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UNION OF INDIA versus ZAREEN TAJ

High Court of Madras

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Union of India v. Zareen Taj - CRP.NPD.1743 of 2007 [2007] RD-TN 2177 (4 July 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED : 4-7-2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

C.R.P.NPD No.1743 of 2007

and

M.P.No.1 of 2007

1.Union of India

rep. By its Secretary

Ministry of Telecommunications

through the Assistant General

Manager (Buildings)

Chennai Telephones

2.Assistant General Manager

Chennai Telephones

3.Sub Divisional Engineer

Haddows Road

Telephone Exchange .. Petitioners vs

Zareen Taj Begum

@ Rupab Begum .. Respondent Civil revision petition preferred under Sec.25 of the Tamil Nadu Buildings (Lease and Rent Control) Act against the order of the Rent Control Appellate Authority/VIII Judge, Small Causes Court, Chennai, dismissing RCA No.209 of 2001 dated 11.4.2007 and confirming the judgment made in RCOP No.2068 of 1999 dated 29.1.2001 on the file of the Rent Controller/XIV Judge, Small Causes Court, Chennai. For Petitioners : Mr.T.R.Rajagopalan Senior Counsel for Mr.K.Sridhar For Respondent : Mr.S.Subramanian for Caveator ORDER



Challenge is made to an order of the Rent Control Appellate Authority, namely the VIII Judge, Court of Small Causes, Madras, made in RCA No.209 of 2001 affirming an order of eviction in RCOP No.2068/99 on the file of the Rent Controller, filed by the revision petitioners.

2.The respondent-landlady sought the eviction of the tenant from the petition mentioned premises at Door No.60 (Part), Montieth Road, Egmore, alleging that the first revision petitioner has been a tenant from 1964; that out of the larger extent, a part has also been sold; that the premises was being used by the third petitioner for its office use; that the monthly rental payable was Rs.18,127/-; that though acquisition proceedings were initiated, possession was not taken over; that under the circumstances, the matter has not become final; that the tenant was making payment of rental till March 1999; that there was default in payment of rental from 1.4.1999; that a notice was issued on 30.7.1999, but, was of no avail, and under the circumstances, it has become necessary to approach the Rent Controller for an order of eviction.

3.The application was contested by the tenant stating that the respondent herein is not the owner of the property since the Tamil Nadu State Government has already acquired the property after observing all formalities; that Chennai Telephones has paid Rs.48.42 lakhs towards the land and building cost in January 1987 and November 1989; that an award has also been passed; that under the circumstances, the respondent was only the ex-owner of the property; but, she has refused to honour the award; that in such circumstances, a civil suit was filed by the tenant before this Court; that a judgment was passed in that suit, wherein it was found that the property had already vested with the tenant; that apart from that, there was a communication from the higher-ups on the basis of which the rental payment was stopped; that it is true that there was payment of rental from 1989 onwards even after the passing of the award, till March 1999; but, it was wrongly made to the tune of Rs.27,95,364.20; that the same has got to be recovered, and thus, the tenant was not under any liability to make any payment of rental; that there was no question of default, much less wilful default, and hence, the petition was to be dismissed.

4.The Rent Controller on enquiry, passed an order of eviction holding that there was wilful default. Aggrieved, the revision petitioners herein took it on appeal. The appellate forum in the appeal referred to above, took the same view taken by the Rent Controller, and dismissed the appeal. Hence, this revision has been brought forth by the tenant.

5.The learned Senior Counsel advancing his arguments on behalf of the revision petitioners would submit that in the instant case, it is true that the first revision petitioner was a tenant under the respondent-landlady; that following the acquisition proceedings, an award came to be passed in 1989, and thus, the petitioners herein became the owners of the property; that from the time onwards, they need not pay rental also; but, they continued to pay the same till March 1999; that apart from that, it is true that these proceedings have been quashed by an order of the Division Bench only in October 2006; that there were two suits filed by both the parties respectively; that there was an occasion when the learned Judge of this Court found that the property had already vested with the revision petitioners; that in view of the same, they have been under the impression that they are the owners of the property, and hence, they need not make the payment of rental; that even it could be called as mistaken impression; that under the circumstances, there is nothing to hold that there was any supine indifference or any wilful default; that there was actually a communication from the higher-ups following the judgment of this Court in the civil suit; that thereafter, the payment was stopped; that till March 1999, the rental payment has also been made; that this would be indicative of the fact that the tenant was regular in making the payment; that only subsequent to the judgment of this Court finding that the property has become vested with the party, they felt that there was no need to pay the rent; that the delivery of possession was only formal; that they were under the bonafide impression that the rent need not be paid, and hence, it was not paid; and that at no stretch of imagination, it can be called as a wilful default. The learned Senior Counsel in support of his contention relied on a decision of the Apex Court reported in (1985) 1 SUPREME COURT CASES 591 (SUNDARAM PILLAI V. PATTABIRAMAN) and would submit that this decision squarely applies to the present facts of the case; that it is not a case where the landlady has proved that there was default, much less wilful default; but, the authorities below have not applied its mind proper and found to be otherwise, and under the circumstances, the orders of the authorities below have got to be set aside.

6.Countering the above contentions, the learned Counsel for the respondent-caveator would submit that till March 1999, the rental payment was made without any murmur; that even the suits have been pending between the parties; that the writ petition to quash the award proceedings was filed in 1989; that two suits were filed, one by the respondent-landlady in 1991, and the other by the revision petitioners in 1996; that both the suits have been pending for nearly about 10 years; that even then, the payment of rental was made till March 1999; that it would be indicative of the fact that the revision petitioners were conscious of the fact that the ownership was not divested from the landlady; that under the circumstances, at no point of time, there was termination of the relationship of landlady and tenant, which would arise; that under the circumstances, the revision petitioners were liable to make the payment of rental; that further, what was all relied upon by the opposite party was a communication addressed by the higher-ups from Delhi following the judgment of this Court, on the basis of which they claimed that the rent need not be paid; that it is pertinent to point out that the communication was sent only on 30.6.1999; but, the default was committed from April 1999; that even during the pendency of the RCOP, no payment was made; that an order of eviction was passed; that while they preferred an appeal, they sought for say; that while granting stay, a condition was imposed that the entire rental arrears must be deposited before the Court; that only under such contingency which arose, they have deposited the amount; otherwise, they would not have done; that now, they cannot come forward to say that there was a mistake committed; that it has got to be termed only as a supine indifference, and it was a wilful default, and hence, the orders of the authorities below have got to be sustained.

7.After careful consideration of the rival submissions made, this Court is of the considered opinion that the orders of the authorities below do not require any interference in the hands of this Court. Admittedly, the first revision petitioner has been in the property as a tenant for decades. It is also not in controversy that the rent has been paid till March 1999; that according to the respondent-landlady, the default commenced from 1.4.1999. It is also an admitted position that the rent was not paid by the tenant from 1.4.1999 till the filing of the RCOP before the Rent Controller, after issuing a notice therefor. The main objection was that the respondent-landlady was only the previous owner; that the revision petitioners have become the owners of the property pursuant to the award which came to be passed in 1989; that the rents have been paid from 1989 even after the passing of the award, till March 1999; but, it was wrongly made to the tune of Rs.27 lakhs and odd, and it has got to be recovered from the landlady. All these above would speak of the tenor of the counter that they have strongly denied the ownership of the landlady. Needless to say that in a case where an award has been passed following the acquisition proceedings, till the delivery has taken place under Sec.16 of the Act, no question of divesting would arise.

8.Apart from the above, in the instant case, the following circumstances are noticed which are against the revision petitioners. (i) No doubt, the award was passed in the year 1989. But, from 1989 till March 1999, the rents have actually been paid. There was originally a writ petition filed by the respondent-landlady challenging the acquisition proceedings in WP No.14229/89. Pending the same, the award was passed. Thereafter, the landlady again filed WP No.16135/89 challenging the final award, and the same was dismissed by this Court. Then, the landlady preferred an appeal therefrom. The Division Bench of this Court directed the landlady to approach the Court of civil law, and accordingly, she filed O.S.No.1917/91 before the City Civil Court challenging the acquisition proceedings. At that time, the revision petitioner-department filed C.S.No.159 of 1996 before this Court. The suit before the City Civil Court was transferred to this Court, and it was also renumbered as C.S.No.26/97. Both the suits were taken up for trial by this Court. Now, at this juncture, it is pertinent to point out that both the suits came to be dismissed on 27.1.1997. Even after that period, the first revision petitioner-tenant was making the payment of rental till March 1999. All would be indicative of the fact that till March 1999, the rents have been paid, and they were conscious of the fact that the first petitioner continued to be a tenant till the possession was taken pursuant to the award. (ii) There was a communication from the higher-ups to the respondent; but, that communication was sent only on 30.6.1999, and the default was committed from April 1999. It was also brought to the notice of the Department by way of a notice, and even after that, the rent was not paid. (iii) When the RCOP was filed, the tenor of the counter was denial of title stating that the revision petitioners have become the owners of the property following the award, which cannot, but be wrong. Even during the pendency of the RCOP proceedings, no rental payment was made. Now, at this juncture, a doubt would arise in the mind that when the RCOP proceedings were actually pending, the entire amount could have been deposited before the Court of law on permission or otherwise, but not done so. (iv) After suffering an order of eviction in the RCOP, the revision petitioners took it on appeal. They sought for stay. While granting stay, the condition imposed by the appellate authority, was that the entire rental arrears should be deposited, and accordingly, it has been deposited. It can be well stated that if there was no condition for the grant of stay, the tenant would not have deposited the same before the Rent Control Appellate Authority. Thus, it would be pointing to the fact that the tenant has deposited the entire arrears before the authority below only under the compelled circumstances and not voluntarily.

9.Apart from the above, the contention that there was an award passed, and they have been under the impression that the property vested with them, and therefore, they did not pay the rent cannot be countenanced. The main question that would arise for consideration in this case is whether there was a wilful default on the part of the tenant as contended by the respondent-landlady, or whether the other party namely the tenant, was under the bonafide impression that the property has become vested with them, and therefore, they did not make the payment, and thus, it cannot be stated to be a wilful default as one called by the respondent. Mere impression of the party that the property has become vested with them following the award, cannot be an answer to this, and it can be stated as ignorantia juris non excusat. However, in the instant case, proceedings have been pending between the parties for about a decade in all the Courts by way of writ petitions and by way of suits. The crowning circumstance is not only the non-payment of rental for the months of April, May, June and July before the filing of the RCOP; but, they continued to commit default during the pendency of the RCOP proceedings, and they have deposited the same only before the appellate forum while it granted stay by imposing such a condition. Even before this Court, at the time of the filing of the revision, a ground was raised that they have become the owners, and therefore, they have not made the payment of rental, and there is no question of default or wilful default. In view of the above circumstances, the contention put forth that they were under the bonafide belief that following the award, the title became vested with them, and therefore, they need not pay anything cannot be accepted. But, at the same time, it can be well stated that they entertained actually a risk and that too against law. The further contention that they have made the payment in the past period from 1989 to 1999, and that has got to be recovered would indicate that they have become the owners of the property even during the pendency of the proceedings, and they continued to deny the title, and thereby, they have not paid the rent. Under the circumstances, it was their own making which, in the opinion of this Court, would be nothing but a supine indifference and a wilful default only. Both the authorities below have rightly found in favour of the landlady and ordered eviction.

10.It is brought to the notice of the Court by the learned Senior Counsel for the petitioners that they are running the business in the place, and therefore, sufficient time has got to be given to find out suitable accommodation and that too, in Madras city. The Court heard the learned Counsel for the respondent also. Considering the circumstances, this Court grants six months' time to vacate and hand over possession. An affidavit of undertaking should be filed within a period of two weeks herefrom. The revision petitioners also undertake to make the payment of rental for the said period herefrom directly to the landlady.

11.In the result, this civil revision petition fails and the same is dismissed. No costs. Consequently, connected MP is also dismissed. 4-7-2007 Index: yes

Internet: yes

To:

1.The Rent Control Appellate Authority

The VIII Judge

Court of Small Causes

Chennai

2.The Rent Controller

The XIV Judge

Court of Small Causes

Chennai

nsv/


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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