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PATNA HIGH COURT
Banerji and Choudhary JJ.
Om Prakash
Versus
Additional Commissioner, Patna Division
Miscellaneous Judicial Case No. 699 of 1955 ;
Decided On : MARCH 16, 1956
LANDLORD TENANT - Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947) - Interpretation - Whether provisions of Transfer of Property Act, 1882 (T. P. Act) can be invoked to determine the nature of tenancy under Bihar Act 3 of 1947 - Whether non-registration of lease agreement bars its admissibility in determining the period of tenancy - Scope of writ of certiorari to correct errors of law - Whether order of Additional Commissioner quashing eviction order passed by Collector is grossly wrong and amenable to certiorari.
Fact of the Case:
Landlord filed an application under Sec.11, Sub-section (1), Clause (b), Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947) for eviction of tenant on grounds of expiry of lease term, non-payment of rent, and personal necessity. Tenant claimed the agreement was a monthly tenancy, not a fixed-term lease, and that a new agreement was made for a monthly tenancy after the expiry of the previous one. The Controller rejected the eviction petition, finding no evidence of fraud, duress, or coercion by the landlord. The Collector, on appeal, found no cogent evidence of a fresh agreement, no availment of Act 3 of 1947 provisions by the tenant, and directed the tenant to vacate the premises. The Additional Commissioner, on further appeal, held the agreement was a month-to-month tenancy due to non-registration and set aside the Collector's order.
Finding of the Court:
1. The provisions of the Transfer of Property Act, 1882 (T. P. Act) cannot be invoked to determine the nature of tenancy under Bihar Act 3 of 1947, as the latter is a complete and independent Act with its own provisions for creating and regulating tenancies. 2. Non-registration of the lease agreement does not bar its admissibility in determining the period of tenancy under Bihar Act 3 of 1947. The Tribunals created by the Act can consider the agreement, along with other evidence, to determine the nature of the tenancy. 3. The order of the Additional Commissioner quashing the eviction order passed by the Collector is grossly wrong and amenable to certiorari, as it ignores the provisions of Bihar Act 3 of 1947 and misinterprets the provisions of the lease agreement.
Issues: 1. Whether the provisions of the Transfer of Property Act, 1882 (T. P. Act) can be invoked to determine the nature of tenancy under Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947)? 2. Whether non-registration of the lease agreement bars its admissibility in determining the period of tenancy under Bihar Act 3 of 1947? 3. Whether the order of the Additional Commissioner quashing the eviction order passed by the Collector is grossly wrong and amenable to certiorari?
Ratio Decidendi: 1. Bihar Act 3 of 1947 is a complete and independent Act with its own provisions for creating and regulating tenancies. It is not dependent on any other Act for its operation. 2. The provisions of the Transfer of Property Act, 1882 (T. P. Act) cannot be invoked to determine the nature of tenancy under Bihar Act 3 of 1947, as the two Acts are distinct and their provisions should be applied independently. 3. Non-registration of the lease agreement does not bar its admissibility in determining the period of tenancy under Bihar Act 3 of 1947. The Tribunals created by the Act can consider the agreement, along with other evidence, to determine the nature of the tenancy. 4. The order of the Additional Commissioner quashing the eviction order passed by the Collector is grossly wrong and amenable to certiorari, as it ignores the provisions of Bihar Act 3 of 1947 and misinterprets the provisions of the lease agreement.
Final Decision: The order of the Additional Commissioner quashing the eviction order passed by the Collector is quashed by a writ of certiorari under Article 226 of the Constitution of India. The application for eviction is allowed with costs.
Banerji, J.
1. This is an application for a suitable writ on behalf of the landlord to quash an order passed by the Additional Commissioner of the Patna Division setting aside an order of the Collector directing vacant possession to be given to the petitioner.
2. The facts were these. On 14-1-1953, the petitioner gave lease of a portion of his shop premises (holding No. 76, Ward No. 33 in the New Market at Patna) for a period of 11 monthe. The tenant, opposite party No. 4, who will be hereinafter referred as the tenant, occupied the premises on the same date and an agreement was drawn up and signed both by the petitioner and the renant, but the same was not registered.
On 13-12-1953, the term of the lease expired, and the petitioner served a notice on the tenant to quit the premises. As the tenant refused to give up possession the petitioner, on 25-5-1954, filed an application under Sec.11, Sub-section (1), Clause (b), Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, as modified by Bihar Act 5 of 1933, hereinafter to be referred also as the Act, for eviction of the tenant on three grounds, namely, that the term of the lease had expired; that there had been non-payment of rent for December, 1953; and that the premises were required for his personal use.
The tenant was asked to show cause, and is his show cause petition he averred that the agreement was of a monthly tenancy, but under pressure it was given the shape of a lease for 11 months and that after the expiry of the previous tenancy in question, a new agreement was mads between the tenant and the petitioner with effect from 15-12-1953, and the terms of the next agreement were that the tenant would occupy the premises on the basis or a monthly tenancy of Rs. 100.00 per month. The other grounds taken up in the show cause petition are not necessary for determination of the controversy raised before us.
3. The Controller rejected thf prayer of the petitioner ior eviction of the tenant on his finding that there was an understanding of longer term of lease and it would be unfair to evict him. after he had invested a large amount of money in his business. He, however found that there was no direct evidence of fraud, duress or coercion on the part of the petitioner. The learned Controller found against the petitioner with regard, to the other two grounds, namely, default in payment of rent and personal necessity.
4. An appeal was preferred before the Collector, and there the petitioner gave up his two grounds for eviction, namely, alleged default in payment of rent and necessity for personal use, but concentrated on his first ground that, when the period of lease had expired and when the tenant had not chosen to exercise his right for extension of time limited by the lease under Sec.12 of the Act, he was entitled in law to evict him under Sec.11 (1) (b). The learned Collector founa as follows :
(1) There was no cogent evidence to show a fresh agreement for extending the life of the lease.
(2) The tenant had not availed of the provisions of Act 3 of 1947 which he was bound to be if he wanted to continue as a tenant.
(3) The life of the lease having expired, the petitioner was entitled to obtain vacant possession.
Accordingly, he directed the tenant to give vacant possession of the premises within 60 days from his order which was dated 11-6-1955.
5 The tenant then moved the Commissioner, and the matter came to be heard by the Additional Commissioner, before whom it was argued on behalf of the tenant for the first time that, as the agreement purporting to be a lease for 11 months was unregistered, it had not created a fixed-term tenancy, but should be treated as a month to month tenancy under Sec.107, T. P. Act.
The learned Additional Commissioner held that it was a month to month tenancy, because (1) the document creating the lease was a bilateral one, and (2). that the recital in Clause (6) of the agreement was incompatible with a tenancy for a specified perio
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