Holding

Section 43(2)(rr) cannot be invoked where the ground for the old‑Act permission is not one of the grounds enumerated in Section 21(1) or (2) of the 1972 Act, and thus the eviction application was not maintainable.

Summary

The appellants, landladies, obtained permission under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 to evict a tenant on the ground of a bona‑fide requirement to shift a nursing home. The suit filed on that permission was later withdrawn without any liberty to re‑file. After the 1972 Act came into force, they applied under Section 43(2)(rr) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for eviction, but the application was rejected by the prescribed authority and the district judge, while the High Court allowed it. The Supreme Court examined the statutory scheme, distinguishing clause (r) (which continues pending suits under the old Act) from clause (rr) (which permits summary eviction without fresh satisfaction of grounds). It held that the ground relied upon – occupying a residential building for non‑residential (business) purposes – is excluded by the proviso to Section 21(2) of the 1972 Act and therefore does not fall within the grounds specified in Section 21(1) or (2). Consequently, Section 43(2)(rr) was inapplicable and the eviction application was not maintainable. The appeal was allowed, setting aside the High Court judgment and dismissing the respondents’ application.

Issues considered

The applicability of Section 43(2)(rr) of the U.P. Urban Buildings Act, 1972 when the ground for permission under the old Act does not correspond to any ground in Section 21(1) or (2) of the new Act.
Whether the proviso to Section 21(2) bars eviction of a residential building for business purposes.
Whether a withdrawn suit without permission to re‑file exhausts the permission granted under Section 3 of the 1947 Act.
The distinction between clause (r) and clause (rr) of Section 43(2) and their respective scopes.

Legislation cited

Transfer of Property Act, 1882s. 106
U.P. (Temporary) Control of Rent and Eviction Act, 1947s. 14, s. 15, s. 3, s. 7-F
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972s. 1, s. 20, s. 21, s. 43(2)(r), s. 43(2)(rr)

Subjects

Rent controlEvictionStatutory interpretationSection 43(2)(rr)Section 21Bona fide requirementResidential buildingBusiness purposeOld Act vs New Act

Judgment

A KUSH SAHGAL AND ORS.
v.
M.C. MITIBR1AND ORS.

MARCH 28, 2000

B [S. SAGHIR AHMAD AND DORAISWAMY RAJU, JJ.]

Rent Control and Eviction :

U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act,
1972/United Pmvinces (Temporary) Control of Rent and Eviction Act, 1947-
c Section 43(2)(rr)/43(2) (r)-Applicability of-On grounds ofbonafide require-
ment pennission granted under section 3 ofthe old Act to file suit for eviction-
Tlzese grounds covered by grounds under section 21((1) & (2) of the new Act-
Then prescribed authority does not require to be satisfied afresh ofexistence of
those gmunds-Furthe1; section 43(2)(rr) is attracted if the bonafide require-
D ment of residential building is not for business purposes-On fact, pennission
obtained by Landlady on ground of bonafide requirement of shifting nursing ,.
home to residential p01tion in occupation of tenant-Held, application not
maintainable.

Statutory /nte1pretation :
E
Proviso-Construction of-Enacting part to be construed to make excep-
tion carved out by proviso necessary and not render it redundant.

Appellant-landlady filed an application under the United Provinces
(Temporary) Control of Rent and Eviction Act, 1947 for permission to file
F eviction suit against the tenant on the ground ofbonafide requirement. Suit
was instituted on the basis of the permission granted and was withdrawn
without liberty to file fresh suit. Later, application under the U.P. Urban
Building (Regulation of Letting, Rent and Eviction) Act, 1972 was filed for
eviction. Both the Prescribed Authority and District Judge rejected the
G application. High Court allowed the petition. Hence, this appeal.

Allowing the appeal, the Court

HELD : 1.1. When a suit is filed for the eviction of a tenant on the
basis of the permission granted to the landlord by the District Magistrate
H and if such suit is pending on the date on which the U.P. Urban Building
648
KUSH SAHGAL v. M.C. MITI'ER 649
, (Regulation of Letting, Rent and Eviction) Act, 1972 came into force, the A
• said suit is to be continued and concluded in accordance with the provisions
of section 43(2)(r) of the United Provinces (Temporary) Control of Rent
and Eviction Act, 1947. [660-E-F]

2.1. The landlord may, even though a suit on the basis of the permis-
B
sion was filed or not filed, apply to the prescribed authority for the eviction
of the tenant and the prescribed authority shall order eviction of the tenant
from the accommodation in his tenancy if the conditions of section 43(2)(rr)
are satisfied. If the permission granted under the old Act can be co-related
or is referable to any ground specified in section 21(1) & (2) of the new Act
it will not be necessary for the prescribed authority to be satisfied afresh of c
the existence of those ground. (661-H; 662-B]

2.2. Section 43(2)(r) of the Act would apply to a situation where the
ground on which permission was granted is not covered by section 21(1)
and section 21(2) of the new Act and, therefore, in that situation, the suit if
D
filed on the basis of that permission, has to be continued and concluded
under the old Act which has been fictionally kept alive in spite of its repeal.
Such a permission will not be executable under clause (rr). On the contrary,
if the ground on which permission was granted under section 3 is covered
by any of the grounds mentioned in section 21(1) or (2) it will be executable
under section 43(2)(rr). (662-C-E] E

3.1. If an application is made by the landlord for eviction of the
tenant on the ground that the building in occupation of that tenant which
was used exclusively for residential purposes was required for business
purposes or for any other commercial activity, it would not be a ground F
within the meaning of third proviso to section 21(2) of the new Act for
eviction of the tenant and the application under section 43(2)(rr) will ·not be
entertained. (663-B-C]

4.1. The normal function of a proviso to section 21 is to except
something out of the enactment or to qualify something enacted therein G
which but for the proviso would be within the purview of the enactment.
The enacting part has to be given such a construction which would make
the exceptions carved out by the proviso necessary and a construction
which would make the exception unnecessary and redundant should be
avoided. (663-C-D] H
650 SUPREME COURT REPORTS (2000] 2 S.C.R.
A KedamaJh Jute Manufacturing Co. l.Jd. v. Commercial Tax Officer, Am
(1966) SC 12; Govt. of the Province of Bombay v. Hormusji Manekji, Am
(1947) PC 200; Durga Dutt Sharma v. NavaraJna Pharmaceutical f.41orcito-
ries, Am (1965) SC 980, relied on.

B. Principles of StaJutory lnterpretaJion by Justice G.P. Singh 7th Edn.
(1999) pg.163, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2274 of 2000.

From the Judgment and Order dated 27 .5.99 of the Allahabad High
C Court in·c.M.W.P. No. 10793 of 1981.

Gopal Subramaniam, Anees Ahmed, Gopal Singh and S.K. Kaul for the
Appellants.

G.L. Sanghi, Dhruv Mehta, Ms. Shobha and S.K. Mehta for the
D Respondents.

The Judgment of the Court was delivered by

S. SAGHm AHMAD, J. Leave granted.

E This appeal involves a little interpretative effort. Not like Themis,
blindfolded, but like Astraea, the Roman Goddess of justice holding a Scale
(Balance) without folds on the eyes and occupying the pride of place as
"Libra" in the Zodiacal constellation. This would enable one to read all the
words used in the Statutory provisions, so as to reach the correct conclusion
F on the true meaning intended to be conveyed by the Legislature by the use of
those words.

Eastern residential portion of the property bearing No. 7/152, Swaroop
Nagar, Kanpur, which is the accommodation in question, was allotted, some
time in 1947, to Smt. Sushila Saigal, by an allotment order passed under the
G provisions of the United Provinces (Temporary) Control of Rent and Eviction
Act, 1947 (for short, 'the old Act'). Dr. Kalindi Mitter who had purchased the
property in 1959, filed an application for permission under Section 3 of the
old Act for filing a suit for the eviction ofSmt. Sushila Saigal. The application
was allowed by the Rent Control and Eviction Officer by his order dated
H 23 .4.1960 against which a revision was filed by Smt. Sushila Saigal before the
KUSH SAHGAL v. M.C. MIITER [S. SAGHIR AHMAD, J.] 651
"°" Commissioner which was dismissed but a further revision filed by her before A
the State Government under Section 7-F of the old Act was allowed on 27th
of June, 1961 and.the application of Dr. Kalindi Mitter for permission under
Section 3 of the old Act to file a suit for eviction was rejected. It appears that
on the basis of the permission granted by the Rent Control and Eviction
Officer on 23.4.1960, Dr. Kalindi Mitter instituted regular suit No.1664 of
B
1961 which came to be disposed of by the Ilnd Addi. Munsif, Kanpur, by
judgment dated 24.11.1965. In that suit, several issues were framed but three
relevant issues are reproduced below:-

"l. Whether the State Government quashed the order of permission
in favour of the plaintiff on 27.06.1961 under Section 7-F of the U.P. c
Act III of 1947?

2. Whether the operation of the order of the State Government dated
12.10.1961 has been stayed by the Hon'ble High Court as alleged in
para 15 of the written statement? If so its effect?
D
3. Whether the suit is barred under Section 3 of the U.P. Act III of
1947?"

It was found by the learned Munsif that the permission granted to Dr.
Kalindi Mitter was set aside by tl1e State Government on 27.6.1961. It was
furtl1er found that tlle operation of the order dated 12.10.1961, by which tlle E
revision filed by Smt. Sushila Saigal before tlle State Government under
Section 7-F was, at one stage, rejected, was stayed by tlle State Government
itself on 13.10.1961 on which date the suit was also, incidentally, instituted.
In view of tlle findings recorded by tlle learned Munsif on issue No.2, it was
held tliat the suit was not maintainable. F
Dr. Kalindi Mitter filed anotller application under Section 3 of tlle old
Act for permission to file a suit for eviction against Smt. Sushila Saigal but
the application was rc;:jected by the Rent Control and Eviction Officer on
30.1I.I966. A revision filed against that order was allowed by the Commis-
sioner, Allahabad Division, on 6.2.1968 and the case was remanded to the G
Rent Control and Eviction Officer for fresh disposal. After remand, the Rent
Control and Eviction Officer by his order dated 9.12.1968 allowed the
application and granted permission to the landlady, Dr. Kalindi Mitter, to file
tlle suit for eviction and Dr. Kalindi Mitter, on the basis of this permission,
filed regular suit No.654 of 1969 for the eviction of Smt.Sushila Saigal. H
652 SUPREME COURT REPORTS (2000) 2 S.C.R.
A The permission granted by the Rent Control and Eviction Officer on ·
9 .12.1968 was challenged by Smt. Sushila Saigal in a revision filed before the
Commissioner, Allahabad Division, but the revision was dismissed in default
on 19 .3.1969 on account of non-appearance of Smt. Sushila Saigal. This order
was challenged by Smt. Sushila Saigal in a Writ Petition which was allowed
on 16.3.1971 with a direction to the Commissioner, Allahabad Division, to
B •

--
restore the revision to its original number and dispose it of on merits.

During the pendency of the revision before the Commissioner, Allahabad
Division, the old Act was replaced by the U.P. Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972 (for short, 'the new Act'). In view
C of the provisions contained in Section 43(2)(m) of the new Act, the revision
was transferred to the District Judge, Kanpur, for disposal. The revision was
ultimately dismissed by the Second Addi. District Judge, Kanpur, on 22.9 .1973.
This order was challenged in Writ Petition No. 6609of1973 in the Allahabad
High Court in which an interim order was passed by the High Court on 11th
D of October, 1973. During the pendency of the Writ Petition, an application was
filed on behalf of Dr. Kalindi Mitter that the interim order dated 11th of
October, 1973 be vacated on the ground that Dr. Kalindi Mitter did not want
to proceed with Regular Suit No.654 of 1969 already instituted by her in the
court of Addi. Judge, Small Causes, Kanpur. The High Court, by its order
dated 27.3.1974, directed the Addi. Judge, Small Causes, to consider the
E application of Dr. Kalindi Mitter for withdrawal of the suit and pass appro-
priate orders thereon. The interim order dated 10.11.1973 was, therefore,
vacated.

The application for withdrawal of suit, filed by Dr. Kalindi Mitter, was
p ultimately allowed by the Addi. Judge, Small Causes, Kanpur, by his order
dated 24.4.1974 and the suit was allowed to be withdrawn. During the course
of the order, the learned Addi. Judge, Small Causes Court observed as under:-

"I have heard the learned counsel for the parties and have perused
the application and objection against it. The plaintiff has prayed for
G simple withdrawal of the suit and is not seeking permission to file a
fresh suit on this cause of action. Order 23 rule I sub-rule I enables
the plaintiff to withdraw his suit at any time after the institution of I-

the same. It is only ~n sub rule 2 of rule I of order 23 C.P.C. that the
permission of the court is needed for filing a fresh suit on the cause
H of action."
KUSH SAHGAL v. M.C. MITfER [S. SAGHIR AHMAD, J.] 653
Dr. Kalindi Mitter had not prayed for leave of the Court to file a fresh A
suit on the same cause of action nor such leave was granted to her.

On 1st of April, 1976, Dr. Kalindi Mitter filed an application for the
eviction of Smt. Sushila Saigal under Section 43(2)(rr) of the new Act. But
during the pendency of the application, Dr. Kalindi Mitter died on 4th of June,
1977. She was substituted by her legal representatives. In the meantime, the B
heirs of Dr. Kalindi Mitter transferred the property in question in two parts by
sale dated 18.4.1979. The front residential portion was transferred in favour
of Ram Narain Awasthi while the back residential portion was transferred in
favour of Jugal Kishore Arora and his brothers, K.P. Arora, Vijay Arora and
Harsh Vardhan. c
The Prescribed Authority by order dated 6th of May, 1980, rejected the
application of Dr. Kalindi Mitter under Section 43(2)(rr). An appeal, thereaf-
ter, filed against that order was dismissed by the District Judge, Kanpur, by
his judgment dated 21.5.1981. These orders were challenged in Civil Miscel-
. laneous Writ Petition No. 10793 of 1981 in the Allahabad High Court filed D
on behalf of the heirs of Dr. Kalindi Mitter in which the transferees were also
impleaded as respondents at a subsequent stage and later, they came to be
transposed as co-petitioners. It is this Writ Petition which has been allowed by
the High Court by the impugned judgment which is the subject matter of the
present appeal. E
Mr. Gopal Subramaniam, learned Senior Counsel appearing on behalf
of the appellants, has contended that since Dr. Kalindi Mitter had instituted a
suit on the basis of permission granted to her and that suit was withdrawn by
her unconditionally without seeking permission of the Court to file a fresh suit
on the basis of that cause of action nor was such permission granted by the F
court, the permission granted under Section 3 of the old Act exhausted itself
and no fresh suit or proceeding, on the basis of that permission could have
been legally instituted for the eviction of the appellants. It is contended that
Section 43(2)(rr) is a mode prescribed under the new Act for execution of the
permission already granted under Section 3 of the old Act. But before the G
permission is put to execution under Section 43, it has to be shown that the
permission was subsisting on the date on which an application is filed for its
execution under Section 43(2)(rr). It is also contended that before the
permission granted under the old Act could be put to execution under Section
43(2)(rr), it had to be shown to have been obtained on any of the grounds
H
654 SUPREME COURT REPORTS [2000) 2 S.C.R.
A specified in Sub-section (1) or Sub- section (2) of Section 21 of the new Act
and if it is shown that such a permission, as was granted under the old Act,
could not have been granted under Section 21 of the new Act, it could not be
executed under Section 43(2)(rr).

B Mr. G.L. Sanghi, learned Senior Counsel appearing on behalf of the
respondents, has, on the other hand, contended that the permission under
Section 3 of the old Act was granted in favour of Dr. Kalindi Mitter by the
Rent Control and Eviction Officer on being satisfied that the need of Dr.
Kalindi Mitter qua the accommodation in question was genuine and bona fide
and, therefore: she was allowed to institute a suit for the eviction of Smt.
c Sushila Saigal. At the time of the execution of that permission under Section
43(2)(rr), fresh satisfaction is prohibited and the order has to be executed
without looking into the facts which had already been considered by the Rent
Control and Eviction Officer at the time of granting the permission. Mr. Sanghi
has contended that under Section 3 of the old Act, permission could be granted
D on the basis of bona fide and genuine need of the landlord or landlady and
such need, ~aving been found established, has not to be investigated afresh
notwithstanding. the subsequent change of ownership or other facts and
circumstances which too could not be noticed.

E In order to appreciate the contentions raised by the learned counsel for
the parties, it will be necessary, at this stage, to consider the relevant provisions
of both the Acts, namely, U.P. Act No. 3of1947 (old Act) and U.P. Act No.
13 of 1972 (new Act).

Letting of accommodation, residential and non-residential, in Uttar
F
Pradesh, its rent, and eviction of tenants therefrom, was controlled by
legislative action when the Uttar Pradesh Legislature made U.P. (Temporary)
Control of Rent & Eviction Act, 1947, which was preceded by U.P. Ordinance
No. 3of1946. Before coming into force of the U.P. Ordinance No. 3of1946,
followed by the old Act, th~ letting of accommodation, both residential and
G non-residential, as also rights and liabilities of the landlord and tenant and
•
eviction o.f the tenant therefrom was regulated by the provisions of the
Transfer of Property Act, 1882, under which the landlord could, at his will,
let out the accommodation to a tenant and could evict that tenant, at any time,
therefrom after terminating his tenancy by a notice under Section 106 of the
H Transfer of Property Act.
KUSH SAHGAL v. M.C. MITfER [S. SAGHIR AHMAD, J.] 655

Eviction of tenants at the will of the landlord as also the letting out of A
accommodation at exorbitant rent was effectively controlled by the legislative
intervention. In respect of a tenant against whom a decree for eviction had
already been passed under the provisions of the Transfer of Property Act in
a suit instituted by the landlord, it was specifically provided under Section 14
of the old Act as under :
B
"Execution of pending decrees for eviction - No decree for the
eviction of a tenant from any accommodation passed before the
date of commencement of this Act, shall insofar as it relates to the
eviction of such tenant, be executed against him as long as this Act
remains in force, except for any of the grounds mentioned in Section C
3:

Provided that the tenant agrees to pay to the landlord "reasonable
annual rent" or the rent payable by him before the passing of the
decree, whichever is higher."
D
So also, in regard to pending suits for eviction, it was provided in
Section 15 (old Act) as under :

"15. Pending suits for eviction - In all suits for eviction of a tenant
from any accommodation pending on the date of the commencement E
of this Act, no decree for eviction shall be passed except on one or
more of the grounds mentioned in Section 3."

It was provided in Section 14 that a decree for eviction already passed
against the tenant would not be executed so long as the old Act remained in F
force. But there was an exception made in favour of a decree passed on any
of the grounds mentioned in Section 3. That is to say, if the decree was passed
on the ground that the tenant was in arrears of rent for more than 3 months
which he had not paid in spite of the notice of demand or he had caused
substantial damage to the accommodation or that he had made structural
alterations in the accommodation in his tenancy or had created nuisance or had G
done any act which was not consistent with the purpose for which he was
admitted to the tenancy of the accommodation or had sublet the whole or any
portion of that accommodation or he had renounced his character as such or
denied the title of the landlord or he was allowed to occupy the accommoda-
tion as part of a co11tract of his employment which had been determined, sucll H
656 SUPREME COURT REPORTS [2000) 2 S.C.R.
A a decree could be executed and the tenant could be evicted in pursuance of
such a decree. Section 3 also provided that on the aforesaid grounds, suits for
the eviction of the tenant could be filed directly in the Court, but if these
grounds did not exist, the suit could be instituted only with the permission of
the District Magistrate. One of the grounds on which the landlord would
usually seek permission of the District Magistrate to file a suit for eviction of
B
the tenant was his own genuine need to occupy the accommodation himself.
If the tenant was already in occupation of a building, but he was likely to
vacate the building or had in fact vacated the building, a right was given to
the landlord under Rule 6 of the Rules made in exercise of powers under
Section 17 of the Act, to apply for occupation of that building on account of
c his own bona fide need. In case it was found by the District Magistrate or the
Rent Control & Eviction Officer, to whom the powers of the District
Magistrate were delegated, that the need of the landlord was genuine and bona
fide, he would allow that building to be occupied by the landlord himself and
would not allot it to anyone else.
D Under the scheme of the old Act, an application for permission to file
a suit for eviction of a sitting tenant was to be made to the District Magistrate
under Section 3 of the Act. The need of the landlord for his occupation would
be investigated by the District Magistrate and the District Magistrate on being
satisfied that the need of the landlord was genuine and bona fide would grant
E permission to the landlord or else he would refuse it. In either case, the order
passed by the District Magistrate was revisable by the Commissioner under
sub-section (2) of Section 3 and was furtl1er revisable by the State Govt. under
Section 7-F of the old Act. If the pe1mission was granted either by the District
Magistrate or the Commissioner or, for that matter, by the State Govt. under
Section 7-F of the old Act, the landlord, on the basis of that permission, could
F institute a suit for eviction of the tenant.

The new Act came into force with effect from 15.7.1972. Section
provides for the extent, application and commencement of the Act. Sub-
section (4) of Section 1 provides that the Act shall come into force from the
G date, as the State Govt. may, by notification in the Gazette, appoint. Sub-
section (2) provides for the exemption of certain buildings from the operation
of the Act.

Chapter III deals with "Regulation of letting". Section 11 contained in
that chapter prohibits the landlord from letting out any building to any person,
H except in pursuance of an allotment order issued under Section 16. Section 12
KUSH SAHGAL v. M.C. MITTER [S. SAGHIR AHMAD, J.] 657
provides for deemed vacancy of building in certain cases. Section 13 provides A
that where a landlord or the tenant has ceased to occupy a building or part
thereof, no person shall occupy it in any capacity on his behalf otherwise than
under an order of allotment or release under Section 16. Section 14 which is
headed as "Regularisation of occupation of existing tenants" provides that any
licencee (within the meaning of Section 2-A) or a tenant in occupation of the B
building with the consent of the landlord immediately before the commence-
ment of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction)
(Amendment) Act, 1976, against whom any suit or proceeding for eviction
was not pending before any court or authority on the date of such commence-
ment. shall be deemed to be an authorised licencee or tenant of such building.
Section 15 casts an obligation on every landlord to intimate vacancy of any c
building to the District Magistrate. Under Section 16, the building is either
allotted to a person or is released in favour of the owner of that building.
Conditions for making an allotment order are set out in Section 17 while
Section 18 provides for appeals against order of allotment or release. Section
19 provides that in case the release order obtained by a landlord in respect of D
any building is abused by him, the release order will be revoked and the
building would be treated as vacant and it would be open to the District
Magistrate to allot it as such.

Chapter IV provides for "Regulation of Eviction." Section 20 provides E
for the protection of tenants from being evicted at the will of the landlord.
While sub- section (1) which operates subject to the provisions of sub-section
(2) contains the prohibition that a suit for the eviction of the tenant would
not be instituted, sub-section (2) sets out the grounds on the basis of which
a suit for eviction of a tenant could be filed. These grounds are almost the
same as those contained in Section 3 of the old Act under. which the suit F
could be instituted directly for the eviction of the tenant if any of those
grounds existed. Section 21 provides for the release of the building by
eviction of the tenant therefrom. The relevant portion of this Section which
is necessary for the disposal of this case is reproduced below :
G
"21. Proceedings for release of building under occupation of tenant
- (I) The prescribed authority may, on an application of the landlord
in that behalf, order the eviction of a tenant from the building under
tenancy or any specified part thereof if it is satisfied that any of the
following grounds exists, namely - H
658 SUPREME COURT REPORTS (2000) 2 S.C.R.
A (a) that the building is bona fide required either in its existing form
or after demolition and new construction by the landlord for
occupation by himself or any member of his family, or any
person for whose benefit it is held by him, either for residential
--:
purposes or for purposes of any profession, trade or calling, or
where the landlord is the trustee of a public charitable trust, for
B
the objects of the trust;

(b) that the building is in a dilapidated condition and is required for
purposes of demolition and new construction:

Provided that where the building wa~n the occupation of a tenant
c
since before its purchase by the lan4J.ord, such purchase being
made after the commencement of this Act, no application shall
be entertained on the grounds, mentioned in clause (a), unless
a period of three years has elapsed since the date of such
purchase and the landlord has given a notice in that behalf to
D the tenant not less than six months before such application, and
such notice may be given even before the expiration of the
aforesaid period of three years:

Provided further that if the application under (a) is made in respect
of any building let out exclusively for non-residential purposes,
E
the prescribed authority while making the order of eviction
shall, after considering all relevant facts of the case, award
against the landlord to the tenant an amount not exceeding two
years' rent as compensation and may, su~ject to rules, impose
such other conditions as it thinks fit:
F
Provided also that no application under clause (a) shall be entertained

(i) for the purposes of a charitable trust, the objects of which
provide for discrimination in respect of its beneficiaries on the
G ground of religion, caste, or place of birth;

(ii) in the case of any residential building, for occupation for ,·

business purposes;

(iii) in the case of any residential building, against any tenant who
H is a member of the armed forces of the Union and in whose
KUSH SAHGAL v. M.C. MITIER (S. SAGHIR AHMAD, J.] 659
favour the prescribed authority under the Indian Soldiers (Liti- A
gation) Act, 1925 (Act No. IV of 1925) has issued a certificate
that he is serving under special conditions within the meaning
of Section 3 of that Act, or where he has died by enemy action
while so serving, then against his heirs:

Provided also that the prescribed authority shall, except in cases B
provided for in the Explanation, take into account the likely hardship
to the tenant from the grant of the application as against the likely
hardship to the landlord from the refusal of the application and for
that purpose shall have regard to such factors as may be prescribed."
c
Under this Section, the building can be released on any of the grounds
set out in this Section, including that the building was bona fide required for
the self- occupation of the landlord. However, if the landlord requires the
eviction of the tenant from the "residential building" for his own occupation
for "business purposes", the application would not be entertained.
D
Section 43 of the Act repeals the old Act, but provides as to how the
orders or the proceedings passed or pending under the old Act would be dealt
with under the new Act or what would be the effect of the new Act on those
orders or proceedings. So far as the permission already obtained under Section
3 of the old Act is concerned, there are two clauses under Section 43 which E
are relevant. They are clauses (r) and (rr) of sub-section (2)" of Section 43
which are extracted below:

"(r) any suit for the eviction of a tenant instituted with the permission
referred to in Section 3 of the old Act or any proceeding arising out
of such suit, pending immediately before the commencement of the F
U.P. Civil Laws Amendment Act, 1972 (U.P. Act 37 of 1972) may
be continued and concluded in accordance with the old Act which
shall for that purpose, be deemed to continue to be in force.

(rr) Where any pennission referred to in Section 3 of the old Act has
G
been obtained on any ground specified in sub-section (1) or sub-
section (2) of Section 21, and has become final, either before the
commencement of this Act, or in accordance with the provisions of
this sub-section, after the commencement of this Act, whether or not
a suit for the eviction of the tenant has been instituted, the landlord
may apply to the prescribed authority for his eviction under Section H
660 SUPREME COURT REPORTS [2000] 2 S.C.R.
A 21, and thereupon the prescribed authority shall order the eviction of
the tenant from the building under tenancy, and it shall not be
necessary for the prescribed authority to sati~fy itself afresh as to the
existence of any ground as aforesaid, and such order shall be final and
shall not be open to appeal under Section 22 :
B Provided that no application under this clause shall be maintainable
on the basis of a permission granted under Section 3 of the old Act,
where such permission became final more than three years before the
commencement of this Act :

c Provided further that in computing the period of three years, the time
during which the applicant has been prosecuting with due diligence
any civil proceeding whether in a court of first instance or appeal or
revision shall be excluded."

Clause (r) provides that any suit for eviction of a tenant instituted on the
D basis of the permission granted under Section 3 of the old Act or any
proceeding arising out of such suit pending immediatly before the commence-
ment of the U.P. Civil Laws Amendment Act 1972 (U.P. Act No. 37 of 1972)
is to be continued and concluded in accordance with the old Act which shall
for that purpose be deemed to continue to be in force. This clause obviously
E deals with pending suits. If a suit had been filed for the eviction of a tenant
on the basis of the permission granted to the landlord by the District Magistrate
and if such suit was pending on the date on which the U.P. Act No. 37of1972
came into force, the said suit was to be continued and concluded in accordance
with the provisions of the old Act. It may be stated that by U.P. Civil Laws
Amendment Act, 1972 (Act No. 37 of 1972), many changes were introduced
F in various Acts, including Provincial Small Causes Courts Act, 1887. Suits for
possession, including suit for the eviction of lessee froi:n the building after the
termination of its lease was made cognizable by the Small Causes Courts Act
which, prior to the amendments introduced by U.P. Act No. 32of1972 could
not be instituted in that court. Read in this background, the suits already
G instituted in a regular civil court on the basis of permission granted by the
District Magistrate, was to be continued and concluded in accordance with the
provisions of the old Act.

We may now consider the provisions contained in Clause (rr) of Sub-
section (2) of Section 43. This clause contemplates summary eviction of a
H tenant against whom permission had already been granted by the District
-
KUSH SAHGAL v. M.C. MTilER [S. SAGHIR AHMAD, J.] 661

Magistrate under Section 3 of the old Act. If such permission was granted, A
then, irrespective of whether a suit on the basis of that permission had been
instituted or not, the landlord could apply to the Prescribed Authority for the
eviction of the tenant and such tenant would be evicted therefrom. This clause
further provides that if the landlord applies for eviction of the tenant on the
basis of the permission already granted under the old Act, it would not be
B
necessary for the Prescribed Authority to be satisfied afresh as to the existence
of the grounds for such eviction. The two Provisos appeaded to this Clause
deal with the period of limitation within which an application could be filed
for the eviction of the tenant, with which we are not concerned. But there are
other important words which cannot be ignored and they provide the key to
the interpretation of this Clause. The significant words are contained in the c
first part of this Clause. They are : "WHERE ANY PERMISSION RE-
FERRED TO IN SECTION 3 OF THE OLD ACT HAS BEEN OBTAINED
ON ANY GROUND SPECIFIED IN SUB-SECTION (1) OR SUB-SECTION
(2) OF SECTION 21." The other significant words are contained in the last
part of the Clause which are : "AND IT SHALL NOT BE NECESSARY FOR
D
THE PRESCRIBED AlITHORITY TO SATISFY ITSELF AFRESH AS TO
THE EXISTENCE OF ANY GROUND AS AFORESAID."

Considered in the light of these significant words, the requirements for
the applicability of Clause (rr) would be :- "'
E
(a) There should have been a permission obtained under Section 3
of the old Act.

(b) Permission should have been obtained on any ground specified
in Sub-section (1) or Sub-section (2) of Section 21.

(c) The permission shouid have become final
F

(i) either before the commencement of the new Act or

(ii) after the commencement of the new Act, under this Sub-
section.
G
If these conditions are satisfied, then the landlord may, even though a
suit on the basis of the permission was filed or not filed, apply to the
Prescribed Authority for the eviction of the tenant and the Prescribed Author-
ity shall order eviction of the tenant from the accommodation in his tenancy.
In this process, it will not be necessary for the Prescribed Authority to satisy H
662 SUPREME COURT REPORTS [2000] 2 S.C.R.
A itself afresh as to the existence of "any ground aforesai<f'. These words,
namely, "any ground aforesaid" refer to the grounds mentioned in the earlier
part of this clause which in its turn refers to the grounds specified in Sub-
section (1) and Sub-section (2) of Section 21. That is to say, if the permission
granted under the old Act can be co-related or is refera~le to any ground
specified in Sub-section (1) or Sub-section (2) of Section 21, it will not be
B
necessary for the Prescribed Authority to be satisfied afresh of the existence
of those grounds. In this situation, therefore, what is to be seen is whether the
ground on which permission was granted to landlord under Section 3 of the
old Act is a ground specified in Section 21(1) or Section 21(2) of the new Act.

c There is thus a difference between Clause (r) and Clause (rr) of Section
43(2) of the new Act. Clause (r) would apply to a situation where the ground
on which permission was granted is not covered by Section 21(1) and Section
21(2) of the new Act and, therefore, in that situation, the suit if filed on the
basis of that permission, has to be continued and concluded under the old Act
which has been fictionally kept alive in spite of its repeal. Such a permission
D will not be executable under Clause (rr). On the contrary, if the ground on
which permission was granted under Section 3 is covered by any of the
grounds mentioned in Section 21(1) or Section 21(2), it will be executable
under Clause (rr). This is almost akin to the provisions of Section 14 of the
old Act-under which a decree passed before coming into force of that Act
E could not be executed so long as the old Act, which was a temporary Act, was
in force. But if the decree was passed on any of the grounds specified under
Section 3 of the old Act, even though that decree was passed prior to the
coming into force of the old Act, it would be executable under that Act and
the tenant would be evicted from the accommodation in his occupation. These
Clauses, namely, Clause (r) and Clause (rr) thus operate in two different fields.
F So interpreted and understood, there will be no conflict in the two Clauses.

Let us now examine the facts of the present case to see whether an
application under Clause (rr) was maintainable against the appellants and
whether such an application on the basis of the permission already granted
G under the old Act could have been executed under Clause (rr).

Under Sub-section (1) of Section 21, a landlord can apply for eviction
of a tenant on the ground that the building was bona fide required either in
its existing form or after demolition and new construction by the landlord for
occupation by himself or any member of his family either for residential
H purposes or for purposes of any profession, trade or calling or on the ground
KUSH SAHGAL v. M.C. MITTER [S. SAGHIR AHMAD, J.] 663
that the building which was in a dilapidated condition was required for A
purposes of demolition and new construction. The second Proviso to Sub-
section (2) however provides that "AN APPLICATION UNDER CLAUSE (a)
SHALL NOT BE ENTERTAINED IN THE CASE OF ANY RESIDENTIAL
BUILDING FOR OCCUPATION FOR BUSINESS PURPOSES." Thus, if an
application is made by the landlord for eviction of the tenant on the ground
B
that the building in occupation of that tenant which was used exclusively for
residential purposes was required for business purposes or for any other ·
commercial activity, it would not be a ground within the meaning of Section
21(1) of the new Act for the eviction of the tenant and the application will not
be entertained. This we say because the normal function of a PROVISO is to
except something out of the enactment or to qualify something enacted therein c
which but for the PROVISO would be within the purview of the enactment.
See: Kedamath Jute Manufacturing Co. Ltd. v. Commercial Tax Officer, AIR
(1966) SC 12. Since the natural presumption is that but for the PROVISQ, the
enacting part of the section would have included the subject matter bf the
PROVISO, the enacting part has to be given such a construction which would D
make the exceptions carved out by the PROVISO necessary and a construction
which would make the exceptions unnecessary and redundant should be
avoided (See: Justice G.P. Singh's "Principles of Statutory Interpretation"
Seventh Edition 1999, p-163). This principle has been deduced from the
decision of the Privy Council in Govt. of the Province of Bombay v. Hormusji
E
Manekji, AIR (1947) PC 200 as also the decision of this Court in Durga Dutt
Sharma v. Navaratna Pharmaceutical lAboratories, AIR 1965 SC 980.

In the instant case, as pointed out earlier, Dr. Kalindi Mitter had applied
for permission under Section 3 for in~tituting a suit for the eviction of the
tenant, Smt. Sushila Saigal, on the ground that she would shift her nursing F
home, already mnning in some other building, to the residential portion in
occupation of Smt. Sushila Saigal. The application was allowed and the suit
which was instituted on the basis of that permission was ultimately withdrawn
without liberty to file a fresh suit on the same cause of action. After
withdrawal, an application under Section 43(2)(rr) was filed for the eviction
G
of the tenant which, as pointed out earlier, was rejected by the Prescribed
Authority and also by the District Judge but was allowed by the High Court.

In view of the above discussion, such an application could not have been
entertained under Section 43(2)(rr) as the landlord wanted to occupy the
residential portion of the building for non-residential purposes. It was, H
664 SUPREME COURT REPORTS [2000] 2 S.C.R.
A therefore, not a ground within the meaning of Section 21(1) or Section 21(2)
and, therefore, the application under Section 43(2)(rr) was not maintainable
and should have been rejected by the High Court as well on that ground.

The appeal is consequently allowed. The impugned judgment dated
27.5.1999 passed by the High Court is set a~ide and those of the Prescribed
B Authority and the District Judge are maintained and the application of the
respondents under Section 43(2)(rr) is dismissed but without any order as to
.....
costs.

NJ. Appeal allowed.

t