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Allahabad High Court · body

2008 DIGILAW 672 (ALL)

SHY AM LAL v. RAJ KRISHNA AGRAWAL

2008-03-26

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) -THE tenant has filed this petition for setting aside the judgment and order dated 7th September, 2002 by which the application filed by the landlord under section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the act) for eviction of the tenant from the premises as the landlord bona fide required the building was allowed. The petitioner has also sought the quashing of the judgment and order dated 9th April, 2004 by which the Appeal filed by the petitioner under section 22 of the Act for setting aside the aforesaid order was dismissed. ( 2 ) THE application had been filed by the landlord under section 21 (1) (a) of the Act with the allegations that the landlord had purchased the tenanted premises from Sitaram Gupta through the sale deed dated 26th July, 1985; that the applicant was married and had two sons; that he had no house of his own, except the premises in dispute, where he could reside with his family inde pendently; that the opposite party Nos. 2 and 3 namely Chunni Lal and Radhey Shyam had in fact shifted to Mohalla Vasliganj and Bhainsaiya Tola and had unnecessarily locked certain portion of the tenanted premises; that the landlord had been asking the tenant to vacate the premises in dispute as he bona fide required the premises but the tenant did not vacate the premises as a result of which notice was sent by Registered Post to the tenant. ( 3 ) A written statement was filed by Chunni Lal opposite party No. 2 pointing out that the applicant and his family had at least seven other houses in the same city; that the applicant did not require the tenanted premises at all; that he had already shifted from the tenanted premises and was residing elsewhere and so had been unnecessarily impleaded as a opposite party. Opposite party Nos. Opposite party Nos. 1, 4 and 5 namely Shyam Lal, Rajesh Kumar and Basant Lal also filed a common written statement mentioning therein that the application filed by the landlord was not maintainable in view of the registered lease deed dated 15th November, 1977 executed by the erstwhile owner Sitaram Gupta; that the father of the applicant Bal Krishna jointly resided with his three brothers and the applicant and his brother were members of a joint family but for saving income tax, twelve houses were purchased in the name of different persons; that the applicant had no dearth of houses for residence and he did not require the tenanted premises at all and that rent had been paid to the applicant up to 30 th April, 1992 after which he stopped accepting the rent which was thereafter deposited under section 30 (1) of the Act. Opposite party No. 3 also filed a separate written statement. ( 4 ) THE Prescribed Authority first examined as to whether the application filed by the landlord under section 21 (1) (a) of the Act was maintainable. The contention raised on behalf of the opposite parties was that the earlier owner and landlord Sitaram Gupta, who had sold the property to the applicant Raj Krishna Agrawal, had executed a registered lease deed dated 15th November, 1977 in favour of Kedar Nath, father of opposite party Nos. 1 and 2 and Hajari Lal father of opposite party Nos. 3, 4 and 5 in which the first condition was that the second party and his heirs shall retain possession of the premises as a tenant on a monthly rent of Rs. 20/- but if the second party did not pay rent for four months then the first party will have the right to dispossess the second party and so the application that had been filed for personal need of the landlord was not maintainable. The Prescribed Authority did not accept the contention of the tenant as it found that there was nothing in the lease deed which precluded the landlord from getting the premises released for the bona fide requirement of the landlord. ( 5 ) THE Prescribed Authority then examined whether the landlord bona fide required the premises in dispute and on the basis of the evidence produced before it recorded a categorical finding that the landlord bona fide required the premises in dispute. ( 5 ) THE Prescribed Authority then examined whether the landlord bona fide required the premises in dispute and on the basis of the evidence produced before it recorded a categorical finding that the landlord bona fide required the premises in dispute. Regarding comparative hardship, the Prescribed Authority found that the landlord was likely to suffer greater hardship in the event the application was rejected. The Prescribed Authority, therefore, allowed the application filed by the landlord and directed the tenant to handover vacant possession of the premises to the landlord within four months. ( 6 ) THE tenant filed an Appeal under section 22 of the Act. The Appellate Court found no infirmity in the findings recorded by the Prescribed Authority and by a detailed judgment and order dated 9th April, 2004 dismissed the Appeal. ( 7 ) I have heard Sri Wasim Alam learned Counsel for the petitioners and Sri Arvind Srivastava learned Counsel appearing for the respondents. ( 8 ) LEARNED Counsel for the petitioners submitted that in view of the first condition stipulated in the lease deed dated 15th November, 1977 executed by the previous owner Sitaram Gupta in favour of Hajari Lal and Kedar Nath the petitioner-tenants could not be evicted from the tenanted portion except under the terms contained in the aforesaid lease deed which provided for eviction on default in payment of rent for four months or by inducting a sub-tenant. Learned Counsel for the petitioners, thereafter submitted that the application filed by the landlord under section 21 (1) (a) of the Act on the ground that he bona fide required the premises was not maintainable and in support of his contention he has placed reliance upon the decisions in Dhanapal Chettiar v. Yesodai Ammat;1979 (5) ALR 573 (SC ). Raj Narain Jain v. Firm Sukha Nand Ram Narain and others,air 1980 Alld. 78. and Laxmi Das Bapudas Darbar and another v. Smt. Rudravva and others,2001 (45) ALR 249 (SC ). Raj Narain Jain v. Firm Sukha Nand Ram Narain and others,air 1980 Alld. 78. and Laxmi Das Bapudas Darbar and another v. Smt. Rudravva and others,2001 (45) ALR 249 (SC ). ( 9 ) LEARNED Counsel for the respondents, however, submitted that the first condition set out in the aforesaid lease deed does not prohibit the landlord from evicting the tenant on any of the grounds contained in section 21 (1) (a) of the Act and that in any case, on a conjoint reading of the relevant clauses of the said lease deed it is clear that the landlord did not waive his right given to him under section 21 (1) (a) of the Act. ( 10 ) IN support of his contention he has placed reliance upon the decisions in Pulin Behari Lal v. Mahadeb Dutta and others, (1993) 1 SCC 629 . Mohd. Ahmed v. IIIrd Additional District Judge, Dehradun and others,1995 (26) ALR 351. Siddalingamma and another v. Mamtha Shenoy,2002 (46) ALR 18 (SC ). Indian Bank v. VIIth Additional District Judge, Muzaffarnagar and others,1993 (22) ALR 343. and Joginder Singh Sodhi v. Amar Kaur, (2005) 1 SCC 31=2004 (23) AIC 44 (SC)=2005 (3) Supp. ARC 19. ( 11 ) IN order to appreciate the contentions advanced by the learned Counsel for the parties, it would be necessary to refer to certain relevant clauses of the lease deed dated 15th November, 1977 executed by the previous owner Sitaram gupta in favour of Hajari Lal and Kedar Nath who were residing tenants. It recites that Sitaram Gupta had became the owner and landlord of the property on the basis of the sale certificate dated 17th December, 1965 but as difference had arisen between the parties, the landlord was accepting them as tenants on certain conditions mentioned in the deed. The first condition was that the tenant and thereafter his heirs, generation after generation, shall reside in the premises on a monthly rent of Rs. 20/- and shall not be required to vacate the premises so long as rent was paid but if the tenant failed to pay rent for a period of four months, then the landlord would have the authority to evict the tenants. The second condition was that the rent would be paid by the last day of the English Calender month. 20/- and shall not be required to vacate the premises so long as rent was paid but if the tenant failed to pay rent for a period of four months, then the landlord would have the authority to evict the tenants. The second condition was that the rent would be paid by the last day of the English Calender month. The third condition was that the tenants shall maintain the property and carry out the necessary repairs but shall not adjust the cost incurred in the rent. The fourth condition was that if any person raised any dispute that he was the landlord of the property and claimed rent from the second party and initiated proceedings against the second party for eviction, then in that case the first party would be responsible and if the second party was evicted from the premises, then the first party would be liable for damages. The fifth condition was that the second party shall not induct any other person as a tenant in the premises and in the event any other person was inducted, as a tenant, the Second Party would become liable for eviction. The eight condition was that if at any time the Second Party had to vacate the premises then in that event the Second Party would be at liability to remove the fixtures. The remaining conditions are not relevant and have, therefore, not been mentioned. ( 12 ) THE contention of the learned Counsel for the petitioners is that in the absence of any forfeiture clause in the registered lease dated 15th November, 1977, the application moved by the landlord under section 21 (1) (a) of the Act is not maintainable for the reason that none of the provisions of the Act have abrogated the provisions of section 107 of the Transfer of Property Act. His submission is that if the landlord had executed a lease deed which contemplates the right of eviction of the tenant by the landlord under certain conditions then the tenant can be evicted only under the terms contained in that deed and that the landlord, in such circumstances, shall be deemed to have waived the right of eviction provided to him under section 21 of the Act. ( 13 ) MUCH emphasis has been Lald by the learned Counsel for the petitioners on the first condition contained in the registered lease deed dated 15th November, 1977. According to the learned Counsel for the petitioners, the first condition shows that a perpetual lease deed had been executed by the landlord in favour of the tenant which contained only two conditions under which the tenant could be evicted from the premises in dispute namely when the tenant fell in arrears of rent for a period of more than four months or when the tenant inducted a sub-tenant in the premises and so the application filed by the landlord under section 21 (1) (a) of the Act could not have been entertained. ( 14 ) THIS contention of the learned Counsel for the petitioners cannot be act cepted. The first condition provides that the tenant and subsequently his heirs, generation after generation, shall reside in the premises on a monthly rent of Rs. 20/- so long as the rent was paid. This condition merely stipulates that even after the death of the tenant, his heirs shall continue as tenants on a monthly rent of Rs. 20/ -. It also provides that in the event the tenant failed to pay rent for a period of four months then the landlord would get the authority to evict the tenants. Condition No. 5 also provides that the tenant can be evicted if a sub-tenant is inducted in the premises. These two conditions do not provide that It is only on these conditions and on no other condition that the tenant can be evicted. The eight condition also talks of eviction of the tenant A conjoint reading of all the conditions contained in the lease deed does not lead to the conclusion mat the tenant can be evicted only on the two conditions mentioned above and nor do the terms indicate that the lease was a perpetual lease or a fixed term lease. The Prescribed Authority as well as the Appellate Authority, therefore, committed no error in recording a finding mat it was neither a perpetual lease and nor a fixed term lease. ( 15 ) IN this connection reference can be made to the decision of this Court in Mohd. Ahmed v. IIIrd Additional District judge, Dehradun and others,1995 (2) ARC 12. The Prescribed Authority as well as the Appellate Authority, therefore, committed no error in recording a finding mat it was neither a perpetual lease and nor a fixed term lease. ( 15 ) IN this connection reference can be made to the decision of this Court in Mohd. Ahmed v. IIIrd Additional District judge, Dehradun and others,1995 (2) ARC 12. The landlord had agreed that the tenant will continue to remain a tenant as before and that during the pendency of reconstruction and alterations the tenant will not be required to vacate the premises. This Court found that what the landlord had agreed to was that the tenant was entitled to retain his status as a tenant as before even though his tenancy had been terminated and these terms do not indicate that the landlord had waived his right under section 21 of the Act. The relevant portion of the judgment is quoted below: "as observed by the Honble Supreme Court in the case of Associated Hotels of India Ltd. v. S. B. Sardar Ranjit Singh, air 1968 SC 933 . waiver is an intentional relinquishment of a known right. It is obvious, therefore, that there can be no waiver unless the person against whom the waiver is claimed has full knowledge of his right and the facts enabling him to take effective action for the enforcement of such a right. There can be no manner of doubt that every one has a right to waive and to agree to waiver the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. The Honble Supreme Court in its decision in the case of Lachhumal v. Radhey Shyam, air 1971 SC 2213 . observed that if there is any express prohibition against contracting out of a statute in it then no question can arise of anyone entering into a contract which is so prohibited but where there is no such prohibition, it will have to be seen whether an Act is intended to have a more extensive operation as a matter of public policy. It was noticed in that case that there are many statutory provisions expressed to apply notwithstanding any agreement to the contrary. It was noticed in that case that there are many statutory provisions expressed to apply notwithstanding any agreement to the contrary. In the present case, in the compromise it was agreed by the landlord that the tenant will continue to remain a tenant as before and that during the period of reconstruction/repairs and alterations, the tenant will not be required to vacate the premises. The aforesaid terms contained in the compromise which were heavily relied upon by the learned Counsel for the petitioner to support the plea of waiver and estoppel, it seems to me, do not lead to any such inference as is sought to be drawn. In this connection it may be noticed that what the landlord had agreed was that the tenant inspite of his tenancy having been terminated was entitled to continue to retain his status as the tenant as before and during the period when alterations/reconstructions etc. were being carried out was not be required to vacate the premises. These terms can by no stretch of imagination be deemed to indicate that the landlord had waived his right secured under the statutory provisions contained in section 21 of the Act or that he stood estopped from prosecuting the application for release filed by him. " (Emphasis supplied) ( 16 ) LEARNED Counsel for the petitioners has, however, placed reliance on paragraph 5 of the judgment of the Supreme Court in V. Dhanapal Chettiar (supra) in support of his contention that none of the State Rent Acts have abrogated the provisions of section 107 of the Transfer of Property Act. The relevant portion of the said judgment is quoted below: "under the Transfer of Property Act the subject of "leases of Immovable Property" is dealt with in Chapter V. Section 105 defines the lease, the lessor, the lessee and the rent. Purely as a matter of contract, a lease comes into existence under the Transfer of Property Act. But in all social legislations meant for the protection of the needy, not necessarily the so-called weaker section of the society as is commonly and popularly called, there is appreciable inroad on the freedom of contract and a person becomes a tenant of a landlord even against his wishes on the allotment of a particular premises to him by the authority concerned. Under section 107 of the Transfer of Property Act a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. None of the State Rent Acts has abrogated or affected this provision. " ( 17 ) LEARNED Counsel for the petitioners has also placed reliance upon a Division Bench judgment of this Court in Raj Narain Jain (supra) wherein it has been observed: ". . . . . . . . . . . . . . . One of the terms of the registered lease deed was that the tenants shall not be liable to ejectment at the instance of the landlords except on the ground that they were in arrears of rent for a full year. . . . . . . . . . . . It was ultimately urged that because of the statutory provision contained in U. P. Act No. 13 of 1972 which entitled the landlord to obtain an order of eviction of his tenant on the ground of his personal need under section 21 (1) (a) of that Act, the covenant which restricted the right of the lessor to evict his tenant only on the ground of non-payment of rent for a year stood obliterated. It is contended that the term in the lease being inconsistent with section 21 (1) (b) of the U. P. Act No. 13 of 1972 ceased to be of any legal effect. . . . . . . . . . . . . . . U. P. Act No. 13 of 1972 does not enlarge the rights which a lessor possessed either under the general law dealing with the subject of Landlord and Tenant or under the provisions of the T. P. Act. The Act has placed restrictions on the rights of the landlord to obtain eviction of his tenant on such grounds as are mentioned in section 20 or 21 of U. P. Act No. 13 of 1972. Like the enactment which came up for consideration before the Supreme Court in Trimbak Damodhar v. Assaram Hiraman, air 1966 SC 1758 . it is a piece of beneficial legislation conferring on the tenant additional rights and protection against eviction as a matter of public policy. Like the enactment which came up for consideration before the Supreme Court in Trimbak Damodhar v. Assaram Hiraman, air 1966 SC 1758 . it is a piece of beneficial legislation conferring on the tenant additional rights and protection against eviction as a matter of public policy. If the lease deed had contained a covenant surrendering any protection provided to him by U. P. Act No. 13 of 1972 it might have been possible to successfully contend that such a covenant was against public policy and consequently void by reason of section 23 of the Contract Act. There is nothing in the Act, however, to prevenl the landlord from waiving such rights as have been left to him by U. P. Ad No. 13 of 1972. There is no public policy involved in section 21 of the Act as far as it restricts the rights of a landlord to obtain an order for the eviction of his tenant on certain limited grounds specified in that provision. . . . . . . . . . . . . . . . " (Emphasis supplied) ( 18 ) THESE two decisions do not help the petitioners at all. " In Raj Narain Jain (supra), the language used in registered lease deed was entirely different and it provided that the tenants shall not be liable to ejectement except on the ground that they were in arrears of rent for a full year. The terms of the present lease deed do not indicate that the conditions enumerated in the lease deed were only conditions on which the tenant could be evicted. 19. Learned Counsel for the petitioners has also placed reliance upon the decision of the Supreme Court in Laxmi Das (supra ). The question that fell for consideration in Laxmi Das (supra) was "whether or not, a petition under section 21 (1) (i) of the Karnataka Rent Control Act, for eviction of a tenant under a contractual fixed-term lease, would be maintainable on the ground of reasonable and bona fide requirement of the landlord. The question that fell for consideration in Laxmi Das (supra) was "whether or not, a petition under section 21 (1) (i) of the Karnataka Rent Control Act, for eviction of a tenant under a contractual fixed-term lease, would be maintainable on the ground of reasonable and bona fide requirement of the landlord. " The Supreme Court observed: "the effect of the non-obstante clause contained under section 21 of the Karnataka Rent Act on the fixed term contractual lease may be explained as follows: (i) On expiry of period of the fixed term lease, the tenant would be liable for eviction only on the grounds as enumerated in Clauses (a) to (p) of sub-section (1) of section 21 of the Act. (ii) Any ground contained in the agreement of lease other than or in addition to the grounds enumerated in Clauses (a) to (p) of sub-section (1) of section 21 of the Act shall remain inoperative. (iii) Proceedings for eviction of a tenant under a fixed term contractual lease can be initiated during subsistence or currency of the lease only on a ground as may be enumerated in Clauses (a) to (p) of sub-section (1) of section 21 of the Act and it is also provided as one of the grounds for forfeiture of the lease rights in the lease deed, not otherwise. (iv) The period of fixed term lease is ensured and remains protected ex-cept in the case indicated in preceding paragraph. " ( 19 ) THIS decision also does not help the petitioners as the present lease deed is not a fixed term lease. ( 20 ) LEARNED Counsel for the petitioners also contended that the benefit of section 38 of the Act, which provides that the provisions of the Act shall have effect notwithstanding nothing inconsistent therewith contained in the Transfer of Property Act, 1882 would not be available to the landlord in view of the provisions of section 21 (4) of the Act which exempts the applicability of section 21 (1) of the Act in the case of a tenancy created for a fixed term by a registered lease before the expiry of such time. This contention cannot also be accepted because the present lease deed is not a fixed term registered lease deed. This contention cannot also be accepted because the present lease deed is not a fixed term registered lease deed. ( 21 ) LEARNED Counsel for the respondent-landlord, however contended that the landlord cannot waive the applicability of section 21 (1) of the Act since section 21 has been enacted for the benefit of the landlord. In support of his contention he has placed reliance upon the decision of the Supreme Court in Siddalingamma and another v. Mamtha Shenoy,2002 (46) ALR 18 (SC ). wherein it was observed : "rent Control Legislation generally leans in favour of tenant, it is only the provision for seeking eviction of the tenant on the ground of bona fide requirement of landlord for his own occupation or use of the tenanted accommodation which treats the landlord with some sympathy. . . . . . . . . . . " ( 22 ) THIS Court in Indian Bank v. VIIth Additional District fudge, Muzaffarnagar and others,1993 (22) ALR 343. also observed: "in the above circumstances, the first question which arises for consideration in this case is as to whether the landlord will be deemed to have waived his right to seek enhancement of the rent in respect of the premises in dispute as provided under section 21 (8) of the Act This question about waiver of the right necessarily involves the consideration of the question as to whether the landlord stood estopped from claiming rent in respect of the premises in dispute at a rate above the ceiling limit specified and stipulated in the registered lease deed dated 1-5-1986. In view of what has been stated above, I am clearly of the opinion that the clause referred to by the tenant contained in the lease deed on which strong reliance has been placed indicating that the landlord had him self put the ceiling on the upper limit of the rent in respect of the building is void for it seeks to withhold the protection provided to a member of a protected class as indicated above, in contravention of the social policy animating from section 21 (1) (a) and section 21 (1) (8) of the UP. Act No. 13 of 1972. Act No. 13 of 1972. All such devices agreements and arrangements will be deemed to be contrary to law and cannot be utilised as a defence by the tenant which tend to abridge the rights of the landlord secured under the policy to which a reference has been made above. . . . . . . . . . . . . . . . . . " (Emphasis supplied ). ( 23 ) IT is clear from the aforesaid decisions that waiver is an intentional relinquishment of a known right and, therefore, there can be no waiver unless the person against whom the waiver is claimed has full knowledge of his right and the facts enabling him to take effective action for the enforcement of such a right. This Court also examined whether the landlord had waived his right to seek enhancement of the rent under section 21 (8) of the Act when the lease deed executed by the landlord had put a ceiling on the upper limit of the rent and it was observed that the seal on the upper limit of the rent was void for it seeks to withhold the protection provided to a member of a protected class in contravention of the social policy contained in section 21 (1) (a) and section 21 (8) of the Act. ( 24 ) SO far as the waiver is concerned, the Supreme Court in Pulin Behari Lal v. Mahadeb Dutta and others, (1993) 1 SCC 629 =1993 SCFBRC 154. also observed: ". . . . . . . . . . . . . . . . . . . . . . Waiver is a question of fact which depends on the facts and circumstances of each case. In the case of waiver of any provisions of the statute it is necessary to prove that there was conscious relinquishment of the advantage of such provisions of the statute. . . . . . . . . . . . . . . Waiver is a question of fact which depends on the facts and circumstances of each case. In the case of waiver of any provisions of the statute it is necessary to prove that there was conscious relinquishment of the advantage of such provisions of the statute. In the case like the present one before us, it was necessary for the tenant appellant to prove that the landlords had accepted the rent being fully conscious that by this act they were relinquishing the right of eviction available to them on the ground of subletting under section 13 (1) (a) of the Act The Rent Act is for the protection of the rights of the tenants but at the same time it does not permit the subletting by the tenant without the consent in writing of the landlord and this provision has been kept in public interest for the benefit of the landlords and the same can only be negatived by an act of conscious relinquishment of such right by the landlord. We find support in the above view in a decision of this Court in Shalimar Tar Products Ltd. v. H. C. Sharma, (1988) 1 SCC 70 =1988 SCFBRC 127. In the above case it was held: "sections 14 (1) proviso (b) and 16 (2) and (3) of the Delhi Rent Control Act enjoin the tenant to obtain consent of the landlord in writing to the specific subletting. This requirement serves a public purpose i. e. to avoid dispute as to whether there was consent or riot. The mere permission or acquiescence is not enough. There is no implied permission. Any other interpretation of the provisions will defeat the object of the statute and is, therefore, impermissible. " ( 25 ) LEARNED Counsel for the respondent also submitted that waiver being a question of fact has to be pleaded and proved but in the present case the tenant did not plead waiver in the objections in the reply filed to the application under section 21 (1) (a) of the Act and, therefore, he cannot raise this issue. In support of his contention, he has placed reliance upon the decision of the Supreme Court in Joginder Singh Sodhi v. Amar Kaur, (2005) 1 SCC 31=2005 (3) Supp. ARC 19=2004 (23) AIC 44 (SC ). In support of his contention, he has placed reliance upon the decision of the Supreme Court in Joginder Singh Sodhi v. Amar Kaur, (2005) 1 SCC 31=2005 (3) Supp. ARC 19=2004 (23) AIC 44 (SC ). wherein it was observed: "we are not impressed by the argument. Firstly, waiver is a question of fact which must be expressly pleaded and clearly proved. No such plea had been raised either by the tenant or by the "sub-tenant" before the Rent Controller, before the Appellate Authority or even in the High Court. Such a question cannot be allowed to be raised for the first time in this Court. ( 26 ) IN view of the aforesaid discussion, the inevitable conclusion that follows is that there is nothing in the registered lease deed dated 15th July, 1977 which prevented the landlord from filing the application under section 21 (1) (a) of the Act. ( 27 ) THE writ petition is, therefore, liable to be dismissed and is, accordingly, dismissed. There shall be no orders as to costs. Petition Dismissed. .