Heard Sri B. Dayal, learned counsel for the plaintiffs revisionists and Sri M.L. Rai, learned counsel for the defendants respondents.
A shop in dispute was let out by the plaintiffs revisionists to the defendants respondents under a registered rent deed dated 16.10.1981 at a rent of Rs.480/- per month.
The plaintiffs revisionists determined the tenancy vide notice dated 19.08.1985 under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as the T.P. Act) which was served on 21.08.1985 upon the defendants respondents. On the basis of the aforesaid notice, the plaintiffs revisionists instituted S.C.C. Suit No.57 of 1985 for the eviction of the defendants respondents from the said shop and for arrears of rent. The suit has been dismissed by the court below vide judgment and order dated 10.05.1990 on the finding that the shop in dispute is covered by provision of U.P. Act No.13 of 1972 (hereinafter referred to as the Act) and the plaintiffs revisionists have failed to prove default in payment of rent.
The submission of Sri B. Dayal, learned counsel for the plaintiffs revisionists is that the court below has grossly erred in holding that the shop in dispute is an old construction on which the provisions of the Act are applicable. In fact the shop in dispute was reconstructed on 10.10.1981 and was let out to the defendants respondents under the registered rent deed dated 16.10.1981. The said deed clearly states that the provisions of the Act are not applicable and therefore, the defendants respondents are bound by the admission made in the lease deed.
On the contrary the submission of Sri Rai is that the shop in dispute is an old shop. There is no evidence of its reconstruction or of the fact that its reconstruction was reported or recorded by the local authority or that it was thereafter assessed to municipal taxes rather the shop had been in occupation of tenants earlier and was assessed to tax from 01.04.1968 to 31.3.1973. It cannot be a new shop outside the purview of the Act. The rent deed dated 16.10.1981 is not signed by both the tenants and therefore is not binding. The court below applied the law existing on the relevant date. The subsequent decision in the case of Nutan Kumar and others Vs. IInd Additional District Judge and others 2002 (2) ARC 645 S.C. is of no benefit to the plaintiffs revisionists.
In view of the respective submissions advanced by the learned counsel for the parties and the factual background giving rise to this revision the only question which crops up for my consideration is whether the provisions of Act are applicable to the shop in dispute.
The provisions of the Act are applicable to all buildings except those specifically expected from its ambit.
Section 2 of the Act provides for the exemptions of the buildings enumerated therein from the applicability of the above Act.
Section 2(2) of the Act provides that the Act would not be applicable to a building for a period of 10 years from the date on which its construction is completed.
The period of 10 years has been amended to 40 years in respect of buildings constructed on or after 26th April, 1985 w.e.f. 26.04.1985 vide U.P. Act No.17 of 1985. However, the court is not concerned with the aforesaid amendment.
Explanation 1 to Section 2(2) of the Act provides that the construction of a building shall be deemed to have been completed on the date on which its completion thereof is reported to or is otherwise recorded with the local authority and in case of building subject to assessment the date on which the first assessment comes into force and in the absence of the either of the above two conditions the date on which it is actually occupied.
Admittedly, there is nothing on record to establish completion of the building on reconstruction. It completion was not reported or was otherwise recorded by the local authority. No assessment of the shop after its reconstruction was brought on record. The sanctioning of the map for its reconstruction is not material. Therefore, the shop may not have been reconstructed as alleged.
The shop however, came to be occupied by the defendants respondents under the lease deed dated 16.10.1981 w.e.f. the said date. The execution of the registered lease deed dated 16.10.1981 is not disputed by the parties except that it is not signed by both the tenants. The lease contains the signatures of the landlord as well as one of the tenants. The said lease deed clearly provides that the shop in dispute had been reconstructed on 10.10.1981 and the provisions of the Act are not applicable to it. The relevant part of the lease deed in this regard is reproduced herein below.
Þfofnr gS fd ,d nqdku iwjc eqgkuh ,d [kuh ,d eafty e; pcwrjk o NTtk islhu nqdku etdwj fuEufyf[kr lhek c) rkehj iDdh rkehj djnk 10-10-1981 bZ0 ftl ij ,DV ua0 13 ¼jsUV dUVªksy ,DV½ lu 1972 ykxw ugha gSAß In view of above recital in the lease deed the parties admit that the provisions of the Act are not applicable to the shop in dispute. The defendants respondents are joint tenants of the shop in dispute and are not holding it as tenants in common. Therefore, action of one of them bounds the other. Thus, even if the lease deed is signed by one of them it bounds the other.
In Nanakram Vs. Kundalraj (1986) 3 SCC 83 the three Judges Bench of the Supreme Court held that the the parties to the lease deed would be bound by it and neither of them can assail the lease in proceedings between themselves. In other words it was held that any lease deed executed between the parties is binding upon them and none of them can dispute the terms and conditions thereof.
The Apex Court following the above decision in Nutan Kumar (Supra) reiterated the above principle of law and held that the principle of Nanakram's (Supra) case still hold the field and there is no contrary or conflicting decision or authority on the point.
A learned Single Judge of this court in Bal Krishan Gupta Vs. Judge Small Cause Courts, Bijnor and others 2009 (2) ARC 44 following the Nutan Kumar (Supra) held that a contract of tenancy even if contrary to the provisions of the statute would be binding on tenant and the suit for recovery of arrears of rent and ejectment would be maintainable.
A similar view was expressed by another Single Judge in the case of Thakur Prasad Madhesiya Vs. State of U.P. and another 2011 (3) AWC 3002 and it was held that lease in violation of a statutory provision would not be void and the parties would be bound as between themselves to observe conditions of the lease.
In view of the above legal position one thing is clear that the parties to the lease or any rent agreement are bound by the terms and conditions of the lease even though some of the conditions may be contrary to the statute. Thus, even if in accordance with the provisions of the statute a building may be an old building but once the parties accept that it is newly constructed and it is outside the purview of the Act they are bound by the admission and the condition to that effect contained in the lease deed.
A similar controversy had come up before another Single Judge of this court in Writ Petition No.55537 of 2006, Krishna Kumar (Since Dead) & now Repr. by Smt. Asha and others Vs. Ram Prakash Agrawal. In the said case also the dispute related to the question whether the building was a new construction which was outside the ambit of the Act. The court held that in view of the written rent note as the tenant had admitted that the shop was constructed in July, 1975 the courts below were justified in relying upon the said admission to hold that the building was a new construction having been constructed after the enforcement of the Act, as admission is the best evidence.
Thus, in the totality of the facts and circumstances, the shop in dispute as per the admission of the parties and the stipulation contained in the registered lease deed is a new building which is outside the purview of the Act. The court below therefore, has manifestly erred in law in holding otherwise.
The above controversy can be looked into from one another angle.
The Act vide Section 11 prohibits letting out of any building covered by the Act without an order of allotment. Section 13 of the Act further stipulates that no tenant shall occupy any building otherwise than without obtaining an order of allotment. Therefore, an obligation has been cast upon both the landlord and tenant not to let out and occupy any building without the order of allotment.
In view of the above legal position, if the Act would have been applicable neither the plaintiffs revisionists could have let out the shop in dispute nor the defendants respondents could have occupied it without the order of allotment.
In the instant case, admittedly there is no order of allotment of the shop in dispute in favour of the defendants respondents. Thus, the letting out of the shop and its occupation without the order of allotment by necessary implication indicates that the parties accepted the position that the Act was not applicable to the shop in dispute.
Sri Rai has made a feeble attempt to contend that as the lease had expired and was not renewed, the condition of the lease cannot applied.
It is not the question of applying the condition of the lease but the admission contained in the lease. The admission is that the shop in dispute is a new construction and the Act is not applicable to it. Once this factual aspect is admitted, it makes no difference whether the lease continues or stand expired.
The argument of Sri Rai that the law as was applicable on the date of the impugned judgment and order had been applied and the judgment in the case of Nutan Kumar (Supra) is of no assistance is completely misconceived and is not acceptable.
The Supreme Court in Nutan Kumar (Supra) has followed the principle which was laid down in Nanakram's (Supra) case which was decided in 1986. It has not laid down any new law rather has reiterated the law which had existed. The court below in deciding the suit had failed to consider the ratio of Nanakram's (Supra).
In view of the aforesaid facts and circumstances, the finding of the court below that the shop in dispute is within the ambit of the Act is set aside and it is held that the Act is not applicable to it.
The court below while deciding point No.3 has returned a finding that there is nothing on record to show that the notice is invalid. Once the notice is valid and is duly served, the defendants respondents cannot avoid the liability of eviction from the shop in dispute as they do not have the protection of the Act. Default in payment of rent is a ground under Section 20 of the Act but not where tenancy is determined under Section 106 of the T.P. Act simplicitor. Therefore, irrespective of the fact that there is no default in payment of rent the tenant is liable for eviction.
Accordingly, the judgment and order of the court below dated 10th May 1990 is set aside and the suit for the eviction of the defendants respondents from the shop in dispute is decreed with pendente lite and future damages till date of vacation of the shop in dispute at the agreed rate of rent of Rs.480/- per month.
The revision is allowed but no order as to costs.
Order Date :- 17.11.2014 Piyush