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ARUN KUMAR versus VIITH A.D.J. & OTHERS

High Court of Judicature at Allahabad

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Arun Kumar v. Viith A.D.J. & Others - WRIT - C No. 5202 of 1995 [2006] RD-AH 3192 (13 February 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Court no. 31

Civil Misc. Writ Petition no. 5202 of 1995

Arun Kumar vs. VIIth Addl. District Judge and ors.

...

Hon'ble Bharati Sapru, J.

I have heard learned counsel for the petitioner Sri Pankaj Mithal, Sri K.C. Saxena learned counsel for the contesting respondents and have perused the entire record.

The facts of the case are that the petitioner leased out a plot of land measuring 100' x 100' situated at Meerut-Delhi Road, Meerut, which was part and parcel of khasra plot no. 1965. A registered lease deed was executed on 6.6.1972 in favour of respondent no. 3 for a period of 20 years commencing from the Ist of May  1972. The lease deed is on record and records that the said plot with one small room and a dug was leased out for the purpose of establishing and running a petrol pump. The lease rent as agreed was fixed at Rs.500/- per month for two years and Rs.600/- per month for next eight years and finally Rs.700/- per month for the last ten years.

From a perusal of lease deed, the intention of the parties was that the lease was being made for the land. There was no intention to convert the lease into that of a lease for a building. There is no intention of renewal of the lease deed nor there is any condition in the lease deed which would convert into a lease deed for building. The said lease deed expired on 30.4.1992. The petitioner sought to initiate proceedings to evict the respondent no. 3 from the land and filed a suit being O.S. no. 501 of 1992 after giving due notice of the termination of the lease under section 106 of Transfer of Property Act. The contention of the petitioner in the suit was that the plot of the land had been leased out in favour of the respondent no. 3. The term of the lease had come to an end and therefore he made the below-noted prayers in his plaint :

"(a) That the plaintiff be delivered actual physical possession over 1111.1/9 sq. yards of land (100' x 100') with a small room and dug situated at Meerut Delhi Road infront of Bahadur Motor Meerut City, the boundaries of which are given at the foot of the plaint after demolition of the entire buildings.

(b) That the plaintiff be awarded Rs.2210/- as mesne profits since 1.5.92 at the rate of Rs.170/- per day.

(c ) That the plaintiff be awarded pendentilite and future mesne profits till date of delivery at the rate of Rs.170/- per day. The court fees on this amount will be paid at the time of execution, if so, required.

(d) That the costs of the suits be awarded to the plaintiff.

(e) That any other relief which the learned court thinks fit and proper in favour of the plaintiff be also awarded to the plaintiff."

The suit was contested by the respondent no. 3 who filed written statement and stated that he has raised construction over the said land and property in dispute was not a plot of land but was a building and therefore the present original suit was barred by the provisions of U.P. ACt no. 13 of 1972 and the jurisdiction of the Civil Court to try the matter by way of a regular civil suit was barred.

On the basis of pleadings of the parties, the trial court framed several issues but mainly three issues namely issue no. 3, 4 and 8 were framed which are as follows:

"3. Whether the provisions of U.P. Act 13 of 1972 are applicable in this case? If so its effect?

4. Whether the court has no jurisdiction? If so its effect?

8. Whether the suit is barred by Section 20 of U.P. Act 13 of 1972?'

The trial court proceeded to decide three issues and came to the conclusion that a regular civil suit was barred and the petitioner ought to have taken recourse either to file a suit before the Judge Small Causes Court or to have filed a suit for eviction under the U.P. Act no. 13 of 1972.

Petitioner being aggrieved by the judgment of trial court filed a Misc. Appeal being Misc. Appeal no. 33 of 1994, which too has been decided against the petitioner by way of the impugned judgment dated 28.9.1994.

Sri Pankaj Mithal learned counsel for the petitioner has argued that two concurrent judgments which he has impugned are illegal and are liable to be set aside on account of the fact that firstly that the property in dispute which was leased out was a plot of land and not a building. He argues that the lease deed contained rent agreement only for the land and there was no separate determination of rent for the kothari or the dug, which was present on the land. He argues that the dominant purpose for letting out of the said land was to establish a petrol pump and did not require setting up of any plant and machinery as such and only equipment are to be fixed on the land. He argues that the jurisdiction of the Civil Court would not be ousted in this particular case because there was no tenancy of any building and it could not be said that tenancy of the building had been regularized under section 14 of the U.P. Act no. 13 of 1972.

Learned counsel for the petitioner has argued that section 29-A of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972, which are quoted hereinbelow, contemplate that either the rent may be mutually agreed between the parties and in absence of any such agreement, the rent is to be determined in accordance with sub-section (5) of section 29-A. Under sub-section (5), it is the District Magistrate, who on the application of the landlord or the tenant, would be the proper authority to determine the rent on such land.

"29-A. Protection against eviction to certain classes of tenants of land on which building exists. - (1) For the purposes of this section, the expressions ''tenant' and ''landlord' shall have the meanings respectively assigned to them in clauses (a) and (f) of section 3 with the substitution of the word ''land' for the word ''buildings'.

(2) This section applies only to land let out, either before or after the commencement of this section, where the tenant, with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof.

(3) Subject to the provisions hereinafter contained in this section, the provisions of Section 20 shall apply in relation to any land referred to in sub-section (2) as they apply in relation to any building.

(4) The tenant of any land to which this section applies shall be liable to pay to the landlord such rent as may be mutually agreed upon between the parties, and in the absence of agreement, the rent determined in accordance with sub-section (5).

(5) The District Magistrate shall on the application of the landlord or the tenant determine the annual rent payable in respect of such land at the rate of ten per cent per annum of the prevailing market value of the land, and such rent shall be payable, except as provided in sub-section (6) from the date of expiration of the term for which the land was let or from the commencement of this section, whichever is later.

(6)(a) In any suit or appeal or other proceeding pending immediately before the date of commencement of this section, no decree for eviction of a tenant from any land to which this section applies, shall be passed or executed except on one or more of the grounds mentioned in sub-section (2) of section 20, provided the tenant, within a period of three months from the commencement of this section by an application to the Court, unconditionally offers to pay to the landlord, the enhanced rent of the land for the entire period in suit and onwards at the rate of ten per cent per annum of the prevailing market value of the land together with costs of the suit (including costs of any appeal or of any execution or other proceedings).

(b) In every such case, the enhanced rent shall, notwithstanding anything contained in sub-section (5), be determined by the Court seized of the case at any stage.

(c)   Upon payment against a receipt duly signed by the plaintiff or decree holder or his counsel or deposit in Court of such enhanced rent with costs as aforesaid being made by the tenant within such time as the Court may fix in this behalf, the Court shall dismiss the suit, or, as the case may be, discharge the decree for eviction, and the tenancy thereafter, shall continue annually on the basis of the rent so enhanced.

(d)   If the tenant fails to pay the said amount within the time so fixed (including any extended time, if any, that the Court may fix or for sufficient cause allow) the court shall proceed further in the case as if the foregoing provisions of this section were not in force.

(7) The provisions of this section shall have effect, notwithstanding anything to the contrary contained in any contract or instrument or in any other law for the time being in force.

Explanation.-  For the purposes of sub-section (6) where a case has been decided against a tenant by one Court and the limitation for an appeal therefrom has not expired on the date immediately before the commencement of this section, this section shall apply as it applies to pending proceedings, and the tenant may apply to that Court for a review of the judgment in accordance with the provisions of this section."

Sri Pankaj Mithal has argued that in the present case the only rent which has been determined was the rent so fixed under the lease deed; no rent had been agreed mutually between the parties for the so-called building and no application either by the landlord or by the tenant had been determined for fixation of the rent by the District Magistrate.

Sri Mithal has therefore argued that in absence of any such determination under sub-sections (4) and (5) of section 29-A of the Act no. 13 of 1972, the court-below should not have come to the conclusion that any rent for the building has been fixed or that there was any building in existence or that the building would have been regularized under section 14 of the U.P. Act no. 13 of 1972. He argues that the conclusion drawn by the courts below in both the impugned judgments in absence of any pleadings, evidence or finding on the said aspect are vitiated.

In support of his argument, Sri Pankaj Mithal has placed reliance in the case of Sardar Gurcharan Singh vs. Ist Addl. District Judge, reported in ARC 1994 (1) 546, wherein this Court has held that benefit of section 29-A cannot be claimed by a tenant unless he seeks fixation of the rent on the basis of mutual agreement or applies to the District Magistrate for the determination of rent. It has been further held that where the suit is filed for eviction from the land, jurisdiction of the civil court would not be ousted and it would be open to the tenant to claim protection under section 29-A of the Act.

Learned counsel for the petitioner has also relied upon a decision in the case of Ichcha Ram vs. Smt. Parsandi, 1990 AWC 1276, wherein also the facts were almost similar and an open piece of land was lease out to the tenant, a building was standing over a part of the disputed land and the question arose whether a regular suit was maintainable or not? The provisions of section 29-A of the Act no. 13 of 1972 were also examined and it was held that in order to avail the benefit of provisions of section 29-A of the Act no. 13 of 1972, the defendant would have the remedies contemplated under sub-sections (4) (5) and (6) of section 29-A. The defendant in that case had not taken any such step. The Court came to the conclusion that if defendant would not press the claim, the jurisdiction of the Civil Court shall be ousted and the proper remedy would have been to file a suit before the Judge Small Causes or under the U.P. Act no. 13 of 1972.

Sri Mithal has also argued that in the present case, the dominant purpose for letting out the land was for the establishment of a petrol pump, only an open piece of land had been leased out. The building he argued was appurtenant to the land and the land was not appurtenant to the building. In order to substantiate his argument, he has relied upon a decision of this Court in the case of Nanhe Ghosi vs. Firozul Hassan Khan, reported in 1978 ALJ 1290, where this Court has held that mere presence of a building or a roofed structure on the plot of land would not enable the tenant to claim protection of the provisions of rent Act. The word "accommodation" was discussed and this Court held that it must be established that the land is appurtenant to the building and not vice versa.

He has also relied upon the decision of this Court in the case of Smt. Shironji and others vs. Aizaz Uddin and ors., reported in 1983 (9) ALR 527, where in the similar circumstances, a Kothari was in existence over an open piece of land, which had been let out for carrying on the business of the Tal. The Court held that it could not be said that Kothari which was a small Kothari existing in an open piece of land, could be held to be an "accommodation" within the meaning of "accommodation" as defined under the rent Act. The dominant purpose of letting out was an open space of open land and not covered space within the small Kathori.

Sri Mithal has also argued that the Courts of Small Causes are the courts of preferential jurisdiction and they are not the courts of exclusive jurisdiction. In the present case, the jurisdiction of the Civil Court to try the matter by way of regular suit would not therefore be ousted. In support of his argument, he has placed reliance on a decision in the case of Rama Kant Gupta versus Rameshwar Das, reported in 1992 AWC 1401.  

Sri K.C. Saxena learned counsel for the respondents has argued that there are findings of fact in both the impugned judgments, which cannot be interfered with in writ jurisdiction under Article 226 of the Constitution. He has also argued that the proper forum for the plaintiff-petitioner was to have filed a revision and the appeal filed by the plaintiff was not maintainable. On merits, Sri Saxena has stated that the findings of fact that were four rooms and one accommodation on the land. He has also referred to the second lease deed dated 12.6.1973, which is on record as Annexure CA-1 to the affidavit, in which he says that the permission was granted to the defendant to make construction and the determination of the last construction would become a part of the property which was originally leased out to the defendant.

I have examined the second lease deed also. It does not contain even a whisper about the fixation of rent for the proposed building. The only agreement was the rent agreement made by the first lease deed dated 6.6.1977.

In reply to the arguments as advanced by the learned counsel for the respondents Sri K.C. Saxena, Sri Pankaj Mithal has answered that no question with regard to the maintainability of his appeal was in issue before the courts below. He has also reiterated that other than the rent agreement made by the first lease deed, no other rent agreement had been made between the parties.

I have heard learned counsel for the parties at length and have perused the record also.

In the facts and circumstances of the case, I am of the opinion that a regular suit would not be barred. The question as to whether the lease agreement was for the land alone or whether the existence of Kothari and dug would convert into a rent agreement for building and consequently convert the entire lease for building and make it regularized tenancy under section 14 of the Act no. 13 of 1972, would definitely be a question which could be decided by way of a regular civil suit. I therefore hold that the jurisdiction of the Civil Court was not barred or ousted in the present case under section 20 of the U.P. Act no. 13 of 1972.

It is clear that although the courts below have granted the benefit of section 20 of the U.P. Act no.13 of 1972 to the defendant and have tried to relegate the matter to the Rent court. Both the courts below have committed a mistake in not referring any finding on questions relating to sub-sections (4) and (5) to section 29-A of the U.P. Act no. 1972.

In my opinion, that both the judgments of the courts below suffer from the above defect and as such they are liable to be quashed. The matter is remanded to the trial court firstly to determine this issue whether or not the tenant would be entitled to benefit of provisions of sub-sections (4) and (5) of section 29-A of U.P. Act, 1972. The matter will be reopened by the trial court on production of a certified copy of this order. Since the matter is old one, it shall be heard expeditiously by the courts below.

In the result, the writ petition is allowed but there will be no order as to costs.

Dated  13.2.2006

Rk.5202.95-9


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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