Allahabad High Court
Dr. Raj Kumar Singh & Others vs B.P.C. Ltd. & Others on 12 August, 2010
Author: Devendra Pratap Singh
Bench: Devendra Pratap Singh
A.F.R. Court No. - 1 Case :- WRIT - A No. - 36408 of 1997 Petitioner :- Dr. Raj Kumar Singh & Others Respondent :- B.P.C. Ltd. & Others Petitioner Counsel :- K.S.Chauhan,A. Misra,Manish Tandan,N.B. Singh,S. Misra,S.D. Singh Respondent Counsel :- S.C.,S.N. Srivastava,Satyendra Hon'ble Devendra Pratap Singh,J.
1. Heard learned counsel for the parties.
2. This petition is directed against an order dated 15.9.1997 passed by the Rent Control and Eviction Officer, Kanpur Nagar rejecting an application under section 29-A (5) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred as the Act) for enhancement of rent.
3. Late Shyam Pratap Singh, father and predecessor in interest of the petitioner, on his own behalf and also as the Karta of the Joint Hindu Family leased out a open piece land measuring about 18000 sq. ft. at Tilak Nagar in Kanpur City in favour of the erstwhile Burmah Shell Oil Storage and Distributing Company of India Ltd. through a registered lease deed dated 1.8.1966 for a period of 10 years renewable to a maximum period of 30 years with enhanced rent with permission to the lessee for erecting structures. The said Burmah Shell Oil Storage and Distributing Company subsequently was taken over with all assets and liabilities by the respondent no. 1, which stepped in its shoes. The respondents thereafter established a retail outlet over the leased land. The said maximum period of 30 years having expired on 30.6.1996 and when even after expiry of the 90 days fixed for removal of structures in the lease the respondents did not lift their possession, the petitioners sent a registered notice dated 12.12.1996 calling upon the respondents to deliver the possession on expiry of the lease period in terms thereof. The respondents replied to the said notice claiming protection under section 2 29-A of the Act. Confronted with the objection and the statutory protection against eviction, the petitioner preferred an application under section 29A (5) before the respondent no. 5 which was registered as case no. 7 of 1997 for enhancement of rent on the basis of the market value of the land.
4. After hearing the parties, the Rent Controller held that since the rent was accepted after expiry of the lease period, the agreement subsists and since there was agreed rent between the parties, in view of sub clause (4), rent could not be enhanced except on the basis of the earlier lease deed and rejected the application. It further held that since the rent was being accepted by Smt. R.K. Singh mother of the petitioners and wife of Late Shyam Pratap Singh, the petitioners were not the landlord.
5. Before the court proceeds to consider the argument raised, it would be necessary to notice certain events occurring after filing of the writ petition.
6. The petitioner no.1 expired in December, 2000 where-after Smt. Khirod Kumari Devi on one hand and Smt. Namita Singh along with her minor son Sudanshu Singh on the other, sought substitution, both claiming to be the wife of the deceased petitioner no. 1. This Court vide order dated 3.4.2006 brought all the three persons on record on the ground that mere substitution would not create any right. It has also been brought on record that Smt. Khirod Kumari Devi claiming to be the wife of the deceased petitioner no. 1 has sold a portion of the disputed land to a company vide sale deed dated 14.2.2007 despite an injunction order dated 19.3.2004 operating against her in suit no. 667 of 2002 (Smt. Namita Singh Vs. Khirod Kumari Devi).
7. In the present petition the conflicting claims of Smt. Namita Singh and Smt. Khirod Kumari Devi and validity of the sale deed executed despite an injunction order, cannot be decided.
8. It is firstly urged that the courts below erred in law in holding that the enhancement application by the petitioners was not maintainable as the rent was being accepted by their mother, Smt. R.K. Chauhan wife of 3 Late Shyam Pratap Singh.
9. It is apparent from the record that the lease deed was executed by Shyam Pratap Singh on his own behalf and also as Karta of Hindu Undivided Family, consisting of himself and his sons Raj Kumar Singh, Arun Kumar Singh and Pawan Pratap Singh, where all were jointly described as the lessors. It has also come on record that Smt. R.K. Chuahan had filed her affidavit stating that she was accepting rent on behalf of her sons who were the lessors. Even otherwise, the two petitioners in their own right were the owners and landlords in pursuance of the lease deed and there being no partition, therefore, the findings to the contrary is vitiated, thus is quashed.
10. It is then urged that in view of the specific provision in the lease deed, it stood determined by efflux of time and the courts below, merely on the ground that rent for couple of months was accepted, cannot lead to the inference of subsistence of the lease or holding over..
11. It would be fruitful to examine the relevant conditions of the lease deed, before considering the position of law. It reads as under:-
"**** to have and to hold the said demised land for the term of ten years commencing from first day of July 1966 and expiring on 30th June, 1976 (with an option for renewal for a period of ten years and a still further option for another renewal for another period of ten years on payments of enhanced rents on the terms and conditions as here-in-after provided and thereafter Lessee shall not be entitled for any renewal for any term)".
Further, clause -3 of the deed stipulates:
"3. That upon expiration or sooner determination of the Lease the Lessee shall delivery vacant possession of the demised land, in level, good condition, to the Lessor and shall remove there-from immediately within a reasonable time which in no case shall exceed 90 (Ninety) days, all building(s), structure(s), Plant(s) and other property belonging to the Lessee. For this period of 90 (Ninety) days allowed by way of grace, the Lessee shall pay to the lessor damages at the rate of Rs.50.00 (Rupees fifty) per day in advance. In case, the Lessee fails to remove all building(s), structure(s) Plant(s) and other property even within the aforesaid period of 90(Ninety) days, the Lessor shall get the same removed and shall be entitled to recover from the Lessee all the expenses incurred by him for 4 the purpose.
Again, clause-13 provides as under:-
"13. That if the Lessee shall be desirous of renewing this present lease and of such desire, shall have given to the lessor not less than three months notice in writing prior to the expiration of this lease, and the lessor at the expense of the lessee shall grant to the lessee if there be not any existing breach or non-compliance of any of the covenants on the part of the lessee herein contained, a renewed lease in duplicate (the original shall be retained by the lessee and the duplicate by the lessor) of the said demised land for a further period of TEN YEARS from First July, 1976 to 30th June, 1986 to commence from the date of expiry of this lease on a nett monthly enhanced rent of Rs.660.00 (Rupees Six hundred and sixty) exclusive of all aforesaid taxes, rates and impositions and upon the same terms and conditions in all respects as are reserved and contained herein and likewise the Lessee may avail a further renewal for a period of TEN YEARS only commencing from First July, 1986 to 30th June, 1996 on the terms and conditions herein contained provided the Lessee agrees to pay nett monthly enhanced rent of Rs.800.00 (Rupees Eight hundred) exclusive of all aforesaid taxes, rates and impositions, and thereafter the Lessee shall not be entitled to claim any further renewal for any term."
12. A bare perusal of the aforesaid covenants in the lease deed makes it explicit that in no circumstances the lease could have been extended beyond a period of 30 years and the lessee was obliged to remove his structures within 90 days and hand over the possession of the demised land to the lessor. However, before the entire period of 30 years could expire, the legislature intervened by introducing section 29-A in the Act with effect from 5.7.1976 with a view to give protection to tenants against eviction from certain classes of land on which building was constructed by lessees with the permission of the lessor. The relevant portion thereof reads as under:-
"29-A. Protection against eviction to certain classes of tenants of land on which building exists- (1) For the purpose 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 "building".5
(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 expense in execution thereof.
(3) *** *** *** *** (4) The tenant of any land to which this section applies shall be liable to pay to the landlord such rent as may be mutually agreed upon between the parties, and in the absence of agreement, the rent determined in accordance with sub- section (5).
(5) The District Magistrate shall on the application of the landlord or the tenant determine the annual rent payable in respect of such land at the rate of ten per cent per annum of the prevailing market value of the land, and such rent shall be payable, except as provided in sub-section (6) from the date of expiration of the term for which the land was let or from the commencement of this section, whichever is later.
(6) *** *** *** *** (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.
13. It is apparent from a perusal of the aforesaid provisions and other provisions of the Act that the tenant of an open land let out to him before or after the introduction of the section for the purposes of making construction was also granted protection against eviction, except on grounds mentioned in section 20 and 21 thereof, irrespective of any contract to the contrary. This was the precise objection taken by the respondents when confronted with the notice of eviction. Therefore, despite the fact that the lease stood determined by efflux of time, the lessee became a statutory tenant and could not be evicted, except on the grounds mentioned in the Act. Apart from acceptance of an amount equivalent to the rent for couple of months, there is no other evidence to show assent of the landlord to continue the lease or in regard to agreed rent.
14. The Apex Court in the case of Bhawanji Lakhamshi Vs. Himatlal Jamnadas Dani and others [AIR 1972 SC 819] was considering an issue whether mere acceptance of rent after determination of tenancy by efflux of time qua a statutory tenant would amount to holding over? It affirmed 6 its earlier decision rendered in the case of Ganga Dutt Murarka Vs. Kartik Chandra Das [AIR 1961 SC 1067] holding that where a contractual tenancy, to which Rent Control legislation applied, expires by efflux of time and the tenant continues in possession, mere acceptance of rent from the tenant by the landlord will not afford a ground for holding that the landlord has assented to a new contractual tenancy. It went on to hold that he, at best, would be a tenant on sufferance. Further, in Dattonpant Gopalvarao Devakate Vs. Vithalrao Marutirao [AIR 1975 SC 1111) the Apex Court went on to hold that in case of a fixed term tenancy, where the lease stood determined under section 111(a) of the Transfer of Property Act by efflux of time, then, even a notice under section 106 of the Transfer of Property Act was not required. This position of law, coupled with the fact that the landlord did serve a notice to quit on 12.12.1996, the tenant would have been liable for eviction except for the statutory protection granted by section 29A of the Act.
15. Therefore, mere acceptance of rent without any further evidence, could not lead to the inference of subsistence of lease or of holding over as such, thus the Rent Controller committed manifest error of law by holding otherwise.
16. No doubt, during the subsistence of the lease section 29-A was introduced but the application for determination of rent under sub-section (5) was moved after the expiry of the lease, yet the Rent Controller, on the basis of the expired lease, has held that there was a mutually agreed rent between the parties and therefore, in view of sub-section (4), the District Magistrate had no right to determine the rent under sub-section (5).
17. A joint reading of sub-section (2), (4), (5) and (7) of section 29-A shows that it refers to subsequent agreement only and not the agreement which existed prior to coming into force of the section. A Full Bench of our court was confronted with an identical question in the case of Trilok Chand Vs. Rent Control & Eviction Officer and another [1987 (1) A.R.C. 290] as to whether an application under sub-section (5) could be entertained in spite of the fact that there was a prior agreement 7 regarding rate of rent between the parties? It answered the query by holding that sub-section (4) refers to an agreement subsequent to coming into force of the section and any agreed rent on the basis of an agreement prior to that date would be immaterial. This decision of our court came to be affirmed by the Apex Court in the case of Vinaya Kumar Shukul Vs. Lakhpat Ram and another [1990 (2) A.R.C. 306] in the following words:-
"We are in the agreement with the view propounded by the Full Bench in Trilok Chand's case (Supra). In our opinion, the words "such rent as may be mutually agreed upon between the parties" in sub section (4) of Section 29-A envisage an agreement with regard to rent entered by the landlord and tenant after the coming into force of Section 29- A. An agreement prior to the commencement of Section 29-A would not preclude determination of rent under sub-section (5) of Section 29-A. In this context it may be mentioned that the words "may be" used with reference to the future than the past or the present."
18. Therefore, there is no escape from the conclusion that there was no mutually agreed rent between the parties as contemplated in sub section (4) disentitling the Rent Controller to enhance and determine the rent under sub-section (5) of section 29A of the Act.
19. For the reasons above, this petition succeeds and is allowed and the impugned order dated 15.9.1997 passed by the Rent Controller is quashed. However, the matter is remanded to the respondent no. 5 for decision afresh in accordance with the observation made hereinabove. It is a very old matter and is pending for the last more than 14 years and therefore the Rent Controller shall finally decide the application within a period of three months from the date of submission of a certified copy of this order. It is further directed that the tenant would not be entitled to take more than three adjournments and that too not for a period exceeding a week at a time upon imposition of cost of not less than 1,000/- on each occasion.
820. In the circumstances of the case, the petitioner shall be entitled to his cost.
Order Date :- 12.8.2010 AU