Punjab-Haryana High Court
M/S Atma Ram And Sons (Huf) vs Panjab University on 12 May, 2010
Author: K.Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.16455 of 2009
Date of decision: 12.05.2010
M/s Atma Ram and Sons (HUF), Shop No.56-57, Shopping Complex,
Panjab University, Sector 14, Chandigarh, through Shri Karan Puri and
another. ....Petitioners
Versus
Panjab University, Sector 14, Chandigarh, through its Registrar and
others. ...Respondents
Present: Mr. Sumeet Mahajan, Senior Advocate, with Mr.Sham Lal
Bhalla, Advocate and Mr.Amit Kohar, Advocate, for the
petitioners.
Mr. Anupam Gupta, Advocate and Mr. Vikas Chatrath,
Advocate, for the respondents.
----
II. Civil Writ Petition No.17037 of 2007
P.K. Bindra son of Shri K.L.Bindra, Shop No.51, Shopping Complex,
Sector 14, Panjab University, Chandigarh. ....Petitioner
Versus
Panjab University, Chandigarh through its Registrar, Sector 14,
Chandigarh, and another. ...Respondents
Present: Mr. D.R.Bansal, Advocate, for the petitioner.
Mr. Anupam Gupta, Advocate and Mr. Vikas Chatrath,
Advocate, for the respondents.
----
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Civil Writ Petition No.16455 of 2009 -2-
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
K.Kannan, J.
I. Challenge to action for eviction under PP Act, subject matter
1. Both the writ petitions address the same issue relating to the orders passed under the Punjab Premises (Eviction of Unauthorized Occupants) Act of 1971 (hereinafter called 'the PP Act') and by the consent of both the counsel, they are taken up together and disposed of by a common order.
II. Basis of complaints of the petitioners
2. The admitted case is that the petitioners in both the cases had been holding properties within the University Campus, which belonged to the University on lease. The lease period had expired and treating their respective possession as having become unlawful, actions for eviction have been taken. The eviction orders were passed by the Estate Officer and the appeals filed to the Additional District Judge confirmed the orders of eviction passed by the Estate Officer. While the petitioner in Civil Writ Petition No.16455 of 2009 was granted the lease for the purpose of running a bookshop, the petitioner in Civil Writ Petition No.17037 of 2007 was running the trade of Watches & General Store. As against the petitioner in the former case, their complaint was that the petitioner was attempting to change the nature of user and he had carried substantial alteration in the property without the authority of the University. The unauthorized act attributed to the latter is an alleged Civil Writ Petition No.16455 of 2009 -3- installation of a binding machine and doing unauthorized trade. In both the cases, the petitioners themselves had admitted to the fact that they had attempted to modify the respective trades and they sought for permission from the University for such changes. The University had not granted such permission, but decided after resolution, to evict the tenants. Both the petitioners have common grounds to contend that there are several shops within the University Campus and as and when the tenancy period expired, they were all renewed, but a discrimination had been practised only against the petitioners to evict them from the property. The petitioners, therefore, challenge the eviction also on the ground that the University, being an instrumentality of State, was bound to see that their actions were fair, just and reasonable. Complaining that the University was arbitrary in its action and discriminated between one tenant and another without sufficient justification, the petitioners contend that the action of the University in pursuing remedy for eviction against only the petitioners from amongst the host of tenants as violative of Article 14 of the Constitution and, hence, liable to be interfered with. III. Justification for action by the respondents
3. The respondents represented through counsel, Shri Anupam Gupta took me elaborately through provisions of the PP Act and through substantial number of decisions of the Hon'ble Supreme Court and of this Court while addressing arguments on the nature of possession after the period of lease had expired and when the University did not extend the lease. He would contend that the possession of the tenants became tenants at sufferance and the only limitation against a landlord was that Civil Writ Petition No.16455 of 2009 -4- the possession could have been interfered with, only by process known to law. The action under the PP Act itself was an action contemplated by law and no exception could be taken to the same. Addressing the issue relating to unfair and discriminatory action attributed to the University, the contention was that the petitioners had changed the nature of user of the property to a purpose unauthorized by the terms of the lease and, therefore, the petitioners were liable to be evicted. They had also caused substantial damage to the property and, therefore, there was sufficient justification for taking action only against the petitioners for eviction. Since the lease deeds executed in favour of the petitioners were through unregistered instruments and the terms of the lease were themselves sought to be pressed in service, I had asked the counsel to address arguments also on the admissibility of the unregistered instruments for user of the terms of the lease and the respective counsel had also advanced substantial arguments on the same.
IV. Points for consideration
4. The points, therefore, that would arise for consideration are:
(i) the extent of admissibility of the terms for the lease to complain of the change of the user or unauthorized user of the property; (ii) the nature of the possession of the tenants continuing in possession after the expiry of period of lease and (iii) the right of the landlord to take action for eviction complaining of change of user of the property by the tenants and the damage alleged to have been caused by them to justify the fairness action for eviction.Civil Writ Petition No.16455 of 2009 -5-
(i) Extent of admissibility of unregistered lease deeds
5. It is necessary to advert to the extent of the admissibility of the respective lease deeds first, for, that will determine the complaints of unauthorized user and the justification for the action by the landlord. Both the parties agreed that the lease of the documents in relation to the immovable property were for period in excess of 1 year and, therefore, the documents required registration. Although the non-registration of the document itself was not a point of pleadings since it was an issue emerging from admitted facts and, in my view, it would have instant bearing to the ultimate result as well, I had called upon the parties to make their submissions on the same. The learned counsel appearing for the petitioner refers me to a decision of the Hon'ble Supreme Court in K.B.Saha and Sons Private Limited Versus Development Consultant Limited-(2008) 8 Supreme Court Cases 564. The Hon'ble Supreme Court was considering clause 9 of the lease deed which specified that the tenanted premises would be used and occupied by a particular officer of the Company and if the company intended to use the premises for occupation of any other officer, it would seek the written consent of the landlord. The terms further provided that the landlord had the option to agree or disagree to such a request. The tenant, however, allowed after vacation of the premises by a particular officer, yet another officer without the consent of the landlord. The landlord objected to the user by a person, who was not authorized and applied for action for eviction. The Hon'ble Supreme Court held, with reference to the unregistered nature of the document under Section 49(c) of the Registration Act and Civil Writ Petition No.16455 of 2009 -6- the proviso, that the admissibility of a document which was required to be registered under Section 17 shall be only for a collateral transaction. Explaining the meaning and scope of collateral transactions/purpose, it held that the collateral transactions must be independent of, or divisible from the transactions which required registration. It shall not by itself be registrable. However, the user of unregistered document to prove an important clause would not be called collateral purpose and in that case, the attempt of the landlord to use the document for identifying the person who could occupy and the requirement of a consent of the landlord for the user of any other person as essential terms of the document and it could not, therefore, be looked into for arriving at a conclusion that the tenant was liable to be evicted because of violation of the said clause. The attempt on behalf of the petitioners was that the so-called change of user of the property from bookshop to a departmental store in the case of the petitioner in Civil Writ Petition No.16455 of 2009 and by a change of user from a Watch Company to the use for binding of books by relying on the terms of lease with reference to the user amounted to proving the terms of the lease, which were impermissible. The landlord also relied on a clause in the rent deed that the tenant shall not put the premises to any other use including the allied and ancillary trade without the prior consent of the landlord and the change of trade without such consent would automatically amount to termination of the lease. The University further urged for its contention that there was another clause that provided that the tenant shall not cause any damage to the property and would hand over the premises in the condition as has been leased to him. Civil Writ Petition No.16455 of 2009 -7- The tenants had committed damage to the property and hence liable to be evicted.
6. The learned counsel appearing for the University would refer to a decision of the Hon'ble Supreme Court in Rai Chand Jain Versus Miss Chandra Kanta Khosla-AIR 1991 Supreme Court 744, that held, while considering the provisions of the East Punjab Rent Restriction Act that the issue whether a lease was for residential or non- residential purpose, was collateral to a transaction itself and hence, an unregistered lease deed could be looked into for such collateral purpose. He also refers to a Full Bench decision of Madhya Pradesh in Sardar Amar Singh and another Versus Smt. Surinder Kaur-AIR 1975 Madhya Pradesh 230, that held that the bar of reception of parole evidence would not extend to proving the nature of character in possession. The Full Bench was rejecting a contention that character of possession is also to be excluded by virtue of Section 91 of the Evidence Act which contained the rule of exclusion of parole evidence in respect of matters which were required to be reduced in writing. In my view, the issue of a collateral purpose will have to be decided on the facts and circumstances of each case. There is no denying the fact that a document which is required to be registered under Section 17 of the Registration Act, would be inadmissible as evidence of a transaction affecting the immovable property, except for a collateral purpose, as provided under the proviso under Section 49 of the Registration Act. While the nature of the user of the property as residential or non-residential could be well termed to be a collateral purpose, the clauses relating to the particular Civil Writ Petition No.16455 of 2009 -8- type of user and the consequences of any change of user as resulting in automatic termination of lease would result in giving effect to the terms of the document themselves. Even without reference to the terms of the document, there are implied terms and conditions as between the lessor and the lessee, as provided under Section 108 of the Transfer of Property Act. The provisions of Transfer of Property Act could still be attracted to supply the implied covenants of lease and they could be only substituted by specific terms in the lease deed to the contrary. A term in a lease deed which is required to be registered could be used to displace an implied covenant of lease set out through Section 108. To state the corollary, if there is a particular implied covenant protected under Section 108, the same cannot be substituted through a term in an unregistered document which is required to be registered. Such an implied clause would still govern, for a landlord and a tenant may not be able to use the terms of an unregistered lease deed at all. If it is unregistered and, therefore, the terms cannot be used, the parties could, in such a circumstance, rely on the terms of the Transfer of Property Act itself as governing the rights of the parties.
7. If during the continuance of the lease, the property required any repairs relating to integrity of the property and the landlord had failed to carry out the repairs in spite of notice, the tenant would be entitled to carry out such repairs. If the tenant's activity is at any time objected by the landlord on the ground that under the unregistered document, he was not entitled to do any work upon the property, it shall be possible for a tenant to contend that a term of interdict against Civil Writ Petition No.16455 of 2009 -9- effecting repairs through such an unregistered document will be ineffective and that the rights would be governed only by the provisions of the Transfer of Property Act. The right to effect repairs if the landlord neglects to make within a reasonable time and a notice to exercise the tenant's right to carry them out and deduct the same are expressly protected under Section 108-B(f) of the Transfer of Property Act. This illustration is only to bring home the point that a landlord cannot enforce any of the terms of the lease which are essential stipulations in the lease deed; and such stipulations cannot exist do hors the lease. Unlike a user of the property as either residential or non-residential, the particular type of user amongst the non-residential purpose and to provide for a right for eviction if there was a deviation from such user, could not be enforced unless the document is registered. On the first submission, therefore, I hold that the landlord shall not be entitled to complain that the tenant had brought some changes and used the property in one case from a book store to a departmental store and in another case, an additional user of the property for binding of the books had been made, when the lease had been for establishing a Watch shop only. I hold therefore a particular term of the lease providing for a particular purpose only is essential to the lease deed and hence, cannot be enforced by the landlord.
(ii) Nature of possession of tenant after termination of lease
8. The learned counsel appearing on behalf of the University relied extensively on the decisions relating to how a tenant at sufferance beyond the term of a lease period could not qualify to obtain a right to hold such possession if the possession is sought to be taken by a process Civil Writ Petition No.16455 of 2009 - 10 - known to law. I reproduce all these decisions only for documenting the arguments advanced by the learned counsel but they must still be seen in the context of a need for examining the fairness in the action for eviction, that will stand for consideration independently as point (iii) below. The learned counsel referred to a judgment in Brigadier K.K.Verma and another Versus Union of India and another-AIR 1954 Bombay 358, where the Hon'ble Supreme Court held that trespasser's possession is never juridical possession and never protected by law. The possession of an erstwhile tenant is, on the other hand, juridical and is protected. The Court held that a tenant of Government premises who continues in possession after the termination of his tenancy by a notice to quit cannot be said to be in 'unauthorized occupation' of the premises within the meaning of Section 3(i)(b) of the Government Premises Act and the notice issued by the Union of India against him was an invalid notice. The Court held that only by means of independent suit for recovery could such a tenant be evicted and an action under the Government Premises Act would not lie. This judgment was cited to point out as to how subsequent to the decision, the law was changed and under the provisions of the Public Premises Act, it is specifically provided that a person, who is inducted in possession of the property under a lease whose lease period has expired, shall be treated as an unauthorized occupant. This change in law through an amendment in the PP Act was noticed and commented in length in M/s Ashoka Marketing Limited and another Versus Punjab National Bank and others-AIR 1991 Supreme Court 855 , a judgment that I will dwell at some length below. Civil Writ Petition No.16455 of 2009 - 11 - A Full Bench of this Court in Roshan alias Roshan Lal and others Versus Secretary, Government of Haryana Development & Panchayat Departmental, Chandigarh and others-AIR 1999 Punjab and Haryana 70, held that a lessee for a fixed period whose lease period has expired could be ejected by taking recourse to the Public Premises Act. To the same proposition is a decision in Punjab State Electricity Board Versus State of Punjab and others-AIR 2003 Punjab and Haryana 80. In that case, it was held that a mere deposit of amount equal to monthly rent during pendency of proceedings before the Collector and the Appellate Authority, would not enable a tenant to contend that his possession is unauthorized. These decisions do not address the question of fairness in action of the landlord as in violation of Article 14 and do not, therefore, help us to resolve the controversy in issue between parties.
9. The learned counsel Shri Anupam Gupta also referred extensively decisions as to change in character of possession of a tenant continuing in possession beyond the expiry of the lease. In M.C.Chockalingam and others Versus V.Manickavasagam and others- AIR 1974 Supreme Court 104, the Hon'ble Supreme Court was dealing with the provisions of Madras Cinemas (Regulation) Rules and the Parent Act of Madras Cinemas Act. In the light of the expression 'lawful possession' used in the Rules for a person to make a claim for obtaining licence for running of a cinema, the Court held that on the expiry of the lease, a lessee cannot be said to continue in lawful possession for the possession is in the capacity as a tenant at sufferance liable to be evicted by the landlord. Such possession could however be held out as sufficient Civil Writ Petition No.16455 of 2009 - 12 - against forcible dispossession protected under Section 6 of the Specific Relief Act but it is not the same thing as characterizing such tenant as being in lawful possession to entitle him to obtain licence from public authorities. In R.V.Bhupal Prasad Versus State of A.P. and others- (1995) 5 Supreme Court Cases 698, the same point was reaffirmed in the context of A.P.Cinema (Regulation) Rules that continuance in possession even after the expiry of the lease period in contravention of terms could not make such possession as lawful possession, the same being at the sufferance of the landlord. If the landlord had not signified his consent for his continuance by accepting rent, the tenant cannot be called as the tenant for holding over. In Raptakos Brett & Company Limited Versus Ganesh Property-(1998) 7 Supreme Court Cases 184, the Hon'ble Supreme Court referring to expressions "wrongful occupation" and "unlawful occupation" as being synonymous and such wrongful occupation was not restricted to occupation and breach of any terms and conditions of the contract. It would cover unlawful occupation after the expiry of lease by efflux of time. If this decision is referred to only for the purpose of showing that the tenants are in unauthorized occupation and hence, liable for ejectment, it carries enormous weight to the landlord but the said decision does not also address the issue of fairness of the action which is a point urged by the tenants in this case. In C. Albert Morris Versus K. Chandrasekaran and others-(2006) 1 Supreme Court Cases 228, the Hon'ble Supreme Court was referring to the consensus of judicial opinion in this country that a mere continuance in occupation of the demised premises after the expiry of the lease, Civil Writ Petition No.16455 of 2009 - 13 - notwithstanding the receipt of an amount by the quondam landlord, would not create a tenancy so as to confer on the erstwhile tenant the status of tenant or a right to be in possession. In Hardesh Ores (P) Limited Versus Hede and Company-(2007) 5 Supreme Court Cases 614, the point was further explained by saying that there would result no automatic renewal of lease by the mere offer of rent by the tenant to the landlord. If the tenancy is invariably a bilateral invocation of a new clause by a party having a right to do, if it is met with denial of renewal by the other party, proper relief to be claimed would only be to get their right to renewal declared and enforce by a Court of law under Section 34 of the Specific Relief Act. The Court also noted a distinction between renewal of a clause in the agreement and extension of existing agreement. The case was considered in the context of a plaintiff seeking for an injunction on the assumed basis that clauses with reference to an agreement stood automatically renewed including the negative covenants and the Court found that the claim was barred by limitation without a prayer for a declaration that the rights subsisted under a renewed agreement.
10. I have outlined all the decisions which go as far as to state that the tenant's possession subsequent to the expiry of the lease is unlawful. They were all set in the context of actions being governed by the provisions of the Transfer of Property Act and when statutory rights under special Rent Restriction Act did not apply to give to them a right to hold possession and liable to be evicted under a normal civil action. If there is a statute which protects the continuance in possession Civil Writ Petition No.16455 of 2009 - 14 - notwithstanding the terms of the lease, the statutory protection which any such legislation would provide would enable them to contend for a status of a statutory tenant and there the consideration of the fact that the lease period had expired or whether the possession is unlawful or unauthorized will have no role to play. However, in cases of public premises to which the provisions of PP Act are applicable, even Rent Control Acts shall not apply. In Ashoka Marketing Limited and another Versus Punjab National Bank and others-AIR 1991 Supreme Court 855, after observing that the nationalized Bank is a Corporation and an instrumentality of State as a corporate body established under the Central Act and it is owned and controlled by the Central Government and consequently, the premises belonging to nationalized Banks are public premises within the meaning of Public Premises Act, held that the provisions of the Public Premises Act overrides the provisions of the Rent Control Act and a person in unauthorized occupation cannot invoke the protection of Rent Control Act. This decision is also an authority for the proposition that in respect of public premises, if an action is taken by a landlord, the claim for protection under any State Rent Control Act will not apply.
(iii) Fairness of action for eviction could not be tested without proof of interdict against change of user or actual damage caused to the premises
11. The tenants' possession is unauthorized and the landlord could take action for PP Act is addressing only half the story. However, the judicial pronouncements have come about in such a way that even apart from proving the possession to be unauthorized, courts are required Civil Writ Petition No.16455 of 2009 - 15 - to be satisfied of a further test of a reasonableness of the action of the landlord. In M/s Dwarkadas Marfatia and Sons Versus Board of Trustees of the Port of Bombay-(1989) 3 Supreme Court Cases 293, the Hon'ble Supreme Court held that all actions including the contractual dealings of a State or its instrumentality shall be subjected to judicial review. A Court could see if such body had followed the statutory purpose and acted in public interest and not in mala fide or arbitrary or for a collateral purpose. The burden would always lie on a person assailing the action. The Court was considering an action for eviction by Port Trust, an exempted landlord under the Rent Act. The Court, while holding public authority of the landlord are not expected to behave like private landlord but only for public benefit or public purpose, ruled that the issue whether they have acted in such public benefit or public authorities would be open to judicial review. On facts, the public authority in that case had filed a small cause suit which was resisted as a mala fide action and for improper notice. The trial Court dismissed the suit on improper notice and did not go on the question of mala fides. The Appellate Court reversed the decision upholding the validity of the notice and held that the question of mala fide was not relevant on the legality of eviction and in the writ proceeding also, the High Court concurred with the Appellate Court. The Hon'ble Supreme Court however upheld the right of judicial review in such actions but on such a factual consideration found that there is no mala fide in the action of the landlord.
Civil Writ Petition No.16455 of 2009 - 16 -
12. The change of the user of the property again, it must be noticed, had not come about in both the cases. The respective tenants had sought for permission for such a change. The contention of the landlord was that the tenant in Civil Writ Petition No.16455 of 2009 had actually begun making substantial interior alterations preparatory to change of user of the property from a bookshop to a departmental store. Although the change itself had not come about, the action of the tenant was preparatory to such an intention. In Civil Writ Petition No.17037 of 2007, the landlord had actually carried out an inspection through staff to find that there were some book binding machines and also the fact that the tenant had extended some area at the back portion of the demised premises with a wooden staircase to reach the first floor and such additions had been without the concurrence of the landlord. The learned senior counsel Shri Sumeet Mahajan would contend that there was no pleading at all to the effect that several additions that have been made were for a contemplated change of user of the property. He pointed out to the fact that the landlord had let in no evidence at all and was rest contended with producing documents before the Estate Officer. He had restricted his plea before the Estate Officer only to the contention that the possession of the petitioner subsequent to the period of lease was unauthorized and the landlord was entitled to obtain an eviction under the PP Act. I have also noticed from the order of the Estate Officer that the University had chosen not to let in any evidence and rest contended with the issue that the continuance in possession of the property by the tenants beyond the period of lease had become unauthorized. The Estate Civil Writ Petition No.16455 of 2009 - 17 - Officer as well as the Appellate Authority therefore restricted within their ken of enquiry only facts that led to a finding whether the University had accepted rent of the premises in question, after the expiry of the period of lease and when a notice had been issued by the University terminating the lease under Section 106, the only ground that fell for consideration was whether such an action was maintainable. In paragraph 11 of the order passed by the Additional District Judge, it is specifically averred that the respondent did not choose to let in any evidence relating to a change of user or damage but the Appellate Authority held that when the lease deed itself was not denied by the University, even if the University did not lead any evidence, it could not be said that it was a case of no evidence. Since the University had relied on documents on records, it was not necessary for the University to lead evidence by way of production of witnesses. This approach of the Appellate Authority, in my view, is wrong, for, it failed to take note of the fact that the University was not merely applying for eviction on the ground that the lease period had expired and that a notice under Section 106 had been issued. Eviction was justified on the ground that the tenant had done some act which was unauthorized and that the action of the University stood the test of Article 14 of the Constitution. If it is merely a case of unauthorized occupant being sought to be evicted, no other consideration would probably arise. The landlord can rest on the mere fact of expiry of the period of lease and seek for eviction. In this case, the right of the landlord to take action for eviction is objected by the tenants on a fundamental premise that it is grossly unfair and Civil Writ Petition No.16455 of 2009 - 18 - discriminatory. To decide the question of fairness of the act of the landlord without there being any evidence relating to the damage to the property or unauthorized user which could be evidenced only through the terms of the lease is well nigh impossible. The landlord cannot succeed in his attempt unless he shows the equities in his actions.
13. In New India Assurance Company Limited Versus Nusli Neville Wadia and another-(2008) 3 Supreme Court Cases 279, the Hon'ble Supreme Court held that under the Public Premises Act of 1971, there may be a class of tenants who are required to be evicted on the ground which requires proof of fairness and reasonableness on the part of the landlord, which may include requirement of premises by landlord for its own use and occupation. If the landlord being State within the meaning of Article 12 of the Constitution is required to prove fairness and reasonableness on its part in initiating proceeding, it is for it to show how its prayer meets the constitutional requirements of Article 14 of the Constitution. While holding so, the Hon'ble Supreme Court observed that literal construction of Section 5 of the 1971 Act placing entire onus on noticee tenant would lead to anomalous situation where landlord is not required to adduce any evidence at all nor is it required even to make any oral submissions. This is not contemplated in law. When a landlord files an application in a given situation, it must be however to lead evidence either at the first instance or after the evidence is led by the noticee to establish his case and/or in rebuttal of the evidence led by the noticee.
Civil Writ Petition No.16455 of 2009 - 19 -
14. All these lead to examination of the contention of the tenants that the landlord had been unfair in the dealings in applying for eviction only against them. The tenant has filed along with the writ petition a schedule containing a list of 74 tenants in various items belonging to the University. In all the cases except one person Surinder Kumar, the tenancy period of all the tenants have expired and according to him, it is not shown that any action for eviction has been taken. Pointing out to the fact that even in the notice demanding eviction, the only point that had been taken was the lease period had expired on 31.01.2007 and from the said date, he had become unauthorized occupant, the learned counsel, Shri. Mahajan sought to contend that the University was claiming justification for its action on the only ground that the tenant was in unauthorized occupation after the expiry of the lease. At the time of arguments before the Appellate Authority when the issue of a discrimination was urged, it was contended on behalf of the University that the tenant had violated the terms and conditions of the lease and, therefore, the University had no intention to extend the lease with the expiry of the lease. The Appellate Authority had also found that the University could not be forced to renew the lease of the tenant. In any case even if he was an old tenant of the University, the University was merely taking recourse to law and that contention was found to carry weight. The Appellate Authority held that it was not the "Constitutional Court" to examine the issue of fairness of action by the landlord. It could not ask the University to do something on the ground of parity which they did not want. In fact the question of fairness was not Civil Writ Petition No.16455 of 2009 - 20 - considered as appropriate by the Appellate Authority in an action for eviction under the PP Act.
15. If the tenant were to contend that the repairs that they had undertaken on the roof was to prevent rain water from seeping inside the premises and spoiling the books, with no evidence coming from the landlord, it is not possible to contend, by merely relying on the terms of the lease that the tenant had done some act which was in contravention of lease deed. More than contending that the tenant was occupant of the premises for a non-residential purpose, the unregistered lease deeds could not be relied on to show that any repairs or construction ought not to be made. If it was an act which the tenant could do to perverse the property, it could be supported as an implied term of lease under Section 108 of the Transfer of Property Act. The approach of Courts to the issue of change in user of the property itself has undergone substantial change. A change in user which is contemplated as sufficient in Rent Restrictions Acts of several States have been approached by Courts by placing certain checks and balances that every change in user shall not be actionable and only the change which impairs the utility of the building or which causes hardship to the landlord, could become actionable. I am stating this only for meeting an issue relating to a change of user but I am restricting the ultimate conclusion of the case still to pointing out that when the tenant was complaining of unfairness in State action, the landlord cannot merely rest contended with recitals in unregistered documents as providing proof of the reasonableness of its action. If any construction or any addition is made under the normal provisions of the Transfer of Civil Writ Petition No.16455 of 2009 - 21 - Property Act, the tenant is bound to vacate in an action for eviction by suit and the tenant would be entitled to remove all such additions and improvements at his option and if they are not so removed, enable the landlord to take possession with all the improvements with no possible claim for compensation by the tenants.
16. The action of the landlord in seeking the eviction of the petitioners is unreasonable, unfair and unjust and the resort to the PP Act for alleged violation of the terms of lease on the ground that the petitioners have become unauthorized occupants, could not be sustained. If it were to be supported on the ground of unauthorized user by the tenants, such claim of unauthorized user on the basis of the terms of an unregistered lease is impermissible. If it were to be contended that the tenants were guilty of damage to the property, the said ground has to fail for want of adequate proof, when the landlord had opted not to lead any evidence before the authority.
V. Disposition
17. Under the circumstances, the writ petitions succeed and the orders of the authorities below are set aside. The petitioners shall be allowed to continue at the rent which they have last paid and having regard to the fact that there is no valid document governing the respective rights and duties of parties, the University shall obtain registered lease deeds on such terms as they mutually agree and get the document duly registered. The University shall be at liberty to restrict the terms of the lease and the purpose of the user. It shall be also at liberty to outline the consequences of such unauthorized user which Civil Writ Petition No.16455 of 2009 - 22 - might include an action for ejectment. It is for the University to map its future course of action through proper registered instruments that could bring about certainty in the relationship with the respective tenants and provide for greater transparency for its actions.
18. Subject to these observations, the writ petitions are allowed with cost assessed at Rs.5,000/- in each case.
(K.KANNAN) 12.05.2010 JUDGE sanjeev