GIAN DEVI ANAND Vs. JEEVAN KUMAR

JUDGEMENT

(1.) I entirely agree with the judgment, just delivered by my learned brother. A. N. Sen, J. I am adding a few words of my own since I was a party to the decision in Ganpat Ladha v. Shashikant Vishnu Shinde (1978) 3 SCR 198: (AIR 1978 SC 955) where certain observations were made which seem to take a different view from the one we are taking in the present case.

(2.) The question which arises here for consideration is as to whether statutory tenancy is heritable on the death of the statutory tenant. 'Statutory tenant' is not an expression to be found in any provision of the Delhi Rent Control Act, 1958 or the rent control legislation of any other State. It is an expression coined by the judges in England and, like many other concepts in English law, it has been imported into the jurisprudence of this country and has become an expression of common use to denote a tenant whose contractual tenancy has been determined but who is continuing in possession of the premises by virtue of the protection against eviction afforded to him by the rent control legislation. Though the expression 'statutory tenant' has not been used in any rent control legislation the concept of statutory tenant finds recognition in almost every rent control legislation. The definition of 'tenant' in Sec. 2(1) of the Delhi, Rent Control Act, 1958 - and I am referring here to the provisions of the Delhi Rent Control Act, 1958 because that is the statute with which we are concerned in the present case - includes a statutory 'tenant. It says in clause (ii) that 'tenant' includes any person continuing the possession after the termination of his tenancy. Such a person would not be a tenant under the ordinary law but he is recognised as a 'tenant' by the rent control legislation and is therefore described as a statutory tenant as contra-distinguished from contractual tenant. The statutory tenant is, by virtue of inclusion in the definition of 'tenant', placed on the same footing as contractual tenant so far as rent control legislation is concerned. The rent control legislation in fact, as pointed out by this Court in a seven judge Bench decision in V. Dhanapal Chettiar v. Yesodai Ammal (1980). 1 SCR 334 does not make any distinction between contractual tenant and statutory tenant. "It does not permit the landlord to snap his relationship with the tenant merely by his act of serving a notice to quit on him. In spite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee. and is at. the same time deemed to be under all the liabilities such as payment of rent etc. in accordance with the law." The distinction between contractual tenancy and statutory tenancy is thus completely obliterated by the rent control legislation. Though genetically the parentage of these two legal concepts is different, one owing its origin to contract and the other to, rent control legislation, they are. equated with each other and their incidents are the same. If a contractual tenant has an estate or interest in the premises which is heritable, it is difficult to understand why a statutory tenant should be held not to have such heritable estate or interest. In one case, the estate or interest is the result of contract while in the other it is the result of statute. But the quality of the estate or interest is the same in both cases. The difficulty in recognising that a statutory tenant, can have estate or interest in the premises arises from the fact that throughout the last century and the first half of the present, almost until recent times, our thinking has been dominated by two major legal principles, namely, freedom of contract and sanctity of private property and therefore we are unable to readily accept that legal relationship can be created by statute despite want of contractual concensus and in derogation of property rights of the landlord. We are unfortunately not yet reconciled to the idea that the law is moving forward from contract to status. Why can estate or interest in property not be created by statute When the rent control legislation places a statutory tenant on the same footing as a contractual tenant, wipes out the distinction between the two and invests a statutory tenant with the same right, obligations, and incidents as a contractual tenant, why should it be difficult to hold that, just like all contractual tenant, a statutory tenant also has estate or interest in the premises which can be inherited. Of course, strong reliance was placed on behalf of the landlord on Section 2(1)(iii) of the Delhi Rent Control Act, 1958 to combat this conclusion but the provision merely limits or circumscribes the nature and extent of the protection that should be available on the death of a statutory tenant in respect of residential premises. It does not confer a new right of heritability which did not exist aliunde. My learned brother A. N. Sen, J. has discussed this aspect of the case in great detail and I find myself wholly in agreement with what he has said in regard to the true meaning and import of Section 2(1)(iii).

(3.) Now a word about Ganpat Ladha's case (AIR 1978 SC 955) (supra). It is true that there are certain observations in that case which go counter to what we are holding in the present case and to that extent these observations must be held not to enunciate the correct law on the subject. This Court was not really concerned in that case with the question of heritability of statutory tenancy. The only question was in regard to the true interpretation of Section 5(ii)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which is almost in same term as Section 2(1)(iii) of the Delhi Rent Control Act, 1958 and while dealing with this question, the Court made certain observations regarding the nature of statutory tenancy and its heritability. The attention of the Court was not focussed on the question whether a statutory tenant has an estate or interest in the premises which is heritable and no argument was advanced that a statutory tenancy is heritable. It was assumed that a statutory tenancy is not heritable and on that footing the case was argued in regard to the true meaning and construction Sec. 5(ii)(c). The observations made in that case to the extent to which the conflict with the judgment in the present case must therefore be regarded as overruled.