Chattisgarh High Court
Vinod Kumar Agrawal And Others vs Hindustan Petroleum Corpo Ration Ltd ... on 27 January, 2001
HIGH COURT OF CHATTISGARH AT BILASPUR
FIRST APPEAL No 74 OF 2001
Vinod Kumar Agrawal and others
...Petitioners
Versus
Hindustan Petroleum Corpo ration Ltd and others
...Respondents
! Shri HB Agrawal Sr Advocate with Smt Meera Jaiswal Advocate for appellants ^ Shri Bhisma Kinger Advocate for the respondents CORAM: HONBLE SHRI NK AGARWAL J Dated: 27/01/2001 : Judgement O R A L O R D E R
1. This is plaintiffs' first appeal arising out of the judgment and decree passed by the 3rd Additional District Judge, Durg in Civil Suit No. 18-A/96 dated 18th December, 2000 whereby appellants'/plaintiffs' suit has been dismissed.
2. Facts of the case in brief are that the plaintiff instituted a suit for eviction and damages against the defendants inter alia on the ground that the suit land was given on lease to the defendants vide registered lease deed dated 26-5-1976 for a period of 10 years. The tenancy was monthly and rate of rent was Rs. 500/- per month. After expiry of lease period when the defendants did not vacate the suit land, the plaintiffs sent a notice requesting the defendants to vacate the suit land and for payment of damages at the rate of Rs. 500/- per day for unauthorized use and occupation of the suit land after expiry of lease period. Even then the defendants did not vacate the suit premises. Hence the suit was filed.
3. The defendants by filing the written statement, denied the plaint averment, raised defence of non-joinder of necessary parties, also raised plea of maintainability of the suit on the ground that the suit having not been filed under the provisions of M.P./C.G. Accommodation Control Act, is not tenable and deserves to be set aside.
4. Learned trial court framed issues. Parties led evidence. Learned trial court based on evidence adduced, material placed and submissions made, although held; the plaintiffs along with his brothers and sisters are owner of the suit property, the defendants are their tenant at the rate of Rs. 500/- per month, the suit is not bad for non-joinder of necessary parties, but dismissed the suit on the ground that the provisions of MP/CG Accommodation Control Act, 1961 (briefly `the Act') are applicable and therefore, the suit which is not filed under the above provisions is not maintenable.
5. Shri H.B. Agrawal, learned Sr. Counsel appearing for the appellants tried to controvert the above legal finding with the help of two judgments of Hon'ble Supreme Court (1) Spun Casting & Engg. Co. (P) Ltd. -v- Dwijendra Lal Sinha (dead) through Lrs and others reported in (2005) 6 SCC 265 and (2) C. Albert Morris -v- K. Chandrasekaran and others reported in (2006) 1 SCC 228. He would further contend that in the alternative, the suit ought to have been deemed to be filed under Section 12(1)(a) of the Act by the trial court and the trial court ought to have granted a decree so far as arrears of rent is concerned.
6. On the other hand, Shri Kinger, learned counsel appearing for the respondents supported the judgment and decree of the trial court and would submit that learned trial court has rightly held the suit as not maintainable in the light of the provisions contained in the Act and as neither prayer has been made to convert the suit under the Act nor the plaintiffs/appellants sent any notice demanding arrears of rent in terms of Section 12(1)(a) of the Act, the above plea raised by the plaintiffs/ appellants is devoid of merit.
7. I have heard learned counsel for the parties and perused the judgment and decree impugned.
8. The definition of "accommodation" under the M.P./C.G. Accommodation Control Act, 1961 reads as under:-
"2. Definitions.- In this Act, unless the context otherwise requires.-
(a) "accommodation" means any building or part of a building, whether residential or non-
residential and includes.-
(i) any land which is not being used for agricultural purposes;
(ii) garden, grounds, garages and out-houses, if any appurtenant to such building or part of the building;
(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof;
(iv) any furniture supplied by the landlord for use in such building or part of building;......."
9. The Supreme Court in the case of Spun Casting and Engineering (P) Ltd. (supra), while interpreting the definition of premises in West Bengal Premises Tenancy Act, 1956 has held in para 20 and 21 as under:-
"20. We have no hesitation in accepting the findings recorded by the High Court. Premises have been defined under Section 2(f) of the Act to mean:
"2. (f) `premises' means any building or part of a building or any hut or part of a hut let separately and includes-
(i) the gardens, grounds, and outhouses, if any, appertaining thereto,
(ii) any furniture supplied or any fittings or fixtures affixed for the use of the tenant in such building or part of a building or hut or part of a hut, but does not include a room in a hotel or a lodging house;"
21. Reading the terms of the settlement as aforesaid and construing the same we are of the view that the dominant intention of the settlors was to effect the settlement in respect of the karobar (business) of iron casting foundry set up by them along with machinery housed in a building. "Premises" in the Act are defined to mean a building or a part of a building which includes gardens, grounds and outhouses, if any, appertaining to the building. It also includes the furniture supplied or any fittings or fixtures in a building or a part of the building but would not include a room in a hotel or a lodging house. It does not include the lease of a business along with machinery in a building. The intention of the parties was not to settle or grant lease of the structures and sheds as such. Structures and sheds did not constitute the dominant part of the settlement in favour of the appellant. It is evident from the terms of the settlement that the dominant intention of the parties was to create a lease for running the business of an iron casting foundry. It cannot be said that the settlement was in respect of the premises constituting "premises tenancy" within the meaning of the Act. Tenancy was not being created of the premises to run a business, it was to the contrary."
10. The Supreme Court in the case of C. Albert Morris (supra) while dealing with a case under the provisions of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 has held in para 34 and 43 as under:-
"34. On 24-8-1996, a notice was issued to the appellant through the landlord's advocate calling upon the tenant to vacate and hand over the vacant possession of the schedule-mentioned property and also to take necessary steps for removing equipments which have been installed on behalf of the tenant in the said property. The Schedule given to the said notice reads as under:
"Schedule of property Vacant land measuring OH. 10-A. 28 Ca. (approximately 11.050 sq ft) forming part of RS No. 242/2 pt. in Thattanchavady Revenue Village 34, in Oulgeret Commune, Pondicherry.
Metes and bounds:
Bound on the north by land belonging to Small Industries Service Institute, on the west by house and lands belonging to Diderot Kannagi, on the south by Pondy-Thindivam Road, on the east by lands belonging to Diderot Kannagi measuring 22.5 metres on the north (east to west) 30.0 metres on the west (north to south), 7.5 metres plus 27.0 metres on the south (west to east), 19.0 metres on the east (south to north), 6.1 metres on the south (west to east) and 26.2 metres on the east (south to north) all measured continuously. This encloses an area of OH. 10-A. 28 Ca. (approximately 11,050 sq ft)."
The instant case is based on 7-10-1986 lease deed entered into between the appellant tenant and the first respondent landlord. It was mutually agreed between the parties under clause (d) as follows:
"(d) In addition to the showroom building of size 20 x 10 feet already constructed by the lessee, the lessee shall have the right to construct a compressor room, storeroom, a bathroom and latrine together with a septic tank."
From the above recital, it is crystal clear that what was leased out was a vacant land and that the lessee was given a right to construct a compressor room, storeroom, a bathroom and latrine together with a septic tank. Therefore, in our opinion, the provisions of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 cannot be invoked. The said Act was enacted on 7-6-1969 to regulate the letting of residential and non-residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom in the Union Territory of Pondicherry. "Building" has been defined as under:
"2. (4) `building' means any building or hut or part of a building or hut, let or to be let separately for residential or non- residential purposes and includes-
(a) the garden, grounds and outhouses, if any, appurtenant to such building, hut or part of such building or hut and let or to be let along with such building or hut;
(b) any furniture supplied by the landlord for use in such building or hut or part of a building or hut, but does not include a room in a hotel or boarding house;"
43. In our opinion, any right which the dealer has over his site was the right which he had acquired in terms of the lease. When that lease expired and when the landlord declined to renew the same and also called upon the erstwhile tenant to surrender possession, the erstwhile lessee could no longer assert that he had any right to the site. His continued occupation of something which he had no right to occupy cannot be regarded as source of a right to the land of which he himself was not in lawful possession. As observed by this Court in M.C. Chockalingam v. V. Manickavasagam [(1974) 1 SCC 48] litigious possession cannot be regarded as lawful possession. As rightly pointed out by the Division Bench of the High Court the right referred to in this rule has necessarily to be regarded as right which is in accordance with law and the right to the site must be one which is capable of being regarded as lawful. We have already referred to Bhawanji Lakhamshi v. Himatlal Jamnadas Dani [(1972) 1 SCC 388] wherein this Court held that the act of holding over after the expiration of the term does not create a tenancy of any kind. A new tenancy is created only when the landlord assents to the continuance of the erstwhile tenant or the landlord agrees to accept rent for the continued possession of the land by the erstwhile tenant. The contention of Mr L.N. Rao that the landlord's assent should be inferred from the conduct of the landlord who had filed the suit for ejectment, but did not pursue the same, has no force. This suit was withdrawn with liberty to file a fresh suit on the same cause of action, liberty for which the Court has granted. The possession of this site by the erstwhile lessee does not ripen into a lawful possession merely because the landlord did not proceed with the suit for ejectment at that time, but reserved the right to bring such a suit at a later point of time. That cannot amount to an assent on his part to the continued occupation of the land under cover of a right asserted by the erstwhile lessee. The words "right to the site" in Rule 153(1)(i) must, therefore, in our opinion, be given their full meaning and the effect that unless the person seeking a licence is in a position to establish a right to the site, he would not be entitled to hold or have his licence renewed. We have already rejected the contention of Mr L.N. Rao that the appellant tenant is a statutory tenant for the reasons recorded earlier. The lease deed is very clear as to what was leased. The lease was of vacant land. That is evident from the recitals in the plaint, legal notice, lease deed, etc. It is, therefore, not in dispute that the lease of land is not covered by the statute, the Pondicherry Buildings (Lease and Rent Control) Act, 1969 in force extending protection to the tenants.
11. A bare perusal of the definition of "premises" under Section 2(f) of the W.B. Premises Tenancy Act, 1956 and definition of "building" under Pondicherry Building (Lease and Rent Control) Act, 1969 would reveal that the above rent Acts were made applicable only in relation to the buildings and gardens, grounds and outhouses, if any, appertaining thereto. Land has been excluded from the operation of above rent Acts. On the contrary, the M.P./ C.G. Accommodation Control Act, 1961 is also made applicable for any land which is not being used for agricultural purposes.
12. The Single Bench of High Court of M.P. in the case of Gajanan Saw Mill -v- Gopal Pd. Agrawal and others reported in 2001 (1) M.P.L.J. 630 in para 8 of the judgment has held `The definition of "accommodation" includes any land which is not being used for agricultural purpose. This is provided in Section 2(a)(1) of the Act of 1961. Apart from the plain words of section 2(a)(1) of the Act of 1961, it is clear that the legislature wanted a piece of open land to be treated as an accommodation and consequently provided a special ground for eviction of a tenant to the landlord from the open land by enacting section 12(1)(n) of the Act of 1961."
13. Taking into consideration the scope and ambit of definition of "accommodation" as defined under the M.P./C.G. Accommodation Control Act, 1961 which is in unequivocal terms wider then the definition of "premises" or "building" as defined in the W.B. Premises Tenancy Act, 1956 and the Pondicherry Building (Lease and Rent Control) Act, 1969, in the considered opinion of this Court, the definition of "accommodation" under the M.P./C.G. Accommodation Control Act, 1961 covers any land which is not being used for agricultural purposes and thereby the Act has been made applicable if the accommodation is land which is not being used for agricultural purposes. Here in the instant case, indisputably, the land in dispute is not being used for agricultural purposes, therefore, the ratio of law laid down by the Hon'ble Supreme Court in the above referred cases would have no application in the facts and circumstances of the present case and are of no help to the appellants and the above ground taken by the appellants is devoid of merit.
14. The appellants have neither pleaded nor proved sending of any notice under Section 12(1)(a) of the Act demanding arrears of rent nor it claimed any amount as arrears of rent, therefore, the other ground taken for treating the suit as filed under the Act is also not tenable.
15. For the foregoing, in the considered opinion of this Court, learned trial Court has rightly dismissed the suit as not maintainable. The appeal being devoid of substance is liable to be and is hereby dismissed. However, the appellants/plaintiffs are free to approach civil court in accordance with the provisions of the M.P./C.G. Accommodation Control Act, 1961.
16. No order as to costs.
Judge