Kerala High Court
Metro Studio vs Canara Bank on 7 March, 2003
Equivalent citations: 2003(2)KLT629
Author: K. Padmanabhan Nair
Bench: K. Padmanabhan Nair
ORDER K. Padmanabhan Nair, J.
1. The respondents in a proceedings initiated by the Estate Officer, Canara Bank, Thiruvananthapuram are the revision petitioners. This Civil Revision Petition is filed against an order passed by the Estate Officer under Section 5(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971('Act' for short) and confirmed by the District Judge, Thiruvananthapuram in C.M.A. 238 of 2000.
2. The first revision petitioner is a partnership firm registered under the provisions of the Partnership Act having its office at Canara Bank Building, M.G. Road, Thiruvananthapuram, second revision petitioner is the Managing Partner and the third revision petitioner a Partner of the firm. The building bearing No. T.C. 26/281situated near M.G. Road in Thiruvananthapuram City, is owned by Canara Bank. Originally the property belonged to a firm by name Trivandrum Permanent Fund. In the year 1936, a building situated in the property was let out to Mr. H.E. Lopez for the purpose of running a Studio. He had started a Studio by name Metro Studio in that property. Subsequently the Canara Bank took over the liabilities of Trivandrum Permanent Fund and thus it became the owner of the property and landlord of the building in which Sr.H.E. Lopez was conducting the photo studio. On 14.10.1969 the second revision petitioner took over the proprietary concern run by H.E. Lopez with the knowledge and consent of the landlord. The proprietary concern was converted into a partnership firm, consisting of the revision petitioners 2 and 3 and their father Shri T.M. Joseph. They attorned to the Bank and was paying rent to the Bank. The landlord bank wanted to reconstruct the entire building which is occupied by the revision petitioners. They agreed to vacate the premises so as to enable the landlord to reconstruct the building on an understanding that during the reconstruction they will be given alternate accommodation by the landlord itself. On 2.12.1978, an agreement was entered into between the revision petitioners and the Bank, by which the revision petitioners agreed to shift the Studio to an alternate accommodation provided by the landlord with a further understanding that after reconstruction of the building an area of 62.82 square metres will be given to the tenant at a no profit no loss basis on execution of a registered rent deed. Accordingly, the tenant/firm gave vacant possession of the old building and shifted the Studio to the alternate accommodation provided by the landlord. On 10.5.1982, the revision petitioners and the respondents entered into an agreement for lease. The revision petitioners were given room in the reconstructed building and they shifted the Studio from the alternate accommodation provided to them by the landlords and started business in the reconstructed building. But, no registered lease deed was executed between the parties as agreed to between them. On 30.6.1992, the Bank issued a letter demanding surrender of vacant possession of the building. On receipt of the notice, the revision petitioners filed a suit for declaration that the lease agreement between the revision petitioners and the Bank was that of perpetuity and so they cannot be evicted from the premises. There was an interim order, which was subsequently vacated. The revision petitioners filed a Civil Miscellaneous Appeal and ultimately they filed C.R.P. 1501of 1998 before this Court and the Civil Revision Petition was disposed of on 16.10.1998. Thereafter on 28.10.1998 the Estate Officer issued a notice under Section 4(1) of the Act. The notice was served on the revision petitioners 2 and 3. The notice issued to Shri. T.M. Joseph, the other partner of the firm, was returned unserved with an endorsement that he was dead. On receipt of the notice, the revision petitioners entered appearance before the Estate Officer and filed their objections. Evidence was also recorded. Thereafter the Estate Officer passed an order of eviction as provided under Section 5(1) of the Act. Aggrieved by the order passed by the Estate Officer, the revision petitioners filed C.M.A. 238 of 2000 before the District Court, Thiruvananthapuram. The learned District Judge after hearing both sides, concurred with the findings entered by the Estate Officer and dismissed the Civil Miscellaneous Appeal. In the meanwhile widow of Smt. T.M. Joseph filed O.P. 32179 of 2001before this Court. The Original Petition was dismissed granting liberty to the petitioner in the Original Petition to get herself impleaded in this proceedings. Accordingly, she filed a petition for getting herself impleaded in this proceedings and the same was allowed. She was impleaded as additional respondent No. 2 in this Civil Revision Petition.
3. The learned counsel appearing for the revision petitioners has argued that the order passed by the Estate Officer is invalid and unsustainable. It is argued that the Estate Officer was acting in an arbitrary manner as if he has got unbridled and unlimited powers. It is also argued that the purpose for which the eviction of the revision petitioners is sought is only a pretext or ruse to evict them from the premises and let out the same to others for higher rent. It is also argued that the provisions of the Act cannot be invoked to evict a genuine tenant in view of the guidelines issued by the Minister of Urban Development of the Central Government. Further it is argued that under Section 4(1) of the Act, notice has to be issued to persons who are having interest on the premises and the legal heirs of T.M. Joseph who died before receipt of the notice are also persons having interest in the premises. But, they were not issued with any notice and on that ground alone the proceedings are liable to be quashed. It is also argued that the Estate Officer can initiate proceedings only against unauthorised occupants and he cannot make the occupation of a person unauthorised and then evict him. It is argued that the specific case put forward by the Estate Officer is that the petitioners are lessees inducted into possession under the agreement of lease executed in the year 1982 for a term often years and since that term expired, their occupation has become unauthorised and liable to be evicted under the provisions of the Act. It is argued that the document relied on by the Estate Officer is a document compulsorily registrable under Section 17(2) of the Indian Registration Act and since the same is not registered, the same cannot be received as evidence in view of the provisions contained in Section 49 of the Registration Act. So, that document cannot be looked into for any purpose. It is argued that except that document, there is nothing on record to show that the occupation of the revision petitioner has become unauthorised and they are liable to be evicted from the premises. It is argued that the tenancy arrangement still continues and until and unless the tenancy is determined, their possession is not unauthorised and hence they cannot be evicted under Sections 4 and 5 of the Act.
4. The learned counsel appearing for the Bank has argued that the building was let out to the first revision petitioner-firm to which revision petitioners 2 and 3 are partners for a period of ten years and since that period is over, their possession has become unauthorised and hence they are liable to be evicted. It is argued that no notice to the legal representatives of the deceased partner is necessary and due notice has been issued to the firm. Hence, the Bank prayed for the dismissal of the Civil Revision Petition.
5. The learned counsel appearing for the revision petitioners have raised a contention that the notice issued in this case is bad in law. It is also argued that the ground on which the eviction is sought is also not genuine or proper. In a proceedings under Sections 4 and 5 of the Act it is not necessary to consider the genuineness of the claim put forward by the Estate Officer. That may have some relevance if the bank files petition for eviction before the Rent Control Court. In this proceedings the bona fides of the claim need not be considered. It is also argued that the provisions of the Act cannot be invoked to evict a genuine tenant and the Government had issued guidelines which applies to an institution like Canara Bank and hence they are bound to follow the directions.
6. Admittedly the so-called directions are only guidelines. They are not statutory provisions having any binding force. Even accepting the contention of the petitioners that the Government had issued certain circulars or guidelines that is not a ground to reject the claim put forward by the bank in this case. It is well settled position of law that the occupant of a public premise can be evicted resorting to the procedure prescribed under the Act. So, I shall proceed to consider how far the notice issued by the bank is correct.
7. Section 2 of the Act contains the definitions. Section 2(e) defines public premises which includes a premises owned by a Nationalised Bank. The word "rent" is also defined. It means the consideration payable periodically for the authorised occupation of the premises and includes any charge for electricity, water or any other services in connection with the occupation of the premises. Section 2(g) defines unauthorized occupation, which reads as follows:
"(g) 'unauthorised occupation', in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever."
It is well settled position of law that the provisions under Sections 4 and 5 are applicable only to persons who are in unauthorised occupation of the public premises. So, it must be shown that the person against whom the action was taken has no right to continue in the premises. A reading of Section 2(g) makes it clear that a person can be considered as an unauthorized occupant if his initial entry into the public premise is without any authority. Secondly even if he was in occupation of the premises under an authority his possession will become unauthorized if the authority pursuant to which he was in occupation is terminated. The authority to occupy a public premise can be given by way of permission or under a licence or lease. A reading of Section 2(g) makes it clear that if the person was allowed to occupy the premises as a lessee for a specified period, on expiry of that period his possession becomes unauthorized. In other cases, the lease has to be terminated in accordance with the provisions contained in Section 106 of the Transfer of Property Act. If the lessee continues to be in possession even after the expiry of the period and if the landlord receives rent he will become a tenant holding over. In such cases a valid notice of termination of tenancy in terms of Section 106 of the Act is essential.
8. Sections 4(1) and 5 of the Act are also very relevant. Section 4 reads as follows:-
"4. Issue of notice to show cause against order of eviction -
(1) If the Estate Officer is of opinion that any persons are in unauthorized occupation of any public premises and that they should be evicted, the Estate Officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause, why an order of eviction should not be made."
(2) The notice shall -
(a) specify the grounds on which the order of eviction is proposed to be made; and
(b) require all persons concerned, that is to say, all persons, who are, or may be in occupation of, or claim interest in, the public premises-
(i) to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than seven days from the date of issue thereof, and
(ii) to appear before the Estate Officer on the date specified in the notice alongwith the evidence which they intend to produce in support of the cause shown, and also, for personal hearing, if such hearing is desired.
(3) The Estate Officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned.
(4) Where the Estate Officer knows or has reasons to believe that any persons are in occupation of the public premises, then, without prejudice to the provisions of, Sub-section (3), he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed.
Section 5(1) of the Act reads as follows:-
"5. Eviction of unauthorized occupants.- (1) If, after considering the cause, if any shown by any person in pursuance of a notice under Section 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under Clause (b) of Sub-section (2) of Section 4 the Estate Officer is satisfied that the public premises are in unauthorised occupation, the Estate Officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated. On such date as may be specified in the order by all persons, who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises."
A reading of Section 4(1) shows that to issue notice, the Estate Officer must form an opinion that the person against whom a notice is issued is in unauthorised occupation of the public premises. The Estate Officer cannot make occupation of a particular person unauthorised. The Estate Officer has to initiate proceedings only if he is of the opinion that the occupation of the person is unauthorised. If the Estate Officer is satisfied that the person in occupation is an unauthorised occupant, he shall issue notice specifying the grounds on which the eviction is "sought to be made and direct him to show cause why he shall not be evicted. When the person on whom the show cause notice is issued appears and show cause, the Estate Officer is bound to consider the evidence adduced by him and then find whether such a person is in unauthorised occupation because under Section 5(1) of the Act the Estate officer can order eviction only if he is satisfied that the public premises are in unauthorised occupation.
9. In this case the revision petitioners came into occupation as a lessee is not in dispute. The materials on record shows that there was abuilding in the property and the same was let out to one H.E. Lopez in the year 1936 for running a Studio. The landlord was the "Trivandrum Permanent Fund", which was subsequently taken over by the respondent-Bank. In the year 1969, the present revision petitioners took over the concern. As already stated, in the year 1978 the Bank wanted to reconstruct the building and the revision petitioners surrendered possession of a portion of the building in their possession so as to enable the Bank to reconstruct the building. They gave vacant possession of the old building in the year 1978 under an agreement. Subsequently, after reconstruction of the building the Bank entered into an agreement for lease with the revision petitioners and the revision petitioners were given the disputed premises in the newly reconstructed building. The specific case put forward by the respondent is that arrangement was for a period of ten years and that period expired and hence they are entitled to recover the building and thereafter the possession of the revision petitioners was unauthorised and hence they are liable to be evicted under the provisions of the Act. In Corporation of Calicut v. Sreenivasan (2002 (2) KLT 291(SC)) the Apex Court found that unauthorised occupation under Section 2(f) of the Act includes the case of a license as well. The Supreme Court considered the meaning of the definition unauthorised occupation and held as follows:-
"The definition of expression 'unauthorised occupation' contained in Section 2(f) of the Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the public building without authority for such occupation. It implies occupation by a person who has entered in occupation of any public building without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition is inclusive in nature and it expressly covers continuance in occupation by any person of the public building after the authority (whether by way of lease or any other mode of transfer) under which he was allowed to occupy the building has expired or has been determined for any reason whatsoever. This part covers a case where a person had entered into occupation legally under valid authority, but who continues in occupation after the authority under which he was put in occupation has expired or has been determined."
So, it is evidently clear that a person comes into occupation by a valid authority become unauthorised either on the expiry of the period fixed under the lease deed or after issuance of a valid notice to quit. As already stated, the specific case put forward by the Estate Officer in his notice is that the revision petitioners occupying the building under an agreement entered into between them and the Canara Bank for a period of 10 years from the date of the said agreement and that agreement expired and no further extension was granted and so they are liable to be evicted. For proving that fact, the Bank is relying on an agreement entered into between the revision petitioners and the Bank on 10.5.1982. The contention raised by the revision petitioners is that is an agreement compulsorily registrable under Section 17(1)(d) of the Registration Act and since the same is not registered, the same cannot be received as evidence in view of the provisions contained in Section 49 of the Registration Act and a void document. In view of the provisions contained in Section 2(7) of the Registration Act "lease" includes a counterpart, kabuliyat, an undertaking to cultivate or occupy, and an agreement to lease. It is argued that since the document relied on by the Bank is for a period of ten years and an agreement to lease, the same is compulsorily registrable. According to the revision petitioners, it is not a registered document. So, it is a void document and cannot be looked into for any purpose. Reliance is placed on the decision reported in Tiruvenibai and Anr. v. Smt. Lilabai (1959 SCR (Supp.) 107) and State of Maharashtra v. Atur India Pvt. Ltd. ((1994) 2 SCC 497). It is also argued that if a lease agreement for a period exceeding one year, it is compulsorily registrable as held in MK. Isha Beevi v. E.Shahul Hameed (1993 (2) KLT 631) and if the document is not registered, it cannot be looked into for any purpose. It is argued that though the lease deed can be looked into for collateral purpose, the term of lease is not a collateral purpose. In Satish Chand v. Govardhan Das (AIR 1984 SC 143) the Supreme Court had held that the term of the lease is not a collateral purpose. The learned counsel appearing for the revision petitioners has relied on the decisions in Bechardas v. Ahmedabad Municipality (AIR 1941Bombay 346), A Razack Sab v. H.K.G. Setty (AIR 1974 Mysore 7) and Pieco Electronics and Electricals Ltd. v. Tribeni Devi (AIR 1990 Cal. 135) to argue that when immediate possession is given, the agreement of lease will come within the definition of "lease" and the same is compulsorily registrable. Reliance is also placed on the decision reported in Anthony v. K.C. Ittoop & Sons ((2000) 6 SCC 394) and argued that an unregistered lease deed cannot be looked into for any purpose including the term of the lease and jural relationship of the parties, etc. So, the crucial question to be decided in this case is what exactly is the nature of the 1982 document under which the revision petitioners were put in possession. If the same falls within the definition of lease under Section 2(7) of the Registration Act, it is compulsorily registrable since it was for a term often years. If that document is compulsorily registrable, the question is whether the same can be looked into by the Estate Officer for any purpose.
10. The learned counsel for the respondent-Bank has argued that at no point of time the revision petitioners had a case that the lease is not terminated. It is argued that the 1982 document is not a document which is required under law to be compulsorily registered. It is also argued that the copy of the agreement dated 2.12.1978 and the document dated 10.5.1982 were produced by the revision petitioner and marked as Exts.D13 and D16 and in fact the respondent had also produced those documents as Exts.P2 and P3 and those documents are not referred in the order. It is also argued that even assuming that Ext.D16 is a void document because of non-registration, still the revision petitioners are liable to be evicted in this proceedings itself as there is valid termination of tenancy by issuing a notice. In fact, both sides have referred to a notice issued by the Bank at the time of hearing. But, since it was found that no such document was produced before the Estate Officer or before the District Court, the matter was posted for spoken to and thereafter the respondent filed a petition to reopen the case and produced the copy of that notice. But, marking of the document in this Civil Revision Petition is very seriously opposed by the revision petitioners. It is contended by the revision petitioners that there is marked distinction between the appellate and revisional jurisdiction of this Court and the respondent is not entitled to come with afresh evidence in a revision filed by the occupants. It is also argued that even if that document is accepted, that will not improve the case of the Bank and that is not a notice as contemplated under Section 106 of the Transfer of Property Act. The learned counsel appearing for the Bank has argued that Section 106 of the Transfer of Property Act is amended in the year 2003 and the amended provisions of Section 106 of the Transfer of Property Act applies to the pending proceedings also. But, whether there is a valid notice terminating the tenancy was not considered either by the Estate Officer or the District Court.
11. Though the revision petitioners have raised a contention that the notice issued under Section 4 of the Act is insufficient and invalid, either before the Estate Officer or before the District Court they have not raised a contention that there is no termination of the tenancy and still they are holding the property as tenants. As already stated, for evicting a person from a public premises the Estate Officer should enter into a finding that his occupation is unauthorised. Since the revision petitioners came into occupation of the building as tenants, their occupation cannot be termed as unauthorised unless the lease is terminated or came to an end by efflux of time. That crucial question was not considered by the Estate Officer and the learned District Judge. The Estate Officer proceeded on the assumption that the building was let out under Ext. D16 for a period of 10 years from 10.5.1982 and that period was over. So, they are liable to be evicted. The question whether Ext.D16 can be received as evidence was not considered by the authorities below. In K.C Ittoop & Sons v. Antony (1986 KLT 567) a learned Single Judge of this Court has taken a view that even if such a document was considered by the lower Court, the appellate Court should eschew that evidence. The Estate Officer and the District Court have not considered whether the document relied on by the Bank can be received as evidence. It has also not considered whether there is valid termination of tenancy or not. Those are the important questions arising for consideration and since those aspects were not considered by the Estate Officer as well as the learned District Judge, I have no other option but to set aside the order and remand the case to the Estate Officer for fresh disposal after deciding those points.
12. The counsel for the additional 2nd respondent has argued that since no notice was issued to the legal representatives of Late Sri. T.M. Joseph, no order of eviction can be passed in this case. Since the entire case is remanded, it is only just and proper that the Estate Officer considers the contentions raised by the 2nd respondent. It is open to the 2nd respondent to file objections, if any, and adduce evidence, if so advised.
In the result, the Civil Revision Petition is allowed. The orders passed by the Estate Officer on 4.12.2000 in Proceedings No. 1/1998 and confirmed by the District Judge as per judgment dated 19.1.2002 in C.M.A. 238 of 2000 are hereby set aside. The Estate Officer is directed to take back file No. 1of 1998 and dispose of the same afresh in accordance with law after affording opportunity to both sides to amend the pleadings or adduce further evidence. It is open to the additional second respondent to file objections, if so advised. C.M.P. Nos. 1020 and 4983 of 2002 shall stand dismissed.