Over 2 lakh Indian cases. Search powered by Google!

Case Details

TRANSPORT CORPORATION OF INDIA LIMITED AND OTHERS versus SMT. JANKI DEVI

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Transport Corporation Of India Limited And Others v. Smt. Janki Devi - SECOND APPEAL DEFECTIVE No. - 250 of 2007 [2007] RD-AH 16410 (5 October 2007)

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 AT ALLAHABAD

Court No. 27

Second Appeal No. (250) of 2007

Transport Corporation of India & Ors.,

Vs.

Smt. Janki Devi

*******

Hon. Dilip Gupta, J.

The defendants have filed this Second Appeal for setting aside the judgment and decree passed by the learned IXth Additional District Judge, Gorakhpur by which the Civil Appeal that had been filed by the plaintiff was allowed and the suit filed by the plaintiff was decreed.

The Original Suit had been filed for the following main reliefs:-

"(1) That by a decree of possession in favour of the plaintiff and against the defendants, the vacant possession over the land detailed to below and denoted by letters ABC in the plaint map be delivered to the plaintiff after getting removed all the construction of the defendants at the costs of the defendants.

(2) That a decree for recovery of Rs. 1500/- being the arrears of rent and damages for use and occupation upto the date of suit in favour of the plaintiff and against the defendants be issued.

(3) That a decree for recovery of damages for use and occupation for pendetelite and future period till the date of the actual delivery of the possession @ Rs. 25/- per day in favour of the plaintiff and against the defendants be passed. The plaintiff is ready to pay the requisite court fee on that amount at the time of its execution in execution proceedings".

It was alleged in the plaint that the plaintiff was the owner of the land in dispute. Defendant No. 1 the Transport Corporation of India took the land on lease for a period of 10 years w.e.f. 16th November, 1971 for opening its Branch at Gorakhpur. The said deed was registered and it was agreed that the defendants will pay Rs. 400/- per month as rent of the land for a period of 10 years. The defendants were permitted to make constructions over the land given on lease at their own cost after getting the map sanctioned from the authorities. The defendants had undertaken to deliver the vacant position of the land to the plaintiff on expiry of the period of ten years after removing the materials and structure within a period of three months from the termination of the lease period. The plaintiff sent a registered letter dated 3rd July, 1981 to the defendants before the expiry of the lease period reminding them about the date of expiry of the lease and a request was made to the defendants to make necessary arrangements for removal of the constructions within the time stipulated in the lease deed. The period of 10 years expired on 15th November, 1981 and the defendants were required to remove all the materials and structures within a period of three months up to 15th February, 1982. Another notice was sent to the defendants by registered post on 2nd December, 1981 but the defendants did not handover the possession even though the lease stood determined by efflux of time.

A written statement was filed by defendant No. 1 pointing out that the defendants were entitled to the protection of Section 29-A of the U.P. Urban Buildings (Regulation of Letting, Rent And Eviction) Act, 1972 (hereinafter referred to as the ''Act') and, therefore, the plaintiff had no right to evict the defendants otherwise then in accordance with the provisions of Section 20(2) of the Act. A separate written statement on similar lines was filed by the defendant Nos. 2, 3 and 4.

The Trial Court framed the following issues:-

"(1) Whether the plaintiff was entitled to obtain possession from the defendants after removal of the constructions.

(2) Whether the plaintiff was entitled to Rs. 1500/- towards arrears of rent and damages.

(3) Whether the plaintiff was entitled to Rs. 25/- per day as damages up to the date he obtained possession.

(4) Whether the Court had the jurisdiction to entertain the suit.

(5) Whether the suit was under valued.

(6) Whether the defendants were entitled to the protection of Section 29-A of the Act.

(7) Whether the suit was barred by Section 106 of the Transfer of Property Act.

(8) Whether the suit was barred by Section 20 of the Act.

(9) Whether the damages claimed by the plaintiff were excessive.

(10) To what relief the plaintiff was entitled".

Issue No. 5 was decided against the defendants. Issue Nos. 4, 6 and 8 were taken up together. The Court found that the defendants were entitled to the protection of Section 29-A of the Act and, therefore, the Civil Court had no jurisdiction to entertain the suit. It was also found that none of the grounds contained in Section 20 of the Act for eviction of tenant were attracted. In respect of issue No. 1 it was found that the plaintiff was the owner of the disputed plot and was entitled to possession of the land after removal of the construction by the defendants as the period of lease had expired. In respect of issue No. 2 it was found that the plaintiff was entitled to damages of Rs. 500/- towards arrears of rent and damages. In respect of issue No. 3 it was found that the plaintiff was entitled to damages at the rate of Rs. 25/- per day up to the date of possession. In respect of issue No. 9 it was found that the damages claimed were not excessive. In respect of issue No. 7 it was found that the suit was not barred by Section 106 of the Transfer of Property Act. In respect of issue No. 10 it was found that the plaintiff was entitled to possession on the basis of the registered lease deed and damages at the rate of Rs. 25/- per day but as the Court had no jurisdiction and only the Small Causes Court had the jurisdiction, it was not possible to grant the relief. The plaint was accordingly, returned for presentation before the appropriate Forum.

The Lower Appellate Court has allowed the appeal holding that the provisions of Section 29-A of the Act were not applicable and, therefore, the regular suit was maintainable.

Learned counsel for the appellants submitted that the Lower Appellate Court was not justified in denying protection of Section 29-A of the Act to the defendants. His submission is that Section 29-A is applicable even in respect of land that had been let out before the commencement of the said Section where the tenant, with the landlord's consent, had erected any permanent structure and incurred expenses in execution thereof and in view of the provisions of sub-section (3), the provisions of Section 20 of the Act would apply. He, therefore, submitted that not only the Civil Court had no jurisdiction to entertain the suit but even otherwise the suit for eviction could have been filed before the Judge, Small Causes Court only on the grounds specified in Section 20 of the Act.

Learned counsel for the plaintiff-respondent, however, submitted that as the tenant had not complied with the terms of sub-section (4) of Section 29-A of the Act, he was not entitled to protection of Section 29-A of the Act and in support of his contention he has placed reliance upon the judgment of this Court in Sardar Gurcharan Singh Vs. Ist Additional District Judge, Kanpur & Ors., ARC 1994 (1) 546.

I have carefully considered the submissions advanced by the learned counsel for the parties.

In order to properly appreciate the contention advanced by learned counsel for the parties, it would be appropriate to reproduce Section 29-A of the Act which is as follows:-

"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 (j) of Section 3 with the substitution of the word "land" for the word "building".

(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."

The aforesaid Section 29-A of the Act was inserted by U.P. Act No. 28 of 1976 w.e.f 5th July, 1976. A perusal of sub-section (2) of Section 29-A of the Act shows that Section 29-A of the Act would apply only to land let out either before or after the commencement of the section, where the tenant with the consent of the landlord had erected any permanent structure and incurred expenses in execution thereof. Sub-section (3) of Section 29-A of the Act provides that, subject to the other provisions contained in the 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. It is, therefore, clear that sub-section (3) has been made subject to the other provisions contained in Section 29-A of the Act. The real issue between the parties arises in respect of sub-section (4) of section 29-A of the Act which provides that 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). The case of the plaintiff-respondent is that as the defendants-appellants did not take any steps in accordance with the provisions of sub-section (4) of Section 29-A of the Act, the provisions of sub-section (3) shall not apply. His contention is that it was the liability of the tenant to pay the mutually agreed rent between the parties and in the absence of any such agreement, to take steps for determination of the rent by the District Magistrate under sub-section (5) but that was not done. The contention of the defendants-appellants, however, is that if the tenant did not take any steps, then it was for the landlord to move an application before the District Magistrate under sub-section (5) for determination of the annual rent and in any event, as the landlord accepted the rent of Rs. 400/- per month even after coming into force of Section 29-A of the Act, it necessarily implies that Rs. 400/- was the mutually agreed rent between the parties.

A learned Judge of this Court in Sardar Gurcharan Singh (supra) after examining the provisions of sub-sections (2), (3), (4) and (5) of Section 29-A of the Act observed as follows:-

"The tenant cannot claim the benefit of Section 29-A of the Act unless he enhances the rent on the basis of the mutual agreement between him and the landlord after enforcement of Amending Act No. 28 of 1976 or applies to the District Magistrate for determination of annual rent payable in respect of such land at the rate of ten percent per annum of the prevailing market value of the land as provided under sub-section (5) of Section 29-A of the Act. The landlord let out the land and the rent was fixed for such open piece of land. The rent has to be enhanced under the provisions of sub-section (5) of Section 29-A of the Act. Till the rent is enhanced and the tenant agrees to pay such amount in accordance with the said provision, the landlord will be justified in treating the property let out to him as a land. A Full Bench of this Court in Trilok Chand v. Rent Control and Eviction Officer S.D.M., Naku, district Shahranpur, 1987 (1) ARC 290, has held that an agreement referred to in Section 29-A (4) of the Act refers to agreement entered into between the parties after coming into force of Section 29-A of the Act and if there is no such agreement, 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) of Section 29-A of the Act from the date of expiration of the term for which the land as let out or from the commencement of the section whichever is later.

Sub-sections (4) and (5) of Section 29-A of the Act read together contemplate that the rent which was agreed between the landlord and tenant in respect of land shall not be treated as the rent for getting protection of Section 29-A of the Act. Till such time, there is no agreement to pay the enhanced rent after 5th July, 1976, or any order of the District Magistrate determining the rent as provided in sub-section (5), the landlord can treat the premises let out to the tenant as land. In case the suit is pending on the date of U.P. Act No. 28 of 1976 came into force and the tenant wants protection of Section 29-A of the Act, he has to make an application under Section 29-A (6) of the Act, but where the suit is filed after the enforcement of the Amending Act and, if the tenant wants the protection of this section, he has to apply to the District Magistrate for determining the annual rent under Section 29-A (5) of the Act except in case of mutual agreement. The intention of the Legislature seems to clear that the rent which was agreed upon between the landlord and tenant was in respect of the land and the same rent cannot be taken as rent for the purpose of granting protection under Section 29-A of the Act to a tenant of land.

Learned counsel for the petitioner contended that sub-section (1) of Section 29-A of the Act provides that the expressions "tenant" and "landlord" shall have the meanings respectively assigned to then in clauses (a) and (j) of Section 3 with the substitution of the word "land" for the word "building" and the moment it is proved that the permanent constructions were raised by the tenant with the consent of the landlord, such constructions, as defined under Section 3 (j) of the Act, shall be a building and the suit will lie only in the Court of Small Causes. Firstly, this is a question of fact which has to be decided after taking into consideration the evidence on record produced by the parties in the suit and secondly it cannot be treated as a building unless other conditions relating to the land, as provided in sub-sections (4) and (5) of Section 29-A of the Act, are satisfied. The landlord shall be entitled to treat the land let out as a land and not a building till those conditions are satisfied.

In case the landlord files a suit treating the disputed property as a building and seeks eviction from such building, the suit would lie in the Court of Judge, Small Causes but where the suit is filed for eviction of a tenant claiming the disputed property as a land, the suit would lie in the Civil Court though in such suit the tenant may claim protection of Section 29-A of the Act."

It is, therefore, clear from the aforesaid judgment that a tenant cannot claim the benefit of Section 29-A of the Act unless he pays to the landlord the enhanced rent on the basis of mutual agreement between him and landlord after the enforcement of Act No. 28 of 1976 or applies to the District Magistrate for determination of the annual rent under sub-section (5) and till the rent is enhanced and the tenant agrees to pay the amount, the landlord will be justified in treating the property let out as land.

The learned Judge in arriving at the said conclusion placed reliance upon the Full Bench decision of this Court in Trilok Chand Vs. Rent Control & Eviction Officer S.D.M. Naku, District Saharanpur & Anr. ARC 1987 (1) 290. The Supreme Court in Vinaya Kumar Shukal Vs. Lakhpat Ram & Anr. AIR 1990 SC 2171 agreed with the view propounded by the Full Bench in Trilok Chand (supra) and observed:-

"We are in agreement with the view propounded by the Full Bench in Trilok Chand's case (supra). In our opinion, the words "such rent as may be mutually agreed upon between the parties" in sub-section (4) of Section 29-A envisage, an agreement with regard to rent entered by the landlord and tenant after the coming into force of section 29-A. An agreement prior to the commencement of section 29-A would not preclude determination of rent under sub-section (5) of section 29-A. In this context it may be mentioned that the words "may be" used in sub-section (4) of section 29-A are much oftener used with reference to the future than the past or the present (Pollock C.B. in Brown v. Bachelor, Stroud's Judicial dictionary, 5th Edn., p. 1575). In sub-section (4) of section 29-A the words "may be" are preceded by the word ''as' and are followed by the words "mutually agreed upon" which indicate that the words are used with reference to the future. The provisions of sub-section (7) which give overriding effect to the provisions of section 29-A over an existing contract also lend support to this construction. We are, therefore, unable to uphold the view of the learned Judges of the Division Bench of the High Court in this case that there could be no enhancement of the rent under sub-section (5) of section 29-A in view of the agreement between the appellant and the tenant that the tenant shall pay rent at the rate of Rs. 170/- per annum."

In the present case, it is not in dispute that the rent had not been enhanced on the basis of mutual agreement between the landlord and the tenant and nor had the tenant moved any application before the District Magistrate for determination of the annual rent. Thus, in view of the aforesaid decisions, the tenant was not entitled to the protection of Section 29-A of the Act. The contention of the learned counsel for the appellants that it is implied that Rs. 400/- was mutually the agreed rent as the landlord accepted the rent of Rs. 400/- even after Section 29-A of the Act was inserted cannot be accepted. As pointed above, the Courts have held that the rent which was agreed between the landlord and the tenant prior to the commencement of Section 29-A of the Act cannot be taken as the agreed rent for the purposes of granting protection under Section 29-A of the Act to the tenant.

There is, therefore, no infirmity in the impugned judgment under Appeal. The Second Appeal is, accordingly, dismissed at the admission stage, as no substantial question of law arises for consideration.

Date: 5.10.2007

NSC


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

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.