JUDGMENT Poonam Srivastava, J.
1. Heard Sri Ravi Kiran Jain, senior advocate, assisted by Sri Vivek Verma, advocate, for the appellant and Sri S. P. Gupta, senior advocate, assisted by Sri Anurag Khanna, advocate for the contesting defendant/respondent- New Okhla Industrial Development Authority (NOIDA).
2. This second appeal has been filed challenging the judgment and decree dated 5.11.2004, passed by Special Judge/Additional District Judge. Gautam Budh Nagar in Civil Appeal No. 206 of 1993, confirming the judgment and decree dated 11.11.1993, passed by the 1st Additional Munsif, Ghaziabad in Original Suit No. 862 of 1988, Arun Maini v. New Okhla Development Authority. An injunction suit was filed by the plaintiff/appellant in respect of a Gas Godown situated in Sector 16A NOIDA, Pargana and Tehsil Dadri, Ghaziabad. Both the courts below refused to grant the relief of injunction in favour of the appellant. When the appeal was presented as many as 7 substantial questions of law were formulated but during the course of argument, all those substantial questions of law formulated and submitted with the memo of appeal was given up. Subsequently four questions of law were framed, on which the appellant desired to advance argument. The four substantial questions of law formulated subsequently are as under :
(8) Whether merely because the rent was being paid yearly, the tenancy would not be a month to month tenancy?
(9) Whether after having accepted the rent sent by the plaintiff- appellant to the Defendant-respondent through Registered letter dated 1.6.1988 the tenancy of the appellant got further extended as month to month tenancy and consequently unless the same is determined through a notice under Section 106, T.P. Act, the plaintiff-appellant cannot be evicted as he continued to be a tenant?
(10) Whether Defendant-respondent being an instrumentality of the State could exercise its power to ask the Defendant-appellant to vacate arbitrarily?
(11) Whether-whatever be the status of the plaintiff-appellant, the defendant-respondent could evict him except in accordance with law?
3. The facts giving rise to the dispute are that the land situated in Sector 16A, Gautam Budh Nagar having an area 720 Sq. meters was given on lease for a fixed period of five years. The lease rent fixed was Rs. 720 per year. Subsequently the defendant-respondent asked the plaintiff to vacate the godown in question as the period of five years have lapsed. The suit was instituted by the appellant claiming injunction on the ground that since the lease rent in the year 1988 was preferred to NOIDA by cheque No. 355/81 dated 31.5.1988, drawn from Punjab and Sindh Bank, NOIDA along with letter dated 1.6.1988 but the said cheque was returned. It was also pleaded that since the tenancy has not been terminated by means of valid notice as such the plaintiff cannot be evicted otherwise than in accordance with law. The contesting respondent filed his written statement and the trial court dismissed the suit holding that since the lease was for a fixed period and it expired by efflux of time as such there was no question of determining the tenancy by means of valid notice under Section 106, Transfer of Property Act, vide judgment dated 11.11.1993. A regular appeal was filed by the appellant, which was numbered as Civil Appeal No. 206 of 1993, which has also been dismissed and has given rise to the instant appeal.
4. Sri Ravi Kiran Jain, senior advocate pressed only two substantial questions of law and advanced his argument in this appeal. The first argument was that the definition of a lease as in Section 105, Transfer of Property Act and manner how a lease is made provided in Section 107 of the said Act. Emphasis was that since Section 107 of the said Act makes it mandatory that any lease of immovable property exceeding period of one year, can only be made by means of a registered document and since in the instant case lease for a period of five years was not registered, the necessary conclusion will be that it was a lease for month to month in spite of the fact that yearly rent was being paid. Section 111, Transfer of Property Act provides the determination of a lease. It has been argued that since the lease in question was not a registered deed and conclusion is, it was month to month lease then it cannot be determined by efflux of time as provided in Section 111(a) of the said Act. The emphasis of the counsel for the appellant was that since he continued to be in possession even after lapse of period of five years, he became tenant by 'holding over' and in the circumstances, it has emphatically been argued that the plaintiff-appellant continued to be a tenant and he could not be evicted except in accordance with law. Lastly, it has been argued that since NOIDA is State within the meaning of Article 12, the act of the defendant, can be questioned, if it is arbitrary.
5. Reliance has been placed on the decisions of the Apex Court. In the case of Ram Kumar Das v. Jagdish Chandra Deo, Dhabal Deb and Anr., . The second decision relied upon by Sri Ravi Kiran Jain is Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay, AIR 1989 SC 1642. Sri Jain placed a number of paragraphs of this judgment, paragraphs 10, 13, 14, 15, 17, 20, 21, 23, 24 and 25. On the basis of this judgment it has been argued that even action of the respondent which is the State within the meaning of Article 12 of the Constitution, whether it be in the field of contract, or any other field, was subject to Article 14 of the Constitution and must be reasonable and taken only upon lawful and relevant grounds of public interest. It was, therefore, emphasized that the public authorities which enjoy this benefit without being hidebound by requirements of Rent Act, must act for the public benefit and, therefore, if Governmental policy or action even in contractual matter fails to satisfy the test of reasonableness, it would be unconstitutional. Lastly, two decisions of the Apex Court, which deal with the maintainability of the second appeal only on substantial question of law and the Apex Court while giving its view on the connotation "substantial question of law" has been placed by Sri Ravi Kiran Jain in the case of Santosh Hazari v. Purshottam Tiwari, and other decisions on this very point cited on behalf of the appellant is Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors., . On the basis of submissions made by counsel for the appellant, it emerges that the main thrust of the argument that since the lease was for a period of more than one year and it was not registered. In the circumstances, it could not expire merely by efflux of time. Secondly the tenancy will be termed to be a month to month tenancy which could be determined only by means of a valid notice which has not been done in the instant case and. therefore, the appellant could not be evicted except in accordance with law and he was entitled for the relief of injunction and the courts below committed a substantial error of law by refusing to grant the relief of injunction.
6. Counsel for NOIDA has emphatically disputed the arguments advanced on behalf of the appellant. He has placed reliance on a number of decisions of the Apex Court which has given a relevant meaning to the word 'substantial question of law' and also how and when a second appeal under Section 100, C.P.C. can be entertained. In the case of Raptakos Brett & Co. Ltd. v. Ganesh Property, , it has been argued refuting the claim of the appellant that he was a tenant by holding over. The contention of the counsel for the respondent is that in fact the appellant continued in possession even after the period of expiry of the lease and therefore, the contract on the basis of which the appellant claims to be in possession is non existent. Occupation by a tenant, whose tenancy is determined by virtue of protection granted by statute and not because of any right arising from the contract, which is determined, the statute protects possession of such a tenant till an order of eviction against him does not exist. The right to obtain possession by lessor under the ordinary law springs into action and his right to evict the tenant will not be hampered unless the statute provides otherwise. The Apex Court has termed such a tenant as 'tenant at sufferance'. There is little difference between such a tenant and trespasser and, therefore, it has been argued that erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession. The counsel for the respondent, therefore, argued that the suit was filed by the plaintiff claiming relief of injunction and it was prayed that the respondent be injuncted from evicting the plaintiff except in accordance with law. In the circumstances, the argument of the counsel for the appellant that since the tenancy was not terminated by a valid notice, he was entitled for the relief of injunction holds no weight. This is not a case where the landlord filed a suit for eviction. In the event, the plaintiff-appellant sought the relief of injunction, he had to establish his valid right to continue in possession and thereafter the other ingredients for grant of injunction, i.e., balance of convenience etc. would follow.
7. I have perused the judgment of the lower court and the view taken by the court below that no notice was necessary if the lease of immovable property was determined under clause (a) of Section 111, Transfer of Property Act. The lower appellant court has also recorded a finding that NOIDA had terminated the lease by means of a notice dated 5/6.8.1986, Exhibit Ka-2. This notice was received by the appellant and also proved by D.W. 1. In addition to the aforesaid notice, another letter/notice dated 19.4.1988, Exhibit Ka-3 was also relied upon by the courts below wherein the lease was determined as the period stood expired, coupled with the fact that the cheque preferred by the appellant was returned forthwith. In the circumstances, claim of the plaintiff that the lease was not terminated also do not help the plaintiff. These findings regarding service of notice and return of cheque are all findings of fact and cannot be interfered by this Court while exercising powers under Section 100, C.P.C. The court below has also discussed in paragraph 29 of its judgment regarding non-issuance of no objection certificate after the year 2001 by explosive department and also categorical finding has been recorded that the locality is thickly populated and a school exists nearby and even in public interest, the Gas Cylinder should not be stored within the area. In the circumstances, the argument of Sri Ravi Kiran Jain regarding public interest reasonableness and arbitrariness of the respondent has been clearly answered by the courts below and specific findings have been recorded. Sri S. P. Gupta, senior advocate has cited the decision of Sopan Sukhdeo Sable v. Assistant Charity Commissioner and Ors., . This relates to Section 6 of the Specific Relief Act, 1963, which deals that if a person is in a "settled" possession as against mere fugitive possession, can get back possession if forcibly dispossessed and the Apex Court has said that no doubt such a person in settled possession can get back possession if he is dispossessed but a trespasser cannot seek injunction against the true owner. In the instant case, it is exactly the same situation. In the present case, NOIDA is the owner of the property and the appellant had instituted a suit seeking injunction against the actual owner. In the circumstances, it is correct that no injunction could be granted to the appellant, situation would definitely be different if NOIDA had instituted a suit for eviction or it forcibly dispossessed the appellant without taking recourse to the procedure of law. In view of the aforesaid decision, no relief could be given to the appellant as against the actual owner. Lastly the counsel for the respondent cited two decisions of the Apex Court where the existence of substantial question of law has been interpreted by the Supreme Court. Govindaraju v. Mariamman, and M. Janardhana Rao v. Joint Commissioner of Income Tax, . The tests to determine whether the substantial questions of law are involved or not was : (1) whether directly or indirectly it affects substantial rights of the parties, or (2) the question is of general public importance, or (3) whether it is an open question in the sense that the issue is not settled by pronouncement of this Court or Privy Council or by the Federal Court, or (4) the issue is not free from difficulty, and (5) it calls for a discussion for alternative view.
8. I have examined both the judgments on the anvil of the tests laid down by the Apex Court and I do not find that any substantial rights of the parties are affected. The appellant has clearly admitted the period for which the lease was granted and the two Courts have recorded a finding of fact that despite service of notice, the plaintiff has refused to vacate the premises in question and as such he is not entitled for any relief whatsoever. In fact it was the plaintiff who had to prove his case before the Court that he had a valid right to continue in possession and he is being ousted, which will cause irreparable loss, which cannot be compensated in terms of money and that the balance of convenience lies in his favour. The appellant has miserably failed to establish his case by means of pleadings and evidence brought on record. On the contrary, the arguments advanced in this second appeal is something which has never been pleaded and in the circumstances, the findings of the courts below are concluded by finding of fact, no substantial question of law arises in this second appeal and, therefore, this appeal is dismissed with costs.