Allahabad High Court
M/S Ajaz Carpets And 3 Ors. vs M/S Birla International Pvt. Ltd. on 16 April, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 4 Case :- CIVIL REVISION No. - 185 of 2013 Petitioner :- M/S Ajaz Carpets And 3 Ors. Respondent :- M/S Birla International Pvt. Ltd. Petitioner Counsel :- S.C. Tiwari Respondent Counsel :- Gautam Baghel Hon'ble Sibghat Ullah Khan,J.
Heard Sri S.C. Tiwari, learned counsel for the applicants-tenants and Sri Gautam Baghel, learned counsel, who has appeared through caveat for landlord respondent.
This revision is directed against order dated 12.02.2013 passed by J.S.C.C./ A.D.J., Court No.2, Bhadohi Gyanpur in S.C.C. Suit No.1 of 2006 striking off the defence of the tenants applicants under Order XV Rule 5, C.P.C.
The entire argument of learned counsel for the applicants is that the land in dispute is agricultural land and one Sri Gupta was original bhoomidhar, who illegally let out the land to the respondent in contravention of provisions of Section 156 of U.P.Z.A. & L.R. Act and thereupon respondent illegally sublet the same to the applicants hence by virtue of Section 165 of U.P.Z.A. & L.R. Act, applicants have become owners/ bhoomidhars. Admittedly constructed portion was let out by the respondent to the applicants.
By virtue of Section 116 of Evidence Act, applicants are estopped from denying the title of the landlord respondent.
In the plaint, it has been mentioned that the premises in question together with the land comprised in Plot No.270/1 situate within the municipal limits of Municipal Board Bhadohi initially belonged to Sri Amarnath Gupta and his brothers and they let out the premises in dispute along with the land for business purposes to the plaintiff, which is a private limited company through a covenant dated 14.05.1981 under which plaintiff was permitted to sub-let also. Thereafter, it is stated that plaintiff raised suitable constructions also over the land, that in 1983 plaintiff had to close its business at Bhadohi, that under permission from the landlord, plaintiffs tenants sublet the premises to the defendants along with the land for doing carpet business for five years on 01.04.1984 on monthly rent of Rs.3500/-. Before filing the suit, notice of termination of tenancy was also given by the plaintiff to the defendants.
In para-40 of the written statement also reference has been made to Sections 156 & 165 of U.P.Z.A. & L.R. Act. However in different paragraphs of the written statement, tenancy between plaintiff and defendants was admitted particularly in para 12 of the written statement where it was categorically admitted that agreed rent was Rs.3500/- per month. In para-16, it is mentioned that on the date of alleged sub-lease, U.P. Act No.13 of 1972 was applicable.
Accordingly, defendants had absolutely no right to deny the title of the landlord and set up a title in themselves. In case U.P. Act No.13 of 1972 had been applicable, tenants would have been liable to eviction on the ground of denial of title of the landlord also. The allegation in the plaint that land in dispute is situate within municipal area has categorically been admitted in para-4 of the written statement. U.P.Z.A. & L.R. Act does not apply to the areas falling within municipal limits. There is no allegation in the written statement that under Sections 3 and 5 of U.P. Urban Area and Zamindari Abolition Act, 1956 any demarcation was made and land in dispute was declared to be agricultural land. In the absence of such declaration, U.P.Z.A. & L.R. Act cannot apply to a land situate within municipal limits. By virtue of Section 64 of U.P. Urban Area Z.A. & L.R. Act 1956 provisions of Chapter-VIII of U.P.Z.A. & L.R. Act apply to agricultural areas acquired under 1956 Act. Under Section 8 of 1956 Act, it is provided as under:
"After the agricultural area has been demarcated under Section 5, the State Government may at any time by notification in the Official Gazette declare that as from a date to be specified of such areas situate in the urban area shall vest in the State and as from the beginning of the date or specified of such agricultural areas shall stand transferred to and vest except as hereinafter provided in the State free from all encumbrances."
Sections 156, 165, 209 of U.P.Z.A. & L.R. Act are included in Chapter-VIII thereof.
Accordingly in the absence of any pleading or evidence regarding demarcation under Sections 3 & 5 of 1956 Act, provisions of Chapter-VIII of U.P.Z.A. & L.R. Act cannot be said to be applicable upon the land/ premises in dispute.
Even under U.P.Z.A. & L.R. Act, applicant cannot claim any benefit.
There was absolutely no allegation that after letting out of the land and the premises by Gupta family to the plaintiff in 1981, plaintiff was recorded as bhoomidhar with non-transferable rights. Defendants were also never recorded as such. There is no allegation that at the time of initial letting by Gupta family to the plaintiff or subsequent subletting by plaintiff to the defendants, land in dispute was being used for agricultural purposes. Rather the admission of the tenants applicants is that it was being used for industrial purposes. At no point of relevant time, the land in dispute was used for agricultural purposes.
Section 165 of U.P.Z.A. & L.R. Act being quite harsh is to be interpreted strictly. It cannot apply to the building constructed over agricultural land.
The tenants categorically admitted in the written statement that the rate of rent of Rs.3500/- per month. In para-16 of the plaint, it was stated that defendants were in arrears of rent from April, 2001 till the date of filing of the suit, i.e. May, 2006. In para-16 of the written statement, default was categorically admitted.
A constitution bench authority of Supreme Court reported in N.R. Gujjar Vs. Telasibai, AIR 1997 SC 404 arising out of a case under Bombay Rent Control Act held that if land having no building is leased for making construction for installing machines and lessee makes the construction then it becomes premisses under Rent Control Act and agricultural land put to non agricultural use is covered by definition of premises under Rent Control Act. Similarly, in C.I.T. Madras Vs. Gemini Pictures, AIR 1996 SC 1522 it has been held that land situate on busiest road of city within municipal corporation limits surrounded by commercial buildings and neither seller nor purchaser thereof considering it as agricultural land would not be agricultural land. That was a case from Madras.
In the instant case also, it is mentioned in para-4 of the plaint that the property in dispute is situate on the main road.
In this regard, reference may also be made to an authority of this court reported in Mohd. Ibrahim Vs. Mohd. Ahmad, 2007 (1) AWC 368 wherein it has been held that if shop is constructed on agricultural land and let out the jurisdiction to evict the tenant would vest in J.S.C.C. and suit will not be barred by Section 331 of U.P.Z.A. & L.R. Act (suit will not be maintainable before S.D.O. under Section 209 of U.P.Z.A. & L.R. Act.) It is correct that power to let out agricultural land was pivotal to feudal system and while abolishing the same by enacting U.P.Z.A. & L.R. Act it was most essential to curb the said power. Section 156 of U.P.Z.A.L. & R. Act prohibiting letting of agricultural land is one of the most important sections of the Act. However, by its very nature it will have to be confined to actual agricultural land.
If a land is not being used for agricultural purposes then it is not necessary that in every situation certificate under Section 143 of U.P.Z.A.L. & R. Act must be obtained otherwise that land will continue to be governed by U.P.Z.A.L. & R. Act. Section 331-A of the Act is quoted below:
331-A. Procedure when plea of land being used for agricultural purposes is raised in any suit.- (1) If in any suit, relating to land held by a bhumidhar, instituted in any court, the question arises or is raised whether the land in question is or is not used for purposes connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, and a declaration has not been made in respect of such land under Section 143 or 144, the court shall frame an issue on the question and send the record to the Assistant Collector kin-charge of the sub-division for the decision of that issue only:
Provided that where the suit has been instituted in the court of Assistant Collector in-charge of the sub-division, it shall proceed to decide the question in accordance with the provisions of Section 143 or 144, as the case may be.
2.The Assistant Collector in-charge of sub-division after reframing the issue, if necessary, shall proceed to decide such issue in the manner laid down for the making of a declaration under Section 143 or 144, as the case may be, and return the record together with his finding thereon to the court which referred the issue.
3. The court shall then proceed to decide the suit accepting the finding of the Assistant Collector in-charge of the sub-division on the issue referred to it.
4. The finding of the Assistant Collector in-charge of the sub-division on the issue referred to lit shall, for the purpose of appeal, be deemed to be part of the finding of the court which referred the issue.
From the above it is quite clear that if a suit relating to land held by bhoomidhar is instituted in a court other than revenue record (Assistant Collector/S.D.O.) and a question arises whether the land in question is or is not used for purposes connected with agricultural then matter has to be referred to the Assistant Collector. However if in any such suit filed before the Civil Court or J.S.C.C., there is no dispute that the land is actually being used for purposes not connected with agricultural and it is admitted that the land is having constructed portion and is being used for residential, commercial or industrial purposes then there will be absolutely no necessity to refer the matter to the Assistant Collector. The necessary corollary which follows is that if plaintiff claims and defendant admits that on an agricultural land constructions have been made and the same is being used for residential, commercial or industrial purposes then there will be no necessity of a certificate under Section 143 of U.P.Z.A.L. & R. Act and the Civil Court or J.S.C.C. or any other Court other than revenue court will have full jurisdiction to decide the matter.
It is horrible state of affairs that without paying a single penny, tenants are continuing to occupy the premises and they have been successful in delaying the proceedings of the suit also. S.C.C. Suit has not been decided for seven years. There is absolutely no error in the impugned order. The court below is directed to conclude the proceedings of the suit very expeditiously. As the defence of tenants has been struck off, hence they can only cross-examine the witnesses of the plaintiff and argue the matter. Let the suit be decided positively within six months from the date of production of a certified copy of this order. Absolutely no unnecessary adjournment shall be granted to the tenants applicants. If any adjournment is granted to the tenants it shall be for a short period and on heavy cost which shall not be less than Rs.1000/- per adjournment payable before the next date.
With the above observations, revision is dismissed.
Order Date :- 16.04.2013 NLY