Dismissed

Jaipal Singh v. Prescribed Authority/ City Magistrate and 2 Others

Allahabad HC15 Mar 2018WRIC/8619/2018

Case brief

AI extract

What is this about?

This writ petition challenged an eviction order against a shop tenant in a Zila Panchayat market. The court held that for a fixed-term tenancy expiring by efflux of time, a Section 106 notice is not mandatory for eviction proceedings. The eviction appeal was dismissed with a grant of four months to vacate.

What did the court decide?

Writ petition dismissed; four months' time granted to the petitioner to vacate the premises upon undertaking.

Jaipal Singh Vs Prescribed Authority/ City Magistrate… — Landlord and Tenant | Allahabad HC (2018)

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Reserved

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Court No. 2

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Case :- WRIT - C No. - 8619 of 2018

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Petitioner :- Jaipal Singh

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Respondent :- Prescribed Authority/ City Magistrate And 2 Others Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh Counsel for Respondent :- C.S.C.,A.B.Singhal

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Hon'ble Ram Surat Ram (Maurya),J.

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Heard Sri Ashish Kumar Singh, for the petitioner and Sri R.B. Singhal, Senior Advocate, assisted by Sri Aditya Bhushan Singhal, for respondent-3.

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The writ petition has been filed against the orders of Prescribed Authority/City Magistrate, dated 11.03.2016, directing for ejectment of the petitioner, from shop No.2/10, situated of Banarsidas Market of Zila Panchayat, Buland Shahar and for payment of Rs.7800/ towards arrears of rent and damages from 01.04.2011 to June, 2014 including 9% interest, damages from 01.07.2014 at the rate of Rs.3000/-per month till delivery of possession and Rs.3000/- towards costs and Additional District Judge dated 31.01.2018, dismissing the appeal of the petitioner against aforesaid order.

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Zila Panchayat, Buland Shahar is owner of the shops constructed at Banarsidas Market of Zila Panchayat, Buland Shahar. Zila Panchayat filed an application under Section 4/7 of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as the Act), for ejectment of the petitioner from the shop in dispute, alleging that the disputed shop was let out to the petitioner on a rent of Rs. 150/- per month, which was enhanced from 1.4.2011 to Rs.200/- per month. The petitioner has paid rent up to March, 2011 and was a defaulter thereafter. His tenancy was terminated through registered notice dated 15.5.2014 and he was asked to vacate the disputed shop, after expiry of 30 days period, after service of notice. In spite of service of notice the petitioner did not vacate the disputed shop.

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The petitioner contested the case and filed his written statement in which he has admitted that disputed shop was let out to him on 1.9.2008 on

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rent at the rate of Rs. 150/- per month, which was paid regularly up to March, 2011. Thereafter, landlord stopped taking rent. In the notice, rate of rent has been illegally shown as Rs.200/- per month. On receiving notice, entire arrears of rent was tendered through money order, which was refused by the landlord. The petitioner filed reply to the notice and contended that notice is bad and was not given as per law as such tenancy was never terminated.

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Both the parties filed their oral as well as documentary evidence before Prescribed Authority. On behalf of Zila Panchayat, Anil Kumar, Property Clerk was examined, PW-1 and the petitioner examined himself as DW-1. Prescribed Authority held that tenancy of the petitioner was terminated by a notice under Section 106 of Transfer of Property Act, 1882 as the petitioner was not agreed to pay rent as enhanced w.e.f. 01.04.2011 and was a defaulter for a period of more than three months. The provisions of U.P. Act No. 13 of 1972 is not applicable as such the petitioner is liable to be ejected. On these findings the application was allowed. The petitioner filed an appeal from the aforesaid order. The appeal was heard by Additional District Judge, who by judgment dated 31.01.2018, held that by Notification dated 01.12.2004, City Magistrate was appointed as the Prescribed Authority. Tenancy of the petitioner was from 01.09.2008 to 31.08.2013 as such procedure under the Act was followed. According to the lease deed, the petitioner was required to give rent in advance in every and in case of continuous default for a period of three months, the tenancy is terminated automatically. The petitioner was defaulter from 01.04.2011. As such his tenancy was rightly terminated. On these findings, the appeal was dismissed. Hence this writ petition has been filed.

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The counsel for the petitioner submitted that Rule-3 provides that the notice under Section 4 of the Act be given in Form-A appended to the Rules. In the present case no notice was given in Form-A as such there was no valid notice under Section-4 of the Act. In the absence of a notice, the application under Section 7 of the Act, is not maintainable as held by this Court in Dharmveer Vs. Krishi Utpadan Mandi Samiti, 2007 (4) AWC 3904 . The petitioner cannot be treated as a defaulter inasmuch as rent at the rate as given in tenancy deed was deposited before prescribed Authority.

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I have considered the arguments of the counsel for the parties and examined the records. Additional District Judge found that tenancy of the petitioner was a 'fixed term tenancy' from 01.09.2008 to 31.08.2013. As such tenancy has expired due to efflux of time. There was no fresh agreement between the parties. It has also come on the record that Zila Panchayat in its resolution dated 27.07.2013, enhanced the rent of these shops to Rs.200/- per month, which was not agreed by the tenants and they have committed default in payment of rent. Supreme Court in Dattonpant Gopalvarao Devakate v. Vithalrao Maruthirao Janagaval, (1975) 2 SCC 246, has held that no notice is necessary if a lease of immovable property determined under clause ( a ) of Section 111 of the Transfer of Property Act by efflux of the time limited thereby. A Bench of 7 Hon'ble Judges in V. Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214, has held that if we were to agree with the view that determination of lease in accordance with the Transfer of Property Act is a condition precedent to the starting of a proceeding under the State Rent Act for eviction of the tenant, we could have said so with respect that the view expressed in the above passage is quite correct because there was no question of determination of the lease again once it was determined by efflux of time. But on the first assumption we have taken a different view of the matter and have come to the conclusion that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act.

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Supreme Court in Nani Gopal Biswas v. Municipality of Howrah, 1958 SCR 774 : AIR 1958 SC 141, has held that it is substance and not the form of the notice that has to be regarded. In DDA v. Anant Raj Agencies (P) Ltd., (2016) 11 SCC 406, has held that in the absence of renewal of lease after 10.08.1968, the pleadings of the original lessee that DDA is estopped from taking the plea that there is no renewal of lease after having accepted the rent after 10.08.1968, in respect of property in question and after

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accepting certain sums in respect of the same, subsequently, for change of the property in question from leasehold to freehold are all irrelevant aspects for the reason that the same are contrary to the aforesaid provisions of the DD Act, the Nazul Land Rules applicable to the fact situation and the terms and conditions of the lease deed. Further, it is clear from the contents of the termination notice dated 01.09.1972 served upon the original lessee by DDA that it has not only refused to renew the lease of the property but also asked the original lessee to hand over the possession of the property in question within 30 days, which is absolutely in consonance with Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The property in question being a public premises in terms of Section 2( e ) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and that after expiry of lease period the original lessee has become unauthorised occupant in terms of Section 2( g ) of the said Act in the light of relevant statutory provisions and rules.

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In view of the aforesaid discussions, the writ petition has no merit and is dismissed. Four months' time is granted to the petitioner to vacate the premises in dispute, provided the petitioner gives an undertaking to this effect before the Prescribed Authority within a period of two weeks.

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Order Dated :15.3.2018 mt

Jaipal Singh v. Prescribed Authority/ City Magistrate and 2 Others

Case brief

What is this about?

What did the court decide?

Jaipal Singh v. Prescribed Authority/ City Magistrate and 2 Others

Case brief

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