Deshpandie, C.J.
1. It is the effect of the change in the definition of 'tenant' in Section 2(1) of the Delhi Rent Control Act, 1958 (the principal Act) brought about by the retrospective amendment made by Section 2 of the Delhi Rent Control (Amendment) Act, 1976 (amending Act), which is to be considered in these appeals referred to the Full Bench.
2. The Questions:
(1) What is the meaning of 'tenant' in Section 2(1) of the principal Act firstly under the old definition as it existed prior to lst December, 1075 and secondly in the amended definition with effect from lst December, 1975.
(2) Does the decision of the Supreme Court in Damadilal v. Parashram, : AIR1976SC2229 , apply to the construction of the old definition of 'tenant' in preference to the majority decision in Anand Nivas Pvt. Ltd. v. Anandji Kalyanji Pedhi, : [1964]4SCR892 , followed in J. C. Chatterjee v. Sri Kishan Tandon, : [1973]1SCR850 .
(3) Whether in the new definition clauses (ii) and (iii) of Section 2(1) have to be considered together or whether clause (ii) thereof can be construed independently of clause (iii) and without being fettered by it?
The Change
Old Definition:
3. The original definition of 'tenant' in Section 2(1) in the principal Act was as follows:
'tenant' means any person by whom or on whose account or behalf the rent of any premises is, or but for a special contract would be payable and includes a sub-tenant and also any person continuing in possession after the termination of his tenancy but shall not include any person against whom any order or decree for eviction has been passed.'
(b) Its Interpretations
4. In Anand Nivas AIR 1965 Sc 4147, followed in J, C. Chatterjee the words 'any person continuing in possession after the terminatioAIR 1972 Sc 2626n of his tenancy' were construed to mean a statutory tenant who was sharply distinguished from the contractual tenant. It was held that the possession of the statutory tenant was protected only during his lifetime by the rent control legislation. His legal representatives were not entitled to inherit either the tenancy or the statutory protection after his death This was contrasted with the possession of contractual tenant whose tenancy was heritable after his death and whose legal representatives were also entitled to the protection of the rent control legislation.
(c) Hardship.
5. Parliament was of the view that the total absence of heritability of tenancy rights or statutory protection against eviction caused hardship to the legal representatives of a person who continued in possession after the termination of his tenancy. This hardship 'was redressed by Parliament by meeting the grievances of the legal representatives half way. A compromise was made between the claims of the landlords for immediate possession of the premises on the death of the so called statutory tenant arid the claims of his legal representatives to inherit his statutory protection. The Delhi Rent Control (Amendment) Ordinance No. 24 of 1975 came into force on lst December, 1975. It was replaced by the Amending Act of 1976 which also was made to come into force to the 1st December, 1975.
(d) The New Definition:
6. The amendment replaced the old definition by recasting Section 2(1), the relevant part of which is as follows:
'tenant' means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be payable, and includes--
(i) a sub-tenant;
(ii) any person continuing In possession after the termination of his tenancy; and
(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified, respectively, in Explanationn I and Explanationn Ii to this clause, such of the aforesaid persons-
(a) spouse.
(b) son or daughter, or, where there are both son and daughter both of them,
(c) parents,
(d) daughter-in-law being the widow of his pre-deceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death ...........'
7. The amendment was based on the then accepted view that 'any person continuing in possession after the termination of his tenancy' was only a statutory tenant. The protection given to him by the Act lasted only up to his death. The intention of clause (iii) was to extend the definition of tenant in clause (ii) to include certain heirs of the tenant who were ordinarily living with the tenant in the premises as members of his family up to his death. It is to be noted that this amendment was made by the legislature when the majority decision in Anand Nivas : [1964]4SCR892 followed in J. C. Chatterjee : [1973]1SCR850 was the governing law and a person continuing in possession after the termination of his tenancy was not regarded as tenant but only as statutory tenant.
THE FACTS:
8. The appellants before us are heirs of tenants of premises let out for nonresidential purposes. The tenancies have been held to have been terminated before the deaths of the tenants which took place prior to 1-12-1975. The heirs of the deceased tenants could not, thereforee, be said to be living in the premises with the deceased at the time of their deaths, The decree for possession has been passed against the ground that the heirs (appellants herein) were not tenants and the Delhi Rent Control Act did not apply to them. Though the original tenants had died prior to 1-12-1975, the suit for possession by the landlord, Narain Dass against Mohd. Din and others was filed in 1967, while the suit for possession by the landlord. Mrs. Vinod Ahluwalia, against Haripal Singh and others was filed in 1976, Both the suits were decreed in favor of the landlords on the view that after the termination of tenancies the original tenants became only statutory tenants entitled to the protection against eviction only during their lifetime but not beyond. The heirs of the tenants did not, thereforee, inherit any right from them to remain in possession. This view was in accordance with the decision in Anand Nivas and J. C. Chatterjee. It was not affected by the amendment of the definition of 'tenant' which came into force on 1-12-1975.
Two Different Meanings of 'Tenant';
9. It was arguable that the old definition of 'tenant' equated 'any person continuing in possession after the termination of his tenancy' with 'any person by whom or on whose account or behalf the rent of any premises is or but for a special contract could be payable', namely the contractual tenant. But the decision in Anand Nivas : [1964]4SCR892 and J. C. Chatterjee : [1973]1SCR850 held otherwise, namely that 'any person continuing in possession after the termination of his tenancy' was not to be equated with the contractual tenant, but was to be regarded as a statutory tenant whose tenancy and statutory protection could not be inherited by his legal representatives. Actually the decision in Anand Nivas was in relation to the definition of 'tenant' in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which generally similar to the old definition of 'tenant' of the Delhi Act, could arguably also be distinguished from it. The same could be said of the definition of 'tenant' in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, which was the subject-matter of the decision in J. C. Chatterjee.
10. On the other hand, the definition of 'tenant' in the Madhya Pradesh Accommodation Control Act, 1961 is substantially the same as was the old definition of tenant in the Delhi Act. In Damadilal : AIR1976SC2229 , it has been held in agreement with the dissenting judgment of Sarkar J. in Anand Nivas : [1964]4SCR892 that a person continuing in possession after the termination of the tenancy was a tenant precisely of the same kind as was the contractual tenant as the two were equated with each other in the definition of 'tenant', It was pointed out that the concept of 'statutory tenant' was unknown to the rent control legislation in India. It was not based on any general principle. On the contrary, it was the result of statutory provisions in the English legislation which had no parallel in the Indian legislation. That concept could not, thereforee, be brought into Indian legislation either on principle or by analogy. It was, thereforee, held that the legal representatives of a person who continued in possession after the termination of his tenancy were entitled to inherit his tenancy and the statutory protection against eviction, etc. attached to it.
The Effect of Damadilal;
11. In respect of the definition of 'tenant' in the M. P. Act, the decision in Damadilal : AIR1976SC2229 is preferable to the previous decisions in Anand Nivas : [1964]4SCR892 and J. C. Chatterjee : [1973]1SCR850 for the following reasons:
(i) The definition of 'tenant' in the Bombay Act is arguably not quite the same as the definition of tenant in the M. P. Act and the Delhi Act.
(ii) The decision in Damadilal is subsequent to the decision in Anand Nivas and J. C. Chatterjee. Though all these decisions are by Benches of three Judges, the latest decision has to be preferred to the earlier ones.
(iii) The decision in Anand Nivas has been considered and discussed by the Bench who decided Damadilal. It cannot be said, thereforee, that the decision in Damadilal was given without considering the previous decision in Anand Nivas.
The Declaratory Theory of Precedent:
12. The established doctrine of precedent in countries governed by the common law system is that judicial decisions declare the law as it is and has always been in the past and that they do not create completely new law by amending the existing law. This is contrasted with legislation which always enacts new law to some extent except when legislation is intended merely to consolidate the existing law. The difference between the operation of judicial decisions and legislation follows from the difference in the nature of the two. A judicial decision necessarily decides on the facts which have already arisen and which are to be governed by the law which existed when the events constituting the facts happened. The happenings are necessarily before the litigation comes to the court and thus before the decision is given. Secondly, the process of reasoning of the court takes the form of applying the existing law to the facts of the case. The declaratory nature of a precedent is the same when it interprets a statute as it is when it declares the common law (Rupert Cross, 'Precedent in English Law', second edition page 221).
13. The effect of this theory on the meaning of the old definition of tenant in the Delhi Act is this: while two different interpretations of the words 'any person continuing in possession after the termination of his tenancy' were possible initially when the Delhi Act was enacted, the interpretation given by the decision in Anand Nivas : [1964]4SCR892 became the law by virtue of the decision under Article 141 of the Constitution. This was deemed to be the law from the very enactment of the old definition. How long this continued to be the law? The law may be changed prospectively or retrospectively by legislation. It may also be changed retrospectively (except in the rare case of a prospective overruling) by a new precedent which over rules or departs from the old one. It makes all the difference as to which of these two methods of changing the law was adopted first. It is the method of legislation which changed the definition of tenant in the Delhi Act by the Amending Act of 1976. It is true that the Amending Act came into force from 1st December, 1975, but the most significant provision of the Amending Act for our purpose is Section 2, which is as follows:
'In Section 2 of Delhi Rent Control Act, 1958 (59 of 1958) (hereinafter referred to as the principal Act), for clause (1), the following clause shall be, and shall be deemed always to have been substituted.'
14. The old definition was substituted by the new definition with a retrospective effect which went back to the very commencement of the Delhi Rent Control Act of 1958. The effect was (as if the definition of 'tenant' right film the inception of the Delhi Act was the definition which was inserted in it by the amending Act of 1976. This cut both ways: (a) Those who could argue that prior to the decision of Anand Nivas the legal representatives of a person who continued in possession after the termination. of his tenancy inherit ed the tenancy were deprived of that argument with the consolation that only some of the legal representatives and that too for a period of only one year inherited that tenancy, (b) Those (who) could argue that in view of the decision in Anand Nivas the legal representatives of a person continuing in pos session after the termination of his tenancy did not inherit either his tenancy or the statutory protection were told that some of the legal representatives for the period of one year could inherit the tenancy. The legislation was thus a compromise between the contending claims of the landlords and the legal representatives of the person continuing in possession after the termination of his tenancy. The legislative compromise took effect and from the inception of the Delhi Act till now it is deemed to be the law in this respect.
Inapplicability of Damadilal to Delhi:
15. The ratio decidendi of a case is ascertained mainly by two methods. Firstly, it is determined by ascertaining the facts treated as material by the court and the principle derived from the application of law of these facts (A. L. Goodhart, 'Determining the ratio decidendi of a case', Essays in Jurisprudence and the Common Law page 1). Secondly the ratio of a decision as lawyers understand it may be said to be in the rule of law expressly or impliedly treated by the Judge as a necessary step in reaching his conclusion (Rupert Cross, 'Precedent in English Law', 2nd Edition page 77).
16. The applicability of Damadilal to Delhi was prevented by the fact that before the 'said decision was announced by the Sup Court the law in Delhi was so changed that it became materially different from the law in Madhya Pradesh in respect of the definition of 'tenant'. The ratio decidendi of Damadilal could, thereforee, apply only to cases covered by the Madhya Pradesh Act because the person continuing in Possession after the termination of tenancy was equated with the contractaul tenant only in that Act. On the contrary in the Delhi Act this equation had come to an end by the effect of the amending Act of 1976. What is more is the change made by the amending Act of 1976 which came into force an 1-12-1975 was given retrospective effect which went back to the very commencement of the Delhi Rent Control Act, 1958. The result was that at no period of time during the currency of the Delhi Act from its enactment till now the old definition of 'tenant which once existed in the Delhi Act can be deemed to have been there at all. The decision in Damadilal : AIR1976SC2229 could not apply except to the said definition. Since the said definition by the retrospective deeming effect is deemed not to have existed at any time in the Delhi Act the decision in Damadilal could not I apply to the Delhi Act at any time. This conclusion accords with that of A. B. Rohatgi J. in Mohan Lal v. Shri krishan, : AIR1978Delhi92 .
Difference between Residential & Non -Residential Letting:
17. The retrospective amendment also inserted a distinction between the letting of premises for residential purposes and the letting of premises for non-residential purposes in the definition of 'tenant' in Section 2(1) of the Delhi Act. The limited right of inheritance is granted only to some of the heirs living in the premises with the deceased person whose tenancy has been determined but not to those who could not be living with him because the letting was for a non-residential purpose. The words used in the amended definition of 'tenant' to give the limited right of inheritance to such persons 'as had been ordinarily living in the premises with such person as members of his family up to the date of his death' have to be construed to mean that the benefit of amendment is available only when the tenancy was for residential purpose. It is only then that the heirs of the tenants could live with him in the premises at the time of his death. If the premises were not let for residential purpose then neither the tenant nor his heirs could be living in those premises. This conclusion is based on the reasoning in the recent decision of the Supreme Court in Ganpat Ladha v. Sashikant Vishnu Shinde, : [1978]3SCR198 , construing similar words in S. 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act. It may be mentioned in passing that in Firm Sardari Lal Vishwa Nath v. Pritam Singh, : [1979]1SCR111 , the person continuing in possession after the termination of tenancy was again tenant for the sake of convenience called a statutory tenant under the East Punjab Urban Rent Restriction Act, 1949, though the question there was whether a notice to determine tenancy had to be given to such person under Section 106 of the Transfer of Property Act. The question was answered in the negative.
18. For the above reasons, the answer to the reference is that after the death of the person continuing in possession after the determination of his tenancy, the legal representatives had the limited right of inheritance as given in the definition of 'tenant' in S. 2(1) as retrospectively amended by the amending Act of 1976. Rights of these legal representatives have to be determined in the light of the observations made by this Bench above. The appeal may now go back to the referring Bench for further disposal.
H.L. Anand, J.
19. I have had the benefit of perusing the judgment prepared by Hon'ble the Chief Justice. I am fully aware that the 'answer to the reference and the reasons on which the answer is based clearly expose the anomaly resulting from the two apparently conflicting decisions of the Supreme Court in the case of Anand Nivas Pvt. Ltd. : [1964]4SCR892 (supra) and Damadilal : AIR1976SC2229 (supra) the amendment of the Act between the two decisions and the delay in further legislative action after the latter decision in that the amendment of the Act following the first decision, which was intended to give relief to the legal representative of the tenants, who had died after the termination of their tenancies, has virtually assumed the position of an instrument of oppression of such legal representatives. I am, however, reluctantly constrained to respectfully concur in the answer, as indeed the reason, for, to my mind, on the contentions raised before the Full Bench, no other answer was possible and the larger questions that could perhaps have made it possible for this Court to give effect to the true intention of Parliament in amending the law were unfortunately not raised and could not, there' fore, be decided at this stage of the proceedings. I would, however, be failing in my duty if I did not draw attention to these questions, so that these could be raised before the Division Bench to which the matters go now for decision or on any other appropriate occasion and decided according to law, unless further legislative action intervenes in the meanwhile to restore the benefit to the legal representatives which is denied to them in the present state of the law.
20. Basically, tenancy is the creature of a contract between the landlord and the tenant. It is a minor mercy of the law of succession that when a contractual tenant of a residential premises dies, he does not take away with him the roof that he had provided for his family and when such a tenant of a commercial premises dies, it does not deprive the dependents of their source of sustenance. The position of a ' contractual tenant, however, was precarious until the Rent Control legislation in different parts of the country ensured to him a limited protection from eviction even after the contractual tenancy had been determined according to law by the landlord, The position of such a tenant, who was generally described, though in appropriately, as a statutory tenant was secured by such legislation by the way in which most of the legislatures defined the expression 'tenant' as including a person who continued in possession after the termination of his tenancy This how the expression 'tenant' was defined in the Act. By virtue of this definition, the contractual tenant continued to be a 'tenant' even after the determination of tenancy and could be evicted only on the conditions and in accordance with the procedure laid down in the Act. By virtue of this protection such a tenant was at par with a contractual tenant so far as the heritability of the right was concerned with the result that where a contractual tenant died, after his, contractual tenancy had been determined, the tenancy, which had its genesis in the statutory protection, continued to ensure for his successors in accordance with the law of succession, like the other estate of the deceased tenant. That is how the law in Delhi was throughout understood to be until the pronouncement of the Supreme Court in the case of Anand Niwas Pvt. Ltd. (supra). The Supreme Court was not concerned in this case with the Act but laid down a general proposition of law In the context of certain provisions of the Bombay Act, following, however, the principles laid down in English law that on the determination of a contractual tenancy, the so called statutory tenant, who had the protection of the Rent Acts, did not on his death leave any heritable estate in relation to the tenancy and that the statutory protection available to him during his lifetime, as if it were, died with him. In the confusion that arose In the law following this decision, it was lost sight of that whether a contractual tenant, who died after the determination of the contractual tenancy, left any heritable estate or not, was not dependant on any general principle but on the nature of the statute that regulated the eviction of tenants, with the result that in Delhi, as elsewhere, the dependants of what may be described as statutory tenants, were understood as having been left with no rights in the erstwhile tenanted premises and a large number of them were, thereforee, evicted while still larger numbers were threatened with eviction. It was this situation which was causing great hardship to the dependants of such tenants that evoked legislative intervention and first by an Ordinance and later by the Amending Act, the definition of the expression tenant' in Section 2(1) of the Act was amended by the addition Of clause (iii) to it which ex facie 1ntrOduced as element of limited heritability In relation to certain class of tenancies The subsequent pronouncement in the case of Damadilal (supra), however, restored the true legal Position when, while dealing with the Madhya Pradesh Accommodation Control Act, which is almost in pari materia with the Act , the Supreme Court held that the nature of the tenure of a tenant, whose contractual tenancy had been determined, was not dependent on any Principle Of English law but on the provisions of the concerned statute, and in the context of the Madhya Pradesh statute, it was held that the expression 'tenant' in that Act was wide enough to Include a person who continued In possession of the demised premises even after the termination of the contractual tenancy and the thereforee, the heritability was unaffected, whether such a tenant died before or after the determination of the contractual tenancy. Damadilal, thereforee, remedied the situation that led to the Amending Act and made all tenancies heritable irrespective of the f act whether the tenant died before or after the determination of the contractual tenancy. The amendment of the expression 'tenant', however, continues to remain a part, of the Statute and if the restoration of the legal position by Damadilal calls for further legislative action, it is still to come. The resultant position creates controversies as indeed may lead to certain peculiar anomalies.
21. The real difficulty, however, arises when one considers the wider impact of the two decisions of the Supreme Court and the amendment made in between the two on the rights and obligations of the heirs of different categories f tenants. Legislative action intervened when on the first of these two decisions it was realised, a realisation which could now be said to be based on a wrong assumption of law, that the dependents of a tenant, whose contractual tenancy had been determined, were threatened with eviction entailing serious hardship. The amendment was, thereforee, intended to give limited protection to a class of such dependents in relation to some of the tenancies where none was otherwise thought to be available. The amendment was, thereforee, intended to be beneficial rather than 'restrictive in nature. If the object of interpretation of statute is to gather the true intent of those who made it, could there be any doubt that the amendment was intended to confer additional safeguards rather than to withdraw a part of the existing protection? This is manifest in the statement of objects and reasons of the Amending Act. If that be so, would it be legitimate to nevertheless construe the amendment as in any way whittling down the statutory protection to which the dependents are entitled? If, for some reasons, there be no escape from the conclusion that, even while intending to enlarge the scope of protection, the legislative action, has unwillingly restricted it, what would be the position of the constitutional validity of the amendment? The amendment is based on an assumption with regard to the legal position which has been belied with the result that what was intended to be a relief would virtually become the instrument of oppression, Would it bring the legislative, action within the scope of the limited judicial review of legislation or would the Court be helpless because the existing principles of such judicial review would not cover such an eventuality? A possible way of looking at it would be that the Court would consider the enlargement of the traditional concept of judicial review of legislation to deal with the extraordinary situation that threatens to cause hardship. Principles of law are after all not of divine origin and were judicially or juristically evolved in the quest to do justice where the law or the existing principles were found to be inadequate. If new and extraordinary situations arise, which call for judicial action, new principles must be evolved to meet fresh challenges. Principles do not constitute a static concept but are the result of a continuous process of judicial thought.
22. Another aspect could be whether the twofold classification - one between the different class of heirs and the other between different natures of tenancies, on which the amendment is apparently based would or would not constitute hostile discrimination and attract Article 14 of the Constitution of India and whether the classification would pass the test of reasonableness. What would happen to cases where evictions have already been carried out on the basis of the decision of the Supreme Court in the first case and what is to happen to cases involving some or all of these questions which are still pending? These are some of the questions that may arise. They are not easy of solution and raise important questions not only of interpretation but also of the scope of judicial review of legislation.
23. Subject to these observations, I would respectfully concur in the proposed answer.
M.L. Jain, J.
24. The short question is: Where a legislative amendment to wit, the amended definition of a 'tenant' and, a judicial eclaration such as the ratio of Damadilal : AIR1976SC2229 -both operate with effect from the very genesis of the principal enactment, which, in the event of a conflict between the two is to prevail? Legislation of co4se, I, thereforee, respectfully agree with the answer proposed by my Lord the Chief Justice. But, with great humility I would like to permit myself the indulgence of explaining why I do so.
25. The definition of 'tenant' in clause (1) of S. 2 of the Delhi Rent Control Act, 1958, stood originally as follows:-
' 'tenant' means ... and ... includes ... also any person continuing in possession after the termination of his tenancy...' This definition clearly indicates that though after the termination of tenancy, a tenant ceases to be so, yet he shall be described as a 'tenant' by reason of the extended definition inserted only for purposes of the said statute as contradistinguished from a lessee under the Transfer of Property Act. The Act does not by itself create a fresh tenancy or renew the expired one. It only restricts, and fetters the right of the landlord to re-enter. Such a tenant is indisputably a statutory tenant', vide Firm Sardari Lal Vishwa Nath v. Pritam Singh : [1979]1SCR111 a Full Bench decision delivered by Desai, J. A similar extended meaning of a 'tenant' in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, had come up for consideration before the Supreme Court in Anand Niwas Pvt. Ltd. v. Anandji Kalyanji Pedhi : [1964]4SCR892 Sarkar J. had observed that such a person has been called a statutory tenant and himself preferred 'to use that description for economy of expression'. He was of the view that such a tenant 'has no estate or property in the' demised premises, but 'has nonetheless an interest, a right in the premises occupied by him, which he may be empowered to transfer'. He found that Section 13 (1) (e) and some other provisions of the Bombay Act clearly indicated that a statutory tenant had been so empowered by that Act. But, Shah, J. speaking for himself and M. Hidayatullah J. observed as follows (at p. 422):-
'A person remaining in occupation of the premises let to him after the determination of or expiry of the period of tenancy is commonly though in law not accurately, called 'a statutory tenant'. Such a person is not a tenant at all; he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in, that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His rig to remain in possession after the determination of the contractual tenancy is personal: it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute. The right of a lessee from a landlord on the other hand is an estate or interest in the premises in the absence of a contract to the contrary, is transferable and the premises may, be sublet by him. But with the determination of the lease, unless the tenant acquires the right of a tenant holding over, by acceptance of rent or by assent to his continuing in possession by the landlord, the terms and conditions of the lease are extinguished, and the rights of such person remaining in possession are governed by the statute alone,' (Emphasis laid)
26. This decision was followed in J, C. Chatterjee v. Sri Kishan Tandon : [1973]1SCR850 (supra): Palekar, J. speaking for himself, and Grover J. held that on the death of a statutory tenant pending eviction suit or appeal, his heirs and legal representatives brought on record cannot claim the status of a tenant.
27. Since the Delhi Rent Control Act, 1958, did not make any provision in respect of heritability of the rights which it preserves to or confers upon tan ex-tenant (to borrow the expression from Bachawat J. in Krishna Prasad Bose v. Sm. Sarajubala Dassi : AIR1961Cal505 (FB) the Parliament by an Act No. 18 of 1976, amended the definition of 'tenant' retrospectively in order to provide that such rights shall not altogether extinguish and shall be heritable but only in case of premises let out for residential purposes to certain specified categories of heirs and that too in specified circumstances and conditions. Section. 2 of the Delhi Rent Control (Amendment) Act, 1976, has expressly provided that clause (1) shall be and shall be deemed always to have been substituted by the present clause (1), the effect of which is that the amendment operates with effect from the very commencement of the Act.
28. In a later decision of the Supreme Court in Damadilal v. Parashram : AIR1976SC2229 (supra), Gupta, J. speaking for himself, and Chandrachud and Sarkaria, JJ. while examining a similar provision in the M. P. Accommodation Control Act, 1961, reconsidered the matter in the light of its Previous two decisions and of the various rent restriction laws in U. K. and came to the conclusion that:-
'Courts in England have held that a statutory tenant has no estate or property in the premises he occupies because he retains possession by virtue of the Rent Acts and not as being entitled to a tenancy: it has been said that he has only a personal right to remain in occupation, the statutory right of 'irremovability', and nothing more.'
But,-
'In England the statutory tenant's right to sublet is derived from specific provisions of the Acts conceding this right to him; in the Act we are concerned with in this appeal, the right flows from his status as tenant. This is the basic difference between the English Rent Restriction Acts and the Act under consideration and similar other Indian statutes.'
Earlier,-
'The definition makes a person continuning in possession after determination of his tenancy, a tenant ............ putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must thereforee be the same unless any provision of the Act conveyed a contrary intention.
29. The 'status' (of a tenant) occurring in the above passage, does not appear to have been used in the sense in which Scott, Lj, defined it in Re Luck's Settlement Trusts (1940) 1 Ch D 864 , as 'when created by the law of one country, it is or ought to be judicially recognised as being the case everywhere all the world over', nor does it appear to have been used in the sense that any judgment or order or decree in respect thereof operates as a judgment in rem. It has been, it seems, used in a general sense of legal condition of any kind whether personal or proprietary.
30. The position, thereforee, that emerges from the Supreme Court decisions is that the Delhi Rent Control Act, 1958, if it had stood unamended, would, without purporting to create a fresh tenancy, still confer upon an 'ex-tenant' the status of a tenant which is at par with that of a contractual tenant, and consequently, the interest of such a person, to remain in occupation after his tenancy has been terminated is heritable; briefly, so long as a tenant or his representatives remain in possession, none of them can be ousted except in the manner provided in the said Act. But, all this elucidation has no application to the De1hi Rent Control Act after its retrospective amendment.
31. Since certain questions arise in respect of the amended definition, I would like to read Section 2 of the Delhi Rent Control (Amendment) Act, 1976-
'2. Amendment of Section 2 - In Section 2 of Delhi Rent Control Act, 1958 (59 of 1958), (hereinafter referred to as the principal Act), for Clause (1), the following clause shall be, and shall be deemed always to have been, substituted, namely:-
(1) 'Tenant' means any person by whom or on whose account or behalf the rent of any premises is, or but for a special contract, would be, payable, and includes -
(i) a sub-tenant;
(ii) any person continuing in possession after the termination of his tenancy; and
(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and condition specified, respectively, in Explanationn I and Explanationn Ii to this clause, such of the aforesaid person's-
(a) spouse,
(b) son or daughter or, where there are both son and daughter, both of them.
(c) parents.
(d) daughter-in-law, being the widow of his pre-deceased son.
as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include-
(A) any person against whom an order of decree for eviction has been made, except where such decree or order for eviction is liable to be reopened under the proviso to Section 3 of the Delhi Rent Control (Amendment) Act, 1976;
(B) any person to whom a license, as defined by Section 52 of the Indian Easements Act, 1882 (5 of 1882), has been granted.
Explanation I:- The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:-
(a) firstly, his surviving spouse
(b) secondly, his son or daughter, or both if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death;
(c) thirdly, his parents, if there is no surviving spouse, son or daughter of the deceased person, or if such
surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the
family of the deceased person up to the date of his death; and
(d) fourthly, his daughter-in-law, being the widow of his predeceased son, if there is no surviving spouse son, daughter or parents of the deceased person, or if such surviving spouse, son, any of them daughter, or parents or did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death.
Explanation II:- If the person who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquir6 such right for a limited period of one year; and on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished.
Explanation III:- For the removal of doubts, it is hereby declared that,
(a) where, by reason of Explanationn Ii, the right of any successor to continue in possession after the termination of the tenancy becomes extinguished, such extinguishment shall not affect the right of any other successor of the same category to continue in possession after the termination of the tenancy. But if there is no other successor of the same category the right to continue in possession after the termination of the tenancy shall not, on such extinguishment, pass on to any other successor specified in any lower category or categories as the case may be;
(b) the right of every successor, referred to in Explanationn I, to continue in possession after the termination of the tenancy, shall be personal to him and shall not on the death of such successor, devolve on any of his heirs.'
32. Now, do the heirs of the decedent tenant mentioned in the aforesaid clause (iii) inherit the rights of continued occupation only in respect of residential premises, or does it also cover premises let out for non-residential purposes? The wordings of the clause would ex facie suggest that any of the persons falling in the aforesaid categories (a) to (d) will inherit the right of occupation in respect of all types of tenancies if he has been financially dependent upon the deceased and had , been ordinarily living in. the premises with the decedent tenant as a member of his family up to the date of his death, but, Avadh Behari, J. in Mohan Lal v. Shri Krishan, : AIR1978Delhi92 has held that the amendment made the statutory tenancy heritable to a limited extent and that too in relation to residential premises only. I agree with the conclusions arrived at by the learned Judge. The stand taken by him is vindicated by it decision of the Supreme Court in Ganpat Ladha v. Sashikant Vishnu Shinde, : [1978]3SCR198 (supra). Dealing with a similar phraseology Beg C. J. speaking for himself, and Bhagwati and Jaswant Singh, JJ. observed that it was obvious from the language that the intention of the legislature in giving protection to a member of the family of the tenant residing with him at the time of his death was to secure that on the death of the tenant the member of his family residing with him at the time of his death is not thrown out, and this protection would be necessary only in case of residential premises. When a tenant is in occupation of a business premises, there would be no question of protecting against dispossession a member of the tenant's family residing with him at the time of his death. The legislative, intent never was to confer protection in respect of business premises on a member of a tenant's family residing with him at the time of his death. The amendment applies only in respect of residential premises, and since the premises in question before us are admittedly business premises; the respondents could not claim to be tenants under the amended definition.
33. Another question that was mooted was whether in view of the elucidation made in Damadilal : AIR1976SC2229 , the amendment of 1976 has become non est, and this Court can by extending the scope of judicial review of legislation ignore it and relieve the discrimination and hardship which this amendment has caused inasmuch as it has excluded certain heirs from succession to statutory tenancy, and in respect of the entitled representatives as well, the protection has been made available only in case of residential premises. It was urged that the legislature could not have intended to provide for the roof but deprive the heirs of the bread. I am unable to subscribe to this argument, because this Court cannot repeal the law by enlarging the supposed power of judicial review. It is bound to give effect to the legislation as it stands, firstly, because Damadilal does not in terms overrule Anand Nivas : [1964]4SCR892 and J. C. Chatterjee : [1973]1SCR850 and secondly because the legislature when it had an opportunity after J. C. Chatterjee to amend the law, did not totally wipe off the effect of Anand Nivas and J. C. Chatterjee. It did not provide that the protection shall extend to all the legal heirs of the deceased in all types of tenancies. The legislature could, I think limit heritability of any right to certain specified heirs in certain specified circumstances from the inception of the legislation without being susceptible to the vice of hostile discrimination. If it involves any hardship it can be relieved only by a legislative amendment.
34. My answer to the reference, thereforee, is that after the death of a tenant, the right to continued occupation is available only in respect of residential premises and that too to the limited number of heirs specified in clause (1) aforesaid, if they fulfilll the other conditions stated therein. The appeals shall again go back to the concerned Bench for further disposal.
35. Reference answered accordingly.