Allahabad High Court
Dharmpal Singh vs Jitendra Prasad Gupta And 6 Others on 23 February, 2015
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 2 Case :- WRIT - C No. - 34809 of 2014 Petitioner :- Dharmpal Singh Respondent :- Jitendra Prasad Gupta And 6 Others Counsel for Petitioner :- Samir Sharma Counsel for Respondent :- S.C.,Atul Srivastava,Nitin Kr. Agrawal,Vikas Budhwar Hon'ble Ashwani Kumar Mishra,J.
1.The present writ petition is directed against the order passed by the trial court dated 21.1.2014, deciding the issue no.4, against the defendant-petitioner, as well as the order dated 22.5.2014, rejecting the revision filed against it.
2.The facts, which are not in dispute, are that an agency for establishing LPG outlet was awarded by Bharat Petroleum Company Limited in favour of the defendant-petitioner Dharampal Singh. For establishment of the agency a storage godown was required to be constructed and for such purposes, the plaintiff-respondent no.1 to 5 gave their open land, measuring 1350 sq. yards, on rent to the defendant-petitioner initially for a period of 15 years, which could be extended, pursuant to a registered rent agreement executed on 25.11.1982. The rent agreement contained a clause permitting the defendant-petitioner to raise construction of appropriate building and godown upon the land, after obtaining sanction of plan etc., and upon the termination of rent agreement, the second party i.e. defendant-petitioner had the right to remove its malwa, bricks, iron, furniture etc. from the land.
3.Original Suit No.476 of 2012 was filed by the plaintiff-respondents with the allegation that open land in question was given on rent to the defendant-petitioner, pursuant to a registered rent agreement, which was initially for a period of 15 years, and was renewable in terms of the agreement. It was stated that the rent agreement remained operative for a period of 30 years and vide notice dated 6.9.2012, the tenancy itself was terminated. Clause 12 of the plaint specifically mentioned that upon the land, which was given on rent, the defendant-petitioner has raised construction of a godown, which was constructed pursuant to the authorization given in the rent agreement itself, and as the tenancy has been terminated, therefore, the defendant-petitioner is entitled to remove malwa, bricks, iron, furniture, etc. Consequently, prayer was made for eviction and consequential possession of the land from the defendant-petitioner, after removing malwa, bricks etc. and in case defendant-petitioner failed to remove malwa, bricks etc., then the same be removed under the orders of the court. The description of the suit property clearly mentions it as a godown of Dharm Gas Agency situated upon the land in question, measuring 1350 sq. yards. The defendant-petitioner filed a written statement raising various issues. Trial court framed 9 issues on the basis of pleadings of the parties. Issue no.5 to 8 were decided by the trial court vide order dated 22.5.2013 in favour of the plaintiff. Issue no.5 was as to whether the civil court has jurisdiction to entertain the suit in view of the provisions of Petroleum and Natural Gas Regulatory Board Act, 2006, issue no.6 was as to whether the suit has been under valued, issue no.7 was as to whether court fee paid is sufficient and issue no.8 was as to whether court has jurisdiction to hear the suit. The trial court found that the suit was maintainable and that it has been appropriately valued and adequate court fee upon it has been paid. It was also held that trial court has the territorial jurisdiction to decide the suit.
4.Issue no.4 was also framed by the trial court as to whether the plaint is liable to be rejected as not maintainable by virtue of Order 7 Rule 11(d) CPC. The present writ petition arises out of the orders passed by the courts below determining the said issue no.4.
5.It was contended by the defendant-petitioner before the courts below that though the rent agreement was executed in respect of open land, but specific permission was granted to the defendant-petitioner to raise construction upon the land and pursuant to such permission, permanent construction of a gas godown has already been raised, with due permission of the authorities, and therefore, the provisions of section 29-A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, would be attracted and a suit for eviction would be maintainable only before the Small Causes Court for the grounds specified under section 20 of the U.P. Act No.13 of 1972. It was stated that since construction raised with the permission of the plaintiff-respondents was permanent in nature, therefore, section 29-A was attracted, and by virtue of section 20 of the U.P. Act No.13 of 1972 read with section 15 of the Provincial Small Cause Courts Act, 1987, the civil court had no jurisdiction to try the suit. The trial court rejected the application on two grounds; firstly it was held that issue no.8 relating to the jurisdiction of the court concerned to try the suit had already been decided vide order dated 22.5.2013, and therefore, such question cannot be raised all over again. Secondly, on the issue of applicability of section 29-A of the U.P. Act No.13 of 1972, it was held that rent agreement itself contained a clause that upon termination of tenancy, malwa, structure, etc. would be removed by the defendant-petitioner, as such, the construction raised would not be treated to be of permanent in nature, and consequently, the provisions of section 29-A of the U.P. Act No.13 of 1972 would not be attracted. It was further held that the provisions of section 20 of U.P. Act No.13 of 1972 would also not apply in the absence of applicability of section 29-A of the U.P. Act No.13 of 1972. The issue no.4 accordingly was decided in favour of the plaintiff-respondents.
6.Revisional court in a revision filed against the aforesaid order, while dismissing the revision came to the conclusion that the question as to whether the construction is temporary or permanent can only be gone into at the stage of trial, and as such, issue no.4 has to be answered in favour of plaintiff. Revisional court has also observed that the provisions of section 20 and 29-A of the U.P. Act No.13 of 1972 does not appear to be attracted in the facts of the present case. It was also held that the benefit of section 29-A of the U.P. Act No.13 of 1972 can be claimed even before the civil court, in view of the observations made in the order itself, and the suit was maintainable before the civil court. Consequently, revision was rejected on 22.5.2014.
7.Sri Samir Sharma, learned counsel for the petitioner submits that the courts below have erred in deciding issue no.4, in favour of the plaintiff-respondents, inasmuch as the courts below have not considered the nature of construction itself, which existed on the spot, and rather the trial court was swayed by the terms of the rent agreement, which is wholly perverse and erroneous. He further submits that pursuant to the permission granted in the rent agreement, raising of a godown and its existence on the spot is admitted in the plaint allegation itself, and therefore, the benefit of section 29-A of the U.P. Act No.13 of 1972 was clearly attracted. Sri Sharma further submits that once the protection of U.P. Act No.13 of 1972 was available to the defendant-petitioner, the suit itself was not maintainable as it was not instituted for any of the grounds set out in section 20. It is further submitted that a suit for eviction against the tenant/defendant could only be maintainable for the reasons specified in section 20 of the U.P. Act No.13 of 1972 before the Small Causes Court and for such reason the suit itself before the civil court was not maintainable and the plaint was liable to be rejected under Order 7 Rule 11(d) CPC.
8.Respondent no.6 and 6, who are arrayed as defendant no.6 and 7 in the plaint, have also supported the claim of the defendant-petitioner.
9.Sri Nitin Kumar Agrawal, learned counsel for the respondent no.1 to 5 submits that what was given on rent to the defendant-petitioner was an open piece of land and the suit for eviction was maintainable before the civil court. He further submits that jurisdiction of the Provincial Small Cause Courts Act would have to be seen with reference to the pleadings in plaint only and the provisions of the Rent Control Act since do not apply, therefore, the suit before the civil court is maintainable. He also supports the finding of the trial court that such issue had already been adjudicated and the question of jurisdiction of the suit cannot be raised again.
10.Having heard learned counsel for the parties and upon consideration of the materials placed on record, this court finds that the trial court, while deciding the issue of jurisdiction of the court vide order dated 22.5.2013, had merely considered the issue of territorial jurisdiction of the court, and therefore, the question as to whether the original suit was maintainable before the civil court for the reasons of applicability of section 20 and 29-A of U.P. Act No.13 of 1972 read with section 15 of the Small Cause Courts Act was open for consideration before the civil court while deciding the issue no.4. The finding of the trial court that the issue of jurisdiction was decided while dealing with issue no.8 cannot be accepted, as the civil court while deciding the issue had only dealt with the question of territorial jurisdiction. Therefore, this court finds substance in the argument advanced by Sri Samir Sharma that the issue of jurisdiction, as raised by the defendant-petitioner with reference to issue no.4 could not have been rejected on account of previous adjudication upon issue no.8, as both were separate and distinct.
11.So far as the issue of applicability of section 29-A of the U.P. Act No.13 of 1972 is concerned, this Court finds that the question as to whether construction raised upon open land whether is temporary, or permanent, was required to have been gone into by the court concerned. The question as to whether construction raised is permanent or temporary cannot be determined with reference to rent agreement. The object of the legislature in introducing the provisions of section 29-A of the U.P. Act No.13 of 1972 is to grant protection to a tenant of the provisions of U.P. Act No.13 of 1972, if it is found that the tenant has raised permanent construction with the permission of the landlord, upon open land, by incurring expenses, the provisions of the Act of 1973 would get attracted. Sub section (2) of section 29-A clearly provides that the section applies only to land let out either before or after commencement of section, when a tenant with the permission of the landlord has erected any permanent structure and incurred expenses in execution thereof. The court concerned, therefore, has to examine as to whether what was let out to the tenant on rent, either before or commencement of section 29-A i.e. with effect from 5.7.1976, was open land and the tenant with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof. The test to determine applicability of section 29-A would, therefore, be as to whether necessary ingredients of sub section (2) are made out on facts of a case or not? For such purposes, the provisions of rent agreement would not be the sole basis for the determination of the cause. The trial court has not examined as to whether the construction of the godown raised on the spot is a construction of permanent nature or is merely a temporary construction? Clause 6 of the rent agreement, which provides that upon termination of tenancy, the tenant would be entitled to remove malwa, bricks, etc., cannot be construed to determine nature of construction itself, as being permanent or temporary. The trial court, therefore, got completely misdirected, and it proceeded to examine the issue on wrong premise, which renders consideration by the trial court wholly perverse.
12.So far as the order of the revisional court is concerned, this court finds that the issue as to whether the construction was a permanent nature or not was left to be determined at the stage of trial. This finding is equally impermissible. The revisional court fell in error in refusing to examine the applicability of section 29-A of the U.P. Act No.13 of 1972, on the basis of evidence or materials already existing on record. This court finds that para 12 of the plaint clearly mentions that the land was given on rent with permission to raise construction of godown and other constructions, after obtaining approval from the competent authorities, and pursuant to the said permission, the defendant has raised a godown. The construction of a godown, therefore, upon the land in question was admitted in the plaint itself. Even the suit property was defined as the godown of M/s Dharm Gas Agency. It was also admitted in plaint that this Godown has remained in existence for more than 30 years. The construction of godown by the defendant-petitioner from his own fund, with the permission of the plaintiff-respondents and its existence on spot, therefore, was admitted. The revisional court could have examined the question of applicability of section 29-A, on the basis of materials, which were already available on record.
13.Reliance has been placed upon a judgment of this court in M/s. Bharat Petroleum Corporation Ltd. and another v. Smt. Indira Pandey and another: 2013 (6) ADJ 653, which was a case somewhat similar in nature. After noticing provisions of section 20 & 29-A of the Act No.13 of 1972, this court found that the eviction before the civil court had not been sought on any of the grounds pleaded in sub-section (2) of section 20 of the U.P. Act No.13 of 1972, which situation arises in the facts of the present case as well. Para 20 to 26 & 33 of the judgment is reproduced:-
"20. There is no doubt that Act 1972, as enacted, was applicable only to certain buildings, existing in urban areas of the State of Uttar Pradesh. Certain buildings are exempted from operation of the Act by virtue of Section 2, with which, this Court is not concerned hereat. However, by U.P. Act no. 28 of 1976, Section 29-A was inserted, w.e.f. 5.7.1976. The apparent purpose of enactment/insertion of Section 29-A, appears to be that the legislature extended benefit of restrictions imposed under Act 1972, to such tenants also, to whom, only land was let out, but they were permitted to erect permanent structure(s) thereon, with the consent of landlord, by incurring their own expenses. This provision covers all such cases, as above, of letting out of land only, either before or after the commencement of section 29-A. In order to attract, Section 29-A, and to bring a premises/land within the ambit of Section 29-A(2), three things are required to be satisfied :(i) only land is/was let out (ii) tenant has/had erected a permanent structure incurring his own expenses and (iii) aforesaid permanent structure raised by the tenant must be with the consent of landlord . If these three conditions are satisfied, Section 29-A(2), or in other words, the aforesaid Section itself shall apply to such land.
21. It has not been disputed before this Court that in the present case a vacant piece of land was let out to the defendant appellants vide lease deed dated 18.09.1957. The landlord also specifically permitted lessee to raise permanent construction over the land, so let out, for the purpose of running filling station/service station etc., for which the lease was executed. It is also not disputed that pursuant thereto the tenant had raised substantial permanent structure on the land in question. This is also evident from the notice dated 13.06.1996 whereby the landlord required defendant-appellants to remove all structures and installations from the disputed land. This is also evident from the relief sought in the plaint whereby the plaintiff-landlord required the tenant through a decree of mandatory injunction that he should remove all his constructions, machinery etc., from the disputed land and make the level of the land plain. This is also the finding recorded by revisional court in Civil Revision No.294 of 1997, in its order dated 17.11.1997, as under:
"It is, therefore, clear from the allegations made in the plaint as well as from the reliefs sought in the plaint that it was a suit for eviction of the lessee and also the dealer occupant from the open land let out to defendant no.1 by demolition of structures raised thereon." (emphasis added)
22. Learned counsel for plaintiff-respondent also could not dispute that there exists a petrol pump etc., over the land in question. There existed permanent structures, which include machines etc. on the land in dispute. This structure has been raised by defendant-appellants by incurring their own expenses. The consent of landlord is obvious. It is for this reason, prayer in the plaint also included that of a mandatory injunction, directing the defendants to remove entire structure from the land in dispute. That being so, there is no scope but to say that the land in dispute clearly comes within the ambit of Section 29-A(2) and satisfies all the requirements thereunder.
23. This by itself would mean neither bar of suit as such, nor any permanent protection to the tenant from ejectment. The scheme of Section 29-A applies in a slightly different manner. A 'land' covered by Section 29-A(2) cannot be asked to be vacated by a landlord, by filing an application under Section 21 of Act 1972. This is one of the illustrations, to show that mere application of Section 29A, by itself, would not attract all the provisions of Act 1972 to such land.
24. The first restriction may be available to a land which is within the ambit of Section 29-A(2), is that Section 20 of Act 1972 shall apply to such land, in the same manner, as it is applicable to a building to which Act 1972 is applicable.
25. It takes us to Section 20 of Act 1972, a perusal whereof, shows that there is a complete bar of any ejectment proceeding against a tenant, by instituting a suit, except, to the extent, it is so permissible, as provided in Sub-section (2) of Section 20. Sub-section (1) of Section 20 also gives overriding effect to Section 20 as such, aforesaid provision, inasmuch as, it contains the words "notwithstanding the determination of his tenancy by efflux of time or on the expiration of notice to quit or in any other manner".
26. A bare reading of Section 20(1) shows that no suit for eviction of a tenant from the building can be instituted, even if the tenancy rights have come to an end, either by efflux of time, or after determination or as a result of determination of tenancy, by giving him notice to quit by the landlord, or in any other manner. The last phrase " in any other manner" is very wide and covers all residuary situations and circumstances, in which, a landlord may require a tenant to be evicted from a building by instituting a suit. The only permissible way in which such a suit can be instituted is only when it satisfies the requirements of sub-section (2) of Section 20. In other words, if suit is instituted for ejectment of a tenant, if he has suffered or incurred liability and satisfies any of the grounds mentioned in Clauses (a) to (g) of sub-section (2) of Section 20, in such a case, on such ground(s) a suit for ejectment/eviction of a tenant from the building may be instituted by the landlord in respect of a land which is covered by Section 29-A. A cumulative reading of sub-sections (1) and (2) of Section 20 make it clear that, where tenancy rights comes to an end, either by efflux of time or otherwise, still a tenant cannot be evicted from the building, or let out premises, by instituting a suit for eviction, unless the ground(s) mentioned in clauses (a) to (g) of sub section (2) of Section 20 is/are available to the landlord. The status of tenant in such a case has been recognized in various authorities of this court, as that of a "statutory tenant".
33. A bare perusal of plaint in the case in hand clearly shows that no such ground, as provided in sub-section (2) of Section 20 of Act 1972 has/have been pleaded or made the basis for seeking eviction of defendant appellant from the land in dispute. Ex face, the suit in question was not maintainable, in view of Section 29-A (3) read with Section 20(1) of Act 1972. Both the Courts below having completely failed to appreciate the above provisions as also the import thereof, render the judgments and decree of lower courts, patently without jurisdiction and a nullity in law."
14.Reliance has also been placed upon a judgment of the Apex Court passed in Civil Appeal No.5314 of 2008: Hindustan Petroleum Corp. Ltd. v. Diwan Bahadur Visheshwar Nath Trust dated 26.8.2008. Apex Court was dealing with a case where a petrol pump had been established by the oil company and benefit of section 29-A was claimed. Relevant passage of the judgment is as under:-
"The respondent- landlord instituted Suit No.103 of 1993 in the Court of Munsiff, Dehradun, stating that a lease of land was executed by the Appellant- Trust in favour of HPCL for the business of Petrol Pump: that HPCL had made temporary constructions on the leased land and that HPCL had promised to remove those constructions on expiry of the lease. On the expiry of the period the suit was instituted under Section 106 of the Transfer of Property Act.
At this stage we may point out that one of the point which arose before the Trial Court was whether permanent constructions on the suit land were put up by HPCL or by defendant Nos.2 and 3 (Dealers) and/or whether those constructions were put up by the Dealers for and on behalf of HPCL. This controversy arose because by amendment, plaintiff sought possession of vacant land after removal of the structures in terms of the lease from the appellant. At that stage defendant Nos.2 and 3 made application for impleadment saying that they had put up the petrol pump, Storage Tank, Sales Room etc. In the light of the said findings we have to examine the provisions of Section 29A read with Section 20 of U.P. Act No.13 of 1972, as the question which arises for determination is - whether appellant was protected under Section 29A as claimed?
We quote hereinbelow section 29A:
"Section 29A:- Protection against eviction to certain classes of tenants of land on which building exists.--
(1) For the purposes of this section, the expressions 'tenant' and 'landlord' shall have the meanings respectively assigned to them in Clauses (a) and (j) of Section 3 with the substitution of the word 'land' for the word 'buildings'.
(2) This section applies only to land let out, either before or after the commencement of this section, where the tenant, with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof.
(3) Subject to the provisions hereinafter contained in this section, the provisions of Section 20 shall apply in relation to any land referred to in Sub-section (2) as they apply in relation to any building.
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(7) The provisions of this section shall have effect, notwithstanding anything to the contrary contained in any contract or instrument or in any other law for the time being in force."
We also quote hereinbelow Section 20 of the said Act of 1972:
"Section 20: Bar of suit for eviction of tenant except on specified grounds.
(1) Save as provided in Sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner:
Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or otherwise reduced to writing and signed by the tenant.
(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely :-
(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand: Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925), has issued a certificate that he is serving under special conditions within the meaning of Section 3 of the Act or where he has died by enemy action while so serving, then in relation to his heirs, the words "four months" in this clause shall be deemed to have been substituted by the words "one year".
(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the building ;
(c) that the tenant has without the permission in writing of the landlord made/permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it ;
(d) that the tenant (has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with such use), or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes ;
(e) that the tenant has sub-let, in contravention of the provisions of Section 25 or, as the case may be, of the old Act the whole or any part of the building ;
(f) that the tenant has renounced his character as such or denied the title of the landlord, and the latter has not waived his right of reentry, or condoned the conduct of the tenant;
(g) that the tenant was allowed to occupy the building as part of his contract of employment under the landlord, and his employment has ceased.
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At the outset, it may be noted that Section 29A was inserted by U.P. Act 28 of 1976. What was the reason for the said insertion? Prior to 1976 the Act was not applicable to the vacant lands let out to tenants by the landlord. This gave rise to litigation. In order to curb litigation, Legislature inserted Section 29A by which protection against eviction to certain classes of tenants of land on which building exists is given. Section 29A(2) inter alia states that the said section shall apply to the lands let out, where the tenant, with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof. To such tenants, protection of the Rent Act is extended.
It is urged on behalf of the landlord by Shri Sundaram learned senior counsel, that in this case if one goes by the additional written statement filed on behalf of HPCL It become clear that the Petrol Pump had been erected by defendant Nos.2 and 3 (Dealers) and not by the tenant- HPCL. According to the learned counsel under sub-section (2) of Section 29A the tenant himself should erect permanent structure at his own expense. According to the learned senior counsel since HPCL- tenant has not itself erected the Petrol Pump at its own expenses, it is not entitled to claim protection under Section 29A of the 1972 Act and consequently according to the learned senior counsel section 20 would not apply.
We do not find merit in this argument, particularly, when the Trial Court had given a categorical finding that defendant Nos.2 and 3 were the Dealers and Agents of the Appellant-Corporation, who had set up the Petrol Pump. It may be that Dealers had incurred expenses to put up the Retail Outlet but they have done so far and on behalf of the Appellant. Under the lease it is the Appellant who is obliged to hand over vacant premises to the landlord after removing the Petrol Pump. The expenses incurred by Dealer/Agent was part of the consideration. Hence, Section 29A read with section 20 would grant protection to Appellant."
15.Sri Samir Sharma, learned counsel for the petitioner has also placed reliance upon a decision reported in 1985 (2) ARC 89: Smt. Riazi Begum v. Adarsh Kumar Jauhari.
16.A perusal of the plaint filed before the civil court clearly goes to show that eviction of tenant had not been sought on any of the grounds set out in section 20 of the Act of 1973. If it is found that permanent construction already existed on the spot, raised by the tenant, by incurring expenses, with the permission of owner, benefit of section 29-A was available and as the eviction was not claimed on any of the grounds set out in section 20 of the Act of 1973, then the suit itself was not maintainable. The issue of jurisdiction of civil court vis-a-vis Small Causes Court was also required to be examined, in correct perspective, while adjudicating the question of applicability of section 29-A. However, as this Court finds that the court's below have not examined the question in correct perspective, in the facts of the present case, keeping in view the provisions of law, as interpreted by this Court and Apex Court, as such, the orders impugned cannot be sustained and are liable to be set aside.
17.In view of the discussions made above, this Court finds that the courts below have not examined the question in correct perspective and the determination made on the issue no.4 is wholly perverse and erroneous, and as such, the orders impugned dated 21.1.2014 and 22.5.2014 are hereby quashed. The matter is remitted back to the trial court for consideration of issue no.4, afresh, in view of the observations made above, without granting unnecessary adjournment to either of the parties, by fixing short dates.
18.Accordingly, the writ petition stands allowed. There shall be no order as to costs.
Order Date :- 23.2.2015 Ashok Kr.