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Madhya Pradesh High Court · body

1993 DIGILAW 32 (MP)

Pradeep Kumar v. Nagar Palika Parishad, Damoh.

1993-01-11

GULAB C.GUPTA

body1993
JUDGMENT Evidence is totally lacking in the case to indicate that any of the appellants have paid rent after expiry of original lease so as to make them a tenant holding over within the meaning of section 116 T. P. Act. It is not difficult to accept the submission that if lease be for a definite term and the lease holder continues in occupation and paying rent after the expiry of the period of lease, he may be treated as a tenant holding over within the meaning of section 116. In Smt. Shanti Devi v. Anil Kumar Banarjee. AIR 1981 SC 1550 , it was clarified that section 112 (a) of the TP Act which deals with determination of lease by afflux of time would-be read with section 336 of the Act. It was, therefore, Clearified that the person claiming this status, should make specific case in this behalf. The Court further clarified that in order that a case should be deemed to have been continued in favour of the lease holder, it is necessary to show that he remained in possession of the premises demises after the determination of the lease granted to him arid the lesser had expressly or with necessary implication assented to his continuous possession. In the absence of any such plea of holding over the matter would fall to be governed by section 111 (a) of the T. P. Act. The facts of the present case attract application of the aforesaid proposition laid down by the Supreme Court and therefore the plea that the appellants are holding over, cannot be accepted. Then, it has been the consistent view of this Court that objection to the validity of quit notice u/s 106 should be clearly pleaded and in the absence of a clear and specific objection in that behalf, the objection would be deemed to have been waived. This aspect of the matter seems to have been considered by this Court by a Division Bench of this Court in Dalip Sigh v. Totaram 1960 MPLJ 399 where this Court did not permit the appellant to raise such a contention for the first time in the appeal in this Court. This aspect of the matter seems to have been considered by this Court by a Division Bench of this Court in Dalip Sigh v. Totaram 1960 MPLJ 399 where this Court did not permit the appellant to raise such a contention for the first time in the appeal in this Court. That was the objection relating to one of statutory notice u/s 80 C.P.C. but the said logic was subsequently applied to a notice u/s 186 T. P. Act, in Dhbolchand v. Wasudeo in 1961 JLJ Short Note 47. In Babulal v. Ganpat Rao 1965 JLJ Short Note 105, the Court insisted that the objection to the validity of notice should be taken in the same form in which it was sought to be submitted for consideration of the Court at the time of arguments. In Smt. Gomtidevi v. Triloksingh, 1984 JLJ Short Note 190 it was held that if defect in the notice u/s 106 T. P. Act was not pleaded, the objection would be deemed to have been waived. In Daulal Sahu v. Indian Mill Stores, Raipur 1977 JLJ 472, it was clarified that mere vague objections were not enough and could not be considered. Subsequent decisions in Jagdishlal Chawala v. Ratanchand, 1980 JLJ 40 and Mohammad lshak v. Hafiz Ibrahim, 1980 JLJ 423 follow the same line of reasoning. There is, therefore, good deal of authority for the proposition that if an objection to the validity of notice was not raised in the pleadings, it cannot be permitted to be raised in appeal. No decision either of this Court or of the Supreme Court laying down a law to the contrary has been brought to the notice of this court and therefore the pica of invalidity of notice u/s 106 T. P. Act cannot be permitted to be raised at this stage. Under the circumstances the appellants do not get any benefit of section 106 T. P. Act and call notice Ex. P-10 cannot be held to be invalid for that reason. The next and important question requiring consideration is whether mandatory provisions of section 223 (2) have not been followed in the instant case. The provisions required that in cases where the space is vested in the Government, the permission of the Collector should first be obtained before ordering, removal of the encroachment. The next and important question requiring consideration is whether mandatory provisions of section 223 (2) have not been followed in the instant case. The provisions required that in cases where the space is vested in the Government, the permission of the Collector should first be obtained before ordering, removal of the encroachment. Assuming that the land in question had vested in the State Government and for that reason the permission of the Collector was required, the learned lower appellant Court has relied upon the letter to the Collector Ex. C-1 to hold that the notice had been served at the instance of the Collector. The learned counsel for the appellants has not made any submission based on this communication. Then, the witnesses examined by the appellants do not throw any light on the subject. Indeed, none of them even alleged that the notice Ex. P-10 was issued without the direction from the Collector. In this connection, statement contained in Paras 4 and 12 are relevant from which it is clear that the land in occupation of the appellants was required for constructing a public library and the entire project had the approval of the District Collector. These allegations sufficiently indicate that the Collector was necessarily involved in the matter and nothing was being done by the respondents without his approval. In this context, an application of the appellants to establish that the notice was given without the permission of the Collector had become all the more necessary after document Ex. C-1 had been filed in the Court. This Court, therefore, is of the opinion that the Courts below have made up no mistake in accepting sufficient compliance of the provisions and rejecting the objection of the appellants. AIR 1981 SC 1550 , 1960 MPLJ 399, 1961 JLJ SN 47, 1965 JLJ SN 105, 1964 MPLJ SN 190, 1977 JLJ 472 and 1980 JLJ 423 relied on. Appeal dismissed.