2005 Supreme(SC) 754

2005(3) Supreme 641
Supreme Court of India
(From Delhi High Court)
Ashok Bhan & A.K. Mathur, JJ.
Hans Raj Banga —Appellant
versus
Ram Chander Aggarwal —Respondent
Civil Appeal No. 642 of 2003
Decided on 29-4-2005
Counsel for the Parties :
For the Appellant : Ranjit Kumar and S.K. Bagga, Sr. Advocates, Seeraj Bagga, A.P. Mayee, Sanjiv K. Choudhary and Mrs. Sureshta Bagga, Advocates.
For the Respondent : B.P. Aggrawal, Om Prakash Mishra, B.M. Aggrawal and Ghan Shyam Vasisht, Advocates.

Important point
An allottee of Custodian is not the tenant but is merely a licensee of the Department and such an allottee or occupier of premises would become tenant of transferee.

Headnote:Displaced Persons (Compensation and Rehabilitation) Act, 1954—Sections 14, 21 and 29—Suit shop an evacuee property was sold by way of tender to appellant, being the highest bidder—Father and predecessor-in-interest of respondent-defendant in occupation of shop prior to sale—Suit for possession and mesne profits filed by appellant decreed by trial Court—High Court set aside the decree in appeal—Appeal—High Court erred in holding that property could be sold only by way of public auction—Department had option to sell suit property either by auction, public or private, or by calling tenders—Valid sale deed in favour of appellant confirmed by authorities conferred title as well ownership in the purchaser—High Court also erred in holding that property was not evacuee property—No issue had been framed in suit and property was being treated and dealt with as evacuee property throughout—An allottee of custodian was not a tenant but merely a licensee of the Department—On disposal of property by auction or otherwise, allottee or occupier became tenant of transferee—Predecessor of respondent failed to pay rent due within 60 days of the transfer despite notice and thus did not become tenant—Decree passed by trial Court was liable to be restored.

       Held : An allottee of the custodian is not the tenant of the custodian. This is clear from the definition of the word “allotment” in Section 2(a) of The Administration of Evacuee Property Act, 1950. This definition is in the following terms:—

       “S.2(a): “allotment” means the grant by a person duly authorized in this behalf of a right of use of occupation of any immoveable evacuee property to any other person, but does not include a grant by way of lease;”

       It is clear from this definition that the allottee is not a lessee but is merely a licensee of the Department. On the disposal of the property under The Displaced Persons (Compensation and Rehabilitation) Act, by auction or otherwise, the allottee of the custodian or the occupier of the premises becomes the tenant of the transferee. Section 29 which is a special provision enacted to give protection from ejectment to the class of persons or class of property to be notified under clause (2) of Section 29. Under Section 29 a deeming provision is introduced whereby such allottee becomes tenant of the transferee which was held by it immediately before the transfer. (Paras 17 and 18)

       Under sub-section (1) of Section 29, a person in lawful possession of any immovable property notwithstanding anything contained in any other law and without prejudice to any other right which he may have in the property by a deemed fiction becomes the tenant of the person to whom the property is transferred on the same terms and conditions as to the payment of rent or otherwise on which the property was held by him immediately before the transfer. Protection granted under Section 29(1) is not absolute and as per proviso is limited for a period of two years. Even during the period of two years such a person could be evicted if the grounds mentioned in clauses (a), (b) and (c) to Section 29(1) came into operation. Question as to whether an allottee becomes a tenant, or not, will depend on the question whether the same falls within the purview of Section 29 of the Act. Section 29(2) of the Act provides that the Central Government may from time to time by a notification in the Official Gazette specify the class of persons to whom, and the class of immovable property in the compensation pool, other than agriculutral land, in respect of which, the provisions of this Section shall apply and that the Central Government shall, while issuing such notification, keep in mind the matters mentioned in clauses (a), (b), (c) and (d) of sub-Section (2). (Para 19)

       Bhagwan Das admittedly was not a displaced person and, therefore, not covered under categories 3 and 4 of the notification. He would also not fall under categories 1 and 2 as admittedly he did not pay the arrears of rent due within 60 days of the transfer. This is clear from the fact that Department had issued demand notice Ext. D-6 much after the transfer of the property, in the year 1970, to the respondents to pay the arrears of rent from 8.8.1955 i.e. from the inception of the tenancy till its sale in favour of the appellant on 27.7.1961. (Para 21)