(Judgment of this Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to an order of dismissal made by the learned Single Judge of this Court in A.No.403 of 2006 in C.S.No.1306/92 whereby the appellant, the tenant of the respondent Wakf Estate, sought for permission to put up a construction measuring about 7312 sq. ft. in the rear portion measuring 2496 sq. ft. as found in the application.
2.The admitted facts from the available materials and submissions made emerged as follows:
(a) The property in question belonged to the respondent Wakf. A registered lease deed for fifty years of the property was executed by Akbar Ali who was the Muthawalli during that time, in favour of one Mr.Ramaswami Iyer from 1.11.1984 on a monthly rental of Rs.1500/- for first five years and thereafter, at the enhanced rent of Rs.300/- per month for every succeeding period with liberty to the tenant to put up constructions or make improvements at the cost of Rs.10000/- and electrical connections and sanitary fittings at a cost of Rs.3000/-. The tenant was also permitted to do all the repairs, white washing, colour washing, painting etc., at his cost. The building was to be used for running a restaurant, hotel, boarding and lodging or any other business. Ramaswami Iyer died leaving behind him three daughters as legal heirs. Thus, the daughters of Ramaswami Iyer have assigned the leasehold rights in favour of the appellant herein. The receipts for payment of moneys were issued by the Muthawalli Akbar Ali and other beneficiaries also from 26.9.1986 onwards. Thus the appellant was recognised as a tenant.
(b) On 4.1.1987, the Muthawalli Akbar Ali died, and eviction proceedings were initiated in RCOP No.1690 of 1991 by Shanoo Khaleel, the daughter of Hamid Ali, against the applicant claiming that she was the sole absolute owner of the property. A petition was also filed in RCOP No.1813 of 1992 by her against the applicant for fixation of fair rent, and it was also pending. RCOP No.1690/91 for eviction was dismissed by the Rent Controller, while RCOP No.1813/92 was allowed fixing the rent at Rs.44524/- per month. RCA No.311 of 1996 preferred by the appellant, was allowed setting aside the order of the Rent Controller on the ground that she is not the landlady, and the order has become final. Pending the above proceedings, the instant suit in C.S.No.1306 of 1992 was filed against the Wakf Estate for other reliefs.
(c) While the matter stood thus, on 26.10.2004, the appellant sent a letter to the Advocate Receiver offering to increase the monthly rental at Rs.3100/- under the registered lease and assignment deeds to Rs.10000/- provided the appellant was permitted to renovate the premises to improve his business. It was replied on 3.11.2004 by the Advocate Receiver enhancing the monthly rent from Rs.3100/- to Rs.22000/-. Insofar as the permission for putting up the building, it was so silent. The Advocate Receiver further directed the appellant to move the Court in C.S.No.1306/92 for permission since it is a case where he can seek the permission of the Court for making any further improvement or construction thereon. Under the circumstances, there arose a necessity to file the application before the Court.
3.The learned Single Judge after hearing the submissions made on either side, took the view that it is not a fit case where permission could be granted and hence dismissed the application. Hence this appeal.
4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, Mr.Akbar Ali, the then Muthawalli, and other beneficiaries had given written consent as early as 1986 to the appellant to put up construction in the premises in question for consideration, and the said permission was a continuing one since the time was not stipulated therein; that as such, the beneficiaries could not oppose the instant application; that the appellant did not agree to increase the contractual rent from Rs.3100/- per month under the registered lease deed to Rs.22000/- per month retrospectively from 1.1.2004; that when he wrote a letter to the Advocate Receiver followed by subsequent correspondence only on condition of giving permission to the tenant to renovate the building by incorporating the available latest facilities; that the learned Single Judge has not taken into consideration that the instant application came to be filed when the Advocate Receiver replied that it was a fit case where an application has got to be filed by the appellant seeking permission; that in the instant case, none of the beneficiaries/parties to the suit filed any counter; that had they filed counter, there would have been an opportunity to the appellant to put forth his reply affidavit, and the Court would have made an appreciation; that in the case on hand, once the beneficiaries/parties have not filed their counter, then the Court should have taken into consideration the earlier circumstances and should have granted permission; that the learned Single Judge has pointed out that he was paying a paltry sum of Rs.22000/- per month as rent when the fair rent fixed by the Rent Controller at Rs.45000/- was subsequently on appeal set aside; that the Court has to take into consideration that originally, when the agreement was entered into giving him permission by the Muthawalli and other beneficiaries, no time was fixed; and that it has been correctly increased, and he is paying Rs.22000/- per month towards the monthly rental.
5.Added further the learned Counsel that what should be the amount to be utilised by him for construction purposes was also not fixed; that apart from that, he has also given an undertaking affidavit at the time when he is vacating the property, he would not claim any compensation in respect of the construction; that all these things would be in favour of the wakf estate; that these facts have not been considered by the learned Single Judge; but a contrary view was taken; that while the factual situation is so, there cannot be any impediment for granting permission so long as it is in the interest of the wakf estate, and under the circumstances it is a fit case for granting permission.
6.The Court heard the Advocate Receiver and paid its anxious consideration on the submissions made.
7.It is not in controversy that the appellant herein is the tenant in respect of the property in question, and pursuant to the agreement entered into, now he is making a payment of Rs.22000/- towards rent. It is also not in controversy that one Ramaswami Iyer was the original tenant in respect of the property from 1.11.1984, and the lease deed was in his favour by one Akbar Ali, who was the Muthawalli at that time. As could be seen from the averments found in the lease deed, the tenant Ramaswami Iyer was given permission to put up construction or to make improvements at a cost of Rs.10000/- and also electrical connections and sanitary fittings at a cost of Rs.3000/-. He was also permitted to do all repairs, white washing, colour washing, hotel, boarding and lodging or any other business. Now, at this juncture, it is pertinent to point out that Ramaswami Iyer was permitted by the then Muthawalli as per the agreement, and he has also raised the construction. It is also pertinent to note that he can make construction at a cost of Rs.10000/- and not more. It was the amount actually fixed and that could be utilised for the purpose of construction by Ramaswami Iyer. Afterwards, Ramaswami Iyer on his death left his three daughters as legal heirs who actually assigned their leasehold rights in favour of the appellant herein. It is also true that the appellant has made a rental to the then Muthawalli Akbar Ali and other beneficiaries, and the receipts have been passed on. Thus, he has become a tenant as on today.
8.Now the contention put forth by the learned Counsel for the appellant that originally, for making construction neither the time nor the quantum is fixed cannot be countenanced. As seen above, once there was a stipulation of an amount of Rs.10000/- of which construction could be made, Ramaswami Iyer has done so. Hence the said contention cannot be accepted. It is not the case of the appellant that Ramaswami Iyer, the original tenant, has not exceeded Rs.10000/- to which he was permitted to make construction. Now at this juncture, there are documents which are in favour of the appellant, to show that time was not fixed insofar as the construction, within which he could complete the construction. Apart from that, the rent control proceedings have been initiated one for eviction and the other for fixation of fair rent, and they have actually seen the appellate forum also. Besides that, a scheme suit is also pending.
9.The other contention put forth by the appellant's side that he is ready to make construction out of his money, and he has also given an undertaking affidavit that he would not claim anything at the time when he is about to vacate the premises cannot be a reason to permit him. In short, it can be stated that the tenant, at no point of time, can compel the landlord to give him permission to raise construction as of right, or even the Court cannot compel the landlord to give permission to the tenant for making any constructions in the property of the landlord. Now, the learned Counsel for the appellant would make emphasis that so long as any act done by the tenant, is in the interest of the wakf estate, it has got to be permitted, and in the instant case, any construction made would be to the advantage, benefit and interest of the wakf estate only, and hence it has got to be permitted. This Court is of the considered opinion that while a scheme suit is pending and even this day, the appellant is a tenant in respect of the property pursuant to the assignment made by the three daughters of Ramaswami Iyer, who was the original tenant, and even in the agreement entered into between the wakf estate represented by Akbar Ali, the then Muthawalli, it is stipulated that he can make the constructions upto the extent of Rs.10000/-, taking advantage of those clauses, now the tenant cannot be permitted to say so.
10.The learned Counsel for the appellant also pointed out that it is a vast area, wherein he has actually been permitted to raise constructions, and he is carrying on a hotel by making a payment of rental of Rs.22000/-. It is pertinent to point out that when the fair rent was fixed at Rs.44524/- per month by the Rent Controller, the same was appealed against, and it has also been set aside. As on today, the appellant is making a payment of Rs.22000/- per month. The further contention that he has actually sent a letter to the Advocate Receiver that he was ready and willing to make enhanced payment, if permission is granted to him. For that, the Advocate Receiver has replied agreeing for the increase of rental, but has pointed out that it is not within his ambit to permit him, and the appellant could approach the Court. Merely because the Advocate Receiver has replied to the tenant that he should approach the Court for necessary permission, that would not mean that it would give him right for getting permission. So long as it is a property of the landlord and the appellant is only a tenant, neither he nor the Court could compel the person to do a particular act namely granting permission to raise constructions thereon. In appraisement of the facts and circumstances, this Court feels that it is not a fit case where permission could be granted. There is nothing to disturb the finding of the learned Single Judge.
11.In the result, this original side appeal fails, and the same is dismissed confirming the order of the learned Single Judge and leaving the parties to bear their own costs.
(M.C.,J.) (R.P.S.,J.) 1-9-2009 Index: yes Internet: yes nsv M.CHOCKALINGAM, J.
AND R.SUBBIAH, J.
nsv OSA No.134 of 2009 Dt: 1-9-2009