Baba Kali Kamli Wala Panchayat Kshetra vs Bharat Petroleum Corp. Ltd.

Rajesh Tandon, J.—Heard Sri V.B.S. Negi, counsel for the appellant and Shri J.C. Belwal, counsel for the respondent.

By the present second appeal filed u/s 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 6.10.2001 passed by the Civil Judge (Sr. Division), Dehradun in civil appeal No. 52 of 2001.

Second appeal was admitted on the following substantial questions of law:

Whether Section 29 (A) of the U.P. Act No. 13 of 1972 applies to the disputed property/

Whether the plaintiff is entitled to get benefit of amendment of Act No. 5 of 1995 of U.P. Act, 1972 being a Public Religious Society?

Whether the lower appellate Court passed the impugned order by considering all the issues as decided by the trial court by recording its detailed finding to the contrary and if not so then the judgment and order is absolutely illegal arbitrary and liable to be set aside?

Whether the lower appellate court is correct in allowing the appeal and dismissing the suit of the plaintiff on admitted facts that the appellant is a Public Religious Society?

Whether the lower appellate court committed an error of law in misleading and ignoring the pleading of the parties; the evidence on record and in recording finding against the evidence?

Whether constructions are of temporary nature and even in case the construction are found to be of permanent nature but against the consent of the landlord; benefit u/s 29 (a) of Act 13 of 1972 cannot be availed?

Briefly stated, a suit was filed by the plaintiff-appellants being suit No. 148/93 for ejectment of the defendant and arrears of rent as well as mesne profits. According to the plaint averments, the plaintiff is a registered society under the Societies Registration Act and the plaintiff No. 2 was secretary of the Society. It has been stated that the defendant is a tenant of an open piece of land measuring about 80'' x 60'' on Badrinath-Hardwar Road, Rishikesh at the rate of Rs. 450/- per month. The defendant has made some constructions such as underground tank and other constructions without the permission of the plaintiff. The plaintiff has sent a notice on 13.1.1983 demanding the arrears of rent and terminating the tenancy of the defendant. The said notice was served upon the defendant on 20.1.1983. But inspite of the notice, the defendant has not vacated the premises in question, hence the present suit has been filed for ejectment of the defendant and arrears of rent/mesne profits.

The defendant has filed a written statement admitting therein the relationship of landlord and tenant between the plaintiff and the defendant. The defendant has also admitted the service of the notice. It has been stated that the plaintiff is not the Secretary of the Society in question and further the registration of the said Society under the Societies Registration Act has been denied. The defendant has paid the rent upto December, 1982 and he has invested a huge amount on permanent construction made over the property with the consent of the plaintiff. U.P. Act No. 13 of 1972 is applicable over the property in dispute and the defendant is entitled to get the benefit of Section 20 (4) of the Act No. 13 of 1972. It has been stated that the property in dispute was given to the defendant on lease and a lease deed had been executed between the parties with the clause of extension and though the time of the lease came to an end, the plaintiff had failed to renew the lease. It has been stated that the suit of the plaintiff is liable to be dismissed.

6.On the pleadings of the parties, the trial court has framed the following issues:

1- D;k oknh la[;k 2 dks okni= dks gLrk{kfjr djus o mldks lR;kfir djus dk vf/kdkj ugha Fkk\\

2- D;k U;k;ky; dks okn dk Jo.kkf/kdkj izkIr ugha gS\\

3- D;k izfroknh }kjk oknxzLr lEifRr ij LFkk;h fuekZ.k dk;Z oknh dh vuqefr ls fd;k gS \\

4- D;k fookfnr lEifRr ij /kkjk 29 �,� m0 iz0 vf/kfu;e lu~ 72 ds izko/kku ykxw gksrs gSa\\

5- D;k izfroknh /kkjk 20 �4� m0 iz0 vf/kfu;e 13 lu~ 1972 ds izko/kku dk ykHk ikus dk vf/kdkjh gS \\

6- D;k okn iks"k.kh; ugha gS\\

7- D;k okn vYi ewY;kafdr gS rFkk vnk fd;k x;k U;k;''kqYd vi;kZIr gS\\

8- D;k oknh 50 :0 izfrfnu ds fglkc ls e/;orhZ ykHk ikus dk vf/kdkjh gS\\

9- vuqrks"k �;fn dksbZ gks rks oknh ikus dk vf/kdkjh gS�]

10- D;k oknh ,d /kekZFkZ laLFkk gS rFkk mlds /kekZFkZ laLFkk gksus ds dkj.k vf/kfu;e 13 lu~ �la''kksf/kr vf/kfu;e 5@95� ds vUrxZr mls dksbZ ykHk izkIr gS\\ ;fn gkWa rks izHkko\\

The plaintiff has produced copy of notice dated 13.1.1983 i.e. paper No. 7 ga, postal receipt i.e. paper No. 8 ga 2, Original report of architect i.e. paper No. 38 ka, registration certificate i.e. paper No. 41 ga, memorandum i.e. paper No. 42 ga, copy of power of attorney, copy of lease deed, copy of circle rate, copy of resolution i.e. paper No. 40 ga. The defendant has produced 10 documents per list 60 ga, map i.e. 75 ga, lease deed i.e. paper No. 77 ka, letter of the plaintiff i.e. paper Nos. 78 ka and 79 ka, and other documents per list 89 ga, 95 ga, 116 ga and 127 ga.

Towards the oral evidence, the plaintiff has examined P.W.1 Shri Baldev Sahay and P.W.2 Shri Siya Ram Sharma. The defendant has examined D.W.1 B.J. Chauhan, D.W.2 Mihir Kumar Mukherji, D.W.3 B.P. Agrawal, D.W.4 T.R. Verma, D.W.5 Uday Vasant, D.W.6 K. Lal, D.W. 7 Jagdish Chand, D.W.8 Rameshwar Das, D.W.9 Hariram Nagliya and D.W.10 Narendra Kumar.

While deciding as to whether the plaintiff No. 2 was having right to sign and verify the plaint, the trial court has taken into consideration paper Nos. 42 Ga/1 & 42 Ga/2 i.e memorandum of association and paper Nos. 43 Ga/1 to 43 Ga/3 which is proposal of annual meeting and has recorded the finding that the plaintiff No. 2 was authorized to sign and verify the plaint.

While deciding as to whether the defendant has made constructions over the property in dispute with the consent of the plaintiff, the trial court has come to the conclusion that the constructions over the property was temporary in nature and the same has been made without the permission of the plaintiff. The trial court has relied upon the lease deed i.e. paper No. 44 Ga which shows that any constructions made by the defendant will be temporary in nature and that shall be removable also.

While deciding as to whether the provisions of Section 29 (A) of U.P. Act No. 13 of 1972 are applicable on the property in dispute and further as to whether the defendant is entitled to get the benefits of Section 20 (4) of U.P. Act No. 13 of 1972, the trial court has relied upon the paper No. 42 ga 1 i.e. Memorandum of Association which shows that the property in dispute is a charitable trust and, therefore, the provisions of Section 29 (A) of U.P. Act No. 13 of 1972 are not applicable to the property in dispute and, as such, the defendant is not entitled to get the benefits of Section 20 (4) of the U.P. Act No. 13 of 1972.

While deciding as to whether the plaintiff is entitled to get Rs. 50/- per day towards mesne profits, the trial court has recorded the finding that the defendant was the tenant of the property at the rate of Rs. 450/- per month and his tenancy was terminated by the notice dated 13.2.1983 but the defendant has not vacated the property in dispute after the lapse of 30 days from the date of notice and, thus, the defendant is in unauthorized occupation of the property in dispute. The trial court, therefore, has recorded the finding that the plaintiff is entitled to get the mesne profits as claimed.

While deciding as to whether the plaintiff has the benefit of Act No. 13 of 1972 being charitable trust, the trial court has recorded the finding that the plaintiff trust is a charitable trust and, therefore, the plaintiff trust is entitled to get benefit of the same.

On the basis of the aforesaid, the trial court has decreed the suit of the plaintiff.

Aggrieved by the judgment and decree passed by the trial court, the defendant went in appeal. The appellate court has allowed the appeal and has recorded the finding to the following effect:

fookfnr lEifRr fcfYMax dh Js.kh esa vkus ds dkj.k fookfnr laifRr ij ;w-ih-,DV 13 lu~ 1972 ds fl)kar ykxw gksrs gSa ,oa izfroknh }kjk oknh dh lgefr ls fookfnr lEifRr ij LFkk;h izd`fr dk iDdk fuekZ.k djus ds dkj.k izfroknh }kjk 20 �4� ,oa /kkjk 29 �,� ;w-ih- ,DV la0 13 lu~ 1972 dk ykHk ikus dk vf/kdkjh gS ,oa izfroknh dks fookfnr laifRr ls csn[ky ugha fd;k tk ldrk A dsoy fdjk;k l{ke izkf/kdkjh }kjk Ik{kdkj fu/kkZfjr djk ldrs gSa A blds vfrfjDr izR;FkhZ@oknh }kjk fnukad 1-7-81 dks yhtMhM dh lekfIr ds i''pkr~ Hkh vihykFkhZ@izfroknh yxkrkj vuojr dCts esa cuk jgk ,oa izR;FkhZ@oknh }kjk fnlEcj 1982 rd dk fdjk;k vihykFkhZ@izfroknh ls izkIr fd;k tkuk yhtMhM dh fjU;w dh ''krZ dks iwjk dj nssrs gSa ,oa yhtMhM lu~ 1982 ls Lor% gh fjU;w ekuh tk,xh A pwafd izR;FkhZ@oknh us lu~ 1983 esa nkok ;ksftr fd;k tks fd izhesP;ksj ;ksftr fd;k x;k gS A bl izdkj ls yhtMhM fjU;w gksus ds dkj.k csn[kyh dk vuqrks"k izkIr ugha dj ldrk gS A fodYi esa ;fn izR;FkhZ@oknh ds vf/koDrk ds rdZ ds ifjizs{; esa fookfnr laifRr dh yhtMhM laifRr varj.k vf/kfu;e ds vUrxZr yhtMhM ekuh tkrh gS rks ,slh fLFkfr esa izFker% yhtMhM jftLVMZ ugha gS rFkk vihykFkhZ@izR;FkhZ fookfnr laaifRr ij lu~ 1950&51 ls nkok nk;jk dh rkjh[k rd rFkk fu.kZ; dh rkjh[k rd djhc 50 lky ls yxkrkj dCts esa jgdj fookfnr laifRr ij isV�ksyiEi pyk jgk gS rFkk vihykFkhZ@izfroknh us fookfnr lEifRr ij izR;FkhZ@oknh dh vuqefr ls vius [kpsZ ij LFkk;h izd`fr ds iDds fuekZ.k dj fy;s gSa A yhtMhM jftLVMZ u gksus ds dkj.k fookfnr laifRr ij vihykFkhZ@izfroknh dk dCtk ykbZlsalh dh gSfl;r dk gks tkrk gS ,oa vihykFkhZ@izfroknh fookfnr laifRr esa ykbZlsalh /kkjk 52 Hkkjrh; lq[kkf/kdkj vf/kfu;e ds varxZr ekuk tk,xk A vihykFkhZ@izfroknh }kjk vius [kpZ ij iDds fuekZ.k djus ds vk/kkj ij fookfnr laifRr /kkjk 60 �ch� Hkkjrh; lq[kkf/kdkj vf/kfu;e dk ykHk vihykFkhZ@izfroknh izkIr djus dk vf/kdkjh gks tkrk gS ,oa mls fookfnr laifRr ls ykbZlsal lekIr djds csn[ky ugah fd;k tk ldrk gS A voj U;k;ky; }kjk vuqrks"k ds okn fcUnq ua0 9 ij mijksDr fof/kd izkfo/kku dks utjvUnkt djds fu.kZ; ikfjr djus esa Hkwy dh x;h gS ,oa =qfViwoZd fu.kZ; ikfjr fd;k x;k gS A

Counsel for the appellant has submitted that the appellate court has set up a third case with regard to Section 60 (b)of the Indian Easement Act and the said plea is not available to the respondent.

Counsel for the appellant has submitted that it has not been pleaded in the written statement that the defendant/respondent has become licensee u/s 52 of Transfer of Property Act.

Counsel for the appellant has further submitted that lease having been expired and the tenancy having been terminated, there being no automatic renewal, the defendant being unauthorized occupant is liable to be evicted.

Counsel for the appellant has further stated that the provisions of U.P. Act. No. 13 of 1972 are not applicable as the appellant being Religious and Charitable Institutions is completely exempted from the purview of Section 2 (bb) of the Act No. 13 of 1972. Section 2 (bb) of U.P. Act No. 13 of 1972 reads as under:

Exemptions from operation of the Act. - (1) Nothing in this Act shall apply to the following, namely -

(a) ...

(b) ...

(bb) any building belonging to or vested in a public charitable or public religious institution;

I have perused the record. Section 60(B) of Indian Easement Act has not been pleaded by either of the parties. Therefore, I find merit in the submission made by the counsel for the appellant that the lower appellate court has recorded the findings arbitrarily while recording the findings with regard to Section 60(B) of the Indian Easement Act. The findings of the appellate court on the said issue are set aside. Further, no benefit can be given to the defendant u/s 60(B) of the Act, as the parties are guided by the lease deed and its tenancy has to be interpreted in accordance with the pleadings of the parties. The finding of the automatic renewal of the lease is also against the settled law that no document is admissible unless it is registered in accordance with the Registration Act.

Counsel for the appellant has referred the judgment dated 31.7.2006 in WP 5804 (M/S) of 2001. The operative portion of the aforesaid judgment is quoted below:

A perusal of the application, which has been registered as Case No. 4 of 1983, filed by the respondent No. 2 shows that for fixing the rent, he has stated that the present market value of the constructions and installations is not less than Rs. 1,50,000/- and the market value of the land is Rs. 50,000/- at the rate of Rs. 24/- per sq. ft. and he requested to determined the rent in accordance with Section 29 (A) of the U.P. Act No. XIII of 1972.

Against the aforesaid application, petitioners filed their objection stating therein that the market value of the land is not less than Rs. 1000/- per sq. meter and the value of the said plot is about Rs. 5.00 lacs.

Prescribed authority has allowed the application of the respondents and fixed the value of land to the extent of Rs. 13,377.60 per year or Rs. 1114.80 per month to be payable from 01.7.1981.

Aggrieved by the said order dated 31.10.1991, the petitioners have filed the present writ petition.

The Prescribed Authority has taken into the consideration the provisions of 29 (A) of the U.P. Act No. XIII of 1972. The amount of rent has been fixed by the authorities u/s 29 (A) of the U.P. Act No. XIII of 1972.

In view of the above, I do not find any illegality in the impugned order as the rent was fixed w.e.f. 01.7.1981. However, liberty is given to the respondent No. 2 to pay the amount of rent to the petitioners in installments in accordance with law.

Subject to the aforesaid observations, the writ petition is dismissed.

As will appear from the aforesaid that in the year 1981, rent was fixed to the extent of Rs. 1114.80 per month and since then, 27 years have passed. Lease having been expired on 1.7.1981, defendant has no ground to remain in possession without paying the damages at the market rate.

In Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd., after relying upon various judgments, it has been held as under:

In Shyam Charan Vs. Sheoji Bhai and Another, , this Court has upheld the principle that the tenant continuing in occupation of the tenancy premises after the termination of tenancy is an unauthorized and wrongful occupant and a decree for damages or mesne profits can be passed for the period of such occupation, till the date he delivers the vacant possession to the landlord.... After determination of the tenancy, the position of the tenant is akin to that of a trespasser and he cannot claim that the measure of damages awardable to the landlord should be kept tagged to the rate of rent payable under the provisions of the Rent Control Order. If the real value of the property is higher than the rent earned then the amount of compensation for continued use and occupation of the property by the tenant can be assessed at the higher value.

Relying upon the judgment of Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd., in Vithalbhai Pvt. Ltd. Vs. Union Bank of India, it has been observed as under:

We make it clear that the respondents shall be liable to pay the rent equivalent to mesne profits with effect from the date with which they are found to have ceased to be entitled to retain possession of the premises as tenant for such period the landlord''s entitlement cannot be held pegged to the standard rent. Reference may be had to the law laid down by the Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. JT 2004 (1) SC 410 : 2005 (10) SCC 705 : 2005 SCFBRC 99.

The land let out is 80'' x 60'' and the defendants are running a petrol pump there, which shows that the land in dispute has a greater commercial value.

In view of the aforesaid, rent is fixed at the rate of Rs. 5,000/- per month at this stage from the filing of the suit. Liberty is also given to apply u/s 21 (a) (8) of the Act for enhancement of rent on the market value of the land.

In view of the aforesaid, judgment and decree of the appellate court is set aside. However, second appeal is allowed and is remanded to the appellate court for deciding the following issues:

(1) Whether the construction in dispute has been raised after getting permission of the landlord?

(2) Whether appellant being Religious and Charitable Institution is exempted from the purview of the Act No. 13 of 1972?

(3) Whether the benefit of Section 29 (A) is available to the defendant?

(4) Whether the benefit of Section 20 (4) is available to the defendant?

(5) Status of the defendant after the lease has expired on 1.7.1981.

(6) Damages/mesne profit for use and occupation after the lease has expired and further after termination of tenancy.

In view of the aforesaid, substantial questions of law are decided in favour of the appellant. The matter is remanded to the appellate court for recording the findings afresh on the aforesaid issues. The appellate court shall, thereafter, decide the matter in accordance with law.

In view of the aforesaid, second appeal is allowed and remanded to the appellate court for deciding afresh in the light of the observations made above. Further, the defendant is directed to deposit the amount in the executing court which shall be paid to the appellant. No order as to costs.