Delhi District Court
Delhi vs Punjab National Bank on 7 January, 2011
IN THE COURT OF SHRI RAKESH KAPOOR: DISTRICT JUDGE-
1: DELHI.
.
PPACT APPEAL No 05/10
Sh. Swatantra Kumar Gupta
Shop No.15, Punjab National Bank Building
Arya Samaj Road,
Karol Bagh,
New Delhi-110 005
Also at
D-59, Mansarovar Garden
New Delhi ....... Appellant
Versus
Punjab National Bank,
Head Office at
7, Bhikaji Kama Place,
New Delhi-110 065
Branch Office at
Hardware Road,
Karol Bagh, New Delhi.
.......... Respondent
Date of institution of the appeal : 22.05.10
Date on which order was reserved : 15.12.10
Date of decision : 07.01.11
JUDGEMENT :-
.
1. The present appeal under section 9 of the Public Premises ( Eviction of Unauthorized Occupants) Act,1971 ( for short " the Act") PPA No.05/10. Page 1of 18 has been preferred against the order dated 24.04.2010 passed by the learned Estate Officer whereby the appellant has been directed to vacate and handover the peaceful vacant possession of the premises bearing shop No.15, PNB Building, Arya Samaj Road, Karol Bagh, New Delhi ( herein after called "the Premises in question" within 30 days of the pronouncement of the order. Appellant was also held liable to pay damages to the bank as per market rates prevailing in the vicinity w.e.f. 31/5/1986 till he is evicted from the premises in question.. 2- According to the case of the appellant, as set up in the appeal, he was inducted as a tenant in the premises in question together with fittings and fixtures for a period of 5 years commencing from 24.02.1978 vide lease deed dated 24.02.1978 . The tenure of the lease was further increased for 5 years vide lease deed dated 17.11.1983 commencing from 01.10.1983 and the monthly rental was determined as Rs.500/- per month. The appellant made all the rental payments in time and never made any default. The respondent issued a notice dated 07.04.1986 vide which tenancy of the appellant had been terminated w.e.f. 31.05.1986 and he was asked to hand over the possession of the premis4s in question. However, service of the aforesaid notice dated 07.04.1986 has been denied by the appellant. The respondent had been receiving the full rent of the premises in question till December,1986 for which rent receipts were also executed by the respondent and hence the respondent waived off the said notice expressly. The learned Estate Officer issued a notice under section 4(1) of the Act dated 15.04.1987, formulating an opinion that the appellant was an unauthorized occupant and that the tenancy has become month by month tenancy and passed the impugned order under Section 5 of the Act. It has been pleaded that the learned Estate Officer erred in forming an opinion that the appellant PPA No.05/10. Page 2of 18 was an unauthorised occupant for the reason of expiration of lease tenure of the lease deed dated 17-11-1983, because the tenure of lease was for five years renewable at the option of the appellant. It is stated that the notice dated 7/4/1986 was manufactured on frivolous and misconceived grounds with a view to oust the appellant and in the said notice there is a mention of non payment of rent on the part of the appellant in the sum of Rs.1500/-. The appellant was well within his statutory rights to deduct Rs.1500/- for white wash/repairs/ paintings of the premises in question for the period between 1983-1986 as was agreed to by the respondent vide letter dated 10-10-1983. According to the appellant, the finding of the learned Estate Officer that the premises were required bona fide by the bank for the expansion of its service is ill founded and misconceived, inasmuch as learned Estate Officer did not appreciate the fact that the motive of the respondent was to harass the appellant in a discriminatory manner as no eviction has been sought from another tenant Dr. Bhalla who is in possession of three shops on the same building, even though he is not in the employment of the bank. It has also been alleged that the learned Estate Officer committed a gross error in law by holding that the respondent /bank was entitled to damages, especially when there was no petition under Section 7 of the Act. Prayer has been made for setting aside the impugned order.
3- The appeal is resisted on behalf of the respondent by filing written statement, wherein it is stated that the appellant has concealed true facts. The respondent/bank had filed the petition u/section 5 of the Act on the grounds that the premises were required for its bonafide use and for furtherance of its banking activities and that the appellant is a habitual defaulter and his tenancy had been terminated by means of registered PPA No.05/10. Page 3of 18 AD notice dated 7/4/1986 with effect from 31/5/1986. The said notice was validly served on the appellant but despite that he failed to vacate the premises in question.
4- I have heard arguments advanced at the bar and have gone through the records.
5- Before taking up various contentions of the parties, it would be expedient to delve upon the nature of the tenancy in favour of the appellant. The appellant had contended that tenure of lease had been renewed for a period of five years vide lease deed 17-11-1983. He had, therefore, contended that the term of the lease would have expired on 16-11-1988 and same could not have been determined earlier. A copy of the lease deed dated 17-11-1983 vide which term of lease was extended by a period of five years has been placed on record as Ex.D-2. A perusal of the lease deed makes it amply clear that it is neither registered nor properly stamped. In this regard Section 107 of The Transfer of Property Act, 1882 is relevant. It reads as under :-
"Leases how made. - A lease of immovable property from year to year or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such PPA No.05/10. Page 4of 18 instrument shall be executed by both the lessor and the lessee;
Provided that the State Government may from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession."
A bare perusal of the above provision in the Transfer of Property Act makes it amply clear that lease for a period exceeding one year could have been extended by a registered instrument only. In the absence of a registered document, the lease will be "month to month". This question was dealt by the Hon'ble Supreme Court in a case reported as Burmah Shell Vs. Khaja Midhat Noor (1988) 3 SCR 811. In the said case, a lease deed was executed on 16-1-1958 for a period of 10 years and had expired on 15-1-1968. The question for consideration before the Court was whether lease could be extended for a further period of five years without a registered document. The Court held as under :-
5."In view of the paragraph 1 of Section 107 of the Act, since the lease was for a period exceeding one year, it could not have been extended by a registered instrument executed by both the lesser and lessee.
In the absence of registered instrument, the lease shall be deemed to be "lease from month-to-month". It is clear from the very language of Section 107 of the Act which postulates that a lease of immovable property from year-to-year, or for any term exceeding PPA No.05/10. Page 5of 18 one year, or reserving a yearly rent, can be made only by a registered instrument. In the absence of registered instrument, it must be a monthly lease. The lessee and the sub-lessee in the facts of this case continued to remain in possession of the property on payment of rent as a tenant from month- to-month. The High Court so found. We are of the opinion that the High Court was right.
7. It was submitted before the High Court that this was not a case of continuing of old tenancy for a period of five years but in view of the clear provisions of Section 107 which we have noted herein before and in the absence of a registered instrument, it must be held that it was holding over and not continuation of old tenancy for a further period of five years. That would be the harmonious construction of Section 107 read with Section 116 in the facts of this case. We are of the opinion that the High Court was right that the tenancy was automatically determined on the expiry of ten years which was stipulated in Ex.4. Thereafter the lessee continued to hold the property and the Lessor accepted the rent. The lease was, therefore, renewed from month-to-month because it was not the case of any party that it was for agricultural purposes."
6- A similar situation obtains in the case in hand, where the lease was sought to be extended by an unregistered document. Therefore, following the aforesaid judgement of Hon'ble Supreme Court it must be PPA No.05/10. Page 6of 18 held that the lease in favour of the appellant had automatically been determined on the expiry of earlier lease on 15-11-1983 and the appellant had continued to hold the premises on the basis of month to month lease.
7- A notice to quit was allegedly served upon the appellant. The notice is dated 7-4-1986. The notice was served interalia on the following grounds which are extracted hereunder :-
"4. That you are a habitual defaulter in the payment of rent in respect of the said shop premises inasmuch as Rs. 1,500/- is still due and recoverable from you on account of arrears of rent upto the period ending 31-3- 1986 which you have failed to pay.
5. That you have violated the terms and condition of the aforesaid lease deed inasmuch as you failed to pay the monthly rent in terms of the said lease deed regularly. Besides this you have also carried out unauthorised additions alterations in the said premises without obtaining the permission of my client in terms of the lease deed.
6. That the said premises are required bonafide by my client for its own use and for furtherance of its activities.
7. That by reason of the violations of the terms and conditions of the lease deed, my client is well within its rights to exercise to re-enter upon the premises and determine the tenancy with respect to the said premises as provided in para 5 of the lease deed even before the expiry of the period of lease."
PPA No.05/10. Page 7of 18 The said notice stated that tenancy stood terminated with effect from 31- 5-1986. What is the effect of such a notice ? The answer is provided by a judgement of Hon'ble Supreme Court reported as Vasantkumar Radhakisan Vora Vs. The Board of Trustees of the Port of Bombay (1990) 3 SCR 825, wherein the Court held as under :-
"Undoubtedly by issuance of notice to quit automatically the right created thereunder, namely, cessation of the lease, does not become effective till the period prescribed in the notice or in the statute i.e. Section 106 expires. On expiry thereof the lease becomes inoperative and the lessor acquires right to have the tenant ejected. When he fails to deliver vacant possession, the lesser would be entitled to have the tenant ejected and take possession in due process of law."
It is also relevant to quote following passages from a judgement of our own High Court reported as MEC India Pvt. Ltd. Vs. Lt. Col. Inder Maira and others 80 (1999) DLT 679 :
"21. A lessee who continues in possession beyond the expiry of the term by the efflux of time, could either be there merely at sufferance or he could be holding over. Section 116 of the Act reads as under:
"116. Effect of holding over - If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the Lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his PPA No.05/10. Page 8of 18 continuing in possession the lease is, in the absence of an agreement to the contrary, renewed from year-to-year, or from month-to- month, according to the purpose for which the property is leased, as specified in Section 106.
(a) A lets a house to B for five years, B underlets the house to C at a monthly rent of Rs.100. The five years expire, but C continues in possession of the house and pays the rent to A. C's lease is renewed from month-to-month,
(b) A lets a farm to B for the left of C. C dies, but B continues to possession with A's assent.
B's lease is renewed from year-to-year.
22. Thus, holding over by the tenant, if assented to by the landlord, creates a tenancy that is renewed from month-to-month, or from year-to-year according to the purpose for which the property was leased. In other words, by reason of an `assent' of the landlord within the meaning of Section 116, renewal, not for the original term, but from month-to-month (or year to year) takes place. In that event, termination by a valid quit notice becomes necessary before ejectment can be ordered. If there is no assent within the meaning of Section 116, of the Act, the tenant continues as one at sufferance and no Notice to quit is necessary before an order of ejectment can be made. See Badrilal v. Municipal Corporation of Indore, (1973) 3 SCR 15.............
23. Taking next, the case of a tenancy from month-to-month, it is to be first considered what precisely is the nature of a lease from month-to-month, in the absence of a contract or local usage, Section 106, PPA No.05/10. Page 9of 18 deems a lease to immovable property for non-
agricultural or non-manufacturing purposes, to be a lease from month-to-month, terminable on the part of either the Lesser or the lessee, by a fifteen days' notice expiring with the end of a month of tenancy. Insofar as the Union Territory of Delhi is concerned, there appears to be a no local law or usage to the contrary. A contract to the contrary would require a registered deed except in a rare instance of it not exceeding one year and reserving less than a yearly rent. As the words `from month-to-month' themselves, indicate, it is a new or a separate lease which commences every month and expires at the end of the particular month, only to be renewed, if not terminated, for yet another month."
8- It is also relevant to refer to the following passage in the celebrated case of M/s Ashoka Marketing and another Vs. Punjab National Bank, AIR 1991 SC 855 wherein the Hon'ble Court had dealt with the definition of the term "unauthorised occupant" :-
"The definition of the expression `unauthorised occupation' contained in Section 2(g) of the public Premises 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 premises without authority for such occupation. It implies occupation by a person who has entered into occupation of any public premises without lawful authority as well as occupation which was permissive at the inception but has ceased to be so.
PPA No.05/10. Page 10of 18 The second part of the definition is inclusive in nature and it expressly covers 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. 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. The words "whether by way of grant or any other mode of transfer" in this part of the definition are wide in amplitude and would cover a lease because lease is a mode of transfer under the transfer of Property Act. The definition of unauthorised occupation contained in Section 2(g) of the Public Premises Act would, therefore, cover a case where a person has entered into occupation of the public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law."
The case of the appellant is fully covered in the later part of the definition. He had entered the public premises in question under a valid authority but has continued to be in occupation after the lease had expired or determined by the Authority. The Estate Officer was, therefore, within his rights to initiate proceedings for eviction of the appellant from the public premises.
PPA No.05/10. Page 11of 18 9- The proceedings were duly initiated against the appellant. Ample opportunity was given to the appellant to file his reply to the show cause notice and to lead evidence. The learned Estate Officer after having considered reply filed by the appellant as well as evidence led on record, had come to the conclusion that the public premises were bonafidely required by the respondent/bank for its use and the tenancy had been terminated vide notice dated 7-4-1986. He had, therefore, passed the eviction order which is under challenge in this appeal. 10- Ld. counsel for the appellant has contended that the notice dated 7-4-1986 had not been served upon the appellant. I have carefully gone through the evidence led on this score by the parties. Evidence was led by the respondent to the effect that not only notice was sent by registered AD post, it was also affixed on the suit premises. The respondent /bank had placed on record the postal receipt No.3267 vide which the notice was sent by registered AD post and had also placed on record AD card showing that the notice was duly served upon the appellant. Ld.counsel for the appellant had contended that the postal receipt vide which notice was sent by registered AD post, was not placed on record by the respondent -bank, which is factually incorrect. The postal receipt in fact has been pasted at page 182 of the file, which is rejoinder/ replication by the respondent -bank to the written statement filed by the appellant herein before the Estate Officer.. There was, therefore, ample evidence on record that notice dated 7-4-1986 was sent by registered AD post and was duly served upon the appellant. Apart from this, oral evidence was led to prove that notice was affixed on the premises in question. In this regard, testimony of the appellant needs to be referred to. The averments in this regard are contained in para 15 of PPA No.05/10. Page 12of 18 the affidavit dated 5/4/2010 of the appellant filed before learned Estate Officer. It reads as under :-
"15. I say that petitioner Bank instead of adjusting the same thereafter allegedly through its Advocate issued yet another Termination Notice dated 07.04.1986, wherein it was contended that the Deponent was a Habitual Defaulter and arrears in rent amounting to Rs.1500/- (Rupees Fifteen Hundred Only) for the period of 01.01.1986 to 31.03.1986. That unauthorized additions and alterations in the said Shop were made. That the said Shop was required for bona fide use by the Petitioner Bank. I say that this was the first notice addressed to me at the said shop i.e. Shop No.15, Punjab National Bank Building, Arya Samaj Road, Karol Bagh, New Delhi. I say that as i was frequently travelling and the said Shop was therefore mostly closed during the month of April 1986, and the said notice was not received by me or my family member or any of my Staff. It is pointed out that the postal receipts of the said Registered AD have till date not been placed on record. I say that as per the alleged Termination Notice the aforementioned Lease Deed stood terminated w.e.f. 31.05.1986. I say that a copy of the Termination notice dated 07.04.1986 sent by the Petitioner Bank to the Deponent is exhibited herewith and marked as Ex.DW-7."
A bare perusal of the aforesaid extracted portion of affidavit of the appellant shows that his assertion about receipt of notice is neither here nor there. He seems to assert that the notice dated 7-4-1986 was not received by him, because the premises in question used to remain closed during the relevant period, yet he had placed on record a copy of PPA No.05/10. Page 13of 18 the notice and marked it as Ex.DW-7 in his affidavit. Be that as it may, since the premises had remained closed as has been asserted to by the appellant, it can be safely held that the notice was duly affixed on the premises which was one of the modes for service of the notice by the respondent -bank. Therefore, viewing it from any angle, it can be conclusively held that notice of termination of tenancy was duly served upon the appellant. His assertion to the contrary is false and concocted. 11- Ld.counsel for the appellant has then contended that acceptance of rent by the respondent bank had amounted to waiver of notice. He had contended that after service of notice dated 7/4/1986, the respondent bank had continued to accept rent from the appellant and had thus, regularised the tenancy. The contention is misconceived and is not tenable. Tenancy is a contract which is entered into between the parties where one proposes and other accepts the proposal. Mere acceptance of rent does not create a tenancy and the relationship of landlord & tenant. Even otherwise as discussed above, the tenancy of the appellant had come to an end by afflux of time and he had continued to remain in the premises in question as a tenant "month by month". No fresh tenancy had been created, after determination of monthly tenancy vide notice dated 7-4-1986. I, therefore, reject the contention of the learned counsel for the appellant in this behalf. 12- Ld.counsel for the appellant has referred to a judgement of our own High Court reported as 2003 (7) AD (Delhi) 357 titled as Ex. Havaldar Kailash Singh and Sons Vs. Union of India and another, in order to bring home his contention that grounds stated in the notice under Section 4 of the Act were different from the one under which eviction order has been passed by the learned Estate Officer. This was a case where the eviction of the occupant had been sought on the plea that PPA No.05/10. Page 14of 18 licence agreement had expired and he was asked to vacate by 30/6/2002. However, vide letter dated 1-6-2002 the licence had been extended for the period from 1-6-2002 to 30-4-2003. It was, thus, noted that the licence agreement had not expired as 15 days prior to the issuance of cancellation letter dated 15-6-2002, a fresh licence had been entered into on 1-6-2002 for the period ending 30-4-2003. It was held that entire premise for issuance of letter dated 15-6-2002 for vacation of premises was non-existent and that there was no question of cancellation of property, owing to the expiry of licence agreement. The facts of the case in hand are entirely different. In the case of the appellant as already stated above, the tenancy had come to an end by efflux of time and the appellant had become a tenant month by month after determination of his tenancy. Monthly tenancy was then determined vide notice dated 7-4-1986. The aforesaid judement therefore, does not help to the cause of the appellant.
13- Ld.counsel has then contended rather vehemently that the act of the respondent in evicting the appellant from the suit premises was arbitrary and discriminatory in nature. He had contended that the respondent bank was a "State" within the definition of Article 12 of the Construction of India and could not discriminate between one tenant and the other. He has pointed out that the respondent bank has failed to proceed against another tenant viz. Dr. Bhalla while proceeding against the appellant. He has contended that a policy of pick and choose has been adopted by the respondent bank, which was discriminatory and against the "right of equality" enshrined in the Constitution of India. He has pressed into service a judgement of our own High Court reported as Sudhir Goel Vs. MCD, AIR 2005 (Delhi) 7 and in particular, to the following observations :-
PPA No.05/10. Page 15of 18 "An objection has been made by Learned Counsel for the Petitioners predicated on the ground that no reasons have been stated in the Notice under Sections 4,5 and 7 of the PP Act issued by the Estate Officer on 3.4.2003, apart from the cryptic and laconic caption - 'unauthorised occupation'. No reasons could have been disclosed in the earlier proceedings, apart from those contained in the Show Cause Notice because a personal hearing was not granted. The extracted pronouncements of the Apex Court in Mohinder Singh Gill & another Vs. The Chief Election Commissioner, New Delhi and others (1978) 2 SCR 272, paragraph 8 of which readily come to mind :-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to the court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1952) 1 SCR 135.
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of Explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
He has also referred to the following para quoted with approval in the said judgement :-
"A century ago, in Taylor Vs. Taylor, Jassel M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, PPA No.05/10. Page 16of 18 in Nazir Ahmed Vs. Emperor and later by this Court in several cases, to a magistrate making a record under Section 163 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies "where, indeed the whole aim and object of the Legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other"......"
14- I have considered the contention of the leaned counsel for the appellant. During the course of arguments it was conceded that the respondent bank had sought eviction under the Act against all the tenants except in respect of three shops which had been let out to Dr. Bhalla who had been the Chief Medical Officer of the Bank. It has been stated at the bar on behalf of the respondent that Dr. Bhalla has been treating the employees of the respondent bank and for their convenience, no action had been sought against him. Since the respondent bank had filed eviction petition against all tenants except Dr. Bhalla who was in a separate category altogether, it can be conveniently said that there was no discrimination on the part of respondent bank in seeking eviction of the appellant. The contention raised, therefore that the requirement of the bank was not bonafide or its action was discriminatory or arbitrary is not tenable. It is settled law that for assailing any action under the Act where some material is placed on record by the Competent Authority for eviction of unauthorised occupant, the onus is entirely on such a occupant to show that action of the public authority is not in public interest or is arbitrary or malafide. To this view I am fortified by the decision of Hon'ble Supreme Court in M/s Dwarka Dass Marfatia & Sons Vs. Board of Trustees of the Port of Bombay (1989) 3 SCC 293 wherein in a similar situation it has been noted as under :-
PPA No.05/10. Page 17of 18 "Learned Additional Solicitor General Mr. Ramaswamy contended that the onus was entirely on the appellant and the burden lay on the defendant (sic him) to establish that the Bombay Port Trust had terminated the tenancy or taken the proceedings in eviction not in public interest but for a collateral purpose or mala fide or that it had acted in a manner contrary to the provisions of Article 14 of the Constitution. He is right in so contending. "
15- No other point or issue has been raised in this appeal. 16- In view of the above discussion, I am of the considered view that there is no merit in the present appeal. Same is accordingly dismissed with costs assessed at Rs.25,000/-.
Records of learned Estate Officer be sent back immediately alongwith a copy of this order.
Appeal file be consigned to record room.
Announced in open court. ( RAKESH KAPOOR )
On 07th January, 2011 District Judge -1 :
Delhi.
PPA No.05/10. Page 18of 18