Delhi High Court
Virender Singh vs State Bank Of India (Sbi) on 5 May, 2011
Author: V. K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 03.05.2011
Judgment Pronounced on: 05.05.2011
+ CS(OS) No. 1911/2000
Bhupinder Singh .....Plaintiff
- versus -
State Bank of India (SBI) .....Defendant
AND
+ CS(OS) No. 2552/2000
Mrs. Pushpa Singh .....Plaintiff
- versus -
State Bank of India (SBI) .....Defendant
AND
+ CS(OS) No. 2553/2000
Virender Singh .....Plaintiff
- versus -
State Bank of India (SBI) .....Defendant
AND
+ CS(OS) No. 2554/2000
Rajender Singh .....Plaintiff
- versus -
State Bank of India (SBI) .....Defendant
CS(OS)No. 1911/2000 & 2552-54/2000 Page 1 of 28
Advocates who appeared in this case:
For the Plaintiffs: Mr. Ajay Verma.
For the Defendant: Mr. S.N. Relan.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported
in Digest? Yes
V.K. JAIN, J
1. The defendant was a tenant under Bhupinder
Singh, plaintiff in Suit No. 1911/2000 in respect of
premises, comprising main hall on the ground floor, small
strong room, adjoining room, bath and W.C., and part of the
mezzanine, all measuring 1820 sq. ft. The extended portion
in mezzanine floor in the main hall on the ground floor
admeasuring 315.84 sq. ft. was also later let out to the
plaintiff by him. The defendant was also a tenant under
Pushpa Singh, plaintiff in Suit No. 2552 of 2000 in respect
of two halls on the first and second floor along with part of
balconies and a bathroom on the first floor of the aforesaid
property all admeasuring 427 sq. ft. It had also taken up
two halls on the first floor and second floor along with a
CS(OS)No. 1911/2000 & 2552-54/2000 Page 2 of 28
bath room on the first floor on the aforesaid property all
admeasuring 420 sq. ft. from Virender Singh, plaintiff in
Suit No. 2553 of 2000 and two halls on the first and second
floor along with bath room on the first floor, all
admeasuring 427 sq. ft. from Rajender Singh plaintiff in
Suit No. 2554 of 2000.
2. Bhupinder Singh, plaintiff in Suit No. 1911 of 2000
terminated the tenancy of the defendant vide notice dated
12th August, 1997, whereas Pushpa Singh, Virender Singh
and Rajender Singh plaintiffs in Suit Nos. 2552 of 2000,
2553 of 2000 and 2554 of 2000 respectively terminated the
tenancy of the defendant vide notice dated 07th October,
1997. The case of the plaintiff in Suit No. 1911 of 2000 is
that as a result of termination of tenancy, the defendant
became an unauthorized occupant of the tenancy premises
w.e.f. 05th September, 1997. The case of Pushpa Singh,
Virender Singh and Rajender Singh is that on account of
termination of its tenancy, the defendant became
unauthorized occupant w.e.f. 15th November, 1997 in
respect of portion which it had taken on rent from them.
3. At the time of termination of tenancy, the
defendant was paying rent at the rate of 27.50 per sq. ft. in
CS(OS)No. 1911/2000 & 2552-54/2000 Page 3 of 28
respect of the ground floor portion, at the rate of 13.75 per
sq. ft. in respect of the mezzanine floor portion and at the
rate of 13.22 per sq. ft in respect of the first and second
floor portions. The defendant vacated the tenancy premises
on 02nd September, 1999.
The plaintiff in suit No. 1911 of 2000 has claimed
damages for use and occupation w.e.f. 05.09.1997 at the
rate of Rs 80 per sq. ft., whereas the plaintiffs in the other
suits have claimed damages for use and occupation w.e.f.
15th November, 1997 at the rate of Rs 60 per sq. ft. The
plaintiffs have also claimed interest at the rate of Rs 18%
per annum on the arrears of damages for use and
occupation.
4. The defendant has contested the suits. The
defendant has admitted having taken the aforesaid premises
on rent as also the receipt of notice, whereby tenancy is
alleged to have been terminated. It has, however, been
claimed that the notices were not in conformity with the
provisions of Section 106 of Transfer of Property Act, since
clear 15 days notice was not given. It has also been alleged
that the tenancy premises was not on the main road and
was accessible only through narrow alleys and was in a
CS(OS)No. 1911/2000 & 2552-54/2000 Page 4 of 28
dilapidated condition. It has been alleged that there is a
huge Jamun tree in the main banking hall, and the
branches of that tree have erupted through the roof of the
main banking hall causing much space for leakage and
seepage of rainy water, thereby making it impossible to work
in the main banking hall during rainy season. It is also
claimed that the tenancy premises was not worth even the
rent which the plaintiffs were receiving from the defendant
up to the date the premises were vacated on 02 nd
September, 1999.
5. The following issues were framed on the pleadings
of the parties:-
"1. At what rate the plaintiff is entitled
to mesne profits in respect of
premises referred in para 4 of the
plaint?
2. Whether plaintiff is entitled to
interest? If so, at what rate, on
which amount and for which
period?
3. Whether tenancy of defendant was
validly terminated by the notice
dated 07th October, 1997?
4. Whether suit as framed is not
maintainable as alleged?
5. Relief."
CS(OS)No. 1911/2000 & 2552-54/2000 Page 5 of 28
Issue No. 3
6. As noted earlier, the receipt of notice, whereby the
tenancy was terminated is not in dispute. Ex.P-1/14 is the
notice dated 12th August, 1997 in respect of the premises
taken on rent from Bhupinder Singh, plaintiff in Suit No.
1911/2000. This notice was received by the defendant on
12th August, 1997 as is evident from the endorsement and
the stamp of defendant bank appearing on the notice. The
receipt of this notice was also admitted during
admission/denial of documents. Vide this notice, the
tenancy of the defendant was terminated by the end of 04 th
September, 1997 or at the end of the month taken by the
defendant as the tenancy month. Thus, more than 15 days
clear time was given to the defendant to vacate the tenancy
premises. Section 106 of Transfer of Property Act, to the
extent it is relevant, provides that in the absence of a
contract or a local law or usage to the contrary, a lease of
immoveable property for any purposes other than
agricultural or manufacturing purposes can be terminated
by giving 15 days notice expiring with a month of tenancy.
The case of the plaintiff is that the month of tenancy expired
on 04th September. Computed accordingly the defendant
CS(OS)No. 1911/2000 & 2552-54/2000 Page 6 of 28
got more than 15 days to vacate the tenancy premises. This
is not the case of the defendant that the month of tenancy
expired on a date other than 4 th of the calendar month.
Assuming, however, that the tenancy expired on some other
day of the month, since the notice stipulated termination of
the tenancy by the end of any other date in case the
defendant took that date as the date of the end of tenancy
month, the notice dated 12th August, 1997 fully complied
with the requirement laid down in Section 106 of Transfer of
Property Act.
Ex. P-4 is the notice dated 07th October, 1997 in
Suit No. 2553/2000 received by the defendant bank on 09th
October, 1997 whereas Ex.P-4 is the notice dated 07 th
October, 1997 in Suit No. 2554/2000 received by the bank
on 09th October, 1997. Similarly, Ex.P-4 in Suit no.
2552/2000 is the notice dated 07th October, 1997 received
by the defendant-bank on 09th October, 1997. In all these
three notices, the tenancy of the defendant was terminated
w.e.f. 14th November, 1997. It was further stated that in
case defendant took any other date of tenancy month, the
tenancy was terminated by the end of that tenancy month
taking 15 days clear notice from the date of receipt. The
CS(OS)No. 1911/2000 & 2552-54/2000 Page 7 of 28
case of the plaintiff is that the tenancy month in respect of
these three tenancies expired on the 14th of the month. This
is not the case of the defendant that the month of tenancy
expired on any date other than 14 of the calendar month. If
the month of tenancy expired on 14th of the month,
termination of tenancy w.e.f. 14th November, 1997 gave
more than 15 days to the defendant to vacate the tenancy
premises. In case the month of tenancy expired on some
other date, the defendant still got the statutory notice of 15
days since it was clearly stated in the notice that in such an
event, the tenancy would be terminated by the end of the
month which the defendant took as the month of tenancy.
Since the notice terminated, the tenancy w.e.f. the end of
the month of tenancy and the defendant was given more
than 15 days clear time to vacate the tenancy premises, the
termination of tenancy was absolutely legal.
7. In Bhagabandas Agarwalla v. Bhagwandas
Kanu and others, (1977) 2 SCC 646, Supreme Court held
that a notice to quit must be constructed not with a desire
to find faults in it, which would render it defective, but it
must be construed ut res magis valeat quam pereat and not
with a desire to find faults in it. It was further observed
CS(OS)No. 1911/2000 & 2552-54/2000 Page 8 of 28
that the notice should not be read in a hyper-critical
manner but must be constructed in a common sense way.
8. The purpose of giving notice of termination of
tenancy by a landlord to the tenant is to make it known to
him that he does not want him to continue in possession of
the tenanted premises after the date from which the tenancy
is being terminated by him, so that the tenant is not taken
by surprise and gets adequate time to take possession of the
tenanted premises. The above referred notices meet all the
necessary requirements of a notice of termination of
tenancy. Vide above referred notices, the plaintiffs
expressed an unequivocal intention not to keep the
defendant in occupation of the tenanted premises after the
date stipulated therein and they gave more than 15 days
time to the defendant for the said purpose. The date
stipulated in the notices for vacating the premises also
expired by the end of the month. Adopting a pragmatic and
constructive approach to interpretation of such notices, I
am of the considered view that these notices amount to
valid notice of termination on the part of the plaintiff.
ISSUE Nos. 1, 2, 4 & 5
9. It was contended by the learned counsel for the
CS(OS)No. 1911/2000 & 2552-54/2000 Page 9 of 28
defendant that since the premises in respect of which
damages for use and occupation have been claimed by the
plaintiffs is situated in a slum area, the suits are not
maintainable without permission of the Competent
Authority envisaged in Section 19 of the Slum Areas
(Improvement and Clearance) Act,1956, hereinafter referred
to as the „Act‟ and in support of his contention has referred
to a decision of this Court in Shyam Kishore and another
v. M/s Roop Saree Kendra & others, DCLR 2003 (II)
Delhi 307.
10. It cannot be disputed that damages for use and
occupation/mesne profits can be recovered only from a
person, who is in unlawful possession of the premises in
respect of which damages/mesne profits are sought. In
case, the person in possession of the premises is a tenant,
he is liable to pay only the rent and not the damages for use
and occupation/mesne profits.
11. The next question, which came up for
consideration, is whether the defendant bank was a tenant
under the plaintiffs during the period for which damages for
use and occupation have been claimed by them. Since the
agreed rent of premises in question was more than
CS(OS)No. 1911/2000 & 2552-54/2000 Page 10 of 28
Rs.3500/- per month, in view of the provisions of Section 3
(c) of the Delhi Rent Control Act, 1958, the provisions of the
Delhi Rent Control Act, 1958 do not apply, though a person
continuing in possession after termination of his tenancy is
included in the definition of tenant given in Section 2 (l) of
that Act.
12. The question which then comes up for
consideration is as to whether for the purpose of recovery of
damages for use and occupation of a property situated in a
slum area, the Court should adopt the definition of „tenant‟
as interpreted by the Full Bench of this Court in Bardu
Ram Dhanna Ram v. Ram Chander Khirbu, AIR 1972
Delhi 34 (FB) and Supreme Court in Lal Chand (dead) by
LRs. and others v. Radha Kishan, AIR 1977 SC 789 for
the purpose of the Act or it should look for the meaning of
the word „tenant‟ in terms of the provisions of the Transfer
of Property Act, wherein a person ceases to be a tenant on a
valid termination of his tenancy or the tenancy otherwise
being determined in any other manner provided in Section
111 of the aforesaid Act.
13. In Jyoti Pershad v. Union Territory of Delhi,
AIR 1961 SC 1602, Supreme Court, while considering
CS(OS)No. 1911/2000 & 2552-54/2000 Page 11 of 28
constitutional validity of Section 19 of the Slum Areas
(Improvement and Clearance) Act,1956, inter alia, observed
as under:-
"Obviously, if the protection that is
afforded is read in the context of the
rest of the Act, it is clear that it is to
enable the poor who have no other
place to go to, and who if they were
compelled to go out, would necessarily
create other slums in the process and
live perhaps in less commodious and
more unhealthy surroundings than
those from which they were evicted, to
remain in their dwellings until
provision is made for a better life for
them elsewhere.
The Act, no doubt, looks at the
problem not from the point of view of
the landlord, his needs, the money he
has sunk in the house and the possible
profit that he might make if the house
were either let to other tenants or was
reconstructed and let out, but rather
from the point of view of the tenants
who have no alternative
accommodation and who would be
stranded in the open if an order for
eviction were passed."
14. In Bardu Ram (supra), the Full Bench of this
Court observed as under:-
"The preamble of the Slum Areas Act
shows that it was intended to afford
further protection to the tenants living
in slum areas from eviction. An
essential object of the Slum Areas Act
is to enable the poor, who have no
other place to go to and who, if they
were evicted to remain in their
dwellings until provision is made from
a better life for them elsewhere."
15. If even a person against whom an order of eviction
CS(OS)No. 1911/2000 & 2552-54/2000 Page 12 of 28
has been passed by a Court continues to be a tenant for the
purpose of Section 19 of the Slum Areas (Improvement and
Clearance) Act, 1956, it is difficult to say that he ceases to
be a tenant for the purpose of the aforesaid Act merely
because his tenancy has been terminated by the landlord.
A person against whom an order for eviction has been
obtained cannot be treated on a footing better than of a
person against whom no such order has been passed by a
Court of law.
16. If a person whose tenancy has been terminated by
the landlord is held not be a tenant for the purpose of
recovery of damages for use and occupation, it will be very
easy for the landlord to defeat the provisions of the Slum
Areas (Improvement and Clearance) Act, 1956 including
Section 19 thereof simply by claiming market rent from the
tenants who belong to poor strata of the society and are not
in a position to afford alternative accommodation even on
rent. If made to pay market rent, they would have no option
but to vacate the premises occupied by them in slum areas
and in that event either they would come on the road and
thereby become shelter less or would create another slum
by shifting to some other area which then may get turned
CS(OS)No. 1911/2000 & 2552-54/2000 Page 13 of 28
into slum. An interpretation, which would result in
defeating the provisions of the Act of Parliament would not
be in consonance with public policy and needs to be
eschewed from being taken. The Court cannot give two
interpretations to the expression „tenant‟ one for the
purpose of his eviction and the other for the purpose of
recovery of damages for use and occupation/mesne profit
from him. The meaning to be given to the expression
„tenant‟, therefore, must necessarily be uniform for all
purposes as far as the applicability of the provisions of the
Act are concerned.
17. It is true that some tenants even in slum areas
may not belong to poor strata of society and on account of
their financial means, they, in the event of being evicted
from the premises occupied by them in a slum area, are not
likely to create another slum and are likely to shift to an
approved and well planned area. This is more likely in the
case of commercial premises. It is not open to the Court to
give two different meanings to the same expression, one for
the purpose of those who belongs to weaker and
economically backward section of the society and the other
for those, who belongs to rather effluent section of the
CS(OS)No. 1911/2000 & 2552-54/2000 Page 14 of 28
society.
It is not as if the landlord is helpless in evicting an
effluent tenant from the premises occupied by him in a slum
area or recovering the prevailing rent from him as damages
for use and occupation. It is open to the landlord to seek
permission from the Competent Authority under Section 19
of the Slum Areas (Improvement and Clearance) Act, 1956
for eviction of such a tenant. Once the permission is
granted, it will be possible for the landlord to not only evict
such a tenant from the premises occupied by him in a slum
area but also to recover the prevailing market rent from him
as damages for use and occupation of the premises. Of
course, there would be no occasion for the landlord to seek
such a permission in case the premises is vacated by the
tenant on his own, but, then, he is liable to pay only rent
and not damages for use and occupation/mesne profit for
the period he continues to occupy the tenancy premises in a
slum area.
18. Sub-Section 4 of Section 19 of the Slum Areas
(Improvement and Clearance) Act, 1956 stipulates the
factors required to be taken by the Competent Authority in
granting and refusing the grant of permission sought from it
CS(OS)No. 1911/2000 & 2552-54/2000 Page 15 of 28
either for obtaining a decree or order for eviction of a tenant
from any building or land in a slum area or for his eviction
in case such a decree or order has already been obtained.
These factors include as to whether alternative
accommodation within the means of a tenant would be
available to him if he is evicted. But, it is for the Competent
Authority and not for the Civil Court to go into this aspect
and take a view as to whether the tenant possesses
sufficient means to acquire alternative accommodation or
not.
19. In my view, if the Court in such a suit does not
adopt the definition of the word „tenant‟ as interpreted for
the purpose of Section 19 of the Slum Areas (Improvement
and Clearance) Act, 1956, this would not be in consonance
with the scheme of the Act and would frustrate the very
object behind enactment of the Act, the primary object
behind enactment of the Act being to improve and clear
slum areas and afford protection to all tenants in such
areas from eviction.
20. Hence, for the purpose of these suits what is
relevant is as to whether the defendant, during the period
for which damages for use and occupation have been
CS(OS)No. 1911/2000 & 2552-54/2000 Page 16 of 28
claimed in these suits was tenant within the meaning of
Slum Areas (Improvement and Clearance) Act, 1956, which
applies to all the premises whether residential or
commercial, which are situated in a slum area. The Act
does not define the expression „tenant‟ though it does define
the expression „occupier‟ in Section 2(f) to include any
person, who is liable to pay, to the owner, damages for use
and occupation of any land or building. Even a licensee in
occupation of any land or building in a slum area is
included in the definition of „occupier‟.
21. Construction of an expression „tenant‟ for the
purpose of the Slum Areas (Improvement and Clearance)
Act, 1956 came up for consideration before a Full Bench of
this Court in Bardu Ram Dhanna Ram v. Ram Chander
Khirbu (supra). It was held that the word „tenant‟ in
Section 19 of the Slum Areas (Improvement and Clearance)
Act, 1956, which, to the extent it is relevant, provides that
no person shall except with the previous permission in
writing of the Competent Authority institute any suit or
proceedings for obtaining an order for eviction of a tenant
from any building or land in a slum area, includes a person
in occupation of tenanted premises even though a decree or
CS(OS)No. 1911/2000 & 2552-54/2000 Page 17 of 28
order for eviction has been obtained against him.
22. Approving the aforesaid view, Supreme Court in
Lal Chand (dead) by LRs and others v. Radha Kishan,
(supra) observed as under:-
"Slum Clearance Act looks at the
problem of eviction of tenants from
slum areas not from the point of
view of the landlord and his needs
but from the point of view of tenants
who have no alternative
accommodation and who would be
stranded in the open if they were
evicted. The policy of the Slum
Clearance Act being that the slum
dweller should not be evicted unless
alternative accommodation is
available to him. We are of the view
that the world „tenant‟ which occurs
in Section 19(1)(1) must for the
purpose of advancing the remedy
provided by the statute be construed
to include a person against whom a
decree or order for eviction has been
passed. We might mention that a
Full Bench of the Delhi High Court
in Bardu Ram Dhanna Ram vs. Ram
Chander Khirbu, AIR 1972 Delhi 34
(FB) has taken the same view
namely, that the word „tenant‟ in
Section 19 of the Slum Clearance
Act includes a person against whom
decree or order of eviction has been
passed."
23. The learned counsel for the plaintiffs has referred
to the decisions of this Court in Bismilla Jan v. Jain
CS(OS)No. 1911/2000 & 2552-54/2000 Page 18 of 28
Tractors & Author Spare, 1985 Rajdhani Law Reporter
477, Dimple (P) Ltd. v. Harish Kumar Aggarwal &
Another, 71 (1998) Delhi Law Times 318 and Kohli
Motors India v. M/s Asha Menon & another, 72(1998)
DLT 440.
24. In Bismilla Jan (supra), the petitioner apply to
competent authority seeking permission under Section 19 of
the Slum Areas (Improvement and Clearance) Act,1956 to
sue for eviction of the respondent, which was in the
business of auto parts. The Competent Authority, however,
declined the requisite permission and the order was upheld
by the Financial Commissioner in appeal. The writ petition
filed by the landlord was, however, allowed by this Court.
During the course of judgment, this Court, inter alia,
observed as under:-
"In the case of a juristic person while
determining the financial status, the
standards have necessarily to be
different."
"If persons who have financial interest
in a Pvt. Ltd. Co. own several other
concerns and are sufficiently rich, no
protection is contemplated under the
Slum Act because even if the company,
which is a tenant, is going into losses,
because even if eviction order is passed
the company is not likely to create
slums. The Slum Act was enacted for
giving protection to poor individual
tenants who have small means and
cannot afford to get alternate
accommodation outside the slum area
or within the slum if evicted. If a
couple of persons with substantial
means float a company which goes into
losses, even if they are evicted from the
premises, they cannot create slumps,
particularly when the same persons
own other concerns which also have
offices at different places."
In Dimple (P) Ltd. (supra), the petitioner company
was tenant in respect of the first floor of a property situated
in a slum area. Permission for initiating eviction
proceedings against the petitioner was granted by the
Competent Authority under Section 19 of the Slum Areas
(Improvement and Clearance) Act, 1956, which came to be
challenged before this Court. It was contended before this
Court that the petitioner was a very poor company running
into losses. It was contended on behalf of the landlord that
since the petitioner company was a juristic person,
protection meant for poor tenants from their respective
accommodations cannot be made available to it. Accepting
the contention, this Court, inter alia, held as under:-
"Admittedly the petitioners are a
company. Thus they are a juristic
person. A Company is formed when
certain persons join hands with a view
to carrying on some commercial or
industrial undertaking. Thus it can
naturally be formed by those persons
who have got sufficient funds to carry
on their business. A Company cannot
be run by poor persons with no
financial means to run the same. The
object and the purpose for the
enactment of the Slum Areas
(Improvement & Clearance) Act, 1956
was to clear the slums and to provide
protection to poor tenants against
harassment at the hands of landlords
who bring forward and initiate
proceedings for their eviction. Their
Lordships of the Supreme Court while
anim-adverting on the said object of
the Act opined in Jyoti Pershad v.
Administrator for the Union
Territory of Delhi and others, AIR
1961 Supreme Court 1602, (para
15).... "it is after this that we have
Chapter VI whose terms we have
already set out. This chapter is headed
"Protection of tenants in Slum Areas
from Eviction." Obviously, if the
protection that is afforded is read in
the context of the rest of the Act, it is
clear that it is to enable the poor who
have no other place to go out, would
necessarily create other slums in the
process and live perhaps in less
commodious and more unhealthy
surroundings than those from which
they were evicted, to remain in their
dwellings until provision is made for a
better life for them elsewhere...."
The petition challenging the grant of petition was
dismissed by this Court.
In Kohli Motors India (supra), the petitioner
before this Court challenged the order of the competent
authority granting permission to landlord to institute
proceedings for its eviction. Relying upon the decisions of
this Court in the case of Bismilla Jan (supra) and Dimple
(P) Ltd. (supra), this Court dismissed the petition
challenging the order of the competent authority.
It would be noticed that in all these cases, the
observations extracted above were made by this Court while
considering grant of permission under Section 19 of the
Slum Areas (Improvement and Clearance) Act,1956 and not
in a suit for recovery of damages for use and occupation
from a person, who was occupying a premises in a slum
area. Therefore, these judgments do not apply to the issue
as to whether damages for use and occupation can be
recovered from a person, who was indicted as a tenant in a
premises situated in a slum area and whose tenancy has
been terminated under the provisions of Transfer of
Property Act, 1882.
25. In Shyam Kishore and another (supra),
defendant No.1, which was a partnership firm, had taken on
rent the first floor, second floor and terrace of a property
situated in Katra Choban, Chandni Chowk, Delhi, which is
a slum area. The tenancy was terminated vide notice issued
under Section 106 of the Transfer of Property Act. On failure
of the tenant to vacate the premises, the plaintiff filed a suit
claiming damages/mesne profits at the rate of Rs.60,000/-
per month, though the agreed rent was Rs.6000/- per
month. At the time of filing of the suit, petition of the
plaintiff seeking permission of the Competent Authority to
institute a suit for recovery of possession of the tenancy
premises was pending decision before the Competent
Authority. The defendants challenged the maintainability of
the suit on the premise that a suit for mesne profit was not
maintainable unless and until it is accompanied with a
prayer for recovery of possession of the tenancy premises.
The contention was rejected by the Court and it was held
that prior permission from competent authority was not a
condition precedent for filing a suit for recovery of
rent/mesne profit and, therefore, an independent suit for
recovery of rent or mesne profits alone was maintainable.
The next question which came up for consideration before
the Court was as to whether a suit for mesne profit was
maintainable against a tenant whose tenancy had been
determined under Section 106 of the Transfer of Property
Act. It was held that termination of tenancy of a tenant by
way of notice under Section 106 of the Transfer of Property
Act does not render the possession of the tenant either
unlawful or wrongful for the purpose of Slum Clearance Act,
which affords additional protection to the tenant and,
therefore, remedy to recover mesne profit is not available
against those persons whose tenancy has been terminated
under Section 106 of the Transfer of Property Act since such
a notice does not convert the possession of tenant in
respect of premises situated in a slum area into a wrongful
or unlawful possession entitling the landlord to claim mesne
profits for him. The Court was of the view that wherever
there is a statutory protection against dispossession of a
person even in spite of termination of the lease is deemed to
be lawful possession.
This Court was of the view that if a person carries
the status of tenant even after eviction order has been
passed, his possession cannot be said to be unlawful or
wrongful merely because his tenancy has been terminated
under Section 106 of the Transfer of Property Act.
26. The judgment of this Court in the case of Shyam
Kishore (supra) was sought to be distinguished by the
learned counsel for the plaintiff on two grounds. Firstly, it
is pointed out that in the case of Shyam Kishore (supra)
the tenant was still occupying the tenancy premises and the
petition of the landlord seeking a permission of the
competent authority under Section 19 of the Act was
pending decision when suit for recovery of damages for use
and occupation was filed whereas in the present suit the
defendant had vacated the premises before these suits were
filed. The second distinguishing feature is that the
defendant in these suits is a large company being the
largest bank in the country having thousands of branches
throughout the country, whereas the defendant in that suit
was a partnership firm though using the premises for
commercial purpose. It is also pointed out that after
determination of its tenancy, the defendant bank could
conveniently have taken on rent another premises situated
outside slum area and, therefore, there would have been no
compulsion for the defendant to create another slum by
shifting from one premises to another premises in the slum
area. I, however, find no merit in this contention. It is
immaterial whether the defendant is a partnership firm or a
largest banking company. Not only a large banking
company but also a partnership form may be in a position
to afford alternative accommodation and may not create a
slum in the event of being evicted from the premises
occupied by it in a slum area. In fact, a rich individual also
may not, in the event of being evicted, necessarily create a
sum and may like to shift to a premises situated in a post
and regular area. Therefore, legal status of the tenant,
whether his company, or partnership or individual, to my
mind, would not be a relevant consideration. The fact as to
whether the tenant is occupying the premises at the time
damages for use and occupation are claimed form him or
not is also not relevant since damages for use and
occupation can be recovered only from an unauthorized
occupant and not from a tenant irrespective of whether the
occupant happens to be a company or firm or an individual.
The possession of the defendant in the premises situated in
a slum area cannot be said to be unlawful considering the
protection afforded by the Slum Areas (Improvement and
Clearance) Act, 1956 even if it is in a position to take
another suitable premises outside the slum area. As noted
earlier, the financial status of the tenant and unlikelihood of
creating another slum, are the factors required to be
considered by the Competent Authority in case its
permission is sought under Section 19 of the Slum Areas
(Improvement and Clearance) Act, 1956 and not by a Civil
Court in a suit seeking recovery of damages for use and
occupation. Of course, once permission is granted by the
Competent Authority under Section 19 of the Slum Areas
(Improvement and Clearance) Act, 1956, the possession of
the tenant would become unlawful and the landlord would
be entitled to recover damages for use and occupation of the
premises from him even without seeking eviction or in case
eviction is sought even for the period prior to the recovery of
possession from him, but, the same does not hold in case
permission from the Competent Authority, even if applied,
has not been obtained.
27. It was pointed out by the learned counsel for the
plaintiffs that the plea taken during arguments has not
been taken in the written statement. The plea being purely
of law and there being no dispute that permission of the
Competent Authority was not obtained even up to the time
the premises were vacated by the defendant, the plea, in my
view, can be taken at the stage of arguments.
28. For the reasons given in the preceding paragraphs,
I hold that the plaintiffs are not entitled to recover damages
for use and occupation from the defendant. Admittedly,
agreed rent already stands paid. Since the plaintiffs are not
entitled to recover damages, I need not go into the question
as to what would be the prevailing rent of the premises
during the period for which damages for use and occupation
have been claimed in these suits. The issues are decided
accordingly.
Order
All the four suits are hereby dismissed without any
order as to costs. Decree sheet be drawn accordingly.
(V.K. JAIN)
JUDGE
MAY 05, 2011
bg/vk
