of property given in plaint of the first suit. It was submitted

that the right of a tenant survives even after demolition of

tenanted premises. Reference was made to Section 27 of the

Rent Act as well as three-judge bench judgment of this Court

reported as Shaha Ratansi Khimji and Sons v. Kumbhar

Sons Hotel Private Limited and Ors.7 holding that in

terms of Section 108B(e) of the Transfer of Property Act,

18828, the destruction of tenanted property would not

amount to determination of tenancy under Section 111 of the

TP Act. Reliance was also placed upon some judgments of

7 (2014) 14 SCC 1
8 For short, the ‘TP Act’

13
the High Courts in support of such argument.

21. In respect of area of tenanted premises, the plaintiff relied

upon the schedule of the property in the suit for injunction.

Such schedule does not show the area in possession but

shows the boundaries of the building. As per the Court

Commissioner, the entire building measured about 38 feet x

16 feet. The Commissioner had given the report that

northern 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 building towards the northern side had

already fallen down. The western side, adjacent to the

northern wall was also in a very bad condition as the roof of

the room was damaged by the cracks and leakage of water

from the roof inside the northern wall. In the middle of

northern wall on the first floor, 1½” cracks appeared inside

the wall from the top of the roof. The length of the said crack

was about 6 feet from the top. The leakage of the water from

the roof of the first floor and cracks were coming in the wall

of the southern side as well. The Court Commissioner found

that there were cracks in the building and leakage of water

on the northern side wall. The area of tenanted premises was

not an issue, which would be relevant as to whether the

tenanted premises had been demolished without adequate

notice or if the tenant has right to enter into possession of

building constructed on the site in question.

14

22. We have heard learned counsel for the parties and found that

the judgment and decree of the High Court cannot be

sustained. The argument of the plaintiff was that in spite of

demolition of the building by the Corporation, the tenancy

rights survive as the right of tenancy is not only in building

but also in the land. Thus, the plaintiff was entitled to

equivalent size of shop in the building which has been

constructed on the land of which the Plaintiff was a tenant on

the first floor. Reliance has been placed on judgment of this

Court in Shaha Ratansi Khimji wherein the godown in

possession of the tenant was demolished. The assertion of

the tenant in the said case was that the owner started

digging of basement for construction of a hotel next to the

wall of godown. The tenant filed a suit for injunction claiming

restraint order against the owner from digging as it would

endanger the godown. The tenant claimed by way of an

amendment to reconstruct the walls of godown. The learned

trial court dismissed the suit. The appeal as well as the

second appeal against the said judgment was also dismissed.

This Court, in an appeal directed against the three orders

passed by the courts below interpreted Section 108(B)(e) of

the TP Act holding that right has not been conferred by the

statute on the lessor for determination, therefore, it will not

be permissible for the Court to add another ground of base or

fulcrum of ethicality, difficulty or assumed supposition. The

15
tenancy rights would continue over the land even after the

building was demolished. This Court approved the judgment

of this Court reported as T. Lakshmipathi & Ors. v. P.

Nithyananda Reddy & Ors.9 wherein the landlord initiated

eviction proceedings on the ground that he requires the

premises for his own bona fide use and that tenant was in

arrears of rent and had also sub-let the premises. This Court

overruled the judgment of this Court reported as

Vannattankandy Ibrayi v. Kunhabdulla Hajee10 and held

as under:

“23. In Vannattankandy Ibrayi the learned Judges
referred to the decision on common law, the principles
in American jurisprudence, and various decisions of
the High Courts and adverted to two categories of
tenants, namely, a tenant under the Transfer of
Property Act
and the other under the State rent of
laws and proceeded to interpret Section 108(B)(e) to
hold that where a premises has fallen down under the
circumstances mentioned therein, the destruction of
the shop itself does not amount to determination of
tenancy under Section 111 of the Act and there is no
automatic determination of tenancy and it continues
to exist…….

xx xx xx

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

28. In the present case, it is not in dispute that the
respondent purchased the lessor’s interest. The lease
continued even thereafter and did not extinguish. The
lease was subsisting when the shares of the land were
purchased by the respondent. But the interest of the

9 (2003) 5 SCC 150
10 (2001) 1 SCC 564

16
lessee was not purchased by the respondent. What
has been purchased by the respondent is the right
and interest of ownership of the property. The interest
of the appellant as lessee has not been vested with
the respondent. Therefore, we are of the view that the
tenancy of the appellant cannot be said to have been
determined consequent upon demolition and
destruction of the tenanted premises.

29. In view of the facts and circumstances of the
case, we have no other option but to set aside the
impugned judgment and decree dated 18-7-2006
passed by the High Court of Judicature of Bombay
in Shaha Ratansi Khimji & Sons v. Proposed Kumbhar
Sons 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 dated 30-11-2005 passed
by the Additional District Judge, Karad in RCA No. 86
of 2002. However, taking into consideration the fact
that the appellant is not in possession of the suit
property since long, we are not inclined to direct
restoration of possession of suit property to the
appellant. Instead we direct the respondent to pay a
sum of Rs 20,00,000 (Rupees twenty lakhs only) in
favour of the appellant towards compensation for
depriving the appellant from enjoying the suit
property within two months, failing which it shall be
liable to pay interest @ 6% per annum from the date
of the judgment.”

23. A perusal of the above extract from the judgment shows that

this Court noticed that there are two categories of tenants

namely, a tenant under the TP Act and the other under the

State Rent Laws. There is no assertion that the property in

question in the said case was governed by State Rent Laws. It

was a case where the owner started digging a ditch towards

the northern side wall of the suit property. During the rainy

season, the water used to get accumulated in the said ditch

and that the owner closed the access road to the said

17
property. It was also alleged that the owner went ahead with

destruction of the godown and demolished the western wall

of the godown. The judgment does not deal with statutory

tenant protected by a particular statute but with the

principles of a contractual tenancy in terms of Section 108(B)

(e) of the TP Act. In fact, the para quoted in the three judge

bench judgment is an alternate argument raised in the

Vannattankandy Ibrayi, which is evident from the following

para:-

“20. From the aforesaid decisions there is no doubt
that if a building is governed by the State Rent Act
the tenant cannot claim benefit of the provisions of
Sections 106, 108 and 114 of the Act. Let us test the
arguments of learned counsel for the appellant that
on the destruction of the shop the tenant can resist
his dispossession on the strength of Section 108B(e).
In this case what was let out to the tenant was a shop
for occupation to carry on business. On the
destruction of the shop the tenant has ceased to
occupy the shop and he was no longer carrying on
business therein. A perusal of Section 108(B)(e)
shows that where a premises has fallen down under
the circumstances mentioned therein the destruction
of the shop itself does not amount to determination
of tenancy under Section 111 of the Act. In other
words there is no automatic determination of tenancy
and it continues to exist……………..”
(Emphasis Supplied)

24. In Shaha Ratansi Khimji, the Court has considered the

alternative argument assuming that Section 108(B)(e) of the

TP Act is applicable. However, the primary argument that

being a statutory tenant, right has to be culled out only from

the Rent Laws had not been raised or considered. It is the

alternative argument which has not found favour with the

18
three Judge Bench in Khimji case. In respect of the statutory

tenant, 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.

Dhanpal Chettiar v. Yesodai Ammal11 was examining a

question as to whether a statutory tenant is entitled to notice

of termination of tenancy contemplated by Section 106 of the

TP Act or not. It was held that since statutory tenant is

entitled to protection under the Rent Act, therefore, the

procedure prescribed under the TP Act would not be

applicable. The Court held as under:

“5. ….The subject being in the concurrent list, many
State Rent Acts have by necessary implication and
many of them by starting certain provisions with a
non-obstante clause have done away with the law
engrafted in Section 108 of the Transfer of Property
Act except in regard to any matter which is not
provided for in the State Act either expressly or by
necessary implication.

xxx xxx xxx

13. …The notice does not bring to an end such a
relationship because of the protection given to the
tenant under the Rent Act. If that be so then it is not
necessary for the landlord to terminate the
contractual relationship to obtain possession of the
premises for evicting the tenant. If the termination of
the contractual tenancy by notice does not, because
of the Rent Act provisions, entitle the landlord to
recover possession and he becomes entitled only if he
makes out a case under the special provision of the
State Rent Act, then, in our opinion, termination of the

11 (1979) 4 SCC 214

19
contractual relationship by a notice is not necessary.

The termination comes into effect when a case is
successfully made out for eviction of the tenant under
the State Rent Act. We say with utmost respect that
on the point of requirement of a notice under Section
106 of the Transfer of Property Act Mangilal case [AIR
1965 SC 101: (1964) 5 SCR 239] was not correctly
decided.

xxx xxx xxx

16. …Even if the lease is determined by a forfeiture
under the Transfer of Property Act the tenant
continues to be a tenant, that is to say, there is no
forfeiture in the eye of law. The tenant becomes liable
to be evicted and forfeiture comes into play only if he
has incurred the liability to be evicted under the State
Rent Act, not otherwise. In many State statutes
different provisions have been made as to the grounds
on which a tenant can be evicted 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 some are in favour of the landlord also.
That being so the dictum of this Court in Raj Brij case
[AIR 1951 SC 115: 1951 SCR 145: 1951 SCJ 238]
comes into play and one has to look to the provisions
of law contained in the four-corners of any State Rent
Act to find out whether a tenant can be evicted or not.
The theory of double protection or additional
protection, it seems to us, has been stretched too far
and without a proper and due consideration of all its
ramifications.

xxx xxx xxx

18. .…If we were to agree with the view that
determination of lease in accordance with the Transfer
of Property Act
is a condition precedent to the starting
of a proceeding under the State Rent Act for eviction
of the tenant, we could have said so with respect that
the view expressed in the above passage is quite
correct because there was no question of
determination of the lease again once it was
determined by efflux of time. But on the first
assumption we have taken a different view of the
matter and have come to the conclusion that
determination of a lease in accordance with the
Transfer of Property Act is unnecessary and a mere

20
surplusage because the landlord cannot get eviction
of the tenant even after such determination. The
tenant continues to be so even thereafter. That being
so, making out a case under the Rent Act for eviction
of the tenant by itself is sufficient and it is not
obligatory to found the proceeding on the basis of the
determination of the lease by issue of notice in
accordance with Section 106 of the Transfer of
Property Act.”

26. In a later judgment reported as Pradesh Kumar Bajpai v.

Binod Behari Sarkar (Dead) by Lrs.12, a three Judge Bench

of this Court was examining the claim of tenant with respect

to right to pay arrears of rent in terms of Section 114 of the

TP Act. The following argument was examined:

“9. …….The only question that arises and which
was seriously contended for on behalf of the
respondent is that in addition to the safeguards
provided to the tenant under the Act, he is also
entitled to the benefits of Section 114 of the Transfer
of Property Act. Section 3 of the U.P. (Temporary)
Control of Rent and Eviction Act 3 of 1947 restricts the
rights of the landlord to have the tenant evicted. But
for the statutory provisions, the landlord would be
entitled to evict the tenant according to the terms of
the contract or the provisions of the Transfer of
Property Act
. As the Rent Act has restricted the power
of the landlord to evict the tenant except in
accordance with the provisions of the Act, the terms of
the contract and the provisions of the Transfer of
Property Act
to that extent are no longer applicable .”

27. The question raised on the basis of the argument of the

tenant was found to be without any substance that he was

entitled to double protection under the Rent Act and under

the TP Act. The Court held as under:

“12. …..If the relief provided for under the section is
available, as the lessee had tendered the rent in
12 (1980) 3 SCC 348

21
arrears along with the interest thereon and his full
costs in the suit, it was open to the court to pass an
order relieving the lessee against the forfeiture. The
plea of the learned Counsel for the tenant is that this
provision should also be read into the U.P. (Temporary)
Control of Rent and Eviction Act. 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 decree for eviction, the landlord under the Rent
Control Act should give notice as required under
Section 106 of the Transfer of Property Act was
considered. This Court held that determination of the
lease in accordance with the Transfer of Property Act
is unnecessary and that if a case is made out for
eviction under the Rent Act, it is itself sufficient and it
is not obligatory to determine the lease by issue of
notice as required in accordance with Section 106 of
the Transfer of Property Act. The learned Counsel for
the tenant submitted that the decision is confined
only to the question as to whether notice under
Section 106 of the Transfer of Property Act is
necessary and did not decide as to whether the
provisions of the other sections of the Transfer of
Property Act
are applicable. It is to be noted, however,
that the question of determination of a lease by
forfeiture under the Transfer of Property Act, was
specifically dealt with by the court and it was held
that the claim of the tenant that he is entitled to a
double protection (1) under the Rent Act and (2) under
the Transfer of Property Act, is without any substance.

xxx xxx xxx

In the case before us, it is not in dispute that after the
Rent Act came into force, the landlord cannot avail
himself of clause 12 which provides for forfeiture,
even if the tenant neglected to pay the rent for over
two months. The landlord cannot enter into
possession forthwith without notice. The only remedy
for him is to seek eviction under the provisions of the
Rent Act. In such circumstances the tenant cannot rely
on Section 114 of Transfer of Property Act and claim
that he should be given an opportunity to pay the
arrears of rent, even though the requirements of
Section 3(1) had been fulfilled.”

22

28. In another judgment reported as K. K. Krishnan v. M. K.

Vijaya Ragavan13 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 of his interest in the property.

Therefore, the landlord cannot seek eviction on the ground of

subletting under the Kerala Buildings (Lease and Rent

Control) Act. The Court held as under:

“8. It is clear from what has been said that not all
the rights conferred on landlord and tenant by Section
108
and other provisions of the Transfer of Property
Act
have been left in tact by the various State Rent
Acts and that if a State Rent Act makes provision for
eviction on certain specified grounds, eviction cannot
be resisted on the basis of rights conferred by the
Transfer of Property Act. Section 108(j) of the Transfer
of Property Act stands displaced by Section 11(4)(i) of
the Kerala Buildings (Lease and Rent Control) Act and
is no defence to an action for eviction based on
Section 11(4)(i).”

29. In another judgment reported as R.S. Grewal & Ors. v.

Chander Prakash Soni & Anr.14, the Court was examining a

case where a legatee under a Will was given life interest. It

was argued that creation of a tenancy which will continue

beyond the life of the legatee will amount to transfer of the

interest beyond the life of the legatee. The Court held that

the protection which is conferred upon the tenant against

eviction, except on specified grounds, arises as a

consequence of statutory prescription under rent control

legislation. The Court held as under:

13 (1980) 4 SCC 88
14 (2019) 6 SCC 216

23
“28. A statutory protection granted for the benefit of
the tenants under specific tenancy laws is to be
viewed from a standpoint of protecting the interests of
a particular class. Restrictions on recovery of
possession of the premises let out to the tenants have
been imposed for the benefit of the tenants as a
matter of legislative policy.

29. There is a fallacy in the submission which was
urged on behalf of the appellant. The appellant
postulates that a life interest is personal to the person
who possesses it and the creation of a tenancy which
will enure beyond her life amounts to a transfer of the
life interest. What the submission overlooks is that the
creation of the tenancy was an act of the person
enjoying a life interest in the present case and was an
incident of the authority of that individual to generate
income from the property for her own sustenance. The
creation of a tenancy is an incident of the exercise of
such an authority. The protection which is conferred
upon the tenant against eviction, except on specified
grounds, arises as a consequence 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 is simply as a result of a statutory enactment,
in this case, the East Punjab Rent Restriction Act,
1949. It is the intervention of a legislative mandate
which enures to the benefit of the tenant. Once this
has taken place, it was not open to the civil court to
entertain a suit for possession founded on the
hypothesis that the tenant is a trespasser.”

30. In another judgment reported as N. Motilal & Ors. v. Faisal

Bin Ali & Anr.15, it was held that even during the period of

contractual tenancy, if the premises are governed by the Rent

Laws, the parties have 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 the seven-Judge Bench judgment in V.

15 (2020) 13 SCC 667

24
Dhanapal Chettiar case [V. Dhanapal
Chettiar v. Yesodai Ammal
, (1979) 4 SCC 214] are
binding which categorically had laid down that the
application for determination of fair rent can be made
both by the landlord and the tenant which can be
made even during currency of contractual tenancy.
We, thus, find the submission made by the learned
counsel for the appellants in the above regard without
any substance.”

31. In view of the binding decisions of the larger bench and

keeping in view the fact that the judgment of this Court in

Shaha Ratansi Khimji was dealing with the rights of

contractual tenant, the statutory tenant cannot seek

repossession after the demolition of building under Section

108(B)(e) of the TP Act as the rights and liabilities of a

statutory tenant have 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 the Rent Act, the 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 a Court 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 eviction was

passed on the withdrawal of the eviction petition, the tenant

has to seek possession of the premises from the date on

which he delivered vacant possession of the premises to the

landlord. The plaintiff filed first suit claiming right over the

land after demolition of the building but being a statutory

25
tenant, he had to avail the remedy under the Rent Act as the

provisions of the TP Act are not applicable to the building and

land situated within urban area. In view of the provisions of

the Act, the terms of the TP Act cannot be applied for in

respect of statutory tenants. The High Court has returned a

finding that the plaintiff was a statutory 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 not under the TP Act.

33. Another argument raised by the tenant was that a notice

under Section 462 of the Act was not served. We do not find

any merit in the said argument. Section 322 of the Act is a

self-contained provision which empowers the Commissioner

for immediate evacuation of the property and any person

disobeying such orders was to be removed by any Police

Officer. Section 462 of the Act is in respect of execution of any

work or to take any measures or to do anything. The works

and the measures mentioned therein are in respect of other

provisions in 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 be issued. The time for complying with

the order does not arise in the case of a building which was in

dilapidated condition endangering life of the citizens. Thus,

we do not find any merit in the said argument as well.

26

34. The plaintiff had filed the first suit on 27.1.1995 after the

tenanted premises were demolished. The right to claim

damages for loss of the property including goods and

machines was available to the plaintiff on the said date. In

fact, in the second suit, the plaintiff has pleaded that the

cause of action arose to him on 9.1.1995. The Order II Rule 2

CPC reads thus:

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

(2) Relinquishment of part of claim .—Where a plaintiff
omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not
afterwards sue in respect of the portion so omitted or
relinquished.

(3) Omission to sue for one of several reliefs .—A
person entitled to 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 with the leave of
the Court, to sue for all such reliefs, he shall not
afterwards sue for any relief so omitted.”

35. A perusal of the above Rule would show that every suit shall

include whole of the claim which the plaintiff is entitled to

make in respect of the cause of action. The cause of action is

a bundle of facts and relief of damages is construed to be a

component of such bundle of facts. The plaintiff was con-

scious of the fact that he wants to sue for damages which is

evident from his averment in para 9 of the plaint of the first

27
suit but the plaintiff was required to obtain leave of the Court

before filing suit for damages subsequently. The High Court

has clearly erred in law in 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 relief of possession as well as the loss which occurred on

account of alleged demolition. This Court held as under:

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

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

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

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

Applying this test we consider that the essential
bundle of facts on which the plaintiffs based their title
and their right to relief were identical in the two suits.

16 AIR 1965 SC 295

28
The property sought to be recovered in the two suits
was the same. The title of the persons from whom the
plaintiffs claimed title by purchase, was based on the
same fact…….”

37. In State of Rajasthan v. Swaika Properties17, this Court

held that cause of action is a bundle of facts which taken with

the law applicable to them gives the plaintiff a right to seek

relief against the defendant. The Court held as under:-

“8. The expression “cause of action” is tersely defined
in Mulla’s Code of Civil Procedure:

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

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

17 (1985) 3 SCC 217

29

38. The High Court has returned a finding that the Rent Act will

prevail over the Act. However, we are unable to agree with

this 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 the Rent Act has a limited

application for determining the rights of land owner and ten-

ant. Both operate in separate spheres as both have different

objectives to be achieved.

39. In Ashoka Marketing Ltd. v. Punjab National Bank18, a

Constitution Bench held that where the literal meaning of the

general enactment covers a situation for which specific

provision is made by another enactment contained in the

earlier Act, it is presumed that the situation was intended to

continue to be dealt with by the specific provision rather than

the later general one. The Court held as under:-

“41. As a result of this comparison it can be said that
certain premises, viz. building or parts of buildings
lying within the limits of the New Delhi Municipal
Committee and the Delhi Cantonment Board and in
urban areas within the limits of the Municipal
Corporation of Delhi, which belong to or are taken on
lease by any of the companies or statutory bodies
mentioned in clauses (2) and (3) of Section 2( e) of the
Public Premises Act and which are in occupation of a
person who obtained possession of the said premises
as a tenant and whose tenancy has expired or has
been terminated but who is continuing in occupation
of the same, would ex-facie fall within the purview of
both the enactments. The question which, therefore,
arises is whether the occupant of such premises can
seek protection available under the provisions of Rent

18 (1990) 4 SCC 406

30
Control Act and he can be evicted from the premises
only in accordance with the said provisions and
proceedings for eviction of such a person cannot be
initiated under the provisions of the Public Premises
Act.

xx xx xx

49. This means that both the statutes, viz. the Public
Premises Act and the Rent Control Act, have been
enacted by the same legislature, Parliament, in
exercise of the legislative powers in respect of the
matters enumerated in the Concurrent List. We are,
therefore, unable to accept the contention of the
learned Additional Solicitor General that the Public
Premises Act, having been enacted by Parliament in
exercise of legislative powers in respect of matters
enumerated in the Union List would ipso facto
override the provisions of the Rent Control Act
enacted in exercise of the legislative powers in
respect of matters enumerated in the Concurrent List.

In our opinion the question as to whether the
provisions of the Public Premises Act override the
provisions of the Rent Control Act will have to be
considered in the light of the principles of statutory
interpretation applicable to laws made by the same
legislature.

50. One such principle of statutory interpretation
which is applied is contained in the latin maxim :
leges posteriores priores conterarias 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 does not derogate from a special one.) This
means that where the literal meaning of the general
enactment covers a situation for which specific
provision is made by another enactment contained in
the earlier Act, it is presumed that the situation was
intended to continue to be dealt with by the specific
provision rather than the later general one (Bennion,
Statutory Interpretation pp. 433-34).

xx xx xx

55. The Rent Control Act makes a departure from the
general law regulating the relationship of landlord and
tenant contained in the Transfer of Property Act

31
inasmuch as it makes provision for determination of
standard rent, it specifies the grounds on which a
landlord can seek the eviction of a tenant, it
prescribes the forum for adjudication of disputes
between landlords and tenants and the procedure
which has to be followed in such proceedings. The
Rent Control Act can, therefore, be said to be a special
statute regulating the relationship of landlord and
tenant in the Union territory of Delhi. The Public
Premises Act makes provision for a speedy machinery
to secure eviction of unauthorised occupants from
public premises. As opposed to the general law which
provides for filing of a regular suit for recovery of
possession of property in a competent court and for
trial of such a suit in accordance with the procedure
laid down in the Code of Civil Procedure, the Public
Premises Act confers the power to pass an order of
eviction of an unauthorised occupant in a public
premises on a designated officer and prescribes the
procedure to be followed by the said officer before
passing such an order. Therefore, the Public Premises
Act is also a special statute relating to eviction of
unauthorised occupants from public premises. In other
words, both the enactments, namely, the Rent Control
Act and the Public Premises Act, are special statutes in
relation to the matters dealt with therein. Since, the
Public Premises Act is a special statute and not a
general enactment the exception contained in the
principle that a subsequent general law cannot
derogate from an earlier special law cannot be
invoked and in accordance with the principle that the
later laws abrogate earlier contrary laws, the Public
Premises Act must prevail over the Rent Control Act.

56. We arrive at the same conclusion by applying the
principle which is followed for resolving a conflict
between the provisions of two special enactments
made by the same legislature. We may in this context
refer to some of the cases which have come before
this Court where the provisions of two enactments
made by the same legislature were found to be
inconsistent and each enactment was claimed to be a
special enactment and had a non-obstante clause
giving overriding effect to its provisions.

xx xx xx

32

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

xx xx xx

64. It would thus appear that, while the Rent Control
Act is intended to deal with the general relationship of
landlords and tenants in respect of premises other
than government premises, the Public Premises Act is
intended to deal with speedy recovery of possession
of premises of public nature, i.e. property belonging to
the Central Government, or companies in which the
Central Government has substantial interest or
corporations owned or controlled by the Central
Government and certain corporations, institutions,
autonomous bodies and local authorities. The effect of
giving overriding effect to the provisions of the Public
Premises Act over the Rent Control Act, would be that
buildings belonging to companies, corporations and
autonomous bodies referred to in Section 2( e) of the
Public Premises Act would be excluded from the ambit
of the Rent Control Act in the same manner as
properties belonging to the Central Government. The
reason underlying the exclusion of property belonging
to the Government from the ambit of the Rent Control
Act, is that the Government while dealing with the
citizens in respect of property belonging to it would
not act for its own purpose as a private landlord but
would act in public interest. What can be said with
regard to government in relation to property
belonging to it can also be said with regard to
companies, corporations and other statutory bodies
mentioned in Section 2(e) of the Public Premises Act.
In our opinion, therefore, keeping in view the object
and purpose underlying both the enactments viz. the
Rent Control Act and the Public Premises Act, the
provisions of the Public Premises Act have to be
construed as overriding the provisions contained in
the Rent Control Act.”

33

40. In Allahabad Bank v. Canara Bank & Anr19, this Court held

that there can be a situation in law where the same statute is

treated as a special statute vis-à-vis one legislation and again

as a general statute vis-à-vis another legislation. Between

the Act and the Rent Act, the Act is a general statute enacted

as a third tier of local Government administration. The func-

tions of the Corporation, inter alia, includes the regulation

and maintenance of the land and building, hygiene and

health, public streets and other for a larger section of the in-

habitants falling in the municipal area, whereas the Rent Act

deals with the issues between the landlord and the tenant

conferring right to the landlord to seek eviction and corre-

spondingly provide protection to the tenant. Therefore, the

finding of the High Court that Rent Act would prevail over the

Act is clearly erroneous as both legislations operate in sepa-

rate distinct spheres having different objectives in mind.

41. The finding of the High Court that the building was

demolished without giving clear three days’ notice is partly

correct. The notice was served upon the plaintiff on

6.1.1995 and the building was demolished on 9.1.1995.

Thus, clear three days’ notice was not served upon the

plaintiff. The plaintiff was however aware of the proceedings

initiated by the Corporation on the ground that the building

in question was in dilapidated condition and unsafe for

19 (2000) 4 SCC 406

34
human inhabitation. The plaintiff had challenged such notice

before the High Court. The High Court had given four weeks’

time to the Corporation to pass a speaking order after giving

an opportunity of hearing to the plaintiff. The building was

inspected by the Deputy Commissioner of the Corporation

and opportunity of hearing was granted to the plaintiff as

well. Therefore, it is not a case where there was any sudden

development leading to the demolition of the building but

the order of demolition was a considerate action passed

after the report of the Court Commissioner was submitted

before the High Court and the Corporation was given time to

finally decide the show cause notice issued on 24.5.1994.

42. In fact, there is three days’ notice from the date of the order

but not from the date of receipt of the notice. This Court in

State of Punjab v. Khemi Ram20 held as under:

“17. The question then is whether communicating the
order means its actual receipt by the concerned
government servant. The order of suspension in
question was published in the Gazette though that
was after the date when the respondent was to retire.

But the 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 English Dictionary,
Vol. 1, p. 352). As already stated, telegrams, dated
July 31, and August 2, 1958, were dispatched to the
respondent at the address given by him where
communications by Government should be
dispatched. Both the telegrams transmitted or
imparted information to the respondent that he was
suspended from service with effect from August 2,
1958. It may be that he actually received them in or

20 (1969) 3 SCC 28

35
about the middle of August 1958, after the date of his
retirement. But how can it be said that the information
about his having been suspended was not imparted or
transmitted to him on July 31 and August 2, 1958 i.e.
before August 4, 1958, when he would have retired? It
will be seen that in all the decisions cited before us it
was the communication of the impugned order which
was held to be essential and not its actual receipt by
the officer concerned and such communication was
held to be necessary because till the order is issued
and actually sent out to the person concerned the
authority making such order would be in a position to
change its mind and modify it if it thought fit. But
once such an order is sent out, it goes out of the
control of such an authority, and therefore, there
would be no chance whatsoever of its changing its
mind or modifying it. In our view, once an order is
issued and it is sent out to the concerned government
servant, it must be held to have been communicated
to him, no matter when he actually received it. We
find it difficult to persuade ourselves to accept the
view that it is only from the date of the actual receipt
by him that the order becomes effective. If that be the
true meaning of communication, it would be possible
for a government servant to effectively thwart an
order by avoiding receipt of it by one method or the
other till after the date of his retirement even though
such an order is passed and despatched to him before
such date. An officer against whom action is sought to
be taken, thus, may go away from the address given
by him for service of such orders or may deliberately
give a wrong address and thus prevent or delay its
receipt and be able to defeat its service on him. Such
a meaning of the word “communication” ought not to
be given unless the provision in question expressly so
provides. Actual knowledge by him of an order where
it is one of dismissal, may, perhaps, become
necessary because of the consequences which the
decision in The State of Punjab v. Amar
Singh
contemplates. But such consequences would
not occur in the case of an officer who has proceeded
on leave and against whom an order of suspension is
passed because in his case there is no question of his
doing any act or passing any order and such act or
order being challenged as invalid.”

36

43. Once the order was passed by the Corporation on 5.1.1995

and was put on the means of communication, the date of

actual receipt of 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 the plaintiff had removed

the goods including sewing machines etc., hence the

damages would include any loss of goods and the machines

which were in the tenanted premises in question. Keeping in

view the fact that the building was demolished within three

days of the receipt of notice, we deem it appropriate to order

the appellant to compensate the plaintiff with the damages of

Rs.5 lakhs. Such amount will be payable to the legal heirs of

the deceased plaintiff in accordance with law. The appellant

shall deposit a sum of Rs. 5 lakhs within a period of two

months before the trial court.

44. Consequently, the order of the High Court dated 28.09.2006

is hereby set aside and both the suits are dismissed, subject

to payment of Rs. 5 lakhs to the legal representatives of the

plaintiff within two months. The appeals are allowed.

………………………………………J.

(HEMANT GUPTA)

………………………………………J.

(A.S. BOPANNA)

NEW DELHI;

SEPTEMBER 14, 2021.

37



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