A statutory tenancy created by holding over under Section 116 of the Transfer of Property Act is a tenancy from month to month and is terminable by a 30 days' notice.

Headnote:
NAZUL LAND LEASE - RENEWAL - STATUTORY TENANCY - TERMINATION - NOTICE - WAIVER - ESTOPPEL - ACQUIESCENCE - MUNICIPAL BOARD'S SANCTION OF PLAN - EFFECT.
Fact of the Case:

A plot of land was leased for 30 years for building purposes. The lease provided for renewal for another 30 years on application by the lessee and execution of a Qabuliat. The lessee did not apply for renewal, but continued in possession and paid enhanced rent as demanded by the Municipal Board. The Board gave notice to the lessee to vacate the land, but the lessee failed to comply. The lessee then transferred his rights to the appellants, who also failed to vacate the land.
Finding of the Court:

The court found that the lease was not renewed, but a statutory tenancy was created by holding over under Section 116 of the Transfer of Property Act. The tenancy was from month to month and was terminable by a 30 days' notice. The notice to vacate the land was duly served on the appellants, but they failed to comply. The court also found that the acceptance of rent after the notice to quit did not amount to a waiver of the notice, as the clerk who accepted the rent was not aware of the notice. The court further found that the Municipal Board's sanction of a plan for new constructions did not create a right in favor of the appellants to continue their occupation for another 30 years, nor did it debar the respondent from terminating the tenancy by a notice under Section 106 of the Transfer of Property Act.
Issues: 1. Whether the lease was renewed? 2. Whether a statutory tenancy was created by holding over? 3. Whether the tenancy was from month to month and terminable by a 30 days' notice? 4. Whether the notice to vacate the land was duly served on the appellants? 5. Whether the acceptance of rent after the notice to quit amounted to a waiver of the notice? 6. Whether the Municipal Board's sanction of a plan for new constructions created a right in favor of the appellants to continue their occupation for another 30 years?
Ratio Decidendi: 1. A lease is the result of an agreement between the lessor and the lessee and has its origin in contract. All contracts and assurances of property made in the exercise of the executive power of the State are required by Art. 299 of the Constitution to be expressed to be made by the Governor and executed by such persons and in such manner as the Governor may direct or authorize. If a contract is not made and executed in accordance with the provisions of Art. 299 of the Constitution it is void. 2. Where a lessee remains in possession of immovable property leased even after the expiry of the term of the lease and the lessor accepts rent from him or otherwise assents to his continuing in possession, he would become by reason of the provisions of S. 116, Transfer of Property Act a tenant holding over. The tenancy created by the tenant holding over is a statutory tenancy which enables the tenant to retain possession after the expiry of the contractual tenancy. The statutory tenancy so created continues till it is terminated or determined. 3. In the absence of any agreement to the contrary the statutory tenancy created under S. 116, Transfer of Property Act may be determined in the manner enjoined by Section 106 of the Act. The lease is renewed from year to year, or from month to month according to the purpose for which the property is leased as specified in S. 106 aforesaid. 4. Waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of the facts enabling him to take effectual action for the enforcement of such rights. Waiver is distinct from estoppel. Waiver is an agreement to release or not to assert a right, whereas estoppel is a rule of evidence. 5. Mere sanction of a plan by the Municipal Board would not create a right in favor of the appellants to continue their occupation for another period of thirty years, nor would it debar the respondent from terminating the tenancy by a notice under S. 106, Transfer of Property Act.
Final Decision: The appeal was dismissed with costs.

A plot of land measuring 22 ft. 6 inches north-south and 30 ft. 10 inches east-west, bounded in the north by the land of Qabul Ahmad and in the south by the house of Suraj Prasad in the east by a metalled road and in the west by the land of Qabul Ahmad (at present Rasta and land called Quila), situate in village Ashraf Tola Qasba Sandila pergana and Tahsil Sandila shown by letters ABCD in the site plan attached with the plaint is Nazul land owned by State of U. P. and managed by Municipal Board, Sandila. This land was given on lease to Jagannath per lease deed dated 1-12-1919 for building purposes for a period of thirty years on an annual rent of Rs. 3/- with a condition that the right and interest of the lessee in the land in question will come to all end on the expiry of thirty years unless renewed by the State Government on the application of the lessee, his heirs or assigns. Another important term of the lease was that the lessee, his heirs and transferees shall always be bound to keep the building built upon the leased land intact, in order and good condition and shall not demolish the same without the written permission of the lessor or its successor. It was also provided in the lease that in case of breach of or non-compliance with any of the conditions written in the lease deed the lessor and its successor shall be entitled to re-enter upon or to take actual possession of the land and the building standing on it and the lessor shall not be entitled to any compensation in respect of the building. The lessee, his heirs or transferees shall not remove any part of the building built upon the land. Jagannath the original lessee constructed a shop on the leased land which was recorded in the Nazul Register at serial number 16. He remained in possession of the shop till his death. On his demise his heirs Sita Ram Dharam Das, and others succeeded to the property including the said shop. These persons remained in possession of the shop constructed by the original lessee. The period of thirty years of the lease expired on 1-12-1949. Sita Ram, it is alleged by the plaintiff, did not apply for the renewal of the lease, hence on the expiry of the period of lease neither he nor his heirs, successors or assigns had any subsisting right, title or interest in the land in suit, nor did they have any right of transferring it to any one to build upon it. On 28-12-1965 the defendants without the knowledge of the plaintiff purchased the shop built by the lessee from Sita Ram and Dharam Das. The defendants thereafter pulled down the old shop and with a view to make new construction at the site applied for sanction of a plan. The said plan was sanctioned. According to the plaintiff this action of the defendants in demolishing the shop without any notice to the authorities concerned was illegal and the Government of U. P. was thereby put to a loss of Rs. 5000 being the value of the materials i. e. , the Amla. The plaintiff alleged that the defendants had obtained the sanction of the plan to make new constructions on the land in suit by making mis-representation of facts and by practising fraud and collusion. However, when true facts came to light the Municipal Board on 21-11- 1966 cancelled and revoked the permission given to defendant No, 1, and notices were issued to him to stop making constructions on the land in suit. The District Magistrate rejected the representation of the Municipal Board, Sandila on 19-10-1966 for an entry of the name of Sheo Prasad and others in place of Sita Ram with respect to the land in suit. Defendant No. 1 illegally made constructions on the land in question between March, 1966 to December, 1966. The plaintiff, therefore, claimed to have become entitled to remove the encroachments and to secure possession over the same by eviction of the defendants. A notice was given to the defendants to vacate the premises and to deliver possession of the land in suit. They were also asked to stop making constructions on the s

Click Here to Read the rest of this document

1977 Supreme(All) 105

HIGH COURT OF ALLAHABADT.S.Misra MUNNI DEVI VersusSTATE OF U P Decided On : 19 April 1977 Second Civil Appeal No. 353 of 1970

A statutory tenancy created by holding over under Section 116 of the Transfer of Property Act is a tenancy from month to month and is terminable by a 30 days' notice.

Cases Referred (3)

HIGH COURT OF ALLAHABAD
T.S.Misra
MUNNI DEVI
Versus
STATE OF U P
Decided On : 19 April 1977
Second Civil Appeal No. 353 of 1970