Madhya Pradesh High Court
Gangaram vs The Municipal Counsel, Nagar Palika, ... on 28 February, 1992
Equivalent citations: AIR1992MP303, 1993(0)MPLJ550, AIR 1992 MADHYA PRADESH 303, (1992) JAB LJ 677 (1993) MPLJ 550, (1993) MPLJ 550
Author: R.C. Lahoti
Bench: R.C. Lahoti
JUDGMENT R.C. Lahoti, J.
1. This judgment shall also govern the disposal of Second Appeal No. 25/74 (Smt. Seriubai v. Municipal Council, Neemuch) arising in similar facts and raising similar questions for decision.
Facts relating to S.A. No, 277/72 :
2. S.A. No. 277/72 is by Gangaram S/o Bharaji resident of Neemueh, who having expired, his legal representatives have been brought on record. The suit was filed seeking a declaration that the plaintiff was a pakka tenent of garden No. 12 situated within-limits of Neemueh Municipality and that recovery of Rs. 4,384/- from the plaintiff was void, with consequent injunction restraining the recovery. According to the plaintiff though the land was held by him as a lessee of the Neemueh Municipality; but by operation of law he had become Bhumiswami; the land being in reality owned by the State, the Municipality having no right and title therein and hence any demand on account of rent payable under the lease at the instance of the Neemueh Municipality was null and void.
3. The facts and documents brought on record go to show that on 1-6-1939 late Bharaji was having a lease for a period of 10 years commencing 1st April 1939 and expiring 31st March, 1949. The lease, Ex.P/46, shows that at that time Neemueh was a Cantonment and the lease was executed by the Resident for Central India on behalf of the Secretary for India in Council, on 14-9-1951 there was another lease, Ex. P/47 for a period of one year (1951-52) executed by the Secretary, Municipal Committee", Neemueh on behalf of Neemueh Cantonment Municipality in favour of late Bherajl. On 24-3-1956 there was a lease, Ex. D/1 for a period commencing 1-4-56 to 31-3-1957 in favour of the plaintiff Gangaram by the Neemueh Municipality under Section 53 of the Madhya Bharat Municipalities Act, 1954. This appears to be the last lease. The rent fell in arrears for which demand notices were issued from time to time, which having not been complied with and the objections against the proposed recovery of lease rent having been rejected by the Municipality on 30-12-1961 vide notice, Ex. P/6, abill, Ex. P/7, under Section 94(1) of M.B. Municipalities Act, 1954, for a sum of Rs. 4,384/- was presented to the plaintiff.
Facts relating to S.A. No. 25/74 :--
4. The suit property in this case is Garden No. 6 and 6-A situated within the limits of Neemueh Municipality. The lease deeds in favour of plaintiff Mangilal are Ex. D/1 and D/2 dated 24-3-56 for the period 1-4-56 to 31-3-57 executed under Section 53 of Madhya Bharat Municipalities Act, 1954. Here also the plaintiff having defaulted in payment of rent a bill followed by notice of demand for an amount of Rs. 760/- on account of rent and Rs. 44.19P., on account of cost of recovery was issued to the plaintiff. In this case bill and notice of demand have not been placed on record.
Defence and facts common in both the appeals:--
5. In both the cases it is common ground that demand having not been satisfied, the Municipality Neemuch approached the Magistrate for affecting recovery. In both the suits both the plaintiffs have pleaded that the Municipality being not the real owner of the property, neither it was competent to lease out the lands nor was it authorised in law to recover the rent. It is also submitted that the Madhya Pradesh Municipalities Act, 1961 came into force on 1st February 1962 and the provisions contained in Chapter VIII relating to recovery of Municipal claims were inapplicable to such demands as they had not arisen under this Act but were outstanding under the previous Act which had stood repealed.
6. All the material pleas raised were denied on behalf of the Municipality Neemuch in both the suits. It was submitted that the Municipality was competent to make a lease and also competent to make the impugned recovery through the agency of the Magistrate.
7. All the contentions raised by the two plaintiffs having been negatived by the Courts below, both of them have come up in second appeals to this Court.
8. It is submitted by the learned counsel for the plaintiff/appellants in view of several laws touching the tenancy rights and the Municipal laws, the land covered by leases in dispute did not vest in the municipality and hence the Municipality Neemuch was not competent to grant leases of the gardens to the plaintiffs nor could it recover rent from the plaintiffs in spite of their being lessees of the Municipality.
9. The learned counsel for the plaintiff-appellants have traced the legislative history to demonstrate what properties along would be deemed to have vested in the Municipality and what would continue to remain vested in the State, to submit that Municipality Neemuch was not competent to make lease/s of the gardens to the plaintiffs. The learned counsel for the Municipality Neemuch submits that all this inquiry was besides the point in as much as the plaintiffs having admitted to have been inducted into possession of the property-in-suits by the Municipality Neemuch under respective leases the rule of estoppel contained in Section 116 of the Evidence Act would come into play and in plaintiffs would be estopped from challenging the title of the Municipality Neemuch and its entitlement to lease out the lands, also to recovery the rent so long as the plaintiffs do not surrender possession over the leased property to the lessor Municipality. In the opinion of this Court there is substance in the contention of the learned counsel for the defendant/ respondent and it is not necessary for this Court to enter into adjudicating upon the question what for title vested in the Municipality Neemuch or not.
10. Section 116 of the Evidence Act, 1872, provides as under:--
"116. Estoppel of tenant and of licenses of person in possession. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given".
11. The principle and policy underlying Section 116 above was stated by Division Bench of Patna High Court in Smt. Bhagwati Devi v. Surendrajit Singh, AIR 1969 Patna 257 in the following words (para 10);--
"The policy of Section 116 of the Evidence Act is that if a person, brought into possession as a tenant by the landlord, is permitted to question the title of the landlord at the time of the settlement, then extreme confusion will result in the matter of relationship of the landlord and tenant. Therefore, the equitable principle of estoppel is incorporated in Section 116."
11A. A Division Bench of Andhra Pradesh High Court in Bookka Sreeramulu v. Kalipathuanu Venketeswar Rao, AIR 1959 AP 92 stated (at page 94) :--
"The section embodies the principle of estoppel arising from the contract of tenancy. It is based upon a healthy and salutary principle of law and justice that a tenant who could not have not possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. Of course he can deny his title after he gives up the possession having thus restored status quo ante."
12. The learned counsel for the appellants submitted that the rule of estoppel contained in Section 116, Evidence Act has a little field to operate; it operates during the continuance of the tenancy merely. In other words, if the period of lease has expired the rule of estoppel ceases to operate. The learned counsel for the respondents submitted that the rule would continue to apply in spite of the period of tenancy having been brought to an end, so long as the tenant in possession had not surrendered the possession and restored it back to the landlord.
13. The leading authority on the point is Mt. Biles Kunwar v. Desraj Renjit Singh, AIR 1915 PC 96, wherein their Lordships held (at page 98):--
"A tenant who has been 1st into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord."
To the same effect is the view of the law taken by the Privy Council in Currimbhoy v & Co. Ltd. v, L. A. Greet, AIR 1933 PC 29 and Chandrika Prasad v. Bombay Baroda & Central India Ry. Co., AIR 1935 PC 59.
14. The phrase "during the continuance of the tenancy" occurring in Section 116 of the Evidence Act, came up for consideration of a Division Bench of this Court in Mst. Hirabai v. Jiwanlal Palda, AIR 1955 Nagpur 234. Having reviewed the available case law and following the law laid down in Mt. Biles Kunwar's case (supra), the Division Bench held :--
"Section 116, Evidence Act is not exhaustive of the rule of estoppel governing a landlord and a tenant. The fact that the tenancy came to an end by reason of forfeiture and the landlord served a notice asking the tenant to vacate the house does not make any difference to the applicability of the rule of estoppel which is grounded on the tenant being still on the premises which he had obtained from the landlord."
15. The High Court of Madhya Pradesh in Pannalal v. Abdul Wabid, 1961 JLJ 1292, held :
"Once it is held that the defendants were allowed by the plaintiff to continue in possession of the portion of the suit house under their occupation as his tenants they will be estopped from challenging his title as long as they continue in possession of the same."
The Division Bench dcision of this Cpurt in Munnalal v. Balchand, 1961 JLJ 230 was relied on.
To the same effect is a decision of a Division Bench of Orissa High Court in Surajbali Ram v. Dhani Bau, AIR 1979 Orissa 101.
16. It therefore follows that a tenant having been inducted into possession by lessor, does not get out of grip of Section 116 Evidence Act, merely by efflux of time of the tenancy so long as he continues in possession under the lease and does not restore possession of the leased premises to his landlord because by virtue of Section 108(q) of the Transfer of Property Act, 1882, it is the obligation of the lessee to put the lessor into possession of the property on the determination of the lease and so long as he had not done so, the obligation incurred by him as lessee did not come to an end.
17. It is held that in the present suits, an inquiry into title of the landlord Neemuch Municipality or into its entitlement to lease out the land to the plaintiff and to recover rent thereunder is not warranted. The plaintiffs are estopped from challenging the title of the Municipality to the gardens in suit as also its entitlement to recover possession and till then realise the rent from the plaintiffs.
18. The next contention of the learned counsel for the plaintiffs is that Chapter VIII of M.P. Municipalities Act, 1961 relating to recovery of Municipal claims whereunder the recovery is being made from the plaintiffs is inapplicable inasmuch as Section 164 speaks of only specified recoveries and those too which were declared recoverable under this provision which would include such claims as related to the period anterior to the coming into force of the M.P. Municipalities Act, 1961 on 1-2-1962 and also because damage for use and occupation for the period after the determination of the lease by efflux of time would not be called rent contemplated by Section 164(1) relevant portion whereof read as under:
"164. Presentation of bills for taxes, rent and other claims when any amount--
(a) Which, by or under any provisions of this Act, is declared to be recoverable in the manner provided by this Chapter; or
(b) Which, not being leviable under subsection (1) of Section 157 or payable on demand on account of an octroi or a toll, is claimable as an amount or instalment on account of any other tax which is being imposed or may hereafter be imposed in any Municipality; or
(c) Which, on account of rent of any Municipal land, buildings, shops, gumtis, or any other property:
shall have become due, the Chief Municipal Officer shall, with the least practicable delay, cause to be presented to the person liable for the payment thereof a bill for the same claimed as due."
19. The learned counsel for the appellants have placed reliance on Banarsi Das v. Cantonment Authority, Ambala Centon-ment, AIR 1933 Lah 517 approved in The Cantonment Board, Ambala v. Pyarelal, AIR 1966 SC 108 : (1966 Cri LJ 93) a Full Bench decision in Gokulchand v. Municipal Corporation, Indore, 1971 JLJ BN 145 and Union of India v. Raman Iron Foundry, AIR 1974 SC 1265.
20. Banarsi Das's case was one where the Cantonment Authority proposed to recover by way of rent, charges payable in respect of a land which did not form subject-matter of the lease and to expression "recoverable by the Cantonment Authority under the Act" did not include such an amount. Approving the view, their Lordships of the Supreme Court in the Cantonment Board, Ambala v. Pyarelal, AIR 1966 SC 108 : (1966 Cri LJ 93) held in the context of Section 259(1) of the Cantonment Act, 1924, as amended by Act No. 2 of 1954 that action for recovery could be taken under S, 259 with respect to rent of land and buildings provided such rent was claimable under the Act or the Rule framed thereunder. In Gokulchand's case (supra) Section 390 of the M.P. Municipal Corporation Act, 1956 came up for consideration which provides for recovery by distress and sale if rent be due under the Act or the Rules or bye-laws. Raman Iron Foundry's case (supra) has been relied on to contend that the claim for damages for breach of contract cannot be said to be a sum presently due and payable.
21. In the opinion of this Court there is a marked distinction between the languages of the relevant provision of Cantonment Act and the M.P. Municipal Corporation Act from the language used by the Legislature in castings. 164 of the M.P. Municipalities Act, 1961. A bill may be presented and process of recovery under Chapter VIII may be utilised for any amount due on account of rent of Municipal Property, though not necessarily due under any provision of the Act, Rules or Bye-laws. In other words, even the amount of rent payable under a contract would attract the applicability of Section 164 of the M.P. Municipalities Act, 1961.
22. What is the effect of termination of lease by efflux of time? The tenant in occupation does not become a trespasser necessarily. He remains liable for payment of damages for use and occupation, would not such a damage for use and occupation by an ex-tenant be included within the meaning of term 'rent'?
23. The term 'rent' is not defined in the M.P. Municipalities Act, 1961. In Koncheda Ramamurty Subuddi (dead) by his legal representative v. Gopinath Naik, AIR 1968 SC 919, their Lordships observed that 'rent in its wider sense means "any payment made for the use of land or buildings and thus included the payment by a licensee in respect of use and occupation of any land or building." So is the view taken in State of Punjab v. British India Corporation Ltd., AIR 1963 SC 1459 Pr 15. In H.S. Rikhy v. New Delhi Municipality, AIR 1962 SC 554, their Lordships observed that- in the generic sense the term 'rent' is used to denote compensation for use and occupation.
24. In the opinion of this Court it is not necessary to restrict the meaning of the term 'rent' to its limited or narrow sense of recompense paid by the tenant to the landlord for the exclusive possession of premises occupied by him are a consideration for enjoying the lease hold rights. The underlying idea behind Section 164 of M.P. Municipalities Act, 1961 is to protect an autonomous public body like a Municipality to be saved from the necessity of litigating in a Court of law for recovey of its claims and to provide it with a speedier and cheaper remedy. The term 'rent' as used in Section 164(l)(c) should be read in its generic sense. It would include the compensation for use and occupation due and payable by the tenant at the same rate though for the period after expiry of the term of the lease on account of failure of the tenant to surrender possession back in spite of the expiry of the term of the lease. It would be different if the claim is made by the Munnicipality at an enhanced rates which cannot be said to be due unless determined by process of adjudication.
25. It is not clear if the amount claimed by the Neemuch Municipality and impugned in the suits is at the rate provided by the lease deed or is being claimed at a rate over and above the rate provided. However, if there be an objection to the rate, that can very well be taken care of by the Magistrate seized of the process of recovery on an appropriate objection being raised by the tenant/plaintiffs.
26. The last contention that remains to be examined is that the bill having been issued prior to the coming into force of the M.P. Municipalities Act, 1961, i.e. 1-2-1962, Chapter VIII would not be attracted.
27. It is not disputed that the bill was issued under the Madhya Bharat Municipalities Act, 1954. The Repeal & Savings clause contained in Section 2 of M.B. Municipalities Act, 1954 was repealed, provides inter alia that notwithstanding such repeal notices issued, proceedings undertaken and any other thing done or action taken under the repealed Act in so far as not inconsistent with the provisions of the new Act, shall be deemed to have been issued, done or taken under the new Act. A bill or a process issued under Section 94 of the Madhya Bharat Act was not inconsistent with any of the provisions contained in the new Act. It is saved. Process of recovery under Chapter VIII of M.P. Act in relation to a bill issued or demand made under the M.B. Act cannot, therefore, be termed as illegal or ultra vires the Act.
28. It may be made clear that this Court has not adjudicated upon any question of title between the parties touching the land in suits covered by the lease/s but has deliberately refrained from entering into that question, for the simple reason that the present lis is a tenant-landlord lis, with a limited scope of controversy, question of title being not germane and the tenant having been held estopped from disputing the title of the landlord so Ing as the possession secured under the lease/s was not surrendered back.
29. Subject to the observations made in paras 25 and 28 above, the appeals are held without any merit and liable to be dismissed. They are dismissed accordingly. In view of the nature of the controversy arising between the parties, it is directed that the costs shall be borne by the parties as incurred throughout. Counsel's fee as per schedule, if precertified.