Bangalore District Court
And Tenancy Is For A Period Of 11 Months ... vs To Vacate The Schedule Property And ... on 4 April, 2019
BEFORE Ist ADDL. JUDGE, COURT OF SMALL CAUSES,
BANGALORE. (SCCH11)
DATED THIS 10th DAY OF APRIL, 2019
PRESENT: SMT. B.S.RAYANNAWAR, B.A., L.L.B.
I ADDL.SMALL CAUSES JUDGE & MACT
SC.112/2018
BETWEEN
Smt. Vanaja N.M.,
W/o Narasimha Nayak,
D/o Late Muria Marakka,
Aged about 45 years,
R/at No.52/612, Nandanavana,
Venkatadri Layout,
Behind Apollo Hospital,
Bannerghatta Road,
Bilekahalli Cross, Bengaluru.
(By Sri G.M.D.............., Advocate) ....Plaintiff.
AND
M/s. Indus Towers Limited,
Represented by its Authorized
Signatory/Officer, No.12, 7th Floor,
Tower 'D', Subramanya Arcade,
Bannerghatta Road,
Bengaluru - 560 029.
Also
Having its registered office at
Hotel The Grand,
Nelson Mandela Road,
Vasant Kunj, Phase - 2,
New Delhi - 110 070.
(By Sri. R.B.J. ............. Advocate) .....defendant.
SCCH-11 2 SC 112/2018
JUDGMENT
Present suit filed by the plaintiff for ejectment.
2. Brief averments of the plaintiff case is as follows:
The plaintiff is the absolute owner of the immovable property bearing Site No.6, Khatha No.152, 154/6, 154/7, Venkatadri Layout, Behind Apollo Hospital, Bannerghatta Road, Bilekahalli Cross, Bengaluru, now within the revenue jurisdiction of BBMP, Bengaluru, measuring an extent of 450 Sq. ft. which is clearly mentioned in the schedule. The plaintiff has let out the schedule property in favour of the defendant on a monthly rent of Rs.8,500/ and an advance of Rs.85,000/ on 15.10.2008. In this regard a lease deed dated 15.10.2008 was entered into between the plaintiff and defendant as per the terms and conditions mentioned in the said rental agreement, the defendant has agreed to pay the enhanced rent of Rs.9,350/ from 01.01.2012 to 31.12.2015 per month to the plaintiff and tenancy is for a period of 11 months commencing from 15.10.2008. The defendant by taking undue advantage of the innocence of the plaintiff has incorporated in the lease deed that the lease deed is for a period of 15 years starting from SCCH-11 3 SC 112/2018 15.10.2008. The rent was increased from time to time and at present the defendant is paying rent of Rs.10,285/ per month to the plaintiff. The plaintiff has let out the schedule premises for a period of 5 years to the defendant, but the defendant without the knowledge and consent of the plaintiff has incorporated in the lease deed that the lease period is for 15 years commencing from 01.11.2008 and ending on 30.10.2023.
The plaintiff is illiterate and ignorant and not knowing english language either speaking or written. The defendant has informed the plaintiff th the lease deed is for a period of 5 years only. The plaintiff believing the word of the defendant has put her signature on the lease deed dated 15.10.2008. The defendant has erected the tower on the suit schedule property. In this regard the plaintiff has received several complaints from the neighbours on the ground that the said tower would cause health hazard to them. The plaintiff is running womens paying guest in the first floor and second floor of the property in question. The defendant has caused damage to the building of the plaintiff the time of erection of the tower on the schedule property and BBMP has also raised objection regarding the installation of the tower on the schedule property since the SCCH-11 4 SC 112/2018 schedule property comes under the residential zone.
The plaintiff has brought the said matter to the notice to the defendant and requested him to quit and vacate the schedule premises and handover peaceful possession of the same. Several requests and demands made by the plaintiff to the defendant to vacate the schedule property and handover peaceful possession of the same did not give any fruitful result. The defendant went on giving one or the other lame excuses to the plaintiff. The said lease deed dated 15.10.2008 is not a registered lease deed. The lease of the immovable properties for more than one year ought to have been registered but the defendant by taking innocence and illiteracy of the plaintiff have incorporated in the lease deed that the ease is for a period of 15 years. If the lease deed is in kannada, the plaintiff would not have agreed to let out the schedule premises to the defendant for a period of 15 years. The lease deed though stipulates the period of 15 years since the same is not registered, the period of lease to be constituted as 11 months. In otherwords the plaintiff has let out the schedule premises in favour of the defendant on month to month basis and it would be constituted as 11 months. The defendant is no longer interested to continue the SCCH-11 5 SC 112/2018 lease in favour of the defendant and hence, the plaintiff has got issued a notice dated 11.09.2015 in favour of the defendant. The defendant has after receiving the notice has approached the plaintiff to continue the tenancy for a period of 2 years and he would vacate the schedule premises on or before 09.11.2017 and the plaintiff has agreed for the same. Thereafter the defendant after lapse of more than 6 months i.e., on 28.04.2016 has got issued an untenable reply to the notice. The plaintiff thereafter got issued legal notice dated 23.10.2017 by RPAD in favour of the defendant. The defendant in turn has got issued reply notice dated 13.11.2017. The defendant with oblique and malafide intention and to cause wrongful loss to the plaintiff is illegally and unauthorizedly squatting on the suit schedule property even after termination of the tenancy and hence, the defendant is liable to pay damages to the extent of Rs.30,000/ per month for his unauthorized illegal occupation of the schedule property. The cause of action for the suit arose on 23.10.2017 when the plaintiff has got issued legal notice in favour of the defendant and the defendant got issued an untenable reply dated 13.11.2017 and the cause of action is continuing even till today. Hence this suit.
SCCH-11 6 SC 112/2018
3. In pursuance of suit summons defendant appeared through his counsel and filed written statement denying the contents of plaint in toto. The defendant is a private company incorporated under the Companies Act, 1956 and a major telecom infrastructure facilitating company having all the regulatory compliances/permissions from the Government to erect, install, manage mobile network towers and do other ancillary activities in relation to their area of work. In order to conduct their business activity the defendant company has to procure either land or building from the respective landlords on lease basis. After formalising the process of lease the defendant company and the respective landlord will execute lease deed fixing rent per month and also total duration of the ease. Further both the parties of the lease agreement are bound by the entire covenants of the lease agreement executed amongst them. In this background when the defendant company was approached by their client to install roof top terrace (RTT) in the Bhannerghatta Vicinity, they have identified the property owned by plaintiff and got executed lease agreement with her as per the terms and conditions of the said lease agreement. After execution of the said lease agreement, defendant company paid SCCH-11 7 SC 112/2018 initial deposit to plaintiff and went on paying agreed rent upto date which is in operation till date. In such scenario dragging this defendant company into the present litigation was totally uncalled for the reasons stated above. The plaintiff in the present suit which is filed for ejectment and mesne profit has to prove that the defendant is in unauthorised occupation of the schedule premises, but strangely in the present case the plaintiff admits the execution of the lease agreement and also relationship of lessor and lessee. Further once the agreement is admitted both the parties have to be abiding by the terms contained therein. In the present case as per the clause 2.1 of the lease deed the agreement between the parties has been executed for a period of 15 years commencing from 01.11.20108 to 30.10.2023 hence as on the date of filing of the suit the possession of the defendant in the schedule property cannot be termed as unauthorised. The reason assailed by the plaintiff seeking ejectment is firstly on the ground that she has received several complaints from her neighbours regarding health hazards caused to them due to the presence of the tower in the schedule property is denied. The other reason that the lease deed is not a registered document will not be a defence for the SCCH-11 8 SC 112/2018 plaintiff as the registration could not be completed by the defendant, only because the plaintiff was successful in evading the registration whenever the defendant company's official approached her. Hence registration is not compulsory as in the present case though the term is for 15 years the contract gets renewed on month to month basis on the expiry of 11 th month of every calendar year. The plaintiff was made known of the said aspect and only after her concurrence the rent was enhanced on such period. The major reason as pleaded in the plaint is about health concerns as an hazard prompting the plaintiff to take an defence for the first time after the long gap of 10 years is not only ridiculous but also without any proof. The radiation caused by the mobile towers is so minimal to cause any health concerns which fact has been endorsed even by the survey and investigation conducted by World Health Organization. Hence, the plaintiff cannot take a refuge on the ground of health hazard without any evidentiary proof. The defendant has clearly replied to the notice issued by the plaintiff by answering all the concerns raised by the plaintiff. The plaintiff in her plaint had pleaded that due to her ignorance about language she has executed the lease agreement under the impression that the SCCH-11 9 SC 112/2018 lease period is 5 years only. But, on the other hand, the very fact that the plaintiff has approached this Court only in the year 2017, clearly establishes that she was fully aware about the term of lease. On these grounds prays to dismiss the suit with costs.
4. In support of her case the SPA Holder of the plaintiff got examined as P.W.1 and got marked in all 15 documents as Ex.P.1 to 15 and closed her side. Defendant has examined its Manager Legal as DW.1 and got marked 3 documents as Ex.D.1 to 3 and closed its side.
5. Heard argument by both respective counsels for the plaintiff and defendant.
6. The points that arise for my considerations are;
1) Whether the plaintiff is entitled to the relief sought for?
2) What order?
7. After hearing the arguments and perusal of the records my findings to the above points are as under for the following reasons Point No.1 : In the Affirmative.
SCCH-11 10 SC 112/2018Point No.2 : As per the final order:
REASONS
8. Point No.1 : It is the case of the plaintiff that, she is the absolute owner the immovable property bearing Site No.6, Khatha No.152, 154/6, 154/7, Venkatadri Layout, Behind Apollo Hospital, Bannerghatta Road, Bilekahalli Cross, Bengaluru, now within the revenue jurisdiction of BBMP, Bengaluru, measuring an extent of 450 Sq. feet. The plaintiff has let out the schedule property in favour of the defendant on a monthly rent of Rs.8,500/ and an advance of Rs.85,000/ on 15.10.2008. In this regard a lease deed dated 15.10.2008 was entered into between the plaintiff and defendant as per the terms and conditions mentioned in the said rental agreement, the defendant has agreed to pay the enhanced rent of Rs.9,350/ from 01.01.2012 to 31.12.2015 per month to the plaintiff and tenancy is for a period of 11 months commencing from 15.10.2008. The defendant by taking undue advantage of the innocence of the plaintiff has incorporated in the lease deed that the lease deed is for a period of 15 years starting from 15.10.2008. The rent was increased from time to time and at SCCH-11 11 SC 112/2018 present the defendant is paying rent of Rs.10,285/ per month to the plaintiff. The plaintiff has let out the schedule premises for a period of 5 years to the defendant, but the defendant without the knowledge and consent of the plaintiff has incorporated in the lease deed that the lease period is for 15 years commencing from 01.11.2008 and ending on 30.10.2023. The plaintiff is illiterate and ignorant and not knowing English language either speaking or written. The defendant has informed the plaintiff th the lease deed is for a period of 5 years only. The plaintiff believing the word of the defendant has put her signature on the lease deed dated 15.10.2008. The defendant has erected the tower on the suit schedule property. In this regard the plaintiff has received several complaints from the neighbours on the ground that the said tower would cause health hazard to them. The plaintiff is running womens paying guest in the first floor and second floor of the property in question. The defendant has caused damage to the building of the plaintiff the time of erection of the tower on the schedule property and BBMP has also raised objection regarding the installation of the tower on the schedule property since the schedule property comes under the residential zone. SCCH-11 12 SC 112/2018
9. The plaintiff has brought the said matter to the notice to the defendant and requested him to quit and vacate the schedule premises and handover peaceful possession of the same. Several requests and demands made by the plaintiff to the defendant to vacate the schedule property and handover peaceful possession of the same did not give any fruitful result. The defendant went on giving one or the other lame excuses to the plaintiff. The said lease deed dated 15.10.2008 is not a registered lease deed. The lease of the immovable properties for more than one year ought to have been registered but the defendant by taking innocence and illiteracy of the plaintiff have incorporated in the lease deed that the ease is for a period of 15 years. If the lease deed is in kannada, the plaintiff would not have agreed to let out the schedule premises to the defendant for a period of 15 years. The lease deed though stipulates the period of 15 years since the same is not registered, the period of lease to be constituted as 11 months. In other words the plaintiff has let out the schedule premises in favour of the defendant on month to month basis and it would be constituted as 11 months. The defendant is no longer interested to continue the lease in favour of the defendant and hence, the plaintiff has got SCCH-11 13 SC 112/2018 issued a notice dated 11.09.2015 in favour of the defendant. The defendant has after receiving the notice has approached the plaintiff to continue the tenancy for a period of 2 years and he would vacate the schedule premises on or before 09.11.2017 and the plaintiff has agreed for the same. Thereafter the defendant after lapse of more than 6 months i.e., on 28.04.2016 has got issued an untenable reply to the notice. The plaintiff thereafter got issued legal notice dated 23.10.2017 by RPAD in favour of the defendant. The defendant in turn has got issued reply notice dated 13.11.2017. The defendant with oblique and malafide intention and to cause wrongful loss to the plaintiff is illegally and unauthorizedly squatting on the suit schedule property even after termination of the tenancy and hence, the defendant is liable to pay damages to the extent of Rs.30,000/ per month for his unauthorized illegal occupation of the schedule property.
10. To prove that the plaintiff is the owner of the scheduele property bearing site No.6, Khatha No.152, 154/6, 154/7 Venkatadri Layout, Bannegghatta Road, Bilekahalli Cross, Bangalore, has produced Ex.P.2 Certified Copy of Sale SCCH-11 14 SC 112/2018 Deed, Ex.P.3 Encumbrance Certificate, Ex.P.4 Khatha Extract, Ex.P.5 Khatha Certificate, Ex.P.6 Tax paid receipt and moreover the defendant also not disputed the ownership of property of plaintiff. Hence there is no dispute with regard to ownership of suit schedule property. Hence by the oral and documentary evidence the plaintiff proved that she is the owner of the suit schedule property.
11. Plaintiff got examined her SPA Holder as PW.1 produced Ex.P.1 Special Power of Attorney, PW.1 filed his chief affidavit in lieu of his examination in chief. PW.1 has reiterated the facts pleaded in the plaint. Land lord and tenant relationship between plaintiff and defendant is also not in dispute. Defendant in their written statement para no.3 admitted execution of lease agreement with plaintiff as per terms and conditions of the said lease agreement. Hence there is no dispute with regard to relationship of land lord and tenant between plaintiff and the defendant.
12. It is the contention of the plaintiff that, Lease deed dated 15.10.2008 was entered into between the plaintiff and the defendant. The lease period is for five years but the defendant SCCH-11 15 SC 112/2018 without the knowledge and consent of the plaintiff has shown 15 years in the the lease agreement. The defendant tis utilizing the schedule property for installation of mobile towers. The defendant earlier was paying rent of Rs.8500/ and the same was enhanced from time to time and at presently defendant paying the rent of Rs.10,285/. The schedule property is required for the plaintiff for bonafide use and occupation. Hence, she has requested the defendant to vacate the schedule premises. The defendant did not vacate and hence the plaintiff got issued legal notice under section 106 of the T.P. Act calling upon him to vacate the schedule premises.
13. Admittedly both parties have not produced lease agreement to know the terms and condition agreed by both parties. As per the oral evidence on record and as admitted by the defendant during cross examination it reveals that, the said lease agreement is not registered one. It is the contention of plaintiff that she executed lease agreement for the period of five months but it is the contention of defendant that the lease is for the period of fifteen years. But to prove the same none of the parties produced lease agreement.
SCCH-11 16 SC 112/2018
14. No doubt the defendant erected tower in suit schedule premises and invested huge amount. but when the lease agreement is for a long period and it is not registered one is not believable. As per section 17 of Registration Act provisos lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, months requires compulsory Registration. However a lease agreement of 11 months does not require compulsory registration. In the present case during cross examination DW.1 admitted that, said lease deed was not registered, also admitted that if the lease agreement is for the period of more than eleven months registration is must. Admitted that, there is legal advisor in their company. DW.1 further deposed that he called the plaintiff for the purpose of regastration of lease deed, but plaintiff not comeforward. But except oral evidence defendant not produced any document to show that he called upon the plaintiff for the purpose of registration of lease deed. The lease deed is not for one or two years, as per the contention of defendant it is for fifteen years, having knowledge of registration of a agreement which is for the period of fifteen years the defendant having legal SCCH-11 17 SC 112/2018 knowledge not got registered the lease deed. Registration of deed is duty of both parties, but it is the contention of plaintiff that, she executed lease agreement for five years and thereafter she requested the defendant to vacate the premises. But the defendant whose contention is that the lease agreement is for the period of fifteen years, has not issued any notice to the plaintiff to calling upon her for the purposed of registration of said lease deed. Defendant not produced original lease agreement, not produced document to show that he called upon the plaintiff for the purpose of registration of lease deed.
As admitted by the defendant they have erected Airtel, Vodaphone and Idea Towers in suit schedule premises and spent rupees thirty to fourty lakhs. But not document produced by defendant in support of their contention. Admittedly the defendant have taken suit premises from the plaintiff in order to conduct business activity of their company and erected towers. But there is nothing on record to show that how much of amount was spent by them for erection of mobile tower. No doubt the defendant company taken suit premises to conduct business and invested huge amount, but it is the contention of plaintiff that, SCCH-11 18 SC 112/2018 that, plaintiff has received several complaints fromm the neighbours on the ground that the said tower would cause health hazard to them. Plaintiff running womens paying Guest in the first floor and second floor of the property in question, the defendant has caused damaged to the building of the plaintiff. Plaintiff required the schedule premises for her and her family members for her bonafide use and occupation. Defendant not produced the lease agreement, if really the plaintiff executed lease agreement for the period of fifteen years then what is the hurdle to defendant to produce the lease agreement. And moreover the said agreement is unregistered one. Plaintiff needs suit premises for her bonafide reasons, plaintiff terminated the tenancy in favour of the defendant by issuing Ex.P.11 legal notice dated 23.10.2017.
15. In this case the ownership of the property, relationship of the plaintiff and the defendant as landlord and tenant and quantum of rent i.e. rent of Rs.10,285/ as per lease agreement per month are admitted by the defendant. It is admitted that the plaintiff has terminated the tenancy and defendant has replied to it. The plaintiff has stated that the SCCH-11 19 SC 112/2018 defendant has paid advance of Rs.85,000/. The termination of the tenancy by issuance of 15 days clear notice is admitted. In the light of the above discussion I have no hesitation to answer point No.1 in the affirmative.
16. POINT No.2: In view of my findings given to point No.1, I proceed to pass the following:
ORDER The suit of the plaintiff is decreed with costs. Defendant shall quit, vacate and hand over the vacant possession of the suit schedule premises to the plaintiff within three month from the date of this Order.
Further defendant shall pay arrears of three months rent of Rs.30,855/ to the plaintiff within above said period and the plaintiff is hereby directed to return the advance amount paid by the defendant.
As far as damages are concerned there shall be separate enquiry as contemplated under Order 20 Rule 12 of CPC.
SCHEDULE All that piece and parcel of the roof top terrace/open space measuring in total 450 Sq.ft. a space measuring 150 Sq.ft for installing an aluminum container for housing the BTS equipment on the terrace floor for installing 4 pole masts of 9 meters heights and another space approximately measuring 150 SCCH-11 20 SC 112/2018 Sq.ft. on the same terrace floor for installing Diesel Generator set of 25 KVA capacity with necessary grounding and for running necessary cables from the electric meter to the antenna/equipment room also to use the parapet walls of the building for running necessary cables, earth strips and pit chambers, battery racks, cable trays, OFC Ducts (OFC ducts from the compound wall of the building till the equipment) and another related equipments for operating the BTS and adequate space measuring 150 sq.ft. on the ground floor for earth pits to put earth strips and draw cable trays wherever necessary and if any, with proper access from road to building and also through the staircase of building to all these points, on the building being a position of property bearing Site No.6 Khatha No.152, 154/6, 154/7, Venkatadri Layout, Behind Apollo Hospital, Bannerghatta Road, Bilekahalli Cross, Bangalore:
East by : Private Property,
West by : Road,
North by : Road,
South by : Site No.7.
Draw decree accordingly.
(Types by me over computer and corrected by me, then pronounced in Open court on this the 10th day of April, 2019.) (B.S.RAYANNAWAR) I ADDL.SMALL CAUSES JUDGE ANNEXURE WITNESSES EXAMINED FOR PLAINTIFF:
PW.1 Sri Narasimha.M
DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P.1 Special power of attorney
SCCH-11 21 SC 112/2018
Ex.P.2 Certified copy of Sale deed
Ex.P.3 Encumbrance certificate
Ex.P.4 Khatha certificate
Ex.P.5 Khatha certificate
Ex.P.6 Tax paid receipt
Ex.P.7 Office copy of legal notice
Ex.P.8 Postal receipts (2 in nos.)
Ex.P.9 Complaint to postal department
Ex.P.10 Reply Notice
Ex.P.11 Legal notice dated 23.10.2017
Ex.P12
& 13 Postal Acknowledgment
Ex.P14 Postal receipts (2 in nos.)
Ex.P15 Reply notice
WITNESSES EXAMINED FOR DEFENDANT:
DW.1 Sri Mahesh B.
DOCUMENTS MARKED FOR DEFENDANT:
Ex.D1 Certified copy of GPA
Ex.D2 Certified copy of Order passed in W.P.
No.34189/2009
Ex.D3 Certified copy of order passed by Hon'ble High
Court in CCC 1719/2017
I ADDL.SMALL CAUSES JUDGE