Municipal Council, Thru. C.O vs Abdul Sadiq Mohammed Yusuf
2017 Latest Caselaw 5503 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No. 164 of 2015


 Municipal Council, Achalpur,
 through its Chief Officer,
 Achalpur,
 Distt. Amravati.                            .....           Appellant


                                   Versus


 Abdul Sadiq Mohammed Yusuf,
 aged - major,
 occupation - business,
 resident of Paratwada,
 Tq. Achalpur,
 Distt. Amravati.                            .....        Respondent



                                 *****
 Mr. S. Y. Deopujari, Adv., for the appellant.

 Mr. P. R. Agrawal, Adv., for the respondent.

                                    *****



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                                  CORAM :          A.S. CHANDURKAR, J.

                                  Date        :    03rd August, 2017


 ORAL JUDGMENT:

01. This appeal has been filed by the original plaintiff which is

aggrieved by the dismissal of its suit for possession.

02. Municipal Council, Achalpur, is the original plaintiff. It is the

case of the Council that it owns several open plots in the Weekly

Market. Lease rights in these plots were auctioned every year for the

period from 1st April of that year to 31st March of the next year. In the

auction for the period from 1st April, 1986 to 31st March, 1987 in

respect of Plot No.11, the bid of the defendant was accepted. Lease

was granted to him on payment of Rs.905/- as premium. The Council

decided not to lease out the plots after March, 1987 as it intended to

reserve it for construction of a market complex. Notice dated 13th

February, 1987 informing the defendant that he would have to vacate

the plot by 31st March, 1987 was given. Two more notices dated 21st

April, 1987 and 18th August, 1987 also came to be issued. On failure

of the defendant to hand over possession, the Municipal Council filed

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the aforesaid suit for possession along with damages at the rate of

Rs.100/- per month.

03. In the written statement filed on behalf of the defendant, it

was pleaded in para 4 that the defendant had taken leasehold rights of

said plot for a period of one year by paying Rs.905/-. However,

ownership of the Municipal Council was denied. It was further pleaded

that the defendant was in occupation of the suit plot for more than

fifteen years as a yearly lessee and in absence of any notice of

termination of lease under Section 106 of the Transfer of Property Act,

1882 [for short, "the said Act"], the suit was not maintainable. It was

also pleaded that the defendant had erected a structure on the said

plot which was assessed by the plaintiff for taxes. The defendant

claimed to be a tenant holding over and, therefore, sought dismissal of

the suit.

04. After the parties led evidence, the trial Court recorded a

finding that the plaintiff had failed to prove the lease for a period of

one year. It further held that the lease was not for a fixed period and

hence in absence of any notice under Section 106 of the said Act, the

suit was not maintainable. The prayer for possession was refused.

However, the defendant was directed to pay rent till 31st March, 1989.

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Being aggrieved, the Municipal Council filed an appeal which came to

be dismissed by the appellate Court. Hence this appeal.

05. The following substantial questions of law were framed while

admitting the appeal:-

"1. In the light of pleadings of the parties and the documents at Exhs. 47 to 50, whether the plaintiff is entitled for possession?

2. Whether the defendant has proved his status as a statutory tenant?"

06. Shri S. Y. Deopujari, learned counsel for the appellant,

submitted that the status of the defendant was as a lessee for a fixed

period of one year. The lease rights were created on the basis of

auction that was held for the period 1986-87. The lease being for a

fixed period, it was liable to be terminated by efflux of time under

Section 111 (a) of the said Act. Referring to the provisions of the

Maharashtra Municipal Councils, Nagar Panchayats & Industrial

Townships Act, 1965 [for short, "the Act of 1965"], it was submitted

that no permanent lease could be created by the Municipal Council and

it was bound to act in accordance with the statutory provisions.

Question of the defendant being a tenant holding over did not arise in

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view of the limited period of lease and his possession was referable to

the auction held by the Municipal Council. The defendant could not be

called a statutory tenant. The learned counsel referred to the

adjudication of Second Appeal No. 130 of 2006 [Deepak Laxminarayan

Agrawal Vs. Municipal Council, Achalpur]; decided on 13th March, 2008

to urge that in somewhat similar facts, this Court had held that

tenancy of such nature came to an end by efflux of time. He also

placed reliance upon the judgments in Shanti Prasad Devi Vs.

Shankar Mahto [ 2005 (5) SCC 543] and Delhi Development

Authority Vs. Anant Raj Agencies Pvt. Ltd. [ 2016 (11) SCC 406 ].

It was, thus, submitted that the defendant not being statutory tenant,

the plaintiff was entitled for possession of the suit property.

07. Shri P. R. Agrawal, learned counsel for the respondent,

opposed the aforesaid submissions. According to him, the plaintiff had

failed to prove that the auction of the suit property was held for the

year 1986-87. In fact, the defendant was in possession since 1973

and, therefore, was entitled to continue in possession unless the lease

was validly determined. According to him, it was rightly held that due

auction was not proved. Referring to the receipts at Exhs. 71 to 90, he

urged that even prior to the lease from 1st April, 1986, the defendant

was in possession. The plaintiff was not entitled for possession without

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terminating his tenancy under Section 106 of the said Act. The learned

counsel placed reliance on the decision in Satish Chand Makhan &

others Vs. Govardhan Das Byas & others [AIR 1984 SC 143] to

urge that he was a tenant holding over. He also relied upon the

decision in Pakrutheen Vava Rawther Abdul Hameed Rawther

Vs. Raman Pillai Balakrishna Pillai & others [AIR 1970 Kerala 40].

He, therefore, submitted that the suit for possession was rightly

dismissed.

08. I have heard the learned counsel for the parties at length

and with their assistance, I have also perused the records of the case.

09. According to the plaintiff, the defendant was in occupation

of Plot No.11 in the weekly market pursuant to its auction that was

held on 18th March, 1986. On payment of premium of Rs.905/-, the

defendant was entitled to occupy Plot No.11 from 1st April, 1986 to

31st March, 1987. Before expiry of the said lease, a notice was issued

by the plaintiff on 13th February, 1987 which was thereafter followed

by two other notices. The defence as raised is that by virtue of long

occupation, the defendant had acquired the status of a statutory

tenant and he could not be evicted without determining the lease in

question.

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10. The trial Court has recorded a finding that the plot in

question was owned by the Municipal Council. While dismissing the

suit for possession, it directed the defendant to pay rent to the

Municipal Council. This finding was not challenged by the defendant

before the appellate Court. As the plot in question vests in the

Municipal Council, it would be necessary to refer to the provisions of

Section 92 of the Act of 1965. As per Section 92 (3) of the Act of 1965,

a Municipal Council can lease its immovable property for a period not

exceeding three years and the lessee is not permitted to make any

permanent construction on such immovable property. The lease can

be renewed by the Municipal Council beyond the period of three years;

but the total periof of any lease cannot exceed seven years. This

period of seven years was increased to nine years by Maharashtra Act

No. XVIII of 1993. The defendant in para 4 of his Written Statement at

Exh.16 has clearly pleaded that he had taken leasehold rights at the

rent of Rs. 905/- for one year. In the light of this clear pleading in the

Written Statement, the question whether the auction was duly proved

or not loses its significance. The allotment of leasehold rights as held

by the plaintiff has to be considered in the light of aforesaid statutory

provisions. The fact remains that it was an annual lease. It is,

therefore, clear that the defendant's occupation was pursuant to the

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annual lease that was granted for the period from 1st March, 1986 to

31st March, 1987.

11. The effect of provisions of Section 92 of the Act of 1965 was

considered by learned Single Judge in Dashrath Ambadas Pujari Vs.

Municipal Council, Tal. Tuljapur, Distt. Osmanabad & another

[2011 (3) Mh. L.J. 846] and it was observed that the outer limit of nine

years in Section 92 (3) of the Act of 1965 cannot be ignored and after

expiry of that period, the lessee is not entitled to continue in

possession. Thus, the statutory provisions enabling the plaintiff to

lease out its property cannot be construed ignoring the provisions of

Section 92 (3) of the Act of 1965. The rights of the defendant would

also be governed by these provisions and he cannot claim anything

higher than what he is entitled to be granted by the statutory

provisions.

12. Under Section 111 (a) of the said Act, a lease of an

immovable property can be determined by efflux of time limited

thereby. As noted above, the lease in question was specifically for a

period of one year which fact was even admitted by the defendant in

para 4 of his Written Statement. Once this position is clear, then the

defendant cannot seek to continue in possession and contend that

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unless the lease is determined by issuing notice under Section 106 of

the said Act, he cannot be evicted. The lease was determinable by

efflux of time and prior to expiry of one year, the plaintiff had on 13th

February, 1987 given such notice to the defendant asking him to

vacate the suit property by 31st March, 1987. It is, thus, clear that in

the light of provisions of Section 92 (3) of the Act of 1965 read with

Section 111 (a) of the said Act, the annual lease in favour of the

defendant was terminable by efflux of time.

13. Though it was strenuously urged on behalf of the defendant

that in view of his long-standing possession, his tenancy rights were

protected, said contention cannot be accepted. It has come on record

that some of the receipts at Exhs.71 to 90 indicate annual lease of Plot

No.11 in favour of defendant prior to 1985-86. For each year, an

auction was held and lease was granted for a period of one year. This

can also be gathered from the extracts of the auction register at Exhs.

47 and 70 produced by the plaintiff. As it has been found that the

defendant continued his possession by paying premium of Rs.905/- for

one year as pleaded by him, said annual lease came to an end by

efflux of time on 31st March, 1987. The continuation of the defendant

for the year 1986-87 was on the basis of the annual lease granted by

the plaintiff and, therefore, same would not enhance his status on

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account of prior occupation as a statutory tenant.

14. The order passed in Second Appeal No. 130 of 2006 [ Deepak

Laxminarayan Agrawal] [supra] also supports the aforesaid conclusion

wherein it has been held that in view of the annual lease granted by

the plaintiff for the same period, it would come to an end by efflux of

time. There is no question of the defendant holding over as tenant

under Section 116 of the said Act in the light of provisions of Section

92 (3) of the said Act of 1965. The decisions relied upon by the

learned counsel for the defendant, therefore, do not support his stand.

15. Thus, in the light of aforesaid discussion, I find that the first

appellate Court committed an error by holding the lease in question

was not terminable by efflux of time. The substantial questions of law

are answered by holding that in the light of pleadings of the parties

and the documents at Exhs.47 to 50, the plaintiff is entitled for

possession. It is also held that the defendant has failed to prove his

status as a statutory tenant.

16. As a result, the following order is passed:-

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ORDER

[a] The judgment in Regular Civil Appeal No. 127 of 1998 dated 21st June, 2006 is quashed and set aside.

[b] Regular Civil Suit No. 117 of 1989 is decreed in terms of Prayer Clauses [a] and [b] in the plaint. It is open to the plaintiff to seek an enquiry into mesne profits.

17. Second Appeal is accordingly allowed with no order as to

costs.

18. The respondent is granted time of three months to hand

over vacant possession of the suit property to the appellant. Order

accordingly.

Judge

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