1 R.A. No.: 1075 OF 2008 In the Court of Aashish Abrol, PCS, Rent Controller,Chandigarh. R.A. No.: 1075 OF 2008.

Date of Institution: 19.8.2008. Computer ID No.: 36014C0240552008. Date of Decision: 13.9.2011. Dhirender Gupta s/o late Sh. Sham Kumar Gupta, aged 30 years, resident of house no. 3106, Sector 21-D, Chandigarh. .Petitioner. Versus Harbinder Singh Chauhan s/o Sh. Charan Singh, r/o house no. 919, Phase-3B2, Mohali (Pb.). ..Respondent. RENT PETITION UNDER SECTION 13 OF THE EAST PUNJAB URBAN RENT RESTRICTION ACT,1949. ....... FOR THE PETITIONER : MR. RAJWINDER SINGH, ADVOCATE. FOR THE RESPONDENT: MR. GURPREET SINGH, ADVOCATE. ORDER Instant petition u/s 13 of East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as Act) has been filed by Dhirender Gupta (hereinafter referred to as petitioner) against respondent Deepak (hereinafter referred to as respondent). 2 Factual matrix filtering out unnecessary is that petitioner along with his mother Smt. Sarla Devi are owners & landlord of SCO no.1130-31, Sector 22-B, Chandigarh. SCO no.1130-31, Sector 22-B, Chandigarh was jointly purchased by family of petitioner on one side and by another family of late Sh.Ram Sarup Mittal on other side. Construction was raised on the plot and from the date of completion of building, portion of each floor was divided by both families. SCO no.1130, Sector 22-B, Chandigarh came to share of petitioner and his mother. Respondent was inducted as tenant in the cabin measuring 325 sq.ft. approximately on the second floor of SCO no.1130, Sector 22-B, Chandigarh in the year 1997 at the rate of Rs.5000/- per month excluding water and electricity charges etc. Petitioner sought ejectment of respondent on the ground of respondent being in arrears of rent w.e.f. 1.7.2005 onwards, respondent making addition & alteration in tenanted premises detailed in petition by violating the provisions of Capital of Punjab (Development & Regulation) Act, 1952 rules and petitioner requiring entire portion of every floor of SCO no.1130, Sector 22-B, Chandigarh for personal use & occupation to start business. 3 Upon notice, respondent filed written reply wherein averred that petitioners themselves were not accepting rent. In the intervening night of 19/20.1.2008, landlord caused fire in which cabin

of respondent was destroyed. They averred that respondent had not violated the provisions of Capital of Punjab (Development & Regulation) Act, 1952 and rules framed thereunder. No loss was caused to main structure of building. In fact, fire was planned in such a manner that loss would be confined to temporary structure, library and valuable belongings in temporary cabins i.e. AC, laptops, furniture, computer etc. and also denied bonafide need of petitioner. Other assertions were denied and prayed for dismissal of petition. 4 Rejoinder was filed by petitioner denying the assertions made in written reply while reiterating those made in the petition. 5 From the pleadings of parties, following issues were framed vide order dated 23.3.2009: 1 What is the rate of rent? OPP. 2 Whether the tender made is short & invalid? OPP. 3 Whether the respondent is in arrears of rent, if so, whether the respondent is liable to be evicted on the said ground? OPP. 4 Whether the respondent has caused material alterations in the premises, if so, whether the is liable to be evicted on the said ground?OPP. 5 Whether the petitioner requires the premises for his own use & occupation, if so whether the respondent is liable to be evicted on the said ground? OPP. 6 Whether the present petition is not maintainable? OPR. 7 Whether the petitioner has no cause of action to file the present petition? OPR. 8 Relief. 6 In his evidence, petitioner examined Bipin Kumar, J.E., O/O SDO Building, Estate Office, Chandigarh as PW-1 and proved on record copy of sanctioned plan as Ex P-1, copy of show cause notice as Ex P-2, notice dated 21.7.08 as Ex P-3, copy of demolition order dated 6.8.08 as Ex P-4, copy of writing as Ex P-5, copy of notice dated 25.8.08 as Ex P-6 and then, petitioner Dhirender Gupta himself appeared as PW-2 and tendered in evidence his affidavit ExPX along with documents Ex PW2/1 to PW2/13. 7 Per contra, respondent examined Ashok Kaundal, SPA of respondent as RW-1 who tendered in evidence his affidavit Ex RW1/A along with documents Ex R-1 to Ex R-14, D.B. Gangwar, Jr. Scientifif Officer, CFSL, Chandigarh appeared as RW-2, Gurdeep Singh s/o Kabul Singh appeared as RW-3 and HC Kartar Singh, PP Sector 22, Chandigarh appeared as RW-4. 8 No rebuttal evidence was led by petitioner. I have heard rival contentions of learned counsel for parties and gone through case file carefully. ISSUE No.:1, 2 & 3: 9 All these issues have been taken up together being inter connected. Onus to prove these issues was on petitioner. Petitioner claimed that respondent was in arrears of rent w.e.f. 1.7.2005 @ Rs.5000/- per month excluding electricity & water charges along with service tax liability @ 12.36% p.a. Respondent averred that petitioner themselves were not accepting the rent. Rate of rent being Rs.5000/- per month has not been disputed by respondent. Rate of rent of premises in dispute is held to be Rs.5000/- per month. Harbinder Singh Chauhan (respondent) tendered rent w.e.f. 1.7.2005 till 31.12.2008 @ Rs.5000/- per month along with interest @ 6% p.a and cost Rs.1000/- in total Rs.2,33,600/- which was accepted by respondent.

Rate of rent being Rs.5000/- per month, rent tendered by respondent is valid. Petitioner has not proved on record that service tax to any authority was paid by him nor any rent note fixing the liability of respondent to pay service tax has been proved on record, hence, liability to pay service tax by respondent could not be established. Rent tendered by respondent is valid. Issue no.1 is decided accordingly rent being @ Rs.5000/- per month and issues no.2 & 3 are decided against petitioner and in favour of respondent. ISSUE No.:4: 10 Onus to prove this issue was placed upon petitioner. Petitioner examined Bipin Kumar, J.E, O/O Estate Office, Chandigarh to prove on record true copy of sanctioned plan as Ex P-1, copy of show cause notice issued to the owners as Ex P-2, copy of notice dated 21.7.08 as Ex P-3, copy of order of demolition dated 6.8.08 as Ex P-4, copy of letter given by occupiers of building as Ex P-5, notice served by occupiers as Ex P-6. He testified that premises was inspected by him on 21.5.2009. Latrine bathroom of second floor had been shifted from its original place in the middle of second floor on the rear side and sanctioned glazing on rear and front side had been removed and verandah had been removed against sanctioned plan. In cross-examination conceded that he did not remember the kind of violations in the building, volunteered, it was stated in notices. He stated that he did not remember month and year when he visited the site. He stated that he did not know if violations were effected by third party. He stated that he did not know if definition of general trade had undergone a change and had no knowledge of schedule 2 of rule 9(3) of Chandigarh (Sale of Sites & Building) Rules, 1960 where full height partition was allowed. He stated he could not tell if the violations were non-sanctionable, volunteered, owner had to submit revised plan to the competent authority. 11 Dhirender Gupta (PW-2) reiterated and reasserted the assertions made in the petition. In crossexamination conceded that he did not posses lease deeds of those tenants who were previously occupying the SCO. He admitted that Sh. Y.S. Rathore, ld. Addl. Civil Judge (Sr. Division), Chandigarh passed order that tenants can reerect the cabins, volunteered, reerection was to be carried out in accordance with building laws. Tenants broke the bathroom and changed the position of bathroom. They had wooden partition uptil roof. He stated that only frame was of aluminum and rest was of wooden. He stated that he had neither taken service of Engineer or Architect nor had taken report from them regarding ventilator, pillar, bathroom etc. 12 Per contra, Ashok Kondal (RW-1) attorney of H.S. Chauhan reiterated and re-asserted the averments made in the written reply. In cross-examination stated that he did not know if proceedings of resumption were pending before Estate Office on account of building violation even after filing of present petition. He never visited the Estate Officer to inspect the sanctioned plan of SCO. They had not obtained any permission from Estate Officer or landlord before raising cabin of second floor of SCO. Ex P-4 wasshown by official of Estate Officer when they came to demolish cabin of second floor. Ex P-5 was written by tenants of second floor which was addressed to SDO Building. Ex P-5 was issued by counsel on their instance. He admitted that after demolition order by Estate Office, tenants of second floor filed appeal Ex PA before Chief Administrator which was dismissed by Chief Administrator vide order dated 21.5.2009. He admitted that as per order dated 4.2.2008, tenants were restrained from raising

cabin in violation of bye-laws of Chandigarh Administration. They had raised cabins as replica of earlier cabins. He admitted that they never inspected Estate Office record to know about the sanctioned plan of SCO and whether they can raise cabin as per building laws or not. He admitted that before incident of fire, entire second floor was under the possession of tenants only and he did not know whether raising of height of cabin upto roof amounted to building violations or not. He admitted that without submitting revised building plan, any construction temporary cabins raised by tenant in SCO amounted to violation. 13 Nodoubt, petitioner averred that respondent raised illegal construction, made additions & alteration i.e. raising of illegal permanent wooden wall of cabin upto roof height, removal of heavy structure from SCO i.e. Door, ventilator, pillar, window, RCC beams, encroachment of common passage, disruption of light and ventilation and constructed bathroom in space lying open. Contrarily, respondent pleaded that he erected cabins after spending lacs of rupees as on the intervening night of 19/20.1.2008 landlord caused fire in the cabins of respondent. Reerection of cabins was done under the orders of Court of Sh.Y.S. Rathore, ld. Addl. Civil Judge (Sr. Division), Chandigarh and while re-erecting the same, nobody could enter the second floor, even, otherwise entry could not be blocked. Temporary structures were re-erected, same cannot attract demolition or resumption. Landlord in connivance with Estate Office, UT Chandigarh were creating trouble for respondent. To seek ejectment on the ground of additions & alteration, it is indispensable to prove that said additions & alterations had materially impaired the value & utility of tenanted premises. To establish material impairment, testimony of expert is significant. Reliance is placed upon judicial pronouncement reported as All India Rent Control Journal 1969 Madras High Court 733 titled as G. Natrajan Vs. P. Thomdavarayan and Punjab Law Reporter 1993(1) (P&H) 291 titled as Jita Ram & Ors. Vs. Sham Lal & Ors. Petitioner did not examine any expert to bring home the fact that additions & alteration impaired the value and utility of tenanted premises. Petitioner did not prove on record photographs of additions & alterations. Certainly, position existing at the time of letting out the premises and existing at present when additions/alteration allegedly carried out by respondent, would have projected the change in the structure of building, but position existing prior to letting out the premises in dispute is not on the file. Copy of sanctioned site plan was proved on record. Respondent admitted that he re-erected the temporary structures after fire broke out in the intervening night of 19/20.1.2008, but said temporary structure could not attract demolition or resumption. Ashok Kondal, Special Power of Attorney of Harbinder Singh Chauhan RW-1 admitted that they raised cabins as replica of earlier cabins and also they were restrained from raising cabins in violation of building bye-laws of Chandigarh. Sanction from Estate Office or tenant to raise construction is not on the file, but respondent banked upon the order of Sh. Y.S. Rathore, the then ld. ACJ (SD), Chandigarh permitting carrying out the reerecting of structure. Additions & alterations stand proved by concession of Ashok Kondal, but significant question is as to whether that amounted to impairing the value & utility of premises. Expert to establish impairing the value & utility has not been examined, but admittedly, notice Ex P-3 for demolition of aluminum glazing partition upto roof level constructed at second floor had been issued. Respondent re-erected the cabin and said re-erection of partition upto fan ceiling level stood corroborated by Ex P-3 notice of Estate Office requiring demolition of said

partition. Learned counsel for respondent to buttress his arguments that partition upto roof level led to resumption and tantamounted to impairing the value & utility of premises relied upon judicial pronouncement reported as 1995(2) PLR 642 (S.C.) titled as Durga Seed Vs. Ram Kumar Chadha and 2004(1) PLR 628 titled as Sanjeev Vs.Inderjit Dhiman. 14 Evidently, Ex P-3 is notice u/s 15 of Capital of Punjab (Development & Regulation) Act, 1952 to demolish the unauthorized construction i.e. aluminum glazing partition upto roof level and Ex P-4 is the order of demolition by Estate Office, Ex P-2 is the notice under rule 20 of Chandigarh Leasehold of Sites & Building Rules, 1973 for resumption of premises for alteration carried out in the premises without prior sanction of Chief Administrator i.e shed having been divided into two parts, cabin had been made at first and second floor and front & rear verandah had been glazed at first and second floor. Shed having been divided, cabin having been made at first & second floor and front & rear verandah having been glazed at first & second floor by tenant could not be established by landlord and said notice Ex P-2 was issued on 28.2.2003 before the fire broke out in the building in the year 2008. Even, as per the case of petitioner as pleaded, respondent made additions & alterations in the premises after few days fire broke out and admittedly, fire broke out in January, 2008. Notice of resumption Ex P-2 is of year 2003 before the fire broke out and re-erection was carried out in year 2008 for which no notice for resumption has been issued by Estate Office. Simply, demolition order Ex PW2/3 & Ex PW2/4 has been passed. Ratio of judicial pronouncements (supra) postulate that if addition & alteration leads to resumption of premises or premises is put at peril of resumption, then such addition & alteration would tantamount to impairing the value & utility of the premises and tenant would be liable to be ejected. File is barren that on account of re-erection of aluminum frame upto roof level led to resumption of the building. Judicial pronouncements are not applicable, hence, respondent is not liable to be ejected on ground of impairment. This issue is decided against the petitioner in favour of respondent. . ISSUE No.:5: 15 Onus to prove this issue was on the petitioner. Petitioner reiterated & re-asserted the assertions made in petition. In cross-examination stated that he was income tax assessee for last eight years and was filing returns since then. His gross income was Rs.8-10 lacs. He conceded that he used to assist his father who was running a shop in Sector 11, Chandigarh and he was dealing with hardware business. He conceded that he was Graduate. SCO was rented out for first time 25 years back by his father. He wanted to open and start business of wholesale and retail in readymade garments and ladies dress material. He stated that he had not prepared any project report for the same, but he go on purchasing with his father-in-law and also sit in the shop with his father-in-law and his wife. He stated that he had thought of starting of business in the name of his late father. Cost of business would be around Rs.10 lacs and he had not applied for CST number. He stated that he would apply the same at the time of starting the business. He had talked with many companies based at Ambala dealing in business of garments and clothes etc. , but he had not done any correspondence in writing as yet. The companies with whom he negotiated are Pooja Sarees, Dishu Sarees situated at Agarsen Chowk, Ambala City, R.K. Fashion Wears, Sadhu

Mandi, Kurukshetra. These companies were wholesalers and retailers, but not manufacturers. He had not talked with companies like Grasim, Reliance or Raymond. He stated that he was having Rs.4 lacs in bank account and Rs.12 lacs in fixed deposits. He stated that margin of profit can be around 25% to 40%. He stated that he was having small room in his possession on ground floor and back side of SCO and people of locality used to throw garbage in front of door of said office. He conceded that he was having three cabins in his possession and wanted to start his business and had not started in three cabins because entire SCO for kind of business he wanted to start was required. 16 On the other hand, respondent denied the need of petitioner. In cross-examination stated that he did not know whether petitioner was assisting his father who was doing business of hardware in booth no.32. He did not know in which year he expired. He did not know whether petitioner and his wife own any other commercial property in Chandigarh except SCO no.1130, Sector 22, Chandigarh. He could not comment whether every floor of SCO was required by petitioner and his wife. He admitted that petitioner was sitting idle. 17 Indubitably, tenant is not to dictate terms to landlord as to how he can adjust himself without getting the tenanted premises and court should proceed with the presumption that requirement is bonafide. Reliance is placed upon judicial pronouncement reported as 1998(2) RCR (Rent) 533 (S.C.) titled as Sarla Ahuja Vs. United India Insurance Co. Ltd. And 2011(1) RCR (Rent) 60 (P&H) titled as Sat Pal Vijay Kumar Vs. Sushil Kumar. Experience of the landlord is not a pre-condition and chances of success or failure is immaterial to assume the bonafide need of landlord. Reliance is placed upon judicial pronouncement reported as Mohinder Prasad Jain Vs. Manohar Lal Jain reported in 2006(2) RCR (Rent) 250 (S.C.). Need of the landlord if given in detail, there is no ground to suspect the bonafide and eviction would follow. Reliance is placed upon judicial pronouncement reported as 2009(1) RCR (Rent) 284 (P&H) titled as M/s General Electronics and Ors. Vs. Amrik Singh. Even, mere ipsidexit of landlord that he wanted to set up business cannot be accepted unless some other circumstances are brought on record to show his bonafide. Reliance is placed upon judicial pronouncement reported as 1984 Vol. LXXXVI P.L.R. 475 (P&H) titled as Ram Dass Mahajan Vs. Brahm Bhushan. Undisputedly, petitioner claimed that he requires entire SCO no.1130, Sector 22-B, Chandigarh for start of business along with his wife and did not own and possess any other commercial property within the urban area of Chandigarh except small portion on the back of ground floor as well as small portion on first floor which was insufficient to start any business by petitioner. Contrarily, respondent claimed that need of petitioner was not bonafide and ejectment was sought to let out entire floor to multi-national companies at extremely higher rental. Possession of properties by petitioner at satellite Chandigarh, Panchkula or Mohali was pleaded. But, in cross-examination, respondent could not upheld this assertion in the pleading as he conceded that he did not know if petitioner own other properties in Chandigarh, Panchkula and Mohali. He admitted that SCO no.1131, Sector 22-B, Chandigarh was with Yash Pal Mittal and premises being owned by petitioner/landlord stands established. He having a small portion in the premises in dispute and petitioner's urge to start business of cloth garment etc. in the premises in entire SCO was disputed on the ground that petitioner himself in cross-examination

conceded that he was having rental income of Rs.8-9 lacs per annum. Margin from the business intended to start was 25-40% and funds required to start business was Rs.10 lacs only. Learned counsel for respondent calculated the quantum of profit to be earned by petitioner would be around Rs.2-3 lacs per annum and no sane man would take risk to start new business instead of forgoing the rental income which is otherwise exhorbitant. On these assertions claimed that need of petitioner was simply a greed and was motivated to get simple ejectment to get the same further rented out to multi national companies. Certainly, no sane man would embark upon alternate less profitable business, but success or failure is not the headache of tenant but landlord's cup of tea. To question the failure or success is none of the business of tenant. Reliance is placed upon 2008(1) RCR 621 (P&H) titled as Madho Ram Garg Vs. Baldev Singh Bath and another wherein it was held that:- Bonafide requirement Landlord wanted shop for business It is no part of a Court's duty to examine whether the business to be set up would be successful or not in the tenanted premises The success or otherwise of a proposed business lies in the realm of speculation and Courts abjure speculative conclusions The choice of the premises, the nature or the extent thereof rest solely with a landlord. Bonafide need was re-asserted by petitioner in cross examination. Simply the fact that he had not contacted the companies like Grasim etc. and had contacted only local companies of Ambala as conceded in crossexamination is not ipso-facto sufficient to tar the need of petitioner with greed as success or failure is not within the domain of tenant. Landlord is to decide failure or success and property owned by landlord must be permitted to be enjoyed by landlord is per his own volition in case his need is bonafide. If object is to get rid of tenant, need is certainly a greed, but Rent Controller is not to proceed on this assumption and need of landlord is to be assumed as bonafide. Significantly, in cross-examination, respondent could not tell if petitioner was doing any business or not and whether he was owning other SCO in Chandigarh, Panchkula and Mohali except the SCO in question. Petitioner being idle at the age of 32 years as he conceded in cross-examination is itself sufficient to assume that he requires the premises to carry out the business of garments etc. Need of petitioner is certainly bonafide. This issue is decided in favour of petitioner and against the respondent. ISSUES No.:6 & 7: 18 Onus to prove these issues was placed upon respondent, but respondent has failed to prove as to how the petition is not maintainable. Petition is well maintainable and case of action has arisen in favour of petitioner against respondent to file the present petition. Accordingly, both these issues are decided against respondent and in favour of petitioner. RELIEF: 19 As a sequel of findings on issue no.5 (supra), petition succeeds and is allowed with costs on the ground of personal use & occupation. Respondent is granted two months time from today to hand over vacant possession of demised premises to petitioner. Memo of costs be prepared accordingly. File be consigned to records. Pronounced in open Court: Aashish Abrol, 13.9.2011. Rent Controller, Chandigarh.

24 R.A. No.: 1075 OF 2008 Dhaninder vs Deepak Bhardwaj Present: Mr.Mukesh Mittal & Rajwinder Singh, Counsel for petitioner. Mr. Gurpreet Singh, Counsel for respondent. Rebuttal evidence stands closed by order. Arguments heard. Even written submissions given by ld.counsel for petitioner taken on file. Vide my separate detailed order of even date, petition has been allowed with costs on the ground of personal use & occupation. Memo of costs be prepared accordingly. File be consigned to records. Pronounced in open Court: Aashish Abrol, 13.9.2011. Rent Controller, Chandigarh. #1: KARNATAKA HIGH COURT Agreement to sell --- Suit for specific performance - Transferee put in possession on payment of full consideration amount - Sale deed to be executed within 5 years from date of agreement - Death of transferor within said 5 years and notice for eviction served on transferee by L.R's of transferor - Suit for specific performance filed by transferee against L.R's of transferor after expiry of three year from date of service of notice of eviction but within three years from date fixed for execution of sale deed - Held, suit not barred by time - Notice for eviction and subsequent suit therefor filed by L.R's did not amount to denial of agreement to sell, as there was no specific denial of agreement in rejoinder to transferee's written reply to notice - Transferee is entitled to relief of specific performance. (Specific Relief Act, 1963, S.20) (T.P.Abdulla (Deceased) by L.Rs. Vs Mrs.Subhida & Ors.), 1999(3) CIVIL COURT CASES 528 (KARNATAKA) #2: ANDHRA PRADESH HIGH COURT Agreement to sell --- Ready and willing - Agreement for sale within six months after eviction of tenant within this period - Tenant not evicted - Refund of advance and demand of return of agreement not made by vendor on expiry of six months - Notice making such claim issued after 3 years - In the meanwhile vendor received advances and made promises - Held, vendee has proved of his readiness and willingness whereas vendor was not ready to perform his part of contract. (Specific Relief Act, 1963, S.16(c). (S.V.Surswara Sarma Vs M.Kota Muvalayya), 1997(1) CIVIL COURT CASES 444 (A.P.) #3: BOMBAY HIGH COURT Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Section 12(3)(a) --- Tenant made only part payment of total amount demanded by landlord in notice of termination of tenancy - Held, ground for eviction is clearly made out. (Harishchandra Dhondusheth Khude Vs Shri Vithoba Rakhumai Devsthan Public Trust, Dehu), 2004(3) CIVIL COURT CASES 118 (BOMBAY) #4: BOMBAY HIGH COURT Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Section 12(3)(a) --- Arrears of rent - Tenant did not comply with demand notice duly served on him - Tenant having failed to make payment of rent within a period of one month from the receipt of notice, landlord is entitled for a decree of eviction as it stood prior to amendment. (Narayan Ganpat Bhoite Vs Smt.Rampyari Suchitram Gupta & Ors.), 2002(1) CIVIL COURT CASES 182 (BOMBAY) #5: DELHI HIGH COURT Civil Procedure Code, 1908, O.6, R.17 --- Plaint - Amendment - Suit for eviction Defendant took specific plea in the written statement that suit is liable to fail for want of

proper notice - Held, plaintiff can be permitted to plead a fresh notice to quit served on the defendant after institution of the suit - Amendment allowed subject to the condition that amendment would take effect only from the date of the amendment application and would not relate back to the institution of the suit. (Vikram Singh Mehta Vs M/s.Bajaj Auto Ltd.), 2001(2) CIVIL COURT CASES 438 (DELHI) #6: DELHI HIGH COURT Civil Procedure Code, 1908, O.7, R.11 --- Cause of action - Notice of termination is an essential component for a cause of action in a suit for eviction. (Vikram Singh Mehta Vs M/s.Bajaj Auto Ltd.), 2001(2) CIVIL COURT CASES 438 (DELHI) #7: DELHI HIGH COURT Civil Procedure Code, 1908, O.20, R.12 --- Mesne profits - Defendants occupying the premises and claiming ownership by way of adverse possession - Defendants proved to be licensees and not vacating the premises despite notice - Order for eviction passed Defendants to pay Rs.2, 100/- p.m. as damages. (Rama Kanta Jain Vs M.S.Jain), 1999(3) CIVIL COURT CASES 49 (DELHI) #8: KARNATAKA HIGH COURT Civil Procedure Code, 1908, O.22, R.3 --- Eviction petition - Death of petitioner during pendency of proceedings - L.R's filed application within time for impleadment - No order passed on application - Omission noticed at later stage of proceedings - Proceedings are not vitiated - Court has inherent powers to set right its own mistake. (Mohammed Shukur Vs Smt.Jayamma & Ors.), 1997(2) CIVIL COURT CASES 256 (KARNATAKA) #9: SUPREME COURT OF INDIA Civil Procedure Code, 1908, O.23, R.1 --- During pendency of eviction petition rent increased u/s 6-A of the Act after issuing notice u/s 8 of the Act - Rent exceeded Rs.3500/p.m. - S.3(c) of the Act will come into operation - Rent Act will not remain applicable - Landlord has a right to withdraw eviction petition from ARC and he can file fresh suit for eviction under general law - Leave of Rent Controller not required. (M/s.Nopany Investments (P) Ltd. Vs Santokh Singh (HUF)), 2008(2) APEX COURT JUDGMENTS 347 (S.C.) : 2008(2) CIVIL COURT CASES 300 (S.C.) : AIR 2008 SC 673 : 2007 AIRSCW 7785 : 2008(2) SCC 728 : 2007(14) SCALE 90 : 2007(8) SUPREME 587 #10: SUPREME COURT OF INDIA Delhi Rent Control Act, 1958, Section 3(c), 6A, 8, 14(1)(e) --- Suit for eviction - Rent increased - S.3(c) of Act came into operation - Suit for eviction under general law - Held, that no notice to quit was necessary u/s 106 TPA in order to enable the respondent to get a decree of eviction against appellant. (M/s.Nopany Investments (P) Ltd. Vs Santokh Singh (HUF)), 2008(2) APEX COURT JUDGMENTS 347 (S.C.) : 2008(2) CIVIL COURT CASES 300 (S.C.) : AIR 2008 SC 673 : 2007 AIRSCW 7785 : 2008(2) SCC 728 : 2007(14) SCALE 90 : 2007(8) SUPREME 587 #11: SUPREME COURT OF INDIA Delhi Rent Control Act, 1958, Section 3(c), 8, 14(1)(e) --- During pendency of eviction petition rent increased u/s 6-A of the Act after issuing notice u/s 8 of the Act - Rent exceeded Rs.3500/- p.m. - S.3(c) of the Act will come into operation - Rent Act will not remain applicable - Landlord has a right to withdraw eviction petition from ARC and he can file fresh suit for eviction under general law - Leave of Rent Controller not required. (M/s.Nopany Investments (P) Ltd. Vs Santokh Singh (HUF)), 2008(2) APEX COURT JUDGMENTS 347 (S.C.) : 2008(2) CIVIL COURT CASES 300 (S.C.) : AIR 2008 SC 673 : 2007 AIRSCW 7785 : 2008(2) SCC 728 : 2007(14) SCALE 90 : 2007(8) SUPREME 587 #12: PUNJAB & HARYANA HIGH COURT East Punjab Urban Rent Restriction Act, 1949, Section 13 --- Eviction - Material impairment - Ground not taken in notice of termination of tenancy - Advance notice for termination of tenancy is not required - Held, merely because in the notice of termination, point of material impairment was not stated the same does not bar landlord from getting ejectment of tenant on the ground of material impairment. (Baba Shadi Ram Kataniwala Vs Padam Dev Auplish & Ors.), 2007(4) CIVIL COURT CASES 067 (P&H) : AIR 2007 NOC 2673 (P&H) : 2007(4) RECCIVR 130.2

#13: PUNJAB & HARYANA HIGH COURT East Punjab Urban Rent Restriction Act, 1949, Section 13 --- Tenancy - Termination - For filing eviction petition advance notice to tenant is not required - Notice if at all served and a particular ground of eviction not taken in the notice, even then landlord can seek eviction of tenant on that ground. (Baba Shadi Ram Kataniwala Vs Padam Dev Auplish & Ors.), 2007(4) CIVIL COURT CASES 067 (P&H) : AIR 2007 NOC 2673 (P&H) : 2007(4) RECCIVR 130.2 #14: PUNJAB & HARYANA HIGH COURT East Punjab Urban Rent Restriction Act, 1949, Section 13(2)(1) --- House-tax - Notice not given prior to filing of eviction petition - Demand of tax in plaint cannot be considered notice - Tenant not liable to eviction for non payment of house-tax. (Hindu Undivided Family M/s Lal Chand Aggarwal & Sons, & Anr. Vs Sadhu Singh), 2004(1) CIVIL COURT CASES 438 (P&H) #15: PUNJAB & HARYANA HIGH COURT Haryana Urban (Control of Rent and Eviction) Act, 1973, Section 13(2)(i) --- House tax - Specific amount if not demanded in notice - Tenant is not liable to pay house tax and in that event for non payment of house tax eviction of tenant cannot be ordered - In case specific amount of house tax is not claimed in notice then Court has to determine the house tax and an opportunity is to be given to tenant to pay the arrears of house tax and in case tenant does not pay house tax his eviction has to be ordered. (Gian Singh Vs Smt.Dhan Devi (Dead) through L.R.), 2005(2) CIVIL COURT CASES 92 (P&H) #16: SUPREME COURT OF INDIA Rent and Eviction --- Sub letting - `Has sub let' - Meaning - Does not mean that sub letting should be in existence on the date of suit - It is enough that sub letting has taken place sometime after the Act came into operation and it does not matter that sub letting came to an end before the landlord gave notice or before the landlord filed a suit. (Carona Ltd. Vs M/s.Parvathy Swaminathan & Sons), 2007(3) APEX COURT JUDGMENTS 589 (S.C.) : 2007(4) CIVIL COURT CASES 618 (S.C.) : AIR 2008 SC 187 : 2007 AIRSCW 6546 : 2007 CLC 1833 : 2008(1) AIRKARR 89 : 2007(6) AIRBOMR 865 : 2007(8) SCC 559 : 2007(11) SCALE 630 : 2007(7) SUPREME 280 #17: KARNATAKA HIGH COURT Rent and Eviction --- Lease of vacant land - Lessee permitted to construct building on leasehold land at his own cost - Lessee to surrender alongwith building on expiry of lease without compensation for building - Ownership of building constructed by lessee vests in him during subsistence of lease, but on termination of lease, it passes on to lessor, and lessee's occupation of building thereafter is only as tenant - Period of lease having expired and lessee having been given notice to vacate, he is bound to vacate, unless he is protected against eviction by provisions of Rent Control Act - Where lessee after expiry of lease, had leased out building to another, his action amounted to unlawful sub-letting which disentitles him to protection under provisions of Rent Control Act. (Karnataka Rent Control Act, 1961, S.21(1)(f). (S.Shivanathan (Deceased) by L.R's. Vs S.G.Narayana), 1999(1) CIVIL COURT CASES 93 (KARNATAKA) #18: SUPREME COURT OF INDIA Rent and Eviction --- Sub-letting - Pleading - 'The plaintiffs say that pending the suit the defendants have or any of them has inducted in the suit premises Defendant Nos.4 & 5 unlawfully' - Held, that such averment afforded sufficient notice to the other side that he was putting forth a case that first respondent was inducted into the premises by the tenant and such induction is unlawful. (Civil Procedure Code, 1908, O.6.R.2) (Virendra Kashinath Ravat & Anr. Vs Vinayak N.Joshi & Ors.), 1999(1) CIVIL COURT CASES 392 (S.C.) : (1999)1 SCC 47 #19: SUPREME COURT OF INDIA Transfer of Property Act, 1882, Section 106 --- Eviction petition - Notice u/s 106 TPA before institution of eviction petition - Condition as to issuance of notice printed on back side of rent receipt issued by landlord - On this basis parties cannot be said to have accepted it as a condition of lease - Rent receipt is a document issued by landlord acknowledging receipt of rent - Condition printed at the back of rent receipt cannot be said to be a conscious decision taken by parties governing the lease of premises - Terms and conditions of a lease result from

conscious decision of parties. (Jaswant Raj Soni Vs Prakash Mal), 2005(3) CIVIL COURT CASES 596 (S.C.) #20: SUPREME COURT OF INDIA Transfer of Property Act, 1882, Section 106 --- Eviction petition - Notice u/s 106 TPA There is no legal requirement for issuance of a notice u/s 106 of Transfer of Property Act before institution of an eviction petition. (Jaswant Raj Soni Vs Prakash Mal), 2005(3) CIVIL COURT CASES 596 (S.C.) #21: ALLAHABAD HIGH COURT Transfer of Property Act, 1882, Section 106 --- Co-owners and co-landlords - No distinction between co-owners and co-landlords can be drawn as to the applicability of the principle that even one of the co-owners is authorised to give notice of termination of tenancy and file suit for eviction of tenant. (Gulab Chand Verma Vs Badri Narain Mishra), 2005(3) CIVIL COURT CASES 42 (ALLAHABAD) : AIR 2005 ALLAHABAD 133 : 2005 ALLLJ 1291 : 2004(2) ALLRENTCAS 462 : 2004(57) ALLLR 43 : 2004(4) ALLWC 3744 : 2005(2)RENTCR 105 #22: ALLAHABAD HIGH COURT Transfer of Property Act, 1882, Section 106 --- Co-owners/co-landlord - Even one of the co-owners/co-landlords is authorised to give notice of termination of tenancy and file suit for eviction of tenant. (Gulab Chand Verma Vs Badri Narain Mishra), 2005(3) CIVIL COURT CASES 42 (ALLAHABAD) : AIR 2005 ALLAHABAD 133 : 2005 ALLLJ 1291 : 2004(2) ALLRENTCAS 462 : 2004(57) ALLLR 43 : 2004(4) ALLWC 3744 : 2005(2)RENTCR 105 #23: SUPREME COURT OF INDIA Transfer of Property Act, 1882, Section 106 --- Suit for eviction - Rent increased - S.3(c) of Act came into operation - Suit for eviction under general law - Held, that no notice to quit was necessary u/s 106 TPA in order to enable the respondent to get a decree of eviction against appellant. (M/s.Nopany Investments (P) Ltd. Vs Santokh Singh (HUF)), 2008(2) APEX COURT JUDGMENTS 347 (S.C.) : 2008(2) CIVIL COURT CASES 300 (S.C.) : AIR 2008 SC 673 : 2007 AIRSCW 7785 : 2008(2) SCC 728 : 2007(14) SCALE 90 : 2007(8) SUPREME 587 #24: ANDHRA PRADESH HIGH COURT Transfer of Property Act, 1882, Section 106 --- Notice - Waiver - Acceptance of demand draft after issuance of notice - Cannot constitute waiver of right to seek eviction as there is no evidence to show that landlady treated the lease as subsisting and as she accepted the demand draft towards damages for use and occupation and not as rent. (Ravi Raghu Ramaiah Vs Koneru Rama Tulasamma), 2004(3) CIVIL COURT CASES 356 (A.P.) #25: DELHI HIGH COURT Transfer of Property Act, 1882, Section 106, 107 --- Mesne profits - Defendants occupying the premises and claiming ownership by way of adverse possession - Defendants proved to be licensees and not vacating the premises despite notice - Order for eviction passed - Defendants to pay Rs.2, 100/- p.m. as damages. (Rama Kanta Jain Vs M.S.Jain), 1999(3) CIVIL COURT CASES 49 (DELHI) #1: CALCUTTA HIGH COURT Public Premises (Eviction of Unauthorised Occupants) Act, 1971, Section 4, 5(1) --Licence given for a certain period - After expiry of that period appellant becomes an unauthrosied occupier - It is immaterial whether any notice terminating the licence is given. (Malay Kumar Banerjee Vs Union of India & Ors.), 1995(2) CIVIL COURT CASES 579 (CALCUTTA) #2: KARNATAKA HIGH COURT Rent and Eviction --- Tenant purchased property in his occupation inspite of the knowledge of agreement to sell between landlord and plaintiff - Not a bonafide purchaser without notice Suit for specific performance decreed-possession of the portion over which the tenant is in occupation - His possession as a tenant cannot be disturbed except under the provisions of Rent Act. (Karnataka Rent Control Act, 1961, S.21) (Kadarkari Vs Smt.Onkaramma & others), 1988 CIVIL COURT CASES 217 (KARNATAKA) #3: ALLAHABAD HIGH COURT Transfer of Property Act, 1882, Section 106 --- Notice - Appellant inherited tenancy rights as one of the heirs - Status of appellant is that of a joint tenant - Decree for eviction against

other co-tenants is binding on appellant too even if notice to quit is not served on her and is not impleaded in suit. (Smt.Anju Sharma Vs Suresh Chand Jain & Ors.), 1993 (SUPPL.) CIVIL COURT CASES 87 (ALLAHABAD)#1: SUPREME COURT OF INDIA Transfer of Property Act, 1882, Section 105, 106 --- Legal and lawful possession - Assent of landlord to continue after determination of tenancy - It creates new tenancy - A tenant after expiry of period of lease may be holding over and lessor may acquiesce in his continuance expressly or impliedly - From conduct of lessor, tenant's possession may stand converted into law - In case lessor does not agree to renew the lease or he may acquiesce in continuance, the lessee cannot claim any right or interest - Possession of lessee would be neither legal nor lawful. (R.V.Bhupal Prasad Vs State of Andhra Pradesh & Ors.), 1995(2) CIVIL COURT CASES 662 (S.C.) : 1996(1) APEX COURT JOURNAL 104 (S.C.) : 1995(2) REN CON R 448 : 1995(3) RRR 310 : 1995(5) SCC 698 #2: KARNATAKA HIGH COURT Transfer of Property Act, 1882, Section 108 --- Encroachment by tenant of adjoining vacant land of landlord - Presumption is that land encroached upon are added to tenure for benefit of tenant so long as tenancy continues - Tenant cannot acquire title to encroached land by adverse possession but obtain only right of tenancy under landlord - Tenant is obliged to hand over encroached area also to landlord on determination of lease alongwith the original tenanted or leased area. (Syed Nazmuddin Vs N.S.Krishna Murthy), 1998(3) CIVIL COURT CASES 369 (KARNATAKA) #3: KERALA HIGH COURT Transfer of Property Act, 1882, Section 108(e) --- Destruction of building - Tenancy qua building alone - There is automatic termination of lease - However, landlord can claim recovery of possession of land only through civil Court - Cannot trespass upon land on ground that lease is terminated. (Puthukkattil Parangodan Vs Puthukkattil Parameswaran), 2002(3) CIVIL COURT CASES 485 (KERALA) #4: MADRAS HIGH COURT Transfer of Property Act, 1882, Section 116 --- Applicability of the provision - (i) There must be a determination of lease (2) After the determination of lease, the lessee must be in possession; (3) Owner should receive the rent - Only in compliance of all the three conditions the lessee should be deemed to be holding over. (Palani Municipal Council Vs C.Sadasivam), 2003(3) CIVIL COURT CASES 326 (MADRAS) #5: PUNJAB & HARYANA HIGH COURT Transfer of Property Act, 1882, Section 116, 106 --- Lease for one year - Stood determined by efflux of time - Principle underlying S.116 is based upon considerations of equity and justice and a tenant can be regarded as holding over if it is shown that after the determination of the lease the lessor or his legal representative accepted rent from the lessee or otherwise assented to his continuing in possession - Element of consent whether express or implied is most important - In the instant case at no point of time the Municipal Committee gave the consent for the deposit of rent nor it was so deposited in the account of the Committee - No resolution passed by the Committee nor its employees wrote any letter, whatsoever, to the appellants to the deposit of such rent - Possession became unauthorised Land falls within definition of `public premises' - Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972, Ss.2(d), 2(e) and 3. (Charan Singh Vs Municipal Committee, Rania), 1997 (SUPPL.) CIVIL COURT CASES 34 (P&H) : 1996(2) RRR 185 : 1996 PLJ 254#14: PUNJAB AND HARYANA HIGH COURT Tenancy --- Proof - Certain essential features have to be proved to hold that there is relationship of landlord and tenant - It necessarily involves the existence of a contract in the form of lease deed or any circumstantial evidence showing that such a contract was in existence - It further requires that possession of the immovable property should be proved by tenant in his capacity as such on payment of rent. (Transfer of Property Act, 1882, S.105). (Ram Chand Premi Vs Nawab Kaur), 2004(2) CIVIL COURT CASES 188 (P&H) #15: ANDHRA PRADESH HIGH COURT Transfer of Property Act, 1882, Section 53A --- Agreement to sell - Suit schedule property on lease - Symbolic delivery of possession - Proof of - It can by attorning existing lease in favour of the transferee - Such attornment can take place either with the direct participation of the lessee, in a tripartite transaction, or through intimation by the transferor to the lessee

about the latter's obligation to pay the rents to the transferee henceforth - Even where no such specific steps are taken, an implied symbolic delivery of possession can be culled out, if the transferee is able to prove to the satisfaction of Court that he started receiving rents of the property, subsequent to the agreement, as of right - In absence of such proof Court cannot infer delivery of possession in favour of transferee - In absence of such proof plaintiff cannot claim benefit of the provision. (Thota Rambabu @ Ramu Vs Cherukuri Venkateswara Rao @ Pedababu & Ors.), 2006(1) CIVIL COURT CASES 506 (A.P.) : AIR 2006 A.P. 114 : 2006 AIHC 1405 : 2006(4) AKAR(NOC) 596 : 2006(2) AIRJHAR(NOC) 397 : 2006(40) ALLINDCAS 293 : 2005(5) ANDHLT 278 : 2005(1) ANDHWR 631 : 2006(1) CURCC 214 Transfer of Property Act, 1882, Section 116, 111, 105 --- Acceptance of rent by landlord after lease has been determined either by efflux of time or by notice to quit - Does not create a tenancy so as to confer the erstwhile tenant the status of a tenant or a right to be in possession. (C.Albert Morris Vs K.Chandrasekaran & Ors.), 2006(1) APEX COURT JUDGMENTS 179 (S.C.) : 2006(1) CIVIL COURT CASES 218 (S.C.) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: Civil Revision No. 5185 of 2008 DATE OF DECISION : July 6,2009 M/S Gawritex Industries Limited, Panchkula .......Petitioner versus Sqn. Ldr. Gurdial Singh (Retd.) & others ......Respondents CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR PRESENT: Mr. Gurpreet Singh, Advocate for the petitioner. Mr. Balram Gupta, Sr. Advocate with Mr. Shikeesh Gupta, Advocate for the respondents. NIRMALJIT KAUR, J. The facts, in short, are that the lease deed dated 01-01-2004nwas executed between the landlord Sqn. Ldr. Gurdial Singh and other respondents and the petitioner-tenant, on the other side. The lease money, to be paid by the petitioner-tenant was Rs.1,11,000/- per month payable in advance by the 7 th of each calendar month. The lease was for a period of five years but terminable at any time, by either of the parties, by giving three months' notice in writing. In accordance with Clause 8 of the lease deed, the petitioner decided to vacate the premises and terminated the lease by sending notice dated 19-07-2004. The petitioner-tenant separately issued Legal notice dated 26-08-2004 and a communication dated 18-10-2004, informing respondent No.1 that the petitioner-tenant was vacating the premises on 19-10-2004. After the vacation of the tenanted premises on 19-10-2004, another communication dated 20-10-2004 and 06-11-2004 was sent, informing the landlord-respondents that he had vacated the tenanted premises. The respondent-landlord, inspite of vacating the premises by the tenant, filed civil Suit for possession by way of ejectment and for recovery of Rs.4,09,00/- i.e. Rs. 4,00,000/- by way of mesne profits + Rs.9000/- as interest thereon. However, the suit was dismissed with the following findings and observations : Onus to prove these issues was upon the plaintiffs. Plaintiffs have not adduced any

evidence nor do they have themselves stepped into witness box. Evidence of plaintiffs stood already closed. Even otherwise, the suit of the plaintiff, based on Chandigarh Administration Notification dated 07-11-2002 for ejectment and mesne profits and damages as framed is not maintainable as said notification is quashed by Hon'ble Supreme Court in judgment titled as Vasdev Singh vs. UOI 2006(2) Rent Control Report 561. Thereafter, after 3 years of the petitioner-tenant having sent the notice dated 19-07-2004 under the East Punjab Urban Rent Restriction Act, 1974, a rent petition was filed by the respondent-landlord. The petitioner-tenant filed a detailed reply, stating in para 6 of the preliminary objections that the premises have already been vacated and no relationship of landlord and tenant exists. It is also stated before this Court by learned counsel appearing on behalf of the petitioner that an application under Order 14 Rules 1 and 2 has also been filed by him in the Rent Petition to adjudicate upon the issue as to whether there exists a relationship of the landlord-tenant between the parties or not. However, the Rent Controller, U.T. Chandigarh vide order dated 28-08-2008 heard the parties and passed a provisional order assessing the rent at the rate of Rs.1,11,000/- payable w.e.f. July, 2004 along with costs assessed at Rs.1000/- and interest. Aggrieved, the respondent has filed the present Revision Petition, challenging the order dated 28-08-2008 vide which the rent has been provisionally assessed. Learned counsel Mr. Balram Gupta, Sr. Advocate with Mr. Shikeesh Gupta, Advocate for the respondent vehemently argued that the petitioner-tenant was required to hand over the actual and physical possession of the demised premises to the respondent as per the terms and conditions of the lease deed. Since, the same has not been done, it does not amount to vacant possession. It was, further, argued that, in fact, an agreement R-1 has been signed between Amit Gawri, the present petitioner who was the tenant at the Ground Floor and Ajay Partap, who is the tenant at the basement of the said building for sharing the window. Reliance has been placed on this agreement to show that the petitioner had, in fact, sub-let the premises. Thus, due to the signing of the agreement with the other tenant, in the basement, amounts to subletting. Reliance was further placed on R-3 to show that the vacant possession had not been handed over. R-3 is a telegram, requesting the petitioner to intimate the time and date of handing over the possession of the leased ground floor. On the other hand, learned counsel for the petitioner submitted that the demised premises, in dispute, stood surrendered as vacated by the petitioner after terminating the lease through the legal notice dated 19-07-2004 by Regd. Post which was duly received and duly replied by the respondents and on expiry of period of three months, that is to say, on 19-102004, the premises stood surrendered and vacated as per agreed terms and conditions stipulated in clause 8 of the lease deed dated 01-01-2004. Further, there was no relationship of landlord and tenant between the parties. Moreover, a Civil Suit had already been dismissed. The present eviction petition has been filed after 3 years. In fact, there was refusal by the landlord to take possession of the demised premises. After hearing learned counsel for the parties, I find force in the arguments of the learned counsel for the petitioner. While raising his

first argument that once the landlord-tenant relationship is denied, the Rent Controller cannot pass any order of provisional assessment of rent, learned counsel for the petitioner relied on the cases titled as Yashpal Singla v. Vijay Kumar 2004(3) P.L.R. 504, Narinder Singh vs. Sarabjit Singh 2006(2) R.C.R. (Rent) 226, M/s Rachitech Engineering Pvt. Ltd. vs. M/s Kundan Steel Pvt. Ltd. 2007(1) R.C.R. (Civil) 218, Jagdamba Tea Factory, Amritsar vs. Parshotam Kishan 2008(4) Law Herald (P&H) 2730, Rakesh Wadhawan & Ors. vs. Jagdamba Indusrial Corporation & Ors. P.L.R. Vol. CXXXI 2002(2) 370. This Court, in the case of Yashpal Singla (supra), held in para 7 of the judgment as follows : Once the tenant has denied the relationship of landlord and tenant, then there would be hardly any justification for the Rent Controller to frame an assessment order in pursuance to the provisions of proviso of Section 13(2)(1) of the Act as interpreted by the Supreme Court in the case of Rakesh Wadhawan (supra). After the evidence has been led by the landlord showing the relationship of landlord-Civil Revision No. 5185 of 2008 -5tenant, then there would be no justification to permit the tenant to deposit the arrears of rent in accordance with the interim assessment order of rent. Such an approach would create imbalance of equities and would hardly be justified. Therefore, I have no hesitation in rejecting the argument raised by learned counsel and reiterate my view taken in the cases of Ramanand Shastri (supra) and Kukma Devi (supra). The said view point has been followed thereafter in another judgment of this Court, titled as Narinder Singh (supra) as well as Jagdamba Tea Factory, Amritsar (supra). In the present case also, the tenant took a specific stand in para 6 of his reply to the Rent Petition, which reads as follows : That the East Punjab Urban Rent Restriction (Extn. to Chandigarh) Act, 1974 is not applicable to the facts and circumstances of the case as there is no relationship of landlord and tenants in view of the facts as stated above after 19-10-2004. This Hon'ble Court has got no jurisdiction to decide the present case. Thus, in view of the above stand in para 6 of the reply to the petition under East Punjab Urban Rent Restriction Act, 1974 that there was no relationship of landlord and tenant, and also in view of the notice dated 19-07-2004 for termination of the lease and communication dated 20-10-2004 after the expiry of the notice period on 19-10-2004, it is sufficient for the Rent Controller to refuse to give an interim or provisional order, assessing the amount of rent. The interest of the landlord stands protected because, in case, the relationship of landlord and tenant is subsequently established, the tenant loses the opportunity of making payment towards arrears of rent and is liable to be evicted without any further opportunity. The

arrears of rent are always liable to be recovered from tenant through the recovery suit. Learned counsel for the respondents, however, submitted that the said judgments are not applicable in the facts of the present case as all these judgments relate to a situation where the landlord has changed due to either the death of the landlord or because of the demised premises, having been sold. However, this plea is without any substance on account of the fact that the principle laid down in all these judgments, would be duly applicable in the facts of the present case and it is the consistent view in all the cases that the Rent Controller is not under any obligation to pass a provisional order assessing the rent, once the relationship of the landlord and tenant has been denied because once, the relationship of landlord and tenant is ultimately established, the consequences on account of non-payment of arrears of rent, in any case follow and the tenant will not get any opportunity to deposit the said rent and is immediately liable for eviction. Thus, no grievance is caused to the landlord, at this stage and his interest is protected. Moreover, the facts enumerated below are self speaking and need no further explanation as to why the order of provisional assessment cannot be sustained. In accordance with Clause 8 of the lease deed, the petitioner decided to vacate the premises by sending the notice dated 19-07-2004. The notice reads as follows : I hereby give you clear notice of three months from today w.e.f. 20-07-2004. I shall vacate the premises on 19-10-2004. I would further like to inform you that the security amounting to Rs.3,30,000/- which was paid to you as advance be adjusted as rent for the future three months. Interestingly, the respondent-landlord refused to accept the same and replied to the notice dated 19-07-2004 as follows : So, you have no right to terminate the lease in question on any day before completion of the month. Thus, your present notice does not meet the requirement of three months clear notice qua the termination of lease, as envisaged in Clause 8 of the said lease deed. .... It was further stated in the reply as under : So, in view of the facts and circumstances detailed in present reply, you are advised to desist from doing any of the acts as stipulated in the present notice dated 19-07-2004 failing which you would render yourself liable for all the legal consequences thereof. Thereafter, sensing the intention of the landlord, the petitioner tenant playing safe, only informed the landlord that he was vacating the premises on 19-10-2004. The language of this communication reads : In this connection, we may inform you that as per our Notice dated 19-07-2004 for vacation of tenanted premises, we are vacating the premises on 19-10-2004. So you are requested to take the premises i.e. SCO No.1108-09, Sector 22-B, Chandigarh.

Knowing what he was up against, the tenant wrote another letter dated 20-10-2004 in the following terms : I would like to inform you that I have vacated the tenanted premises SCO No.1108-09, Ground Floor, Sector 22-B, Chandigarh, on dated 19-10-2004, as per notice dated 19-07-2004 and one other letter dated 18-10-2004. This is for your kind information. Thereafter, the Civil Suit filed by the landlord-respondent was also dismissed. Now after 3 years of the notice of having vacated the premises, the rent petition has been filed. In view of the above facts, the present litigation is nothing but a dishonest litigation. The communication of the landlord dated 29-10-2003 (R/3) after 81 days appears to be nothing but evidence created as an afterthought. Learned counsel for respondents, herein, submitted that the petitioner has not handed over the vacant possession as the part of the window has been sub-let to Ajay Partap. Admittedly, no such ground has been taken by the landlord in the eviction petition. Moreover, even if this ground is subsequently taken, the only relief that can be granted is eviction of the tenant but cannot be a ground for passing of the provisional order of assessment of rent, which is the only subject matter in the present revision. On the facts and circumstances narrated above and taking into consideration the judgments as discussed above, the revision petition is allowed. The provisional order dated 28-08-2008 assessing the rent is set aside. Nothing herein shall have any bearing on the merits of the rent petition pending before Rent Controller. Seeing the long 5185 of 2008 -9litigation, it would be in the fitness of things to direct that the rent petition may finally be concluded within four months. (NIRMALJIT KAUR) JUDGE July 6, 2009 gurpreet Whether to be referred to the Reporter : Yes / No M. C. Chockalingam & Ors vs V. Manickavasagam & Ors on 31 October, 1973 Equivalent citations: 1974 AIR 104, 1974 SCR (2) 143 Bench: Goswami, P.K. PETITIONER: M. C. CHOCKALINGAM & ORS. Vs. RESPONDENT: V. MANICKAVASAGAM & ORS. DATE OF JUDGMENT31/10/1973 drawnCivil Revision No.

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. REDDY, P. JAGANMOHAN CITATION: 1974 AIR 104 1974 SCR (2) 143 1974 SCC (1) 48 ACT: Madras Cinemas (Regulations) Act, 1955 (Act No. 9 of 1955) Sections 5(1), (7), (5) (a)--"Person aggrieved" in s. 5(7)- Madras Cinemas (Regulations) Rules, 1957, Rule 13- Interpretation ofWhether applies to case of removal of licence-Tenant continuing in possession after determination of tenancy, and expiry of lease-Distnction between lawful possession and juridical possesssion-Whether non-statutory tenant can raise pleas of lawful possession even on expiry of lease-Specific Act, 1877, Section 9, and Act 43 of 1963, S. 6-Transfer of Property Act, 1882,s. 108(a)-Held, non- statutory tenant cannot continue in "lawful possession" on expiry of lease. Constitution of India, Art. 226-No manifest error of law- Interference by High Court not warranted. HEADNOTE: The appellants-lessors are the sole and absolute owners of the demised premises-a cinema theatre. By a registered composite lease, they leased the land, buildings and the cinematographic equipment in it to the first respondent for a period of three years from 19th August, 1969 subject, inter alia, to recovery of possession on termination of the lease. It was the admitted case of both parties that the lease expired on 18th August, 1972, and that the case was not governed by the Madras Buildings (Lease and Rent Control) Act, 1960, to entitle the tenant to claim statutory protection from eviction under the Act. The appellants issued a notice dated 15th May. 1972, to the first respondent to deliver back, possession on the. expiry of the lease. On 17th June, 1972, the first respondent made an application to the licensing authority under the Madras Cinemas (Regulation) Act, 1955 (briefly, the Act) to renew the licence for resuming Cinema Theatre. The only documentary evidence produced by the respondent in regard to his possession was the expired lease. On 12th July, 1972, the appellants also made an application to grant the licence in their favour. In August. 1972. the licensing authority. by a common order in both the applications, renewed the licence of the respondent and rejected the application of the appellants. On 14th August, 1972, the appellants preferred as appeal to the Board of Revenue. The Board held that the respondent

was not session of the leased property and set aside the order of the 16th September, 1972. The first respondent then filed on 18th September, 1972 a writ petition under Art. 226 of the Constitution. The learned single Judge of the High Court, while interpreting Rule 13 of the Madras Cinemas (Regulations) Rules, 1957 (briefly, the Rules), affirmed the finding of the Board and dismissed the writ petition 'on 8th February, 1973. The respondent thereupon preferred a Letters Patent Appeal. The Division Bench of the High Court, however, relying upon adecisionof this Court in Lalu Yeshwant Singh v. Rao Jagdish Singh and Others (infra). held that the, respondent's possession after the expiry of the lease was lawful possession within the meaning of Rule 13 and allowed the appeal on 4th July, 1973. On appeal by special leave to this Court, the appellants raised the following contentions: (i) the High Court erred in its interpretation of Rule 13 and in holding that the respondents are in lawful possession of the leased properties after expiry of the lease; and (ii) that at any rate the High Court could not interfere with the order of the Board under Art. 226 of the Constitution on the principles laid down by this Court in such matters. The respondents, on the other hand, made the following submissions: (i) that the lessor is not a person aggrieved under section 5(7) of the Act and is, therefore, not competent to appeal to the Board under that section; (ii) that Rule 13 does not apply to a case of renewal of licence; (iii) that "lawful possession" in Rule 13 means only juridical possession i.e. protected by law such as section 9 (old) and section 6 (new) of the Specific Relief Act and, therefore, the High Court rightly held that the respondents were in lawful possession of the property after the expiry of the lease and as such entitled to renewal-of the, licence. and (iv) that the High Court under Art. 226 has jurisdiction to quash an order of the Board if there a manifest error of law in the interpretation of r. 13. 144 Allowing the appeal, HELD: (1) The appellants were themselves applicants before the competent authority for grant of a licence under the Act and the respondents sought renewal of the same licence. Therefore, the appellants are aggrieved by the order granting renewal to the respondent and refusing the appellant's prayer for the licence. [148G] (2) Rule 13 is clearly applicable to grant as well as to renewal of a licence. The rule finds place in Part 1-A of the Rules with the title "General". Under section 5(2) (a) of the Act, the licensing authority shall not grant a licence unless it is satisfied that the Rules under the Act have been substantially complied with. Therefore, there is no justification for making any distinction between :rant and renewal of a licence under the provisions of the Act read with the Rules. [153E] (3) Lawful possession is not litigious possession. It must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property which is wrongfully or forcibly dispossessed from it. Juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession. Rule 13 has got two parts. The first part deals with an applicant for the licence who is the owner of the site, building and equipment and the second part deals with an applicant who is not such an owner. On the admitted case of the parties. it is the

second part of R. 13 that is material in the present case. Under the second part of the rule, the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with regard to the applicant's lawful possession of the property. The fact, that after the expiry of the lease the tenant will be able to continue in possession of the property by resisting a suit for eviction does not establish a case in law to answer the requirement of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, in 'View of a special law, his consent becomes irrelevant. Juridical possession of a tenant after the expiry of the lease would not be a lawful possession within the meaning of Rule 13. All that section 6 of the Specific Relief Act provides is that a person, even if he is a landlord, cannot take the law into his own hands and forcibly evict a tenant after the expiry of the lease. This section has relevance only to the wrongful act of a person, if it be by the landlord, in forcibly recovering possession of the property without recourse to law. Section 6 frowns upon forcible dispossession without recourse to law but does not at the same time declare that the possession of the evicted person is lawful possession. The question of lawful possession does not enter the issue at that stage. All that the court is then required to consider is whether an evicted person has been wrongfully dispossessed and he has come to the court within six months of the dispossession. The various civil rights between the landlord and the tenant will have to be adjudicated upon finally in a regular civil suit if filed. In the context of Rule 13, a tenant on the expiry of the lease. cannot be said to continue in "lawful possession" of the property against the wishes of the landlord if such possession is not otherwise statutorily protected against even lawful eviction through court process. such as under the Rent Control Act. Law in general prescribes: and insists upon a specified conduct in human relationship and even otherwise, Within the limits of the law courts strive to take note of the moral fabric of the law. In the instant case under the terms of the lease, the property had to be handed Over to the lessor Besides, under section 108(9) of the Transfer of Property Act, 1892, on the determination of the lease, the lessee is bound to put the lessor in possession of the property, The landlord has- not assented to the lessee's continuance in possession of the property. the lessee will be liable to mesne profits which can again be recovered only in terms of his wrongful possession. Under Section 5(1) of the Act., the licening authority in deciding whether to grant or refuse a licence has regard amongst other things to the interest of the public generally. Public interest is. therefore, also involved in granting or refusing a licence. That being the, position the expression "lawful possession" in Rule 13 assumes a peculiar significance of its own in the, context of the Provisions of the Act. Hence in any view of the matter. Possession of the respondents on the expiry of the lease is not lawful possession within the meaning of Rule 13. [152D-153D]

Lalu Yashwant Singh v. Rao Jagdish Singh and Others, [1968] 2 S.C.R. 203 held not applicable. K. K. Verma v. Naraindas Malkani, I.L.R. [1958] Bombay 950 at 957,Yar Mohammad v. Lakshmi Das, I.L.R. [1958] 2 All, 294 at 404, Midnapur Zamindary Company Limited v. Naresh Narayan Roy. 51 .A. 293 at 299 quoted in [1968] 2 S.C.R. 203/208. and C. Bhavarlal Manging Proprietor, Sri Meliate Talkies, Ootacamund v. Mallay Gounder, 1970 (1) M.L.I. 236. referred to. An Essay on Possession, in the Common Law 1888 Edn. I Pollack and Wright p. 26, (4) The Board of Revenue, in appeal, was right in interfering with the order of the licensing authority. The learned Single Judge. of the High Court rightly refused to interfere with the order of the Board. There is no manifest error of law in the order of the Board and there was no scope for interference by the High Court with the order under Article 226 of the Constitution. The Division Bench of the High Court is not correct in its interpretation of R. 13. [153D] JUDGMENT: CIVIL APPELLATE JURISDICTION : C.A. No. 1229 of 1973. Appeal by special leave from the judgment and order dated the 4th July, 1973 of the Madras High Court in W.A. No. 21/73. S. V. Gupte, J. Ramamarti and V. R. Venkataraman, for the appellants. M. C. Setalvad, K. S. Ramamurthi, W. C. Chopra and A. Subhashini, for respondent No. 1. The Judgment of the Court was delivered by GOSWAMI, J. This appeal by special leave is directed against the judgment of the Madras High Court by which it set aside the judgment of a single Judge of that court in a writ proceeding under Article 226 of the Constitution. The facts may briefly be stated. The first respondent obtained a registered lease of a cinema theatre known as KapaLi Talkies, Madras, for a period of three years from 19th August, 1969. The lease was a composite lease consisting of the, land, buildings and the cinematographic equipment in it. The monthly rental was Rs. 9,125/-. Among other terms, the lease was to expire on 18th August, 1972. It is not necessary for our purpose to refer to the condition of an earlier termination of the lease under certain circumstances. The lessors (the appellants herein) are the sole and absolute owners of the Kapali Talkies, Madras-28, described in Schedule 'A' to the lease. It may be appropriate to extract some material portions of the lease executed between the parties, which run as follows :Schedule 'A describes the land, buildings, other constructions and immovable things and properties therein with all the appurtenances known as the cinema theatre, Kapali Talkies, situated in No. 52, 11-L447SuP.CI/74 146

Ramakrishna Mutt Road, Raja Annamalaipuram, Madras-28, excluding the room in front side of the main building of the cinema theatre, which is retained by the lessors exclusively for their occupation and Use. The other leased properties are mentioned in Schedules 'B', 'C' and 'D' to the lease. Schedule 'B' describes the projectors and machineries installed in the building. Schedule 'C' describes the seats and furniture. Schedule 'D' describes the fixtures and fittings and installations, equipments and other articles and things and materials. Having so described the leased properties, "the lessors hereby grant unto the lessee .... by way of lease the land and buildings with other immovable properties and things therein known as Kapali Talkies, Madras-28 .... more particularly described in Schedule 'A' hereunder that all the projectors, machineries, seats, furnitures and other articles and things stated above and more fully described in Schedules 'B', 'C and 'D' hereunder .... in a composite manner as a cinema theatre functionable, and known as Kapali Talkies, Madras-28, above mentioned with the rights to exhibit films as cinema shows therein .... for a specific use of the same as cinema theatre to exhibit films as cinema shows only, for a specific period of three years only commencing from 19-8- 1969 and ending with 18-8-1972 on a monthly rent of Rs. 9125/payable by the lessee to the lessors for and throughout the said period of three years .... subject to the covenants and terms and conditions hereinafter contained". "Cl. 6. The sole feature of the lease is sheer exhibition of films as cinema shows at the said cinema theatre, Kapali Talkies, Madras-28 and not for utilising the said cinema theatre and other things taken. on lease for any other purpose of any kind other than the exhibition of films as cinema shows. The lessee shall strictly observe this". " Cl. 9. In all transactions, advertisements and banners the lessee shall style himself as 'Lessee of Kapali Talkies, Madras-28' and on no account the name 'Kapali Talkies' shall be changed". " Cl. 27. The lessee shall make his own arrangements at his-own costs and responsibilities for the running of the said cinema theatre, such as taking out the licence, permits, certificates, and other necessary things.......... " Cl. 35. The lessee shall, on the termination of the lease or on an earlier termination of the lease at any earlier period under any circumstances return back to the lessors forthwith the, properties taken on lease in good, proper and functionable conditions and state in which he has received them- from the lessors". The above lease admittedly expired on 18th August, 1972. There was a notice dated 15th May, 1972, to the first respondent to deliver back possession on the expiry of the lease. On 17th June, 1972, the first respondent made an application to the Commissioner of Police (briefly the Commissioner) which is admittedly the competent authority under-the Madras Cinemas (Regulations) Act, 1955 (Act No. 9 of 1955) (briefly the Act), to renew the licence. On 12th July, 1972, the appellants as also mace an application to the Commissioner to grant the licence in their favour. In August, 1972, the Commissioner by a common order in both the petitions renewed the licence of the respondent and rejected the application of the appellants. On 14th August, 147

1972, the appellants preferred an appeal to the Board of Revenue which set aside the order of the Commissioner on 16th September,1972. The first respondent then lodged an application under Article 226 of the Constitution in the Madras High Court on 18th September, 1972 and the learned single Judge dismissed the same on 8th February, 1973. The respondent thereafter preferred a Letters Patent Appeal to the Division Bench which by the, impugned judgment allowed the same on 4th July, 1973. The High Court refused to grant leave to appeal to this Court and hence this appeal by special leave. The Board of Revenue (briefly the Board) accepted the appellants' contention that the respondent was not in lawful possession of the leased property. The learned single Judge of the High Court also held to the same-effect while interpreting rule 13 of the Madras Cinemas (Regulation) Rules, 1957 briefly the Rules) made under the Act. The Division Bench of the High Court, however, relying upon a decision of this Court in Lalu Yeshwant Singh v. Rao Jagdish Singh & Ors.,(1) held that the respondent's possession after expiry of the lease was lawful possession within the meaning of rule 13 of the Rules. The learned single Judge repelled a contention of the respondents to the effect that the appellants could not be said to be aggrieved persons under section 5 (7) of the Act, which was amended by the Madras Act No. IV of 1961. This does not appear to have been pressed by the respondents before the Division Bench. Mr. Gupte, learned counsel for the appellants, submits that the High Court is wrong in interpreting rule 13 of the Rules in order to hold that the respondents are in lawful possession of the leased properties after expiry of the, lease. He further submits that at any rate the High Court could not interfere with the order of the Board under Article 226 of the Constitution on the principles laid down by this Court in such matters. Mr. Setalvad on behalf of the respondents, an the other hand, submits firstly that rule 13 does not apply to a case of renewal of licence; secondly, that the lessor is not a person aggrieved under section 5(7) of the Act and is, therefore, not competent to appeal to the Board under that section; and thirdly, that rule 13 which refers to the 'lawful possession' is only juridical possession, a kind of possession which is protected by law such as section 9- (old), section-6 (new.) of the Specific Relief Act and, therefore, the High Court is right in holding that the. respondents were in lawful possession of the property after the expiry of the lease and as such entitled to renewal of the. licence. It is lastly contended that the High Court on the writ side under Article 226 of the Constitution has jurisdiction to quash an order of the Board if there is a manifest error of law in interpretation of rule 13 of the.Rules. On the question whether and in what circumstances posse ssion is. lawful. he relies upon- the decision. of this Court- in Lalu Yeshwant Singh's case (supra) and submits that this Court has approved of the (1) [1968] 2 S.C.R. 203. 148 decision of the Bombay High Court in K. K. Verma v. Naraindas C. Malkani(1) wherein it was observed as follows :-

"Under the Indian law the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have. a right to continue in possession after the termination of the tenancy his possession is juridical and that possession is protected by statute. Under s. 9 of the Specific Relief Act a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law........ He further points out that this Court in the said case also approved of the decision of the Full Bench of the Allahabad High Court in Yar Mohammad v. Lakshmi Das(2) wherein it was observed "No question of title either of the plaintiff or of the defendant can be raised or. gone into in that case (under s. 9 of the Specific Relief Act). The plaintiff will be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he may be in a position to establish the best of all titles. The restoration of possession in such a suit is, however, always subject to a regular title suit and the person who has the real title or even the better title cannot, therefore, be prejudiced in any way by a decree in such a suit. It will always be open to him to establish his title in a regular suit and to recover back possession'. He further draws I our attention that in Lalu Yeshwant Singh's case (supra) this Court further approved of the law laid down by the, Privy Council in Midnapur Zamindari Company Limited v. Naresh Narayan Roy(3) to the following effect: "In India persons are not permitted to take forecibly possession; they must obtain such possession as they are entitled to through _a Court". Mr. Setalvad, therefore, submits that in view of the above decisions, the decision of the Madras High Court is correct. TO take the second submission of Mr. Setalvad first, it is sufficient to state that the applicants were themselves applicants before the Commissioner for grant of a licence under the Act and the respondents were praying to the Commissioner for renewing the same licence. It is, therefore, clear that the appellants are aggrieved by the order of the Commissioner in granting renewal to the. respondents and refusing, their Prayer for the licence. it is, therefore, not necessary to deal with The several sections and the rules which are relied upon by Mr. Setalvad to support his contention that the appellants are not aggrieved within the meaning of section 5(7) of the Act. The second submission of the learned counsel, therefore, fails. (1) I.L.R. (1954) Bombay 950 at 957. (2) I.L.R. (1958) 2 All. 394 at 404. (3) 51 I.A. 293 at 299 quoted in [1968] (2) S.C.R. 203, 208. 149 With regard to the submission on the interpretation of rule 13, we may read the same :

"If the applicant for the licence is the owner of the site, building and equipment, he shall produce to the licensing authority the necessary records relating to his ownership and possession thereof. If he is not the owner, he shall, to the satisfaction of the licensing authority, produce documentary evidence to show that he is in lawful possession of the site, building and equipment". The rule has got two parts. The first part deals with an applicant for the licence who is the owner of the site, building and equipment and the second part deals with an applicant who is not such an owner. In the present case, the second part of rule 13 is material since the respondent, who was the licensee, is not the owner of the site, building and equipment. This position is admitted bY both the parties. It is, therefore, clear that under rule 13 there respondent is required to produce documentary evidence to show that he. is in 'lawful possession of the site, building and equipment. The only documentary evidence he showed with regard to his possession is the expired lease. Further the appellants had themselves applied for the grant of a licence and they resisted the respondent's right to possession of the property after expiry of the lease. In these circumstances, it is necessary to consider whether the High Court's view that such a possession is 'lawful possession' is correct or not. We should also note here that it is admitted by both the parties that the case is not governed by the Madras Buildings (lease and Rent Control) Act, 1960 (Madras Act 18 of 1960) to entire the tenant to claim statutory protection from eviction under the Act. The principal question, therefore, that comes for decision in this appeal is whether a tenant, who is not a statutory tenant, is entitled to claim to be in lawful possession of the premises on determination of the tenancy, on expiry of the lease. We may quote what. the Division Bench of the Madras High Court held in its own words "Such possession is quite good against the entire world except the landlord himself. The landlord will be entitled to evict him by the appropriate proceedings. Until then we are of the view that the erstwhile tenant cannot be regarded as being in unlawful possession. We are inclined to think that his possession is wrongful but not unlawful. It is wrongful, because the erstwhile tenant continues in possession beyond expiry of the period fixed in the lease. It is not unlawful, because the landlord cannot take the law into his own hands and evict him. He can evict him only by proper procedure and, that being the case, it cannot be said that the erstwhile tenant is in unlawful possession'. Mr. Gupte has, drawn our attention to an earlier decision of the Division Bench of the same High Court in C. Bhavarlal Managing Proprietor, Sri Meliate Talkies, Ootacainund v. Ballay Gounder(1), where the (1) 1970 (1) M.L.J. 236. 150

High Court refused to interfere with the decision of the licensing authority, affirmed by the Board of Revenue. The High Court in that case held as follows :- "The jurisdiction to grant or refuse renewal of a licence is entrusted to the licensing authority which is not the Court. The nature of the jurisdiction so entrusted is clearly for the licensing authority to see whether on the documentary evidence produced, he is satisfied that the applicant was in lawful possession of the site. In exercise of his jurisdiction the licensing authority looks into the matter prima facie and for the purpose of his being satisfied whether- he, the, applicant is in lawful possession. He is not called upon to decide the issue finally between the parties as in a suit. This aspect of the matter should be kept in view when it comes up in the form of a writ petition under Article 226 of the Constitution. In exercise of this power this Court will not, in that background, take upon itself to investigate as to the legality of possession of the site in the hands of the applicant. Ali that can be looked into by this Court, as we are inclined to think, is whether the licensing authority has applied his mind to the documentary evidence produced before him and weighed it with a view to satisfy himself as to the legality. Short of caprice, arbitrariness or mala fides the licensing authority would more than have done his duty if he had gone through that process. If this Court is satisfied about it, will not further go into the rival position in regard to the legality of possession of the site which will not necessarily be the final pronouncement between the parties but leave the issue to be tried as between them in a suit in the appropriate civil Court." We are concerned in this case with the concept of 'lawful possession' in the context of the Act with which we are concerned. As stated earlier, rule 13 has 'got two parts and we are concerned in this case with the second part. A great stress has been given by Mr. Setalvad upon the decision of the Supreme Court in Lalu Yeshwant Singh's case (supra) where this Court considered the possession of a tenant after expiry of the lease, as in this case, as a juridical possession in the context of a provision similar to S. 9 of the Specific Relief Act. He emphasises that such a juridical possession would be a lawful possession, as it is protected by law, namely, under section 6 (new) of the Specific Relief Act. Mr. Setalvad submits that since even with the best of title to the property the landlord cannot forcibly dispossess a tenant after expiry- of the lease, his possession is not only protected by law but also recognised by law and, therefore, his possession is lawful possession and the licensing authority was right in renewing the licence which the Board of Revenue had wrongly interfered with. After giving anxious consideration, we are unable to accept the submission of Mr. Setalvad. All that section 6 (new ) of the Specific Relief Act provides is that a person, even if he is a landlord, cannot take the law into his own hands and forcibly evict a tenant after expiry of the lease. This section has relevance only to the wrongful act 151 of a person, if it be by the landlord, in forcibly recovering possession of the property without recourse to law. Section 6 frowns upon forcible dispossession without recourse to law but does not at the same time declare that the possession of the evicted person is a lawful possession. The question of lawful possession does not alter the issue at that stage. All that the court is

then required to consider is whether an evicted person has been wrongfully dispossessed and he has come to the court within six months of the dispossession. The various civil rights between the landlord and the tenant will have to be adjudicated upon finally in a regular civil suit if filed. Mr. Setlvad has drawn our attention to the definition of the word 'juridical' in Black's Law Dictionary, Fourth edition, at page 990. There the definition is given as follows Juridical : "Relating to administration of justice. or office At. of a judge. "Regular; done in conformity to the laws of the country and the practice which is thereobserved". Mr. Setalvad submits that possession of the licensee in this case is in conformity with the provisions of the Specific Relief Act and what is juridical is also lawful. In the same Dictionary at page 1032 the word 'lawful' is also defined as follows:Lawful : "Legal; warranted or authorised by the law; having the qualifications prescribed by law; not contrary to. nor forbidden by the law". It is difficult to appreciate how possession in the instant case can be said to be "warranted or authorised by the law" as per the above definition. On the other hand, what is 'contrary to or forbidden by the law' is only the forcible dispossession of a tenant which may even engender breach of the peace. There is a very interesting discussion about the meaning of 'lawful possession' in part 11, Chapter I of Pollock & Wright's book "An Essay on Possession in the Common Law", 1888 edition, at page 26. According to the learned authors " Legal possession, the state of being a possessor in the eye of the law .... but it may exist .... either with or without a rightful origin". The illustrations given in the book at pages 27 and 28 are more interesting. "A tailor sends to J.S's house a coat which J.S. has ordered. J.S. puts on the coat, and then has both physical control and rightful possession in law. J.S. takes off the coat and gives it to a servant to take back to the tailor for some alterations. Now the servant has physical control (in this connexion generally called 'custody' by, our authorities) and J.S. still has the possession in law. While the servant is going on his errand, Z assaults him and robs him of the coat. Z is not only physically master of the coat, but, so soon as he has complete control of it, 152 he has possession in law, though a wrongful possession .......... " 'Lawful possession' means a legal possession which is also rightful or at least excusable; this may be consistent with a superior right to possess in some other person". The learned authors have further put in a word of caution observing "The whole terminology of the subject, however, is still very loose and unsettled in the, books, and the reader cannot be too strongly warned that careful attention must in every case be paid to the context".

Mr. Gupte strenuously submits that 'lawful possession' cannot be diverced from an affirmative positive legal right to possess the property and since the lease had expired by efflux of time that a tenant in this case had no legal right to continue in possession. In the context of rule 13, we are clearly of _opinion that a tenant on the expiry of the lease cannot be said to continue in 'lawful possession' of the property against the wishes of the landlord if such a possession, is not otherwise statutorily protected tinder the law against even lawful eviction through court process, such as under the Rent Control Act. Section 6 of the Specific Relief Act does not offer such protection, but only, as stated earlier, forbids forcible dispossession, even with the best of title. Turning to rule 13, even in the first part if the applicant for the licence is the owner of the property he has to produce before the licensing authority the necessary records not only indicating to his ownership but also regarding his possession. It is implicit, that the owner having a title to the property, if he can satisfy the licensing authority with regard to his possession also, will indeed be in 'lawful possession', although the word 'lawful' is not used in the first part. It is in that context that the word 'possession' is even not necessary to be qualified .by 'lawful' in the first part of rule 13. If, however, the applicant for the licence is not the owner, there is no question of his showing title to the property and the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with regard to his lawful possession of the property. The word 'lawful', therefore, naturally assumes significance in the second part while it was not even necessary in the first part. The fact that after expiry of the lease the tenant will be able to continue in possession of the, property by resisting a suit for eviction, does not establish, a case in law to answer the requirement of lawful possession of the property within the meaning of rule 13. Lawful possession cannot be established without the concomitant existence of lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed' from it. This Court in Lalu Yeshwant Singh's case (supra) had not to consider whether juridical possession in that case was also lawful possession. We are clearly of opinion that juridical possession is 153 possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession. Law in general prescribes 'and insists upon : specified conduct in human, relationship or even otherwise. Within the limits of the law, courts strive to take note of the moral fabric of the law. In the instant case, under the terms of the lease, file property had to be handed over to the lessor. Besides under section,8(q) of the Transfer of Property Act, on the determination of'

the. lease, the lessee is bound to put the lessor into possession of the property. Since the landlord has not assented to the lessee's continuance in possession of the property, the lessee will be liable, to mesne piofing which can again be recovered only in terms of his wrongful possesion. Under section 5(1) of the Act, the licensing authority in deciding whether to grant or refuse a licence has regard, amongst others, to the interest of the public.generally. Public interest is, therefore also involved in granting or refusing a licence. That being the position, the expression ,lawful possession' in rule 13 assumes a peculiar significance of its own in the context of the provisions of the Act. Here in any view of the matter possession of the respondents on the expiry of the lease is not lawful possession within the meaning of rule 13. The High Court, is, therefore, not correct in its interpretation of rule 13. The Board of Revenue in appeal was, on the other hand, right in interfering with the order of the licensing authority and the learned single Judge of the High Court rightly refused to interfere with the order of the Board under Article 226 of the Constitution. We are also unable to accept the submission of Mr. Setalvad that the case of renewal of a licence of this type is different from that of a grant. Rule 13 finds place in Part I-A of the Rules with the title 'General'. Under section 5(2)(a) of the Act, ,lie licensing authority shall not grant a licence, unless it is satisfied that the rules made under this Act have been substantially complied with We, therefore, do riot find any justification in making a distinction between grant and renewal of a licence under the, provisions of the Act read with the Rules. Rule 13 is, therefore, clearly applicable to grant as well as to renewal of a licence. With regard to the last submission of Mr. Setalvad, in our view, there is no manifest error of law in the order of the Board and there was no scope for interference by the High: Court with tile order under Article 226 of the Constitution. In the result the decision of the Division Bench of the High Court is set aside and the application under Article 226 of the Constitution in the High Court stands dismissed. The appeal is allowed with costs. S.B.W. Apppeal allowed. Section 106 in The Transfer Of Property Act, 1882 106. Duration of certain leases in absence of written contract or local usage.- In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy. 1. As to persons competent to contract, see ss. 11 and 12 of the Indian Contract Act, 1872 (9 of 1872 ). 2 Subs. by Act 20 of 1929, s. 53, for" Chapter XXXI of the Code of Civil Procedure". Every notice under this section must be in writing, signed by or on behalf of the person giving it, and 1[ either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party], or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. Section 108 in The Transfer Of Property Act, 1882

108. Rights and liabilities of lessor and lessee.- In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:-(A) Rights and Liabilities of the Lessor (a) The lessor is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the former 1. Subs. by Act 20 of 1929, s. 54, for" tendered or delivered either personally to the party who is intended to be bound by it". 2 As to limitation to the territorial operation of s. 107, see s. 1, supra. S. 107 extends to every cantonment-- see s. 287 of the Cantonments Act, 1924 (2 of 1924 ). 3 Subs. by Act 6 of 1904, s. 5 for the original paragraph. 4 Ins. by Act 20 of 1929, s. 55. 5 The words" with the previous sanction of the G. G. in C." omitted by the A. O. 1937. is and the latter is not aware, and which the latter could not with ordinary care discover: (b) the lessor is bound on the lessee' s request to put him in possession of the property: (c) the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption. The benefit of such contract shall be annexed to and go with the lessee' s interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested. (B) Rights and Liabilities of the Lessee (d) If during the continuance of the lease any accession is made to the property, such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease: (e) if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void: Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision: (f) if the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor: (g) if the lessor neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor: (h) the lessee may 1[ even after the determination of the lease] remove, at any time 2[ whilst he is in possession of the property leased 1. Ins. by Act 20 of 1929, s. 56. 2 Subs. by s. 56, ibid., for" during the continuance of the lease".

but not afterwards] all things which he has attached to the earth: provided he leaves the property in the state in which he received it: (i) when a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines, and to free ingress and egress to gather and carry them: (j) the lessee may transfer absolutely or by way of mortgage or sub- lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease: nothing in this clause shall be deemed to authorize a tenant having an un- transferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee: (k) the lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest which the lessee is about to take, of which the lessee is, and the lessor is not, aware, and which materially increases the value of such interest: (l) the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf: (m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left: (n) if the lessee becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessor' s rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor: (o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell 1[ or sell] timber, pull down or damage buildings 1[ belonging to the lessor, or] work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto: (p) he must not, without the lessor' s consent, erect on the property any permanent structure, except for agricultural purposes: (q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property. `Ceased to occupy' - Two factors necessary are (i) actual lose of control of the premises (ii) this lose of control was with the intention to abandon the tenancy rights from the said premises. (Amar Nath Vs Guru Ramdass Textile Mills (Paul Silk Industries) & Anr.), 2002(1) CIVIL COURT CASES 621 (P&H)

Occupation - physical possession of the tenant is not the essential requisite for avoiding penal consequences of ejectment. (Bhawat Singh Vs Sarbjit Singh), 1987 CIVIL COURT CASES 302 (P&H) IN THE COURT OF SH. AMIT SHARMA RENT CONTROLLER, CHANDIGARH.

Dhirender Gupta

Versus

H.S. Chauhan

Written Arguments on behalf of Petitioner.

Respectfully Showeth: 1. That the above mentioned Rent Petitioner is pending before this Honble Court and is

fixed for final arguments.

2.

That the Petitioner has filed the present petition against the Respondent for eviction

from Cabin measuring 12 X 13 Sq. Ft. approximately on the second floor of SCO No. 1130, Sector 22-B, Chandigarh on the ground of non-payment of rent, material impairment and personal requirement.

BRIEF FACTS OF THE CASE:

1.

That the Petitioner and his mother are the owners and landlords of SCO No. 1130, Sector

22-B, Chandigarh. The Respondent was let-out a cabin measuring 12 X 13 sq. ft. approximately on the second floor of SCO No. 1130, Sector 22-B, Chandigarh. The Respondent is paying rent @ Rs. 800/- per month excluding electricity and water charges and all other taxes to the Petitioner. The Respondent has also not paid service tax @ 12.36% plus late payment charges or as applicable w.e.f. 01-07-2007 onwards. The Respondent has also material impaired the value and utility of the building by making addition and alteration in the tenanted premises. When the premises were let-out to the Respondent and other tenants of the SCO in question only temporary partition upto 5 ft. height from the floor was provided. But, admittedly, the Respondent raised the height of the cabin upto roof without any permission from the owner as well as Estate Office, U.T., Chandigarh and have changed the planning of the floor. The Respondent in connivance with the other tenants of the SCO in question has constructed the illegal bathroom in the space laying open in second floor of the SCO No. 1130, Sector 22-B, Chandigarh without any consent from landlord or estate office.

The Respondent has raised the construction which is against the terms and conditions of building bye-laws of Chandigarh Administration as well as sanctioned plan. The Petitioner also requires the entire SCO No. 1130, Sector, 22-B, Chandigarh for his personal use and occupation. The Petitioner and his wife wants to start their business in the entire SCO. The Petitioner and his wife wants to start the business of wholesale and retail of readymade garments and ladies dress material in the entire SCO i.e. SCO No. 1130, Sector 22-B, Chandigarh. PERSONAL NECESSITY The Petitioner has also requested the Respondent to vacate the tenanted premises as the entire SCO No. 1130, Sector 22-B, Chandigarh is required by him for his personal use and occupation. The Petitioner alongwith his wife wants to start the business of wholesale and retail of readymade garments and ladies dress material in the entire SCO in question. The Petitioner and his wife have got the sufficient funds readily available and requisite knowledge to start the above said business in the said SCO in question. The petitioner has reiterated his stand taken in the petition and examination in chief in the cross examination, the relevant portion of the cross examination of PW-2 Dhirender Gupta is reproduced below: - (page no. 1, 2 and 3) I used to assist my father who was running a shop at Sector 22 and he was dealing with hardware business. He suffered a bye-pass surgery twice and thereafter he expired in 2005 due to heart attack. My father used to show the profits earned from the shop in his own returns but the same has not been shown in my returns. It is incorrect to suggest that I have not done any work/business to the profession till date. My wifes name is Radhika Gupta she is M.Com and she is about 31 years of age. As on date she is doing nothing. My father-in-law is doing a cloth business at Kurukshetra. I want to open and start the business of wholesale and retail in readymade garments and ladies dress material. I have not prepared any project report for the same but since I go on purchasing with my father-in-law and also sat in the shop of my father-in-law alongwith my wife whenever I go there, I want to open and start my business in the entire SCO. I have thought of starting the business I the name of my late father. The start of the business it will cost round about 10 Lacs. I have not applied for the CST Number and I will apply the same at the time of starting the business. I have talked many companies based at Ambala dealing in the business or garments and clothes etc. but I have not done any correspondence in writing as yet. The companies with whom I have negotiated is Pooja Sarees, Dishu Sarees, situated at Agarsen Chowk, Amabal City. R.K. Rashion Wears, Sadhu Mandi Kurukshetra. I have four Lakhs in my bank account and I have 12 Lakhs rupees in fixed deposit. I cannot say what will the profit per month in the proposed business which I intend to start. The margin of profit can be about from 25-40%. The work which I intend to start is not dubious but straight forward

(Page- 4 of cross examination) It is incorrect to suggest that I am bonafidely need of the tenanted premises or the entire SCO. It is incorrect to suggest that I and my wife do not want to start the business. I was small room in my possession on the ground floor and the back side of the SCO and the people of the locality used to throw garbage in front of door of the said office. This room is in my possession from the very start. (Page- 1 of cross examination dated 25.09.10) In the small office mentioned previously I am not doing any business because it is not suitable and it is in the back side and my father had constructed it and people threw garbage in front of the said office. I sit in the office. (Page- 3 of cross examination dated 25.09.10) The photograph is correct and half portion is mine and half portion on the left side of the photographs is of Yash Pal Mittal. I admit the building shown in the photograph is correct. Photographs are Mark R-1 to R-6. My and Yash Pal Mittals fathers were friends. I have for the first time seen word M.N.C., on the photograph and I have no link with Yash Pal portion. It is incorrect to suggest that M.N.C. had been written on the building 3 years back. (Page- 3 of cross examination dated 25.09.10) I have got three cabins in my possession. I have not started any business in these three cabins because I required entire SCO for the kind of business I want to start. The business I want to start requires around Rs. 10 lakhs investment initially. It is incorrect to suggest that I do not want to start any business. I and my wife do not own or possess any property in Mohali, Chandigarh and Panchkula except the SCO in question. That the petitioner had filed rent petitions against all his tenants of SCO No. 1130, Sector, 22-B, Chd, on the ground of personal need, material impairment etc, and in last month (i.e. August 2011) one tenant on second floor Sh. Ashok Kondal have given the statement in the Court of Sh. S. K. Sharma, Rent Controller, Chandigarh, that he will vacate the premises in his possession on 31.12.2011 and hand over it to landlord-petitioner while admitting the personal need of the petitioner and material impairment qua tenanted premises and another tenant on second floor Sh. D.S. Juneja has handed over the vacant possession of cabin in his possession to landlord-petitioner on 23.08.20211 in this Court. The matter has been compromised between the parties and the petitioner has waved off the entire arrears of rent due and future rent to the above said tenants. That the petitioner had not let out any portion (portions in his possession) of the building after filing the petitions against his tenants. The petitioner has no greed of rentals as alleged. It also shows the Bonafide need of the petitioner. In the cross examination of the petitioner on Page- 3 of cross examination dated 25.09.10 the Counsel of the respondent has given suggestion as under:-

It is incorrect to suggest that M.N.C. had been written on the building 3 years back. It is proved by the evidence on record that there is no photograph regarding word M.N.C. written on SCO. No 1130, Sector, 22-B, Chandigarh, Moreover, the petitioner has filed the present petition on 18-8-2008 and the above alleged suggestion is given by the counsel for the respondent on 25.09.10 and as per the above suggestion, it is not believable that the petitioner would do it before filling the ejectment petition. The respondent has taken false pleas to escape from his eviction. The respondent has stated in his evidence as under:Even if the petitioner is sitting idle, the same is because he is not on the habit of doing any work since life has been very comfortable for him as he has receiving rentals.

From the statement (Even if the petitioner is sitting idle) it is admitted by the respondent that the petitioner is sitting idle and having no work. The petitioner has reiterated his stand taken in the petition and examination in chief in the cross examination, the relevant portion of the cross examination of PW-2 Dhirender Gupta is reproduced below:- (Page- 1 of cross examination) I used to assist my father who was running a shop at Sector 22 and he was dealing with hardware business. He suffered a bye-pass surgery twice and thereafter he expired in 2005 due to heart attack. My father used to show the profits earned from the shop in his own returns but the same has not been shown in my returns. It is incorrect to suggest that I have not done any work/business to the profession till date.

The petitioner use to assist his father in all respect as father of the petition was heart patient and died in 2005 subsequently by the virtue of the will petitioner became the owner of his share of SCO in question in 2006 thereafter petitioner filed the present petition in 2008. The age of the petitioner was 30 years and age of the petitioners wife was 29 years when the present petition was filed. There is nothing strange. The respondent in his evidence stated as under:Even if the petitioner is sitting idle, the same is because he is not in the habit of doing any work since life has been very comfortable for him as he has been receiving rentals.

The respondent stated that he is not in the habit of doing any work since life has been very comfortable for him as he has been receiving rentals, the present petitioner clearly shows that the need of the petitioner is Bonafide because the petitioner do not want to

live his life on the rentals as alleged. The respondent wants to create his identity as good businessmen.

The above cross-examination clearly shows that the Petitioner has explained his Bonafide Requirement and shows his Bonafide Need qua SCO in question.

Moreover, the respondent-tenant has admitted the Bonafide need of the petitioner in his cross examination, the relevant portion of the cross examination of respondent-tenant is reproduced below :- (Page-7 0f cross examination starts from ninth Line from top) I do not know whether the petitioner and his wife own any other commercial property in Chandigarh except SCO No.1130, Sector-22-B, Chandigarh. I cannot comment whether the every floor of the SCO No.1130 is required by the petitioner and his wife. It is correct that the petitioner is sitting idle and not having any business. Moreover, the respondent has not denied the need the petitioner qua premises in question in his hence it deem to be admitted by him in view of Civil Procedure Code, Order VIII Rules 5 and 3.

The Honble Supreme Court in case titled as Lahoia Properties (P) Ltd. Versus Atmaram Kumar, (SC) 1994 (1) RCR (Rent) 605 (S.C) has held;Transfer of Property Act, Section 106 Civil Procedure Code, Order VIII Rules 5 and 3- Notice- Admission Notice to quit to tenant- Suit for ejectment No specific denial by tenant in written statement regarding receipt of notice It would constitute admission of receipt of notice under Order VIII Rules 5 and 3 - Rule 5 provide that every allegation of fact in the plain, if not denied in written statement shall be taken to be admitted by the defendant Any allegation of fact must either be denied specifically or by necessary implication or there should be at least a statement that the fact is not admitted.

The Honble Supreme Court in case titled as Sarla Ahuja Versus United India Insurance Company Ltd. 1998 (2) RCR (Rent) 533 (S.C) has held;Delhi Rent Control Act, 1958, Section 14(1)(e) - Bona fide requirement - Suit for eviction - Landlord showed a prima facie case - Rent Controller should proceed with presumption that requirement is bona fide. Delhi Rent Control Act, 1958, Section 14(1)(e) - Bona fide requirement - Suit for eviction - It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of tenanted premises.

Similarly the Honble Supreme Court in case titled as

Mohinder Prasad Jain Versus

Manohar Lal Jain: 2006 (2) RCR (Rent) Page No. 250 (S.C) Haryana Urban (Control of Rent and Eviction) Act, 1973, Section 13(3)(a)(i) - Bona fide requirement - Landlord wanted shop for running business in Ayurvedic medicine - Experience in the business is not a pre- condition under any statute. Similarly in case titled as State of Maharashtra & Anr. Versus M/s. Super Max International Pvt. Ltd. & Ors. by the Honble apex court. 2009 (2) RCR (Rent) Page No. 246 (S.C) it was held

Delhi Rent Control Act, Section 14(1)(e) - Rent Act gave protection to tenants from evictions - Court were over protective of tenants in earlier years at the time of partition of country due to acute shortage of housing accommodation - But after about three quarters of a century and three generations later when things are no longer the same and the urban centers are faced with newer problems, some of those having their origin in the Rent Act itself, there is the need to take a re-look on the Court's attitude towards the relationship between the landlord and the tenant and to provide for a more level ground in the judicial arena. 2008(2) RCR (Civil) 805: 2008(1) RCR (Rent) 457 (SC) relied. In Case Titled as Sat Pal Vijay Kumar Vs. Sushil Kumar: 2011 (1) R.C.R (Rent) 60 (P & H) the Honble High Court has held that: When eviction is sought on the ground of Bonafide Need, the Rent Controller shall not proceed on the assumption that requirement is not Bonafide- If landlord states that he needs the demised shop for establish of new business or to extend the business, his need should always be presumed as correct and genuine In Case Titled as Raj Kumar vs. Budha Mal: 2011(2) R.C.R (Rent) 60 (P & H) the Honble High Court has held that: Transfer of Property Act, 1882, Section 106 East Punjab Urban Rent Restriction Act, 1949, Section 13(a)(i)(a) Eviction Notice - Bonafide Requirement Not mentioned in notice - Not Fatal- NonMentioning of the Bonafide personal necessity in the notice issued under Section 106 of the 1982 Act is not fatal Even non mentioning about the nature of the business intended to be established in the tenanted shop in an eviction petition is also not fatal, especially when the nature of business is disclosed in the evidence. In M/s General Electronics and others Versus Amrik Singh 2009 (1) RCR (Rent), Page No. 284 (P&H) the Honble High Court held that:East Punjab Urban Rent Restriction Act, 1949, Section 13 - Personal Requirement Ejectment - Shop - If landlord had given his requirement details and there was no ground to suspect the bona fides, Eviction would follow.

In Madho Ram Vs Baldev Singh 2008 (1) R.C.R.(Rent) 620 the Honble High court has observed:-

East Punjab Urban Rent Restriction Act, 1949, Section 13(3)(a)(i) - Bona fide requirement - Landlord wanted shop for business - It is no part of a Court's duty to examine whether the business to be set up would be successful or not in the tenanted premises - The success or otherwise of a proposed business lies in the realm of speculation and Courts abjure speculative conclusions - The choice of the premises, the nature or the extent thereof rest solely with a landlord. In Tarsem Lal v. Pritam Dass Khullar, (P&H) 2005(2) R.C.R.(Rent)215: the Honble High court has observed:A. East Punjab Urban Rent Restriction Act, 1949, Section 13(3) (a) - Landlord retired from service and wanted shop for some business - Nature of business not stated - Not fatal Landlord could consider feasibility of starting some business when he occupies the shop - It is not that the landlord is required to give a project report to the tenant of the business that he intends to start. Balwant Singh Chaudhary v. Hindustan Petroleum Corp. Ltd., 2004(1) R.C.R. (Rent) 487 (P&H) the Honble High court has observed:A. Haryana Urban (Control of Rent & Eviction) Act, 1973, Section 13(3) (b) - Landlord wanted premises for business purpose - It is not necessary for the landlord to plead and prove the specific business which he wants to set up. 1995(1) RCR (Rent) 495 (SC) and 1999(1) RCR (Rent) 508 (SC) relied. MATERIAL IMPAIRMENT

The Respondent was inducted as tenant in cabin measuring 12 X 13 sq. ft. approximately on the second Floor of SCO No. 1130, Sector 22-B, Chandigarh. It is relevant to mention here that at the time of letting-out the cabin, the height of cabin was 5 ft. from the floor of the SCO in question. The Respondent in violation of building bye-laws of Chandigarh Administration, Chandigarh and rules framed there under has raised the height of walls of the cabin upto roof which is against the provisions of Capital of Punjab (Development and Regulation) Act, 1952 and have changed the planning of the floor and have constructed illegal bathroom without the written or oral consent of the Petitioner or Estate Officer, U.T., Chandigarh and without any right or authority. At the time of initiation of tenancy it was made clear to the Respondent that he will abide by the provisions of the aforesaid act and rules made thereunder from time to time. The Estate Office, U.T., Chandigarh has already issued a show cause notice which is Ex. P-2 on account of the raising of height of the cabins on the first and second floor of the SCO in question. Besides raising the height of the cabin the Respondent has illegally constructed the bathroom in the open space on the second Floor of the SCO in question, thereby changing the planning the floor and also resulting in disturbing the light and ventilation of the Second Floor

of the SCO in question. The fact regarding the raising of height of the cabins by the tenants and construction of illegal bathroom was confirmed by PW-1 Bipan Kumar J.E. SDO (Building), Estate Office, U.T., Chandigarh. The J.E. has clearly stated in his examination in chief that the Estate Officer has issued the show cause notice on account of building violations and in case the violations mentioned in the show cause notice are not removed the lease of the SCO in question can be cancelled by the Estate Office at any moment and the proceedings are pending before the Estate Officer for the cancellation of lease of the SCO in question on account of the said violations. The Respondent has exposed the SCO to the peril of resumption/cancellation of SCO in question. The relevant portion of the examination in chief of PW-2 is reproduced below:-

I have checked the building in question. We found building violation in the SCO. A show cause notice as per my file was issued to the owners and copy of the same is Ex. P-2. The proceedings in respect of notice under rule 20 are still pending and next date is 17.07.2009 before the Assistant Estate Officer, U.T., Chandigarh. In case the violation mentioned in the notice are not removed the building can be resumed. I can not if the present structures on the 2nd floor can be sanctioned or not because the revised plans are to be sanctioned by the competent committee. There was fire in the second floor of the SCO in question. After the fire, the construction was started by the occupier. Immediately, our office issued a notice, dated 21.07.08 Ex. P-3, In view of this notice, a demolition orders has passed on 6.08.08, copy of which is Ex. P-4. Our officials went to the spot to demolish the illegal structures and at the spot, all the occupiers submitted an application seeking two days time to remove the illegal structures. All these notices and their writing are original on my file. The writing of the occupiers was executed in my presence and photocopy of the same is Ex. P-5. The occupiers served a notice dated 25.08.08 which was received in our office and copy of same is Ex. P-6. When I inspected the premises on 21.05.2009, I found that the latrine-bath on the rear side of the middle of the 2nd floor has been shifted from its original place in the middle of the 2 nd floor on the rear side. The sanctioned glazings on the rear and front side have been removed and plan. the verandas have been glazed against the sanctioned

The said witness has reaffirmed his stand in cross examination. The relevant portion of the cross examination is reproduced below:-

It is wrong to say that I am hand in glove with the petitioner. It is correct that as per the allotment letter the building in question was permitted for general trade. It is wrong to say that I am deposing falsely. It is wrong to say that the building is not liable to be resumed. It is wrong to say that there are no violations. I do not know how fire was caused. It is wrong to say that the latrine bath has not been shifted.

That from the above said evidence it is now crystal clear that the Respondent has

committed building violation in the tenanted premises by making, additions and alterations resulting in material impairment of the SCO in question.

The respondent has stated in twelfth line of his cross examination. The relevant portion of the cross examination is reproduced below:-

We have not obtained any permission from the estate officer or the landlord before raising the cabins on the second floor of the SCO.

Moreover, the Honble Court of Sh. Y.S. Rathore vide order dated 04.02.2008 i.e. Ex. PW 2/7 has restrained the respondent and other occupiers to the construction in violation of building-bye-laws of Chandigarh Administration, inspite, of that respondent and other occupiers has constructed the cabins in violation of building-bye-laws.

Moreover, the Demolition orders has passed by the Estate officer UT, Chandigarh, which are confirmed up till Advisor to the Administrator, UT, Chandigarh which are Ex. PC and PD. Moreover, the Legal Notice dated 19.02.2008 given by respondents i.e. Ex. PW 2/8. The relevant portion of the same is reproduced below which clearly shows that the respondent and other occupiers have committed the violations in connivance with Police and it is, admitted, that respondent and other occupiers had done construction in contravention of building-byelaws of Chandigarh Administration themselves:-

That my clients, who are Chartered Accounts, Income Tax Practitioners, Courier Services, etc. etc. were re-erecting the damaged cabins on 18 th February, 2008 when Sarvshri Dhirender Gupta and Yash Pal Mittal came to the tenanted premises and tried to stop my clients from re-erecting the cabins. When my clients were going to Ring No. 100 but Sh. Dhirender Gupta rang up 100 and the police came and thereupon the SHO of the concerned area was also called. The SHO concerned rightly told in no uncertain manner to Sarvshri Dhirender Gupta and Yash Pal Mittal, landlords that re-erection of cabins is being done as my clients have been permitted by the Honble Court vide its order dated 4th February, 2008 and even otherwise, nothing can stop my clients from reerecting their own cabins. Still, the landlords did not leave and called three persons who claimed themselves to be employees of the Estate Office, U.T., Chandigarh and threatened my clients to stop the construction or else the cabins would be brought down. My clients somehow got suspicious and asked those three persons to prove their identity that they are the employees of the Estate Office, U.T., Chandigarh and thereupon the said persons left the tenanted premises.

Moreover, the Legal Notice dated 25.08.2008 given by respondents i.e. Ex. P-6. The relevant

portion of the same is reproduced below which clearly shows that the respondent and other occupiers are aware of violations committed by them:-

That if there are proceedings before the Estate Officer, notice is required to be served on my clients and even if they are in violation of any bye-laws and the matter is sub-judice before the Civil Courts but, still, my clients are ready to deposit any penalty as claimed by the Inspectors that there were compoundable violations.

THE OBSEVATIONS OF SHRI SURINDER SINGH SAHNI, ADDITIONAL DISTRICT JUDGE, CHANDIGARH. i.e. Ex. P.F A. I have heard the Learned Counsel for the appellants and the Learned Govt. Pleader for the Respondent No. 1 and Learned Counsel for the Respondent No. 2 to 5 and also gone through the record. B. The Learned Counsel for the appellants has argued that there is a notification issued by the Chandigarh Administration, allowing raising or cabins upto ceiling. It is also argued that the revised plan was to be got sanctioned by the owners and not by the tenants and there was no violation committed by the plaintiffs while re-erecting the cabins. It is also argued that the observations of the learned lower court that by allowing the application for ad-interim injunction, it would result in decreeing of the suit of the Plaintiffs are not correct as the relief to which a party is entitled cannot be denied to him on the ground that it will amount to decreeing or the suit. C. On the other hand, learned counsel for the defendant Estate Officer has argued that the civil court has got no jurisdiction. It is further argued that the plaintiffs have already availed the remedies as available to them under the law and filed appeal before Chief Administration and then revision before the Advisor to the Administration, U.T., Chandigarh. It is also argued that after having failed to get any relief from the competent authority, the plaintiffs filed the Civil Suit. It is further argued that the additions and alterations could be made only after getting the revised plan sanctioned. D. Section 19 of Capital of Punjab (Development and Regulation) Act, 1952, been jurisdiction of court and it provides that no court shall have jurisdiction to entertain any suit or proceeding in respect of any arrears of penalty under section 8 or in respect of the resumption of any site or building, or both, as the case may be under section 8-A or the forfeiture of any money under that section or in respect of any order made by the Central Government or any other authority in the exercise of any power conferred by or under this act. E. Otherwise, the court of Sh. Y .S. Rathore, the then Learned Additional Civil Judge (Senior Division), Chandigarh had passed the order in a suit filed by the landlords that the tenants cannot be restrained from reconstructing the cabins but they are bound to carry out the reconstruction, if any, in accordance with the building bye-laws. The Estate Officer has found

the construction being raised by the Plaintiffs against the building bye-laws. There are violations said to be committed by the Plaintiffs while re-erecting the cabins and notice was served upon the plaintiffs. The matter was taken upto the Advisor to the Administrator, U.T., Chandigarh. It there is a notification for raising of full height partition, there are certain conditions which are to be complied with before such construction can be allowed. It is for the plaintiffs to comply with those conditions and satisfy the Estate Officer that cabins are being reerected in accordance with the building bye-laws and provisions of law. It is also well settled that no interim relief can be allowed, which may result in decreeing of the suit, without affording any opportunity to the opposite party. F. Keeping in view the circumstances as stated above, and taking note of the fact that Civil Court has no jurisdiction in the matter and also taking note of the fact that a lawful authority cannot be restrained from performing its functions, it is held that no prima-facie case is made out in favour of the plaintiffs. The balance of convenience also does not lie in favour of the plaintiffs, as re-erection of cabins in violation of building bye-laws cannot be allowed. Plaintiffs are not going to suffer any irreparable loss or injury which cannot be compensated in terms of money, if ad-interim injunction is not allowed. The stay application was rightly dismissed by the Learned Lower Court. It is held that there is no merit in the appeal. It is also well settled that appellate court can set-aside the order passed on an application under order 39 rule 1 and 2 of civil procedure code only if the impugned order is found to be perverse. In the present case, the impugned order cannot be said to the perverse in any manner. The appeal is thus dismissed with costs. Impugned order is upheld. Memo of costs be prepared. Counsel fee is assessed as Rs. 1000/-. Any observation made in the present judgment is confined to the disposal of the appeal only and shall have to bearing on the merits of the case. Record of Learned Lower Court be sent back. Parties are directed to appear before the Learned Lower Court on 8.06.11 for receiving further orders. Appeal file be consigned to the record room. The Honble Supreme Court in case titled as Durga Seed (SC) has held that the tenant Farm v. Raj Kumar Chadha,

committing the building violation is liable for eviction.

1995(1) R.C.R. (Rent) 606 (S.C) East Punjab Urban Rent Restriction Act, 1949, Section 13 - Shop-cum-flat allotted to Landlord by Govt. - Landlord letting the same to tenant - Tenant constructing a shed and putting machines in the building without consent of landlord - construction put up by landlord contrary to conditions imposed on landlord by Govt. and exposed the landlord to peril of resumption by premises - Landlord is entitled to eviction order. As such the Respondent is liable to be evicted on the ground of material impairment also. The Honble Supreme Court in case titled as M/s. British Motor Car Co. v. Madan lal Saggi, (SC), 2004 (2) RCR (Rent) 693 (S.C) has observed that: East Punjab Urban Rent Restriction Act, 1949, Section 13(2)(iii) - Impairing of value and utility - Tenant constructing three sheds of permanent nature and covered almost whole of courtyard - It obstructed ventilation to courtyard and reduced area

of courtyard - Held, it materially impaired and utility of premises - Order of eviction upheld. From the above facts, it is crystal clear that the Respondent by committing, addition and alteration in the SCO in question has materially impaired the value and utility of the building without any consent. The respondent-tenant has exposed the landlord for peril of resumption/cancellation of building. Hence, respondent-tenant has materially impaired the value and utility of the building and liable to be evicted on the ground of material impairment.

NON-PAYMENT OF RENT

The Respondent is also liable to pay service tax @ 12.36% plus late payment charges or as applicable to the Petitioner w.e.f. 01-07-2007 onwards. It is well settled law that all the taxes are to be paid by the tenant only. The Honble Supreme Court of India has held in case titled as Hotel Kings Versus Sara Farhan Lukmani [2007 (1) SCC Page No. 202]

[Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, Sections 12(3) (a) and 12(3)(b) - Lease of land - Lease deed stipulated that lessee will pay rent monthly - Lessee also was to pay permitted increases (Rates & other taxes) - These taxes were payable to authority annually or six monthly - Contention that rent also becomes payable not each month, but after every six months - Held, tenant has to pay rent monthly - Rates and taxes are to be treated separate liability of lessee Lease was governed under Section 12(3)(a) of the Bombay Rent Act. 1970 RCR(Rent) 472 (SC) distinguished. 1991(1) RCR(Rent) 218 (SC) distinguished]. It is, therefore, respectfully prayed that the Rent petition may be allowed in the Interest of Justice, with costs.

Petitioner

(RAJWINDER SINGH RAJPUT) Advocate