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Tuesday, March 25, 2014

Tenancy Case - Land acquisition - suit for eviction - maintainable - as per the facts , there is no acquisition nor the possession was taken by corporation except mere pleadings of tenant - even as per sec.16 of Land Acquisition Act - Govt. is entitled for possession with out encumbrances - until possession was not taken , no right and title divest from the owner , a suit for eviction is maintainable - High court has to take an undertaking before granting time to vacate the site = Sheela Jawarlal Nagori & Anr. …..Petitioners Versus Kantilal Nathmal Baldota & Ors. …Respondents = 2014 ( March. Part ) judis.nic.in/supremecourt/filename=41330

Tenancy Case - Land acquisition - suit for eviction - maintainable - as per the facts , there is no acquisition nor the possession was taken by corporation except mere pleadings of tenant - even as per sec.16 of Land Acquisition Act - Govt. is entitled for possession with out encumbrances - until possession was not taken , no right and title divest from the owner , a suit for eviction is maintainable - High court has to take an undertaking before granting time to vacate the site =

whether a landlord can maintain a  suit  for eviction of his tenant even after an award has been  passed  in  respect  of the tenanted property under the provisions  of  the  Land  Acquisition  Act,
1894. = 
In our opinion, the answer must be in the affirmative.
The question raised by the  tenant  is  that  the  suit  property  was
acquired by the Pune Municipal Corporation for  the  purpose  of  a  primary
school and the Special Land Acquisition  Officer  had  passed  an  award  in
respect  thereof  on  3rd  August,  1979.   Accordingly,  the  landlord  was
divested of his right, title and interest in the  suit  property  after  the
land acquisition proceedings and  therefore  a  suit  for  eviction  of  the
tenant was not maintainable.
11.   The High Court noted that there was no material on record  to  suggest
that the Pune  Municipal  Corporation  had  taken  possession  of  the  suit
property  from  the  landlord.   On  the  contrary,  the   Corporation   had
sanctioned a development plan submitted by the landlord in  respect  of  the
suit property through a notification issued on  5th  January,  1987.  It  is
clear, therefore, that the Corporation had not taken possession nor had  any
intention of taking possession of the suit property. =
That apart, Section 16 of the Land Acquisition Act, 1894  enables  the
acquiring authority to take possession of acquired land  and  when  that  is
taken, it would be free from  all  encumbrances.  
Section  16  of  the  Land Acquisition Act, 1894 reads as follows:
           
16. Power to take possession - When the Collector  has  made  an
           award under Section 11, he may  take  possession  of  the  land,
           which shall thereupon vest absolutely in  the  Government,  free
           from all encumbrances.


Therefore,  on  a  plain  reading  of  the  provision,  in  the  absence  of
possession of  the  suit  property  being  taken  by  the  Corporation,  the
contention of learned counsel for the tenant cannot  be  accepted  that  the
landlord was divested of his right, title or interest in the suit property.

13.   We may also note that it was brought out during the course of  hearing
that the tenant continues to pay rent to the landlord even though  according
to the tenant the landlord had no concern with the suit property  after  the
award was passed on  3rd  August,  1979  by  the  Special  Land  Acquisition
Officer.  
The stand of the tenant seems to be self-defeating for on the  one
hand it is submitted that the landlord had no right, title  or  interest  in
the suit property but on the other hand the tenant continues paying rent  to
him.
 He stated that  the  tenants  would
file an undertaking along with all others using  the  suit  property  on  or
before 19th November, 2013 incorporating therein the  following  terms:  (i)
that they are in possession of the suit  premises  and  nobody  else  is  in
possession; (ii) that they have neither created third  party  interests  nor
parted with possession; (iii) that they will hereafter neither create  third
party interests nor part with possession of the  suit  premises,  (iv)  that
they will clear all arrears of rent, if any, within four  weeks  subject  to
adjustment, (v) they will not apply for extension of time, and (vi) that  in
case they are unable to obtain suitable orders from  this  Court  within  12
weeks, they will hand over  vacant  and  peaceful  possession  of  the  suit
premises to the landlord.

15.   The tenants failed to file any such undertaking in the High  Court  on
or before 19th November, 2013.  This  was  brought  to  our  notice  by  the
landlord on 4th February, 2014 and we  directed  the  tenants  to  file  the
necessary undertaking as ordered by the High Court within a  week.  We  were
subsequently given to understand that the undertaking was filed.

16.   These cases  indicate  that  even  though  the  High  Court  trusts  a
litigant before it to comply with its orders, sometimes a litigant does  not
take the High Court  seriously.

2014 ( March. Part ) judis.nic.in/supremecourt/filename=41330

                                                            REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                 SPECIAL LEAVE PETITION (C) NO.36518 of 2013


Sheela Jawarlal Nagori & Anr.                               …..Petitioners

                                   Versus

Kantilal Nathmal Baldota & Ors.                          …Respondents

                                     AND

                 SPECIAL LEAVE PETITION (C) NO.37456 of 2013


                               J U D G M E N T

Madan B. Lokur, J.
1.    The question before us is whether a landlord can maintain a  suit  for
eviction of his tenant even after an award has been  passed  in  respect  of
the tenanted property under the provisions  of  the  Land  Acquisition  Act,
1894. In our opinion, the answer must be in the affirmative.
2.    The petitioners in both special leave petitions  are  the  tenants  of
the respondent landlord. For convenience we have taken the  facts  from  SLP
(C) No. 37456 of 2013, but note that the  issue  that  arises  in  both  the
cases is the same and the hearing proceeded on this basis.
3.    The landlord had instituted Civil Suit No. 433 of 2000  in  the  Court
of the 5th  Additional  Small  Cause  Judge  and  Jt.  Civil  Judge,  Senior
Division, Pune for vacant possession of the ‘suit property’  being  CTS  Old
99-B Raviwar  Peth,  New  767  Budhwar  Peth,  Pune  from  the  tenant.  The
contention of the landlord was that the suit property  was  open  space  let
out to the tenants and that it was not protected  by  the  Maharashtra  Rent
Control Act, 1999 (for  short  the  Act).   The  Trial  Court  accepted  the
contention of the landlord and passed a decree on 28th June, 2005  directing
the tenant to hand over vacant possession of the suit property.
4.    Feeling aggrieved, the tenant preferred Civil Appeal No. 515  of  2005
before the Additional District Judge, Pune. The  appeal  was  allowed  by  a
judgment and order dated 3rd February, 2006 and the  decree  passed  by  the
Trial Court set aside.  It was held that the suit property was an open  plot
and that the provisions of the Act were not  applicable,  but  it  was  held
that the tenancy was required to be terminated in terms of  Section  106  of
the Transfer of Property Act, 1882.
5.    The judgment and order passed by  the  appellate  Court  has  attained
finality since neither the tenant nor the landlord has challenged it.
6.    Following up on the order passed by  the  Additional  District  Judge,
the  landlord  issued  a  notice  to  the  tenant  on  13th  February,  2006
terminating the tenancy under Section 106 of the Transfer of  Property  Act,
1882.  The tenant did not respond to the notice and that  led  the  landlord
to file Civil Suit No. 207 of 2006 in the Court of the Small  Causes  Judge,
Pune for eviction of the tenant.  The suit was decreed on  3rd  March,  2009
and the tenant was  directed  to  deliver  vacant  possession  of  the  suit
property to the landlord.
7.    Feeling aggrieved, the tenant preferred Civil Appeal No. 225  of  2009
before the District Judge but that  was  dismissed  by  judgment  and  order
dated 19th January, 2012. The tenant was given two  months  time  to  vacate
the suit property.
8.    Against  the  decision  passed  by  the  appellate  Court  the  tenant
preferred Writ Petition No. 2089 of 2012 which was dismissed by  the  Bombay
High Court by its judgment and order dated 24th October, 2013 (impugned).
9.    In all the proceedings, the finding of fact has  been  that  the  suit
property let out to the tenant  was  open  land.  We  are  not  inclined  to
disturb this finding of fact arrived at by several Courts  and  indeed  this
finding was not seriously challenged by learned counsel for the tenant.
10.   The question raised by the  tenant  is  that  the  suit  property  was
acquired by the Pune Municipal Corporation for  the  purpose  of  a  primary
school and the Special Land Acquisition  Officer  had  passed  an  award  in
respect  thereof  on  3rd  August,  1979.   Accordingly,  the  landlord  was
divested of his right, title and interest in the  suit  property  after  the
land acquisition proceedings and  therefore  a  suit  for  eviction  of  the
tenant was not maintainable.
11.   The High Court noted that there was no material on record  to  suggest
that the Pune  Municipal  Corporation  had  taken  possession  of  the  suit
property  from  the  landlord.   On  the  contrary,  the   Corporation   had
sanctioned a development plan submitted by the landlord in  respect  of  the
suit property through a notification issued on  5th  January,  1987.  It  is
clear, therefore, that the Corporation had not taken possession nor had  any
intention of taking possession of the suit property.
12.   That apart, Section 16 of the Land Acquisition Act, 1894  enables  the
acquiring authority to take possession of acquired land  and  when  that  is
taken, it would be free from  all  encumbrances.
Section  16  of  the  Land Acquisition Act, 1894 reads as follows:
           16. Power to take possession - When the Collector  has  made  an
           award under Section 11, he may  take  possession  of  the  land,
           which shall thereupon vest absolutely in  the  Government,  free
           from all encumbrances.




Therefore,  on  a  plain  reading  of  the  provision,  in  the  absence  of
possession of  the  suit  property  being  taken  by  the  Corporation,  the
contention of learned counsel for the tenant cannot  be  accepted  that  the
landlord was divested of his right, title or interest in the suit property.

13.   We may also note that it was brought out during the course of  hearing
that the tenant continues to pay rent to the landlord even though  according
to the tenant the landlord had no concern with the suit property  after  the
award was passed on  3rd  August,  1979  by  the  Special  Land  Acquisition
Officer.  The stand of the tenant seems to be self-defeating for on the  one
hand it is submitted that the landlord had no right, title  or  interest  in
the suit property but on the other hand the tenant continues paying rent  to
him.
14.   An issue that arises out of these cases, and which we  would  like  to
flag, relates to the purpose and effectiveness of an  order  passed  by  the
High Court granting time to the tenants to  vacate  suit  premises.  We  are
mentioning this because in these cases, the tenants had the  benefit  of  an
interim order passed by the High Court staying the execution of  the  decree
against them as well as a stay of operation of the judgments  of  the  Trial
Court and the appellate Court. On the dismissal of the  proceedings  by  the
High Court, learned counsel for the tenants applied for continuation of  the
interim order for a period of 12 weeks.  He stated that  the  tenants  would
file an undertaking along with all others using  the  suit  property  on  or
before 19th November, 2013 incorporating therein the  following  terms:  (i)
that they are in possession of the suit  premises  and  nobody  else  is  in
possession; (ii) that they have neither created third  party  interests  nor
parted with possession; (iii) that they will hereafter neither create  third
party interests nor part with possession of the  suit  premises,  (iv)  that
they will clear all arrears of rent, if any, within four  weeks  subject  to
adjustment, (v) they will not apply for extension of time, and (vi) that  in
case they are unable to obtain suitable orders from  this  Court  within  12
weeks, they will hand over  vacant  and  peaceful  possession  of  the  suit
premises to the landlord.

15.   The tenants failed to file any such undertaking in the High  Court  on
or before 19th November, 2013.  This  was  brought  to  our  notice  by  the
landlord on 4th February, 2014 and we  directed  the  tenants  to  file  the
necessary undertaking as ordered by the High Court within a  week.  We  were
subsequently given to understand that the undertaking was filed.

16.   These cases  indicate  that  even  though  the  High  Court  trusts  a
litigant before it to comply with its orders, sometimes a litigant does  not
take the High Court  seriously.  This  is  unfortunate  and  undermines  the
authority of the Court. We  feel  the  recurrence  of  a  situation  as  has
happened in these cases needs to  be  avoided.  Therefore,  the  High  Court
would  be  well  advised  to  consider  having  the  tenant  first  file  an
undertaking and placed on record before granting  any  interim  order  after
dismissal of the tenant’s petition. Otherwise this may place the High  Court
in a difficult position where its order  is  flagrantly  disobeyed,  as  has
happened in these cases.

17.   We  find  no  merit  in  these  petitions  and  they  are  accordingly
dismissed.  The interim applications are also dismissed.


                                       ……………………………………J
                                          (Ranjana Prakash Desai)


                                          ……………………………………J
                                          (Madan B. Lokur)
New Delhi;
March 25, 2014

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