The petitioner has sought the quashing of the order dated 31st December, 2001 passed by the Estate Officer, Life Insurance Corporation of India (hereinafter referred to as the 'Corporation') for eviction of the petitioner from the premises in dispute and for payment of arrears of rent and damages of Rs.3,14,868.60 for unauthorised use and occupation. The petitioner has also sought the quashing of the order dated 5th September, 2009 by which the appeal that had been filed by the petitioner for setting aside the aforesaid order of the Estate Officer was dismissed.
A commercial building bearing no.16/96, The Mall, Kanpur was owned by N.Bayram J. & Co. A shop in the said building was let out by the landlord to the father of the petitioner about 67 years ago @ Rs.15/- per month for running the business of confectionery and general merchant. The building was subsequently purchased by the National Insurance Company sometimes in 1952-53 and after the Nationalisation Act, the building vested in the Corporation, which as landlord, started accepting rent @ Rs.15/- per month. It is in the year 1968 that the Corporation decided to demolish the building. The father of the petitioner Ram Chand filed Original Suit No.2717 of 1968 for permanent injunction. In the said suit, the parties entered into a compromise and an agreement was executed on 24th February, 1969 that the Corporation shall let out a shop in the proposed newly constructed building to the father of the petitioner at a rent of Rs.100/- per month.
On 1st June, 1984, the Corporation sent a notice that it did not want to keep the father of the petitioner as a tenant of the shop and terminated the tenancy on expiry of 30th day from the receipt of the notice. The father of the petitioner was required to vacate and handover peaceful possession failing which, it was stated, the Corporation could move the Estate Officer for 2 eviction and recovery of arrears of rent as the premises was public premises within the meaning of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the '1971 Act').
A notice dated 19th January, 1985 was then issued under Section 4(1) of the 1971 Act to the father of the petitioner mentioning therein that he was an unauthorised occupant of the public premises as the tenancy had been terminated by the Corporation w.e.f. 5th July, 1984 on the basis of the notice dated 1st June, 1984 which he had received on 5th June, 1984. The father of the petitioner was called upon to show cause why an order for eviction may not be passed. The said notice was accompanied by an application under Sections 5 and 7 of the 1971 Act.
The father of the petitioner filed a written statement. Reliance was placed on the agreement entered into between the parties on 24th February, 1969 and it was pleaded that the tenant was not liable for eviction for any reason except for reasons or grounds enumerated in Section 3 of the United Provinces (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the '1947 Act') and as none of the reasons or grounds were available to the Corporation, the tenancy could not be terminated. The father of the petitioner Ram Chand expired on 19th July, 1988 and his widow Rukmani Devi was substituted. She filed an additional written statement. In the additional written statement it was stated that the Government of India had issued guidelines in respect of public premises that public sector undertakings should not take resort to the provisions of the 1971 Act where the public premises had been let out for commercial purposes or for evicting genuine tenants and the provisions should be utilised for evicting those who had sublet the premises for residential or commercial purposes, illegal occupants or those employees who ceased to be in service of the public sector undertakings.
The Estate Officer examined the effect of the agreement dated 24th February, 1969 while dealing with issue nos.3 and 4 and in this context observed:-
"Now the question to be examined is what is the effect of the agreement dated 24.2.1969. It is one of the conditions of the said agreement that the opposite party would be given space by the applicant in the new building for running the business on month-to-month basis, which means that it is governed by Section 106 of 3 T.P. Act. The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 was enacted in the year 1971 by the Parliament which was made applicable to all the premises belonging to or taken on lease by the Corporation as well. It has been held by Supreme Court in case Baneet Coleman Vs. LICI (AIR 1991 SC 855) that the provisions of the Rent Control Act will not be applicable to the premises covered by the Public Premises Act 1971 and, therefore, the provisions of U.P. Act III of 1947 has been repealed vide Section 43 of U.P. Act 13 of 1972. As per Section 2 of the U.P. 13 of 1972 any building on which the Government or a local authority or a Public Sector Corporation is the landlord is exempted from the operation of the Act. As such Act No.3 of 1947 being repealed and Act No.14 of 1972 not applying to terms in question. The opposite party cannot take benefit of the same. In view of the above I have come to the conclusion that the opposite party after the expiry of the period of notice shall be deemed to be and is an unauthorised occupant of the premises and is liable to be evicted under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971."
The Estate Officer, therefore, by order dated 31st December, 2001 ordered for eviction of Rukmani Devi from the premises in dispute within 15 days and also ordered for payment of arrears of rent and damages on account of unauthorised occupation to the tune of Rs.3,14,868.60.
Feeling aggrieved, Rukmani Devi filed appeal but during the pendency of the Appeal Rukmani Devi expired on 30th January, 2006 and the petitioner, being the son, was substituted as the appellant.
The Appellate Court relied upon the decision of this Court in Life Insurance Corporation of India, Kanpur Vs. Advani & Co. Kanpur & Ors., 2000 (40) ALR 244 which was rendered in respect of a tenanted accommodation in the same building and in which an agreement had also been executed between the tenant and the Corporation and dismissed the appeal.
The submissions advanced by the appellant regarding the guidelines issued by the Government of India were also not accepted in view of the decision of the Supreme Court in New India Assurance Company Ltd. Vs. Nusli Nivele Wadia, 2008 (1) ARC 568. The Appellate Court further observed that guidelines had been issued on 1st June, 1984 eight years after the issuance of the notice terminating the tenancy.
I have heard Sri Manoj Mishra, learned counsel for the petitioner and Sri Manish Goyal, learned counsel for the respondent-Corporation.
Sri Manoj Mishra, learned counsel appearing for the petitioner submitted that the father of the petitioner was not an unauthorised occupant of the premises in question as the tenancy could not have been terminated on grounds other than those mentioned in Section 3 of the 1947 Act since the parties had, under the agreement dated 24.2.1969, not only agreed that the tenant would be entitled to all the rights available to a tenant of a building constructed prior to 1951 but also that he shall not be evicted for any reason except for reasons enumerated in Section 3 of the 1947 Act. He further submitted that the landlord had neither pleaded nor proved the existence of any of such grounds. Thus, according to him, the entire proceedings under the 1971 Act are without jurisdiction and vitiated. In support of this contention he has placed reliance upon the decision of the Supreme Court in Lachoo Mal Vs. Radhey Shyam, AIR 1971 SC 2213 and the decisions of this Court in Raj Narain Jain Vs. IIIrd Additional District Judge & Ors., 1979 ARC 485 and Dr. Nawal Kishore Dubey Vs. Sardar Khajan Singh & Ors., 1984 (1) ARC 461.
It is also his submission that the decision in Life Insurance Corporation of India (supra) relied by the Appellate Authority does not apply to the facts of the present case because the agreement entered into between the parties in that case did not contain any restriction that the tenant shall not be liable to ejectment for any reason except for the reasons enumerated in Section 3 of the 1947 Act.
Sri Manish Goyal, learned counsel appearing for the Corporation, on the other hand, submitted that the controversy in the present case stands concluded by the decision of this Court in Life Insurance Corporation (supra). It is his submission that there is no substantial difference between the agreement dated 24th February, 1969 entered between the parties in the present case and the agreement dated 6th March, 1965 which was under consideration in Life Insurance Corporation of India (supra) because the second part of the agreement dated 24th February, 1969 on which reliance has been placed by learned counsel for the petitioner, merely reiterates what is contained in the first part of the agreement that all the rights available to a tenant under the 1947 Act shall be available. It is also his submission that if 5 the agreement is interpreted in the manner learned counsel for the petitioner has suggested, then it will have the effect of extinguishing all the right of the landlord in seeking eviction of the petitioner on grounds available under the law and hence would be an agreement in restraint of legal proceedings and would, therefore, to that extract be void under Section 28 of the Indian Contract Act, 1872. According to him this will also be against public policy.
I have carefully considered the submissions advanced by learned counsel for the parties.
It is seen that the father of the petitioner Ram Chand was a tenant of the erstwhile landlord on a rent of Rs.15/- per month. The building was purchased by the National Insurance Company sometimes in 1952-53 and the building vested in the Corporation after the Nationalisation Act. The father of the petitioner became a tenant of the Corporation and the Corporation accepted rent @ Rs.15/- per month. It is in 1968 that the Corporation decided to demolish the building which resulted in the filing of Suit No.2717 of 1968 by the father of the petitioner against the Corporation for injunction and in this suit a compromise was entered in terms of the agreement executed between the parties on 24th February, 1969.
The issue involved in the present petition is about the interpretation of the clauses of the said agreement and, therefore, the relevant clauses of the agreement dated 24th February, 1969 are quoted below:-
"WHEREAS the first party owns a building known as the "Commercial Building" on the Mall, Kanpur at present numbered as 16/98 in the municipal records, Kanpur, and the second party has been in occupation of a shop in the said building underneath the staircase paying Rs.15/- per month as rent since long.
WHEREAS the first party has decided to demolish the remaining portions of the said "Commercial Building" which has since developed very serious cracks and is in a dangerous condition. As a result of mutual discussions between the parties it is hereby agreed :-
(1) That in lieu of the entire portion of the premises in the occupation of the second party at present, the corner most shop admeasuring 370 sq. ft. more or less, adjoining the passage between the Navroj Building and new L.I.C. Building fitted with wooden loft will be given by the first party to the second party for running their present business on a month to month tenancy as has been the case in the premises presently occupied by the second party and the tenancy of the second party shall be 6 deemed to continue without any break and the second party on observance of the terms and conditions of the agreement shall be entitled to all rights that are available to a tenant of any pre 1951 construction and the second party shall not be liable to ejectment for any reason except for reasons enumerated in Section 3 of U.P. Control of Rent & Eviction Act, 1947, except and in so far as inconsistent with the terms explained hereinbelow:"
In order to appreciate the terms of the aforesaid agreement, it will be useful to reproduce Section (1-A) of the 1947 Act which was subsequently added and Section 3 of the 1947 Act and the same are as follows:-
"1-A. Nothing in this Act, shall apply to any building or part of a building which was under erection or was constructed on or after January 1, 1951.
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3. Restrictions on evictions.--(1) Subject to any order passed under sub-section (3) no suit shall without the permission of District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds--
(a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand;
(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the accommodation;
(c) that the tenant has, without the permission in writing of the landlord, made or permitted to be made any such construction as in the opinion of the court, has materially altered the accommodation or is likely substantially to diminish its value;
(d) that the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, or which is likely to affect adversely and substantially the landlord's interest therein;
(e) that the tenant has, on or after the 1st day of October, 1946 sublet the whole or any portion of the accommodation without the permission of the landlord;
(f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant;
(g) that the tenant was allowed to occupy the accommodation as a part of his contract of employment 7 under the landlord and his employment has been determined.
Explanation.--For the purposes of sub-section (e) lodging a person in a hotel or a lodging-house shall not be deemed to be sub-letting.
For the removal of doubts it is hereby declared that under Section 3 of the principal Act no permission of the District Magistrate is or be deemed to ever have been necessary for filing a suit for eviction against a tenant on any of the grounds mentioned in clauses (a) to (f) of the said section. "
It is seen that at the time the agreement dated 24th February, 1969 was entered between the petitioner's father Ram Chand and the Corporation, the provisions of 1947 Act were applicable to the tenanted accommodation in occupation of the petitioner's father. However, as the petitioner's father was required to shift to another shop which was constructed on or after 1st January, 1951, the agreement provided that the 1947 Act shall apply to the tenanted accommodation be given to the father of the petitioner even though it may have been under construction or was constructed on or after 1st January, 1951.
It has, therefore, to be examined whether the 1947 Act will still be applicable to the tenanted accommodation. In this connection reference needs to be made to Section 1(4) of the 1947 Act which is as follows:-
"It shall cease to have effect on the expiry of September 30, 1972, except as respects things done or omitted to be done before the expiration thereof and Section 6 of Uttar Pradesh General Clauses Act, 1904 (U.P. Act I of 1904), shall apply upon the expiry of the Act as if it had then been repealed by an Uttar Pradesh Act."
Section 43 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rend & Eviction) Act, 1972 (hereinafter referred to as the '1972- Act') also repeals the 1947 Act. After coming into force of the 1972 Act, the landlord can file an application for eviction of the tenant by filing a suit on any of the grounds mentioned in Section 20 or by moving an application for eviction under Section 21 of the Act. Section 2(a) of the 1972 Act, which came into force w.e.f 18th May, 1983, however, exempts the operation of the Act to any building of which the landlord is a Public Sector Corporation. Thus, the building owned by the Corporation, which is a Public Sector Corporation, was exempted from the operation of the 1972 Act.
It is for this reason that learned counsel for the respondent- Corporation has contended that the protection of the 1947 Act is no longer available to the tenant and in this connection placed reliance upon the decision of this Court in Life Insurance Corporation of India (supra). The said decision is in respect another tenanted accommodation in the same building. As it transpires from the judgment, the agreement dated 6th March, 1965 that had been entered into between the parties was differently worded and so it will be necessary to reproduce the agreement which is as follows:-
"1. That in lieu of the entire premises in the occupation of the second party at present, one shop consisting of one bay of the building at present under construction, having a floor area of about 1135 sq. ft. (excluding 10 ft. area) shown bounded by red lines in the map annexed hereto will be given by the first party to the second party for running their present business on month to month tenancy as has been the case in the premises presently occupied by the second party and the tenancy of the second party shall be deemed to continue without any break and the second party shall be entitled to all rights that are available to a tenant of any pre-1951 construction under U.P. Act III of 1947 except and in so far as inconsistent with the terms contained hereafter."
It is upon a consideration of the said agreement that the Court in Life Insurance Corporation of India (supra) observed:-
11. The respondent was entitled to the benefit of provisions of U.P. Act No.III of 1947 and could not have been evicted unless the bar contained under the provisions of the said Act as against eviction of a tenant was removed.
12. U.P. Act No.III of 1947 was repealed by Section 43 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.XIII of 1972) which came into force with effect from 20.9.1972. After repeal of the said Act, the provisions of U.P. Act No. XIII of 1972 were made applicable to all the buildings which were governed by the provisions of Act III of 1947 and also those constructions which came under the purview of the said Act. This did not make any material change in regard to the conditions on which a tenant could have been evicted. A landlord could evict a tenant by filing a suit on any of the grounds mentioned under Section 20 of 1972 Act, or to take appropriate proceedings for eviction under Section 21 of the Act.
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16. The protection which was given to the tenant of a public sector corporation was taken out by the 9 amending Acts. The respondent, thereafter, was not entitled to claim the protection of either Act No. 3 of 1947 or Act No. 13 of 1972. The agreement of tenancy which provided that the provisions of Act No. 3 of 1947 will be applicable, no longer was enforceable after the repeal of Act No. 3 of 1947 and after the exemption was granted from the operation of the Act in relation to a building owned by public sector corporation after the enforcement of U.P. Act No. 28 of 1976.
17. The contention of the learned counsel for the respondent is that as the parties had entered into agreement of tenancy prior to the enforcement of Act No. 28 of 1976, the said provisions will not be applicable. The exemption under the Act itself contemplates a situation where the tenancy was created prior to the enforcement of the Act but after the Act came into force, the benefit which was conferred upon the tenants was taken out. There is no clause under the amending Act providing that it will not govern the tenants who were continuing in occupation on the date of enforcement of Act. In State Bank of India, Faizabad v. Hari Narain and Anr., 1980 ALJ (NOC) 8, it was held that the expression 'taken on lease' in Section 3(o) of the Act covers the cases in respect of lease taken prior to the Act and either renewed or held over beyond the lease period. This decision was followed in reserve Bank of India v. S.B. Srivastava, 1983 (2) ARC 111, and it was observed that the lease executed prior to coming into force of the amending Act of 1976 will not take the premises outside the definition of a 'public building' under Section 2(1)(a) read with Section 3(o) of the Act.
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21. The principle of promissory estoppel will not be applicable when the parties themselves entered into contract and such contract was reduced in writing. They will be governed by the terms of the contract, they had entered into themselves. Admittedly, the house in question was governed by the provisions of the Act when the respondent was its tenant. The petitioner entered into contract that respondent shall vacate the same with the condition that it would provide a reconstructed shop but the provisions of U.P. Temporary (Control of Rent and Eviction) Act, 1947, will be applicable. The building owned by a public corporation was not exempt under the said Act. The said Act was repealed and U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, came into force. The provisions of this Act were amended by U.P. Act No. 24 of 1976 under which the building owned by public sector corporation was exempted. Any tenant who was entitled to the benefit of the provisions of the said Act after enforcement of the 10 said provisions, could not claim their rights on the basis of the contract of lease entered into between the parties. The respondent could claim only the benefit of provisions of Act No. 13 of 1972 but after the exemption was granted to any building owned by public sector corporation, it cannot be rely upon the doctrine of promissory estoppel."
This Court in Life Insurance Corporation of India (supra) clearly observed that after the repeal of the 1947 Act and after the amendments made in the 1972 Act wherein the buildings owned by the Public Sector Corporation were exempted from the operation of the 1972 Act, the tenancy could be terminated by a notice under Section 106 of the Transfer of Property Act and thereafter the proceedings for eviction of the unauthorized occupant could be initiated. This is precisely what has been done in the present case. The tenancy of the father of the petitioner was terminated by giving a notice under Section 106 of the Transfer of Property Act and thereafter proceedings were initiated against the father of the petitioner under the 1972 Act since he became an unauthorized tenant.
This Court in Life Insurance Corporation of India (supra) further held in respect of the same building owned by the Corporation, but concerning a different tenanted accommodation that, when a tenant who was in occupation of a tenanted accommodation which was subject to the provisions of the 1947 Act, was provided with an alternative accommodation and the agreement provided that he shall be entitled to all rights as are available to a tenant under the 1947 Act, the contention raised by him on the basis of the agreement that he can be evicted only under the 1947 Act even though the said Act was repealed subsequently and the 1972 Act exempted the tenanted building from the operation of the Act, cannot be accepted.
Learned counsel for the petitioner has, however, placed reliance upon the judgment of the Supreme Court in Lachoo Mal (supra).
In this decision of the Supreme Court an agreement had also been entered into between the parties and the relevant portion is quoted below:-
"1. ...........
2. ...........
3. At present a sum of Rs. 18.60 per mensum, which includes house tax and water tax, is being paid by the second party to the first party as rent. After the 11 construction of the shop, the first party shall be entitled to get the same amount as rent from the second party. All the sections of the U.P. Rent Control and Eviction Act, shall be fully applicable to this house. The first party shall in no case be entitled to derive benefits from it as the property built after 1-1-51."
It is on an interpretation of the said agreement that the Supreme Court observed:-
"Now there can be no manner of doubt that the tenancy between the appellant and the respondent was governed by the provisions of the Act prior to the reconstruction of the premises. It appears to have been accepted that when the respondent made the reconstruction after the agreement mentioned above in 1962 the building came to be constructed within the terms of Section 1-A of the Act. That Section says that nothing in the Act shall apply to any building or part of a building which was under erection or was constructed on or after January 1, 1951. It will have to be decided whether it was open to the respondent to give up the benefit of this provision or waive it by means of an agreement of the nature which was entered into between the appellant and the respondent in June 1962.
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We are unable to hold that the performance of the agreement which was entered into between the parties in the present case would involve an illegal or unlawful act. In our judgment Section 1-A was meant for the benefit of owners of buildings which were under erection or were constructed after January 1, 1951. If a particular owner did not wish to avail of the benefit of that section there was no bar created by it in the way of his waiving or giving up or abandoning the advantage or the benefit contemplated by the Section. No question of policy, much less public policy, was involved and such a benefit or advantage could always be waived. That is what was done in the present case and we are unable to agree with the High Court that the consideration or object of the agreement entered into between the parties in June 1962 was unlawful in view of Section 23 of the Contract Act."
The controversy in Lachoo Mal (supra) was, therefore, different. The decision in the case of Life Insurance Corporation of India (supra) had also considered the aforesaid judgment. The decisions in the case of Raj Narain Jain (supra) and Dr. Nawal Kishore Dubey (supra) also do not help the petitioner if the agreement is interpreted in the manner as has been done in the present petition.
Learned counsel for the petitioner then contended that in the present case there is an additional stipulation in the agreement, apart from what was contained in the agreement in question in the case of Life Insurance Corporation of India (supra). According to him the agreement in the present case entered into between the petitioner's father and the Life Insurance Corporation further provided that the tenant shall not be liable to ejectment for any reason except for the reason enumerated in Section 3 of the 1947 Act. He, therefore, has contended that the said decision in the case of Life Insurance Corporation of India (supra) will not be applicable.
The submission of learned counsel for the petitioner cannot be accepted. This additional part contained in the agreement dated 24th February, 1969 only reiterates what is contained in the earlier part that the 1947 Act will apply to the tenanted accommodation by making specific reference of Section 3 of the 1947 Act which places restriction on the eviction of the tenants. Even if this additional part was not contained in the agreement, the tenant could have been evicted only on the grounds mentioned in Section 3 of the 1947 Act. The judgment in the case of Life Insurance Corporation of India (supra) will, therefore, apply in the present case and if this judgment is to be applied, then despite the agreement dated 24th February, 1969, the petitioner will not be entitled to the benefit of the 1947 Act.
Thus, none of the contentions advanced by learned counsel for the petitioner have any force. The writ petition is, therefore, liable to be dismissed and is, accordingly, dismissed.
Date: 01.02.2010 GS/NSC