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Allahabad High Court · body

2014 DIGILAW 2566 (ALL)

Mohammad Afzal v. Ramesh Kumari

2014-08-22

PANKAJ MITHAL

body2014
JUDGMENT Hon’ble Pankaj Mithal, J.—Heard Sri Om Prakash, learned counsel for the petitioner and Sri R.K. Pandey, learned counsel for the respondent. 2. Petitioner is a tenant. His tenancy is said to have been terminated vide notice dated 4.3.2005 under Section 106 of the Transfer of Property Act, 1882 (in short TP Act) whereupon the respondent landlord instituted SCC Suit No. 8 of 2005 for his eviction. The suit has been decreed by the Courts below holding that the provisions of U.P. Act No. 13 of 1972 are not applicable to the shop in dispute and that the notice was a valid notice terminating the tenancy of the petitioner. 3. The sole ground on which the writ petition has been filed is that notice determining tenancy was invalid as only 15 days notice was given whereas according to U.P. Amendment to Section 106 of the TP Act a notice of 30 days is mandatory. 4. In reply to the above Sri Pandey submits that the U.P. Amendment is of the year 1954. The Transfer of Property Act has been amended in 2002 which provides for 15 days notice for determining the month to month tenancy. Therefore, the U.P. Amendment of 1954 is of no significance and there is no corresponding State amendment. 5. Section 106 of the TP Act as it stood originally is reproduced herein below : “106. Duration of certain leases in absence of written contract or local usage—In the absence of a contract or local law or usage to the contrary, a contractor or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days notice expiring with the end of a month of the tenancy. Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.” 6. It provides that a month to month lease or tenancy is terminable on part of the lessor or lessee by 15 days notice expiring at the end of the month of the tenancy. Therefore, Section 106 of the TP Act as it stood originally stipulates for 15 days notice for determining the tenancy. 7. The aforesaid Section 106 of the Transfer of Property Act in its applicability to the State of U.P. was amended by U.P. Act No. 24 of 1954 w.e.f. 30.11.1954 and it was provided that in place of 15 days notice appearing in Section 106 of the Act, the notice period of 30 days be substituted. It means that instead of 15 days notice 30 days notice is required for determining the tenancy in the State of U.P. 8. Section 106 of the Act has been amended by the Transfer of Property (Amendment Act 2002) w.e.f. 31st December 2002 and the entire provision has been redrafted as under : “106. Duration of certain leases in absence of written contract or local usage— (1) In the absence of a contact or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice. (2) Notwithstanding anything contained in any other law for the time being enforce, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (2) Notwithstanding anything contained in any other law for the time being enforce, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.” 9. The revised Section 106 of the TP Act still provides for 15 days notice for determination of monthly tenancy. Therefore, the notice period for determining the tenancy under Section 106 of the T.P. Act remains the same/unchanged despite the amendment of 2002. 10. The said notice period as provided under Section 106 of the TP Act was amended to 30 days in its application to the State of U.P. Since there is no change in the notice period by the Transfer of Property Amendment Act of 2002, the notice period as it stood originally and amended in its applicability to the State of U.P. would continue to hold the field. In other words, in the State of U.P. 30 days notice is mandatory for determining the month to month tenancy. 11. In the instant case, the notice gives only 15 days time for determining the tenancy of the petitioner. Therefore, the notice ex facie appears to be invalid. 12. The suit on its basis was instituted on 22.3.2005 i.e. within 18 days of the issuance of notice. Thus, the institution of the suit was also earlier to 30 days statutory period of notice. It therefore would not be saved even by sub-section 3 of Section 106 of the TP Act. 13. In view of the aforesaid facts and circumstances, the requirement of law in its applicability to the State of U.P. is for a notice of 30 days for determining the month to month tenancy. It therefore would not be saved even by sub-section 3 of Section 106 of the TP Act. 13. In view of the aforesaid facts and circumstances, the requirement of law in its applicability to the State of U.P. is for a notice of 30 days for determining the month to month tenancy. The defect of shorter period of notice could have been cured had the suit been filed subsequent to the expiry of the notice period of 30 days as prescribed under the Act in its application to the State of U.P. However, in the present case, not only the notice period is short than prescribed but the suit was also instituted before expiry of 30days period. 14. Therefore, the notice dated 4.3.2005 which forms the basis of the suit is invalid and the tenancy of the petitioner cannot be treated to have been validly determined and since the suit has also been instituted before the expiry of the statutory period of notice, it is defective. Thus, the Courts below erred in law in decreeing the suit. 15. Accordingly, the judgment and orders dated 29.11.2008 and 28.7.2008 are quashed and the petition is allowed. —————