Acharya R.N. Kela Inter College vs Sabir Khan
2012 Latest Caselaw 5006 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 7
 

 
(1)	Case :- WRIT - A No. - 10455 of 2005
 

 
	Petitioner :- Acharya R.N. Kela Inter College
 
	Respondent :- Sabir Khan
 
	Petitioner Counsel :- A.K. Gupta, A.K.Narayana
 
	Respondent Counsel :- Siddharth Verma
 

 
(2)	Case :- WRIT - A No. - 10466 of 2005
 

 
	Petitioner :- Acharya R.N. Kela Inter College
 
	Respondent :- Vipin Raj
 
	Petitioner Counsel :- A.K. Gupta, A.K. Narayan
 
	Respondent Counsel :- Siddharth Verma
 

 
(3)	Case :- WRIT - A No. - 10470 of 2005
 

 
	Petitioner :- Acharya R.N. Kela Inter College
 
	Respondent :- Vikram Singh Chauhan
 
	Petitioner Counsel :- A.K. Gupta, A.K.Narayana
 
	Respondent Counsel :- Siddharth Verma
 

 
(4)	Case :- WRIT - A No. - 10471 of 2005
 

 
	Petitioner :- Acharya R.N. Kela Inter College
 
	Respondent :- Munna
 
	Petitioner Counsel :- A.K. Gupta, A.K.Narayana
 
	Respondent Counsel :- Siddharth Verma
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri A.K. Narayana, Advocate, for petitioner and Sri Siddharth Verma, Advocate for respondents.

2. All these four writ petitions have been filed by same petitioner, namely, Acharya R.N. Kela Inter College, Najibabad, Bijnor through its Manager Sri Ram Kumar Agarwal. The dispute relates to non residential accommodation i.e. the shops which are under tenancy of different tenants who are respondents in these writ petitions.

3. Petitioner-landlord filed suit for realization of rent/damages and ejectment after determination of tenancy on the ground of default in payment of rent.

4. Before Trial Court, namely, Small Causes Court, Bijnor, parties agreed that property in dispute, owned by an Educational Institution, is exempted from the application of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") and, therefore, the matter would be governed by the provisions of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882").

5. The Trial Court dismissed suits on the ground that entire rent was paid by tenants by depositing it under Section 30 of Act, 1972 and, therefore, it cannot be said that tenants are in default but they are entitled for the benefit under Section 114 of Act, 1882. Petitioner took up the matter in revision and Revisional Court has also confirmed Trial Court's order but added one more reason for non suiting the petitioner. The Revisional Court found that under the bye-laws of Society of petitioner-Institution, notice ought to have been issued under the signature of President and Secretary/Manager but in the present case only Manager has signed the notice, determining tenancy, issued under Section 106 of Act, 1882. Therefore, notice was also invalid and has not resulted in determining tenancy of those tenants.

6. Before this Court Sri A.K. Narayana, Advocate, raised two contentions. Firstly that Section 114 of Act, 1882 would not have attracted in the case in hand and for this purpose relied upon a decision of this court in Ram Bali Pandey Vs. II Additional District Judge, Kanpur and other 1999 1 AWC 413. Secondly he submitted, when Act, 1972 was not applicable, any deposit made under Section 30 thereof would not entitle respondent-tenants to claim benefit under Section 114 of Act, 1882.

7. Per contra, Sri Siddharth Verma, learned counsel for respondents submitted that here is a case where tenancy was determined on the ground of non payment of rent i.e. default, referable to Section 111 (g) of Act, 1882, and exercising right of re-entry on certain conditions. That being so, it was not a simplicitor termination of tenancy by issuing a notice under Section 106 of Act, 1882. Hence Section 114 has rightly been applied by the Courts below and decision cited on behalf of petitioner would not apply. The matter, in fact he argued, would be governed by an earlier decision of this Court in Surjeet Singh Vs. A.D.J. Haridwar and others 1993 (22) ALR 482. He further submitted that in a bona fide manner, tenants have paid rent under Section 30 and, therefore, the said deposit must be taken into note for the purpose of deciding compliance of Section 114 of Act, 1882 and no interference is warranted on this aspect.

8. Sri Verma, lastly contended, even if the deposit made under Section 30 may not be given due credit to the respondent-tenants, still the petitioner cannot succeed for the reason that the Revisional Court has found that notices issued by petitioner were not valid and hence there was no determination of tenancy in the eyes of law. As a result thereof, no relief could have been granted. The Courts below thus have rightly dismissed the suit.

9. Coming to the first and second aspects of the matter, which can be taken together, this Court finds that the parties have not placed on record notice issued by petitioner-landlord but from the reading of plaint, it is evident that tenancy sought to be determined by the petitioner-landlord was on the ground that tenants have not paid rent and, therefore, have committed default giving a right of re-entry to landlord and for that reason, tenancy was determined.

10. In the decision cited by petitioner i.e. Ram Bali Pandey (supra) the Court has categorically observed that Section 114 will not come into picture in a case where tenancy is simplicitor terminated under Section 106 of Act, 1882. The relevant observation contained in Para 23 of the judgment reads as under:

"The tenancy was terminated under Section 106 of the T.P. Act simpliciter. For the applicability of Section 114, existence of an agreement containing a stipulation empowering the landlord to re-enter in the demised premises in case of breach of a condition regarding payment of rent is essential. In the present case there was no such agreement and as U.P. Act No. 3/47 was not applicable to the premises, there was simpliciter termination of tenancy under Section 106 of the T.P. Act by serving a notice thereunder. The mere fact that the notice stated about non-payment of rent also besides termination of monthly tenancy and demand of vacant possession it would not be a case of forfeiture under Clause (g) but one of determination of tenancy by exercising power under Clause (h) of Section 111 of the T.P. Act. No authority is required for the proposition that where there is simpliciter termination of tenancy under Section 106 of the T.P. Act and not under Section 111 (g) of T.P. Act, then provisions of Section 114 of the T.P. Act cannot be attracted. This argument of respondents' counsel also does not appeal to the Court and has to be rejected."

(emphasis added)

11. On the contrary, in an earlier decision of learned Single Judge in Surjeet Singh (supra) this Court has said:

"6. Sri Rajesh Tandon, learned counsel for the petitioner contended that once the revisional court has upheld the finding that the U.P. Act No. 13 of 1972 is not applicable then the provisions of Section 114 of the Transfer of Property Act becomes applicable automatically. In support of his contention he has relied upon a decision reported in 1989 Supreme Court and Full Bench Rent Cases page 500, Arjun Khiama Makhijani v. Jamandas C. Tuliani. According to it Section 114 of Transfer of Property Act applies to that case where a lease of immovable property has been determined by forfeiture for non-payment of rent.

7. Applying the same principle in the instant case I am of the view that since the U.P. Act No. 13 of 1972 is not applicable the petitioner was entitled for the relief as contemplated under Section 114 of the Transfer of Property Act."

"14. After hearing the learned counsel for the parties and perusing the record I am of the view that since the U.P. Act No. 13 of 1972 was not applicable the tenant became entitled for protection under Section 114 of the Transfer of Property Act."

12. In my view, the decision in Surjeet Singh (supra) would squarely apply to the present case and, therefore, it cannot be said that Courts below have erred in taking a view against the petitioner in respect to application of Section 114 of Act, 1882 in the case in hand. However that by itself would not result in resting the matter inasmuch it is not a case where any payment was made by the respondent-tenants as contemplated under Section 114 but what has been contended that they have been paying rent by depositing it under Section 30 of Act, 1972, therefore, it cannot be said that the tenants are in arrears of rent.

13. Once it is admitted by the parties that Act, 1972 is not applicable to the accommodation in question, question of giving any benefit of deposit made under Section 30 thereof cannot arise. Such benefit cannot be extended to the respondent-tenants. It is well established that a tenant cannot claim double protection. Either he can claim protection under Act, 1882 or under Act, 1972 and not under both, simultaneously, particularly, when an admitted case between the parties is that one of the Statute is inapplicable to the accommodation in question.

14. In Prithvichand Ramchand Sablok Vs. S.Y. Shinde AIR 1993 SC 1929, it was held that a tenant cannot be allowed benefit under both the Acts, namely, Rent Control Act and Transfer of Property Act simultaneously. Therein the Court held that if the Rent Control Act is applicable, the tenant would be disentitled for protection under any other Act. True would be the exposition of law in a reverse case.

15. Relying on the aforesaid decision in Prithvichand Ramchand Sablok (supra), this court in Surjeet Singh (supra) in para 11 has said:

"Since in the instant case the finding has been recorded that the U.P. Act No. 13 of 1972 is not applicable therefore, the defendant is entitled for relief under Transfer of Property Act"

16. Considering the above discussion, it cannot be said that a payment under Section 30 of Act, 1972 can be given due credit for the purpose of Section 114 of Act, 1882. The payment contemplated under Section 114 of Act, 1882 has neither been made to the landlord nor any order with respect to security etc. has not been obtained from the Trial Court. Therefore, it is difficult to subscribe to the view of Courts below that here is a case where there is compliance of Section 114 of Act, 1882 and to this extent, Courts below have taken a view which this Court cannot sustain. I, therefore, hold that in the present case it cannot be said that the respondent-tenants have complied with the requirement of Section 114 of Act, 1882 and were entitled for the benefit thereunder for the reason that the amount deposited under Section 30 of Act, 1972 would not be deemed a payment made under Section 114 of Act, 1882 when admittedly Act, 1972 has no application to the accommodation in question.

17. Now coming to the third aspect of the matter, this Court finds that Revisional Court has categorically recorded a finding regarding invalidity of notice given by petitioner through its Manager determining tenancy of respondent-tenants under Section 106 of Act, 1882. There is not even a whisper in the entire writ petition challenging these findings of Revisional Court. It is not stated anywhere that the notice was valid and findings recorded by the Revisional Court are incorrect. Nothing has been shown to assail the findings of Revisional Court in respect to invalidity of notice. Even during the course of arguments, nothing could be shown to persuade this Court to take a different view than what has been followed by the Revisional Court. By referring to the bye-laws of petitioner's Society the Revisional Court has categorically recorded a finding that a notice, unless signed by the Manager and the President, both, cannot be said to be a valid notice issued by the competent authority since under the bye-laws such a document ought to have been signed by both these persons. The aforesaid findings go to the root of the matter. An invalid notice cannot determine tenancy. Hence no relief to the petitioner-landlord, in the present case, could have been granted and, hence, the ultimate decision of Courts below that suit deserves to be dismissed cannot be faulted.

18. For the reasons above, I find no occasion to interfere with the ultimate orders, impugned in this writ petition, insofar as they have dismissed the suit filed by petitioner, though I have given my own reasons.

19. In view of above, all the writ petitions are dismissed.

20. There shall be no order as to cost.

Dt. 10.10.2012

PS