Nagpur Bench vs Ori. Plff
2011 Latest Caselaw 282 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                     
                        NAGPUR BENCH, NAGPUR

                             SECOND APPEAL NO. 152 OF 2007




                                                    
     APPELLANT :-            Indian Oil Corporation Ltd.,
     Ori. Def.               Having its registered office at
                             Indian Oil Bhavan, G-9,
                             Ali Yawar Jung Marg,
                             Bandra (East), Mumbai.




                                         
                                           ...VERSUS...


     Ori. Plff.
                       
     RESPONDENT :- The Zilla Parishad, Nagpur.
                             Through its Chief Executive Officer,
                             Civil Lines, Nagpur.
                      
     -------------------------------------------------------------
                 Mr. H.V. Thakur Advocate for appellant.
                 Mr. M.A. Sable Advocate for respondent.
     -------------------------------------------------------------
      


                                          CORAM : A.B. CHAUDHARI,J.
                                          RESERVED ON : 12.12.2011.
   



                                          PRONOUNCED ON :23.12.2011.


     J U D G M E N T :

Being aggrieved by the judgment and decree passed concurrently by Adhoc District Judge-1, Nagpur, in Regular Civil Appeal No. 471 of 2002 confirming the rd judgment and decree dated 31.10.2002 passed by 3 Joint

Civil Judge, Jr.Dn., Nagpur, in Regular Civil Suit No. 1289 of 1993 in the matter of eviction and possession of the appellant from the suit site, the present second appeal was filed in this Court.

2. FACTS :

Zilla Parishad, Nagpur/original plaintiff filed Regular Civil Suit No. 1289/93 in the Court of Civil

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Judge, Sr.Dn., Nagpur, for eviction and possession of the suit plot, admeasuring 100 x 100 ft., in the compound of

Ex-Janpad Sabha, owned by Zilla Parishad, Nagpur, that was leased out. Initially, the lease-agreement dated 6.5.1969 was for a period of 20 years, which expired in the year 1989. The lease was thereafter not renewed.

Clause (j) of the agreement clearly provide that unless and until a fresh lease-deed with suitable terms and conditions are not executed in writing, the lease shall

not be deemed to have been automatically renewed. Since the lease was not renewed, on 15.7.1989 legal notice was

issued to the appellant calling upon them to vacate the premises.

Appellant filed written statement at Ex.26 and admitted that they had taken the plot admeasuring 100 x 100 ft on lease for running petrol pump. They also admitted that the lease stood expired and was not

renewed. However, they stated that the Zilla Parishad, Nagpur, had accepted the rent up to February 1992 even

after lease period had expired, but the cheque for the rent amount for March 1992 was refused. Thus, by `holding over' the appellant continued to be the tenant. It was

stated that the provisions of C.P. & Berar Letting of Premises and Rent Control Order, 1949 were applicable to the suit premises and the suit was bad since the suit was filed without permission from the Rent Controller. The

trial Court decreed the suit. Thereafter, the appellant preferred appeal (Regular Civil Appeal No. 471/02) before District Judge, Nagpur, who by the impugned judgment and order dismissed the said appeal. Hence, this second appeal.

3. SUBMISSION:

Mr.Thakur, learned counsel for the appellant,

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invited my attention to the substantial question of law framed by this Court on 13.4.2007, which reads thus :

" Whether the Courts erred in holding that the suit premises were exempted from the

purview of the C.P. & Berar Rent Control Order, 1949, placing reliance on the notification dated 26.7.1949 (Part II) when there was no pleading to the

aforesaid effect in the plaint filed by the respondent?"

The counsel further argued that the pleadings nowhere

indicate that the suit property was held by Zilla Parishad, Nagpur, as successor to Janpad Sabha, and since the said notification dated 26.7.1949 grants exemption only to the properties held by Janpad Sabha, the Courts

below erred in holding that there was exemption from the provisions of Rent Control Order for the plaintiff/Zilla

Parishad, Nagpur. He then argued that assuming that the said notification had any applicability, the same would not apply to open sites as exemption granted therein is

only for the `houses' owned by Janpad Sabha and not the open plot. As a matter of fact, by inserting Clause 4-A to the Rent Control Order, 1949 by Maharashtra Amendment dated 27.6.1989 the word "premises" has substituted the

word "house" in the definition so as to include open site and the house also and therefore the suit site being open plot no exemption could be read in favour of plaintiff Zilla Parishad. The notification dated 24.10.1958 filed in the paper-book (at page 113) was struck down by this Court in para 36 of the judgment in 1986 Mh.L.J. 882 -

     Vidarbha         (Rent    Control)       Bhadekaru     Sangh        v.     State     of





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     Maharashtra.           The Courts below committed an error that

merely because the lease was not renewed, no fresh tenancy

was created particularly because the rent was accepted by the respondent/Zilla Parishad up to February 1992 and, therefore, there was conscious waiver on the part of the landlord in respect of quit notice. The suit was not

maintainable. He, therefore, prayed for setting aside the judgments rendered by the courts below.

4. Per contra, opposing the appeal, Mr.Sable,

learned counsel for the respondent/Zilla Parishad, argued that this Court should not interfere with the concurrent

finding of facts recorded by the courts below. questions raised by the learned counsel for the appellant All the

have been dealt with by the courts below legally and correctly and with correct appreciation of facts and notification etc. on record. There is no error of law even committed and in the light of the decision of apex

court the scope of second appellate jurisdiction is very limited. The counsel then argued that after coming into

force of the Maharashtra Rent Control Act of 1999 and in the light of the judgments rendered by this Court in (i) Mohd. Azizul Haq & ors. v. Dilip - 2008 (6) Mh.L.J. 482

and (ii) Maharaji wd/o Bajrangi Vishwakarma v. Sayeedabi w/o Haji Sayyad Gani - 2006(2) ALL MR 133, the suit has been rightly decreed by the civil court and even by the appellate court taking note of the subsequent change in

law.

The fact that the suit property belongs to Zilla Parishad as successor of Janpad Sabha need not be pleaded as the same is a matter of statutory law. The appellant was paying the lease money of only Rs.100/- per month for the site, admeasuring 10000 sq. ft. opposite the Collectorate and premises of District Court, Nagpur, and

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never bothered to offer to increase any rent. Now, by the policy of the Government the rate of rent is decided and

by the relevant Government Resolutions if the rent is calculated the same would not be less than Rs. four lacs per month. The appellants are not ready to pay the said rate of rent and have offered only Rs.50,000/- per month

in this Court. So far as the appeal is concerned, there is no right in the appellant since the period of lease expired in 1989 and after expiry of lease period, the

appellant is liable to pay the lease money as per the market rate. Even that has not been done. He, therefore,

5.

prayed for dismissal of the appeal.

I have gone through the impugned judgment and

decree. I have also heard learned counsel for the rival parties at length on number of dates. I have gone through the record and proceedings. I frame the following additional substantial questions of law :

(ii) Whether after coming into force of the

Maharashtra Rent Control Act, 1999 with effect from 31.3.2000 the change in law providing no protection to the lessee of the open plots in

contradiction to such protection by virtue of Clause 4-A in Rent Control Order 1949 could be applied by the Court?

(iii) Whether after expiry of lease period of

the appellant in the year 1989 because of the alleged acceptance of rent up to February, 1992 the lease was automatically renewed; and consequently, the appellant acquired status of tenant?

(iv) Whether there is acquiescence on the part of Zilla Parishad in accepting the rent,

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thereby waiving right to issue quit notice?

6. CONSIDERATION :

As to question no. (I):

At the outset, I find that the appellate court has categorically held that this issue being a matter of provisions of law, there was no requirement of any pleading. It also held that the appellant having accepted

the respondent as landlord in respect of the suit-plot, it was estopped from saying that it did not own the plot.

Thirdly, it quoted the provisions of Maharashtra Decentralization Bill No. XXXV of 1961 to support the

reasons. I quote below the relevant portion from para 6 of appellate judgment-

"The various statutory bodies functioning in the district, namely District Local Board,

Janpad Sabha, District School Board and District Village Panchayat Mandal were

proposed to be abolished and function of all these bodies were devolved on District Council and Block Committee under the scheme

of Maharashtra Decentralization Bill No. XXXV of 1961 which was subsequently changed as District Council into Zilla Parishad and Block Committee into Panchayat Samiti. The

State Government may transfer to any Zilla Parishad such property moveable or immoveable. When the provisions of any enactment has declared status of any corporate body it does not require to be pleaded in detail. It is further to be noted that even as per the lease agreement Ex.64

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the defendant had accepted the plaintiff as owner/lessor of the suit property. The

defendants are, therefore, estopped to challenge that the plaintiff did not plea that it has succeeded to local body like Janpad Sabha."

All the above three reasons recorded by the first appellate court are legal, correct and proper and I fully agree with the lower appellate court on the said

finding of fact. I, therefore, find that there was no need for pleading the aforesaid facts, namely that Zilla

was owned by it.

Parishad was successor of Janpad Sabha, and the suit plot All the more so because the appellants

having accepted respondent/Zilla Parishad as landlord or lessor, could not turn round and say that it was not the owner of the suit plot or it did not acquire the property from Janpad Sabha. That apart, perusal of the lease-deed

and the Schedule thereof clearly mentions that the suit property is in the compound of Ex-Janpad Sabha. There is

a mention of the suit property as in the compound of Ex- Janpad Sabha in the schedule and on the very first and second page of lease-deed the description that the suit

plot is in the compound of Ex-Janpad Sabha and now of Zilla Parishad has been duly proved and has not been challenged by the appellant. Therefore, on facts, courts below were right in recording the finding. In addition, I

would like to give one more reason in support of the above finding. Janpad Sabha was established under the provisions of Central Provinces and Berar Local Government Act, 1948 before coming into force of Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 (for short Z.P. Act). Section 288 of Zilla Parishad Act reads thus :

                        "The       provisions         contained           in      the





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                    Eleventh        Schedule        shall        apply       to     the
                    constitution       of    Zilla       Parishads       and      other




                                                           
                    matters specified therein."
     It refers to eleventh schedule of the Act.                               I quote below

relevant portion, i.e. clause 1, 2(a), (ki) thereof:

"1. (a) ....

(b) `existing board' in relation to any local area means the district local board established under the Bombay Local

Boards Act, 1923, or the Janpad Sabha constituted under the Central Provinces

and Berar Local Government Act, 1948, or the district board established under the

Hyderabad District Boards Act, 1955, as the case may be, and having jurisdiction over such area immediately before the appointed day;

2. On and with effect from the appointed day, the following consequences shall

ensue, that is to say.-

(a) all property, moveable and immovable, and all interests of whatsoever

nature and kind therein, which vested in an existing board immediately before the appointed day, shall be deemed to be transferred to, and shall vest, without

further assurance, in the State Government, until the Zilla Parishad (as constituted for the first time for the area in which such existing board was functioning) holds its first meeting under this Act, subject to all limitations, conditions and rights or interest of any

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person, body or authority in force or subsisting immediately before the

appointed day, and thereafter, in the Zilla Parishad as so constituted;

[(ki) any reference in any law or in

any instrument to a district local board, or district board, local board or Janpad Sabha shall, unless a different intention appears, be construed as a reference to a

Zilla Parishad and such law or instrument shall apply to the Zilla Parishad;]"

7.

Reading of the above provisions clearly show

that Zilla Parishad, Nagpur, came into existence under the provisions of Zilla Parishad Act and all the moveable and immoveable properties vested in the Janpad Sabha stood transferred to Zilla Parishad. Thus by virtue of Zilla

Parishad Act, Zilla Parishad, Nagpur, became successor of Janpad Sabha. I, therefore, repeat that the courts below

were right in holding that no pleadings were required for this issue. Hence, I answer question no. (i) in negative.

8. Question No. (ii) :

Under this question, arguments regarding applicability of Rent Control Order to the open plots will have to be dealt with before dealing with the question of

about applicability of change in law. On facts, I find that the suit plot admeasuring 100 x 100 ft. that was given to the appellant was out of the compound of Janpad Sabha as described in the lease-deed under schedule. It was out of non-agricultural survey no. 233. Besides, the piece of land of 100 x 100 ft. given to the appellant as described in schedule to the plaint has been duly proved

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as in survey no. 233. In the same survey no. 233, on the North there is Krishi Bhavan of Zilla Parishad, on East

there is office of Executive Officer of Zilla Parishad, Nagpur. There is no challenge to this factual aspect occurring in the lease-deed as well as in the schedule to the plaint which has been duly proved by P.W.1

Purushottam. Factually, I, therefore, find that the piece of plot admeasuring 100 x 100 ft. given to the appellant on lease is out of survey no. 233 and the part and parcel

thereof in which Krishi Bhavan and Office of Executive Officer of Zilla Parishad, Nagpur, are situated and this

piece of land admeasuring 100 x 100 ft. was not separated from said non-agricultural survey no. 233, but to repeat

was part and parcel of the said survey number in which Krishi Bhavan and office of Executive Officer of Zilla Parishad have been located. Consequently, the suit piece of land admeasuring 100 x 100 ft. is the land

appurtenant to the office of Krishi Bhavan and office of Executive Officer of Zilla Parishad. These facts are

available on record and they are admitted facts seen from the documents. Now the definition of "House" under C.P. & Berar Letting of Houses and Rent Control Order, 1949 reads

thus :

"House" means a building or part of the building whether residential or non- residential, and includes -

(a) the garden, ground and out houses (if any) appurtenant to such building or part of a building, and

(b) .....

9. The notification No. 3732-3140-II dated 26.7.1949 reads thus :

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The Provincial Government are pleased to exempt from all the provisions of the said

Order :

(i) any house belonging to a Municipality, a notified area committee or a Janpad Sabha;

(ii) any house used as a place of entertainment with the meaning of clause (b) of section 2 of the Central Provinces and Berar

Entertainments Duty Act, 1936 (XXX of 1936).

notification

The relevant portion is clause (i) from the said in relation to Janpad Sabha. This

notification provides for exemption from all the provisions of Rent Control Order, 1949 for any house belonging to Janpad Sabha. The suit plot, as already held by me, is appurtenant to the house. Therefore, in my

opinion, the suit property will be clearly exempted from the said notification. I, therefore, concur with the

finding of facts recorded by the courts below for this additional reason. Consequently, I hold that the provisions of Rent Control Order, 1949 would not apply in

respect of the suit plot and no protection is available to the appellant, as contended.

10. Apart from the above, it is seen that the suit

in question was filed by plaintiff-Zilla Parishad under general law and was not under the provisions of repealed Act/Order, namely C.P. & Berar Letting of Houses and Rent Control Order, 1949. The definition of 'premises' was inserted by clause 4-A with effect from 27.6.1989 in Rent Control Order which provided for permission from the Rent Controller even in respect of open plot. By Maharashtra

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Rent Control Act, 1999, which came into effect from 31.3.2000, the condition of obtaining permission for open

plots has been removed or rather no protection is given in respect of open plots under the Act of 1999. The instant suit was decided in the year 2002 while the first appeal was decided by the lower appellate court in the year 2007,

i.e. after coming into force of Rent Control Act, 1999. The proceedings of the suit is not under any repealed Act. The change in law brought out by the Rent Control Act of

1999 will have full application at the time of deciding of the suit as well as the appeal. In a like situation, this Court L.Rs. v.

in Smt. Kaushalyabai Biharilal Pateria (dead) thr. Hiralal Bhagwandas Gupta (dead) thr. L.Rs. - 2007(2) ALL MR 679, in para 18 of the judgment, held

thus:

"18. The apex court in the case of Gummalapura Taggina Matada Kotturuswami v. Setra

Veeravva & ors. reported in AIR 1959 SC 577 held that it is well settled that an appellate court

is entitled to take into consideration any change in law. Similarly, in the case of United Bank of India, Calcutta v. Abhijit Tea Co. Pvt.

Ltd. & ors reported in (2000)7 SCC 357 : [2004(4) ALL MR 875 (SC)]; the apex court in para 20 held as under :

"Now it is well settled that it

is the duty of a court, whether it is trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. [see G.P. Singh :

th Interpretation of Statutes, 7 Edn. p.

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406] It while a suit is pending, a law like the 1993 Act that the civil court

is bound to take judicial notice of the statute and hold that the suit even after its remand cannot be disposed of by it."

In the case of Qudrat Ullah v. Municipal Board, Bareilly - AIR 1974 SC 396 the position that emerges is

that if during the pendency of appeal the provisions of relevant Act are withdrawn from any area, then the appeal

shall be disposed of in accordance with general law and not in accordance with the provisions of Rent Act. The

question, whether a change in law at the time when the appeal is pending can be taken into consideration while giving relief in appeal, is also concluded by the same judgment that a change in law can be considered by the

appellate court in order to give relief at the time of disposal of the appeal, in the light of decision in

Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva

- AIR 1959 SC 577. In that case, the question that had directly arisen for consideration of the apex court was

answered by saying that the change in law that took place when the appeal was pending before the supreme court has got to be taken into consideration for giving final relief and, accordingly held on the facts of that case,

and considering the provisions of Section 14 of Hindu Succession Act, that the widow had become full owner of the suit property, and the appeal preferred by the original plaintiff came to be dismissed. In Marutrao Pandurang Zende V. Eknath Shivram Jagtap - 1980 Mh.L.J.

238, this Court in para 13 of the judgment, quoted para 27 from the judgment in Qudrat Ullah's case, which reads

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thus:

" ... It is appropriate for a Court to

do justice between parties to the litigation and in moulding the relief in the light of the subsequent developments, to take note of

legislative changes. A Court of justice should, if it could, adjudicate finally and not leave the door ajar for parties to litigate again ..."

11. Hence, I hold that the change in law will have to be applied and has been rightly applied by the courts

below. Hence, I answer question no.(ii) in affirmative.

12. As to Question NO. (iii) :

This issue is covered by the decision of supreme court in the case of Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd. v. Khaja Medhat

Noor reported in AIR 1988 SC 1470. While considering the provisions of Sections 106, 107 and 116 the apex court

held as under :

"Since the lease was for a period exceeding one year, it could only have been

extended by a registered lessee instrument executed by both the lessor and the lessee. In the absence of registered instrument, the lease month shall be deemed to be "lease

from month to month."

The submission made by Mr.Thakur that the appellant acquired status of tenant therefore does not appeal to me, since in the instant case, lease was never renewed after the period of 20 years, i.e.1989. As a matter of fact, for want of any contract after expiry of tenure of lease in the year 1989, the appellant ought to

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have paid rent as per market rate, but that was not done since this litigation has been pending. The respondent/

Zilla Parishad would definitely be entitled to take such steps are available in law to recover the lease money or rent with effect from expiry of tenure of lease as per the market rate at the relevant time. Hence, I hold that

there was no creation of tenancy. Question no. (iii) is answered in negative.

13. As to Question No. (iv) :

This question on facts has been answered by the courts below

against the appellant rightly since wiaver must be shown to have been made with and, in my opinion

intention. Instead of repeating the reasons, I think it better to quote the reasons recorded by the lower appellate court in para 12 of its judgment :

"It is contended that by issuing a letter

Exh.68-A dated 5.6.1992 the plaintiff demanded demand draft of rent amount of February 1992

instead of sending a rent amount by cheque.

From the oral and documentary evidence placed on record by the defendant it is proved that till

February 1992 the rent amount was paid. Only because rent was accepted that in itself cannot be a reason or circumstance to say that the plaintiff waived its right to claim ejectment

and possession. It is to be noted that as per lease agreement Ex.68 it was incumbent to execute the fresh lease agreement. It indicates that unless fresh lease agreement was executed the question of renewal or continuation of tenancy would be there. There was no relinquishment of known right to claim ejectment

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and possession by the plaintiff. On the contrary, by issuance of letter and notice and

refusal of accepting rent would tantamount that the plaintiff did never waive his right to claim abetment and possession and he had no intention to waive his right. I, therefore, answered this

point in negative."

14. For the above reasons, I do not find any merit

in the present appeal. Hence the following order.

ig O R D E R

(i) S.A. No. 152 of 2007 is dismissed.

(ii) There shall be no order as to costs.

JUDGE

/TA/