Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (for short 'the Act') = Lok Adalat passed an award as the both parties compromised - violated the Award conditions - E.P. filed for implement the orders of Lok Adalat - challenged in writ - their lordships held that by directing the advocate commissioner restore the possession of 9,10 shops to the tenant and direct to pay rents as per compromise award and further directed the tenant to file an application for damages for a period of 10 years , with in 4 weeks and directed the executing court to ascertain damages on enquiry for the deprive of the right of tenant for the past 10 years, and further directed , if an application not made with in 4 four weeks, this direction is deemed to be withdrawn =
as both parties consented, on 19.12.1998 the Lok Adalat passed an award under
Section 21 of the Legal Services Authorities Act, 1987. The terms of the award
are as follows:
Award under Sec.21 of the Legal Services Authorities Act, 1987
1. The respondent agreed to vacate the premises on 31.12.1998. The Petitioner
agreed to re-allot the premises with 40' x 15' shop by 31.03.1999.
2. The new construction measurements were reduced in view of the plan approved
by the Municipality.
3. The respondent agreed to pay previous rent for 3 years.
4. In view of the compromise in R.C.C.No.5 of 1998 is withdrawn. The petitioner
agreed to receive future rents by enhancing 20% on the rent existed for
continuously 3 years.
As per the award, the tenant vacated the premises on 31.12.1998 and thereafter,
the landlord has carried out the construction, which now comprises of several
shops as per the plan.
(b) While taking upon the said reconstruction, however, it is common case of the
parties that the place where the tenant's shop existed earlier is now left out
as open space for parking and in the rest of the area, shopping complex is
constructed. Since the tenant was to be put in possession of reconstructed shop
of the dimension 40' x 15' as per clause (1) of the award of the Lok Adalat, by
31.03.1999,
the tenant filed execution petition in E.P.No.63 of 1999 on 18.06.1999
requesting the executing Court/learned Rent Controller to appoint an Advocate
Commissioner to take possession of the property and to direct to reconstruct the
building under the supervision of the Advocate Commissioner at the cost of the
tenant and restitute the possession of the tenant. Questioning the
maintainability of said EP the landlord filed CRP.No.3049 of 1999 before this
Court under Article 227 of the Constitution of India. =
I deem it appropriate to issue the following directions:
1. The tenant shall be entitled to restitution of equivalent premises in lieu of
his entitlement to the area of 40' x 15'. The executing Court shall, therefore,
appoint an Advocate Commissioner to take possession of shop Nos.9 & 10 and
deliver the same to the tenant/decree holder in full and final satisfaction of
the decree of the Lok Adalat dated 19.12.1998. The tenant shall be entitled to
continue the tenancy of the said shops by paying rent at 20% over and above the
last three years rent, which he paid for the earlier premises in terms of the
agreed clause 3(c) under the compromise decree of the Lok Adalat.
2. The tenancy of the decree holder/tenant shall be statutory tenancy on the
same terms and conditions as the earlier tenancy prior to his vacation of Shop
No.4-11-39.
3. The tenant/decree holder shall also be entitled to appropriate damages/mesne
profits for a period of 10 years i.e. from 31.03.1999 till the date he is put in
possession of the shops, as aforesaid, at such rate as would be determined by
the executing Court. The tenant shall be at liberty to make an appropriate
application before the executing Court for the aforesaid purpose and after
giving due opportunity to the landlord and after recording the evidence, if any,
of either side, the executing Court shall pass appropriate orders thereon and
the amount so determined shall be payable by the landlord together with costs of
the execution proceedings and this CRP within a period of three (3) months from
the date of determination by the executing Court.
4. The executing Court shall endeavour to pass appropriate orders restoring the
possession of shop Nos.9 & 10 to the tenant within a period of two (2) months
from the date of receipt of a copy of this order and so far as determination of
damages, as directed above, is concerned, the same shall be determined within a
period of six (6) months from the date of application, if any, moved by the
tenant for the aforesaid purpose.
5. It is made clear that if no such application is moved by the tenant with
respect to the damages and compensation with four (4) weeks from today the
direction in that respect given herein shall stand withdrawn.
With the aforesaid directions, the revision petition is dismissed with costs
quantified at Rs.25,000/- payable by the petitioner to the respondent.
2009 (April.Part ) judis.nic.in/judis_andhra/filename=6493
THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR
Civil Revision Petition No.5156 of 1999
18-04-2009
Chekka Raghuram.
Dendukuri Murali Raju.
Counsel for petitioner: Mr. D.V. Sitharam Murthy
Counsel for Respondent: Mr. J. Prabhakar
Mr. K. Raghavacharyulu
:ORDER:
This revision though preferred under Section 115 of the Code of Civil
Procedure, 1908, is, in fact, a revision seeking to challenge the order of the
learned Rent Controller cum Junior Civil Judge, Tuni in E.P.No.63 of 1999 in
R.C.C.No.10 of 1998. Under the Andhra Pradesh Buildings (Lease, Rent and
Eviction) Control Act (for short 'the Act')
a revision is provided under Section 22 of the Act. This revision is, therefore,
being treated as one under Section 22 of the Act.
2. The petitioner herein is the landlord whereas the respondent herein is the
tenant of the premises bearing No.4-11-39, Tuni, East Godavari District and
carrying on business in running a sweet shop since 1989. The petitioner and the
respondent are hereinafter referred to as landlord and tenant respectively.
3. The facts, which gave to rise to the present proceedings, are as follows:
(a) The landlord sought eviction of the tenant and called upon the tenant
to vacate the premises under legal notice dated 21.05.1998. The tenant replied
to the said notice on 10.06.1998 denying all allegations. The tenant apprehended
highhanded eviction and therefore, filed O.S.No.85 of 1998 before the Junior
Civil Judge, Tuni for injunction. The tenant, thereafter, filed R.C.C.No.5 of
1998 before the Junior Civil Judge cum Rent Controller, Tuni under Section 8 of
the Act seeking to deposit the rents. The landlord, thereafter, filed
R.C.C.No.10 of 1998 seeking eviction of the tenant under Section
12 (1) of the Act seeking directions to deliver the possession of the petition
schedule premises. The said R.C.C.No.10 of 1998 was referred to Lok Adalat and
as both parties consented, on 19.12.1998 the Lok Adalat passed an award under
Section 21 of the Legal Services Authorities Act, 1987. The terms of the award
are as follows:
Award under Sec.21 of the Legal Services Authorities Act, 1987
1. The respondent agreed to vacate the premises on 31.12.1998. The Petitioner
agreed to re-allot the premises with 40' x 15' shop by 31.03.1999.
2. The new construction measurements were reduced in view of the plan approved
by the Municipality.
3. The respondent agreed to pay previous rent for 3 years.
4. In view of the compromise in R.C.C.No.5 of 1998 is withdrawn. The petitioner
agreed to receive future rents by enhancing 20% on the rent existed for
continuously 3 years.
As per the award, the tenant vacated the premises on 31.12.1998 and thereafter,
the landlord has carried out the construction, which now comprises of several
shops as per the plan.
(b) While taking upon the said reconstruction, however, it is common case of the
parties that the place where the tenant's shop existed earlier is now left out
as open space for parking and in the rest of the area, shopping complex is
constructed. Since the tenant was to be put in possession of reconstructed shop
of the dimension 40' x 15' as per clause (1) of the award of the Lok Adalat, by
31.03.1999,
the tenant filed execution petition in E.P.No.63 of 1999 on 18.06.1999
requesting the executing Court/learned Rent Controller to appoint an Advocate
Commissioner to take possession of the property and to direct to reconstruct the
building under the supervision of the Advocate Commissioner at the cost of the
tenant and restitute the possession of the tenant. Questioning the
maintainability of said EP the landlord filed CRP.No.3049 of 1999 before this
Court under Article 227 of the Constitution of India. In the said CRP the
landlord urged the contention that in view of G.O.Ms.No.636 dated 29.12.1983 any
building on construction is exempted from the provisions of the Act for a period
of 10 years and as such the executing Court had no jurisdiction. The said CRP
was contested and by order of this Court dated 27.09.1999 the CRP was dismissed
leaving it open for the landlord and the tenant to raise their respective
objections before the executing Court and directing the executing court to
dispose of the EP. Though time was stipulated by the said order the impugned
order herein came to be passed on 20.11.1999 by allowing the EP. Questioning
the said order the present revision is preferred by the landlord.
4. I have heard Sri D.V. Sitharam Murthy, learned counsel appearing for the
landlord and Sri J. Prabhakar, learned counsel appearing for the tenant.
5. The operative portion of the order impugned herein is questioned by the
learned counsel for the landlord on various grounds as mentioned below. In
order to appreciate the contentions on either side, it would be appropriate to
extract the operative portion of the impugned order.
1. Sri B. Kannayya Dora, Advocate is appointed as Commissioner to construct a
shop in the petition schedule property with measurements of 40 ft x 15 ft. The
Advocate Commissioner is directed to take possession of the petition schedule
site, construct a shop thereon with the measurements of 40 ft x 15 ft, as per
the plan approved by the Municipality and deliver possession thereof to the
petitioner-D.Hr.
2. The Petitioner - D.Hr.is directed to supply all the required material and
labour and meet the day to day expenditure as acquired by the Advocate
Commissioner for construction of the shop in the petition schedule property.
3. The Advocate Commissioner shall give notice be both parties before going to
execute the warrant.
4. The respondent J.Dr. is directed to submit the approved plan to the Advocate
Commissioner, In case the respondent - J.Dr. failed to submit the approved plan
the Advocate Commissioner is at liberty to get the copy of the approved plan
from Tuni Municipality.
5. The Advocate Commissioner shall maintain day to day account as to the
expenditure so incurred for construction of the shop in the petition schedule
property.
6. The Advocate Commissioner's fee is fixed at Rs.5,000/- tentatively to be paid
by the petitioner directly.
7. The petitioner-D.Hr. is entitled to recover the expenditure so incurred for
construction of the shop from the respondent-D.Hr.
8. After completion of the construction of the shop in the petition schedule
property, the Advocate Commissioner shall file a report into the Court.
6. It is contended by Mr. D.V. Sitharam Murthy that there could not have been
directions by the executing Court to the Advocate Commissioner to take
possession of the same portion on which the tenant's shop existed earlier and a
further direction to the Advocate Commissioner to take up construction at the
same place is also erroneous inasmuch as the earlier proposed plan had undergone
changes and the place where the shop earlier existed is now part of open space
and used as parking. He, therefore, contended that even assuming that a tenant
is entitled to construction of a shop in lieu of the one vacated by him, the
same cannot be at the same place.
7. In addition to the above, he raised the following contentions:
1. The very compromise decree passed by the Lok Adalat is in violation of Order
32 Rule 7 CPC inasmuch as the landlord was minor on the date of the said decree
and without leave of the Court the said compromise could not have been recorded.
On the said ground the decree itself is void and not binding on the minor. The
execution of the said decree equally does not bind on the minor. The provisions
of the Legal Services Authorities Act cannot ignore the mandate of Order 32 Rule
7 CPC as the said provision is intended to safeguard the interest of the minor
and in any case the principles therein equally apply to the adjudication by the
Lok Adalat also.
2. Under Section 8(2)(b) of the Hindu Minority and Guardianship Act, natural
guardian cannot lease out the property existing 5 years or for a term more than
one year beyond the date on which the minor attains majority. Thus, not only
Section 8 (1) and (2) are voidable at the instance of the minor there could not
have bee any lease and the compromise which was recorded before the Lok Adalat
does not bind the minor.
3. The date of birth of the landlord being 19.01.1981 (regarding which there is
no controversy), the minor's property could not have been dealt with by the
mother as a guardian when the father of the minor is alive.
It is, therefore, seen that the learned counsel for the landlord primarily
attacks the award of the Lok Adalat, which is the basis for the impugned
execution proceedings.
8. Per contra, Sri J. Prabhakar, learned counsel for the tenant, contended
that the conduct of the landlord in now taking up these hyper technical pleas
are to be rejected outright in view of the fact that the landlord though minor
represented by his mother filed the eviction petition being R.C.C.No.10 of 1998.
The same was referred to Lok Adalat and after recording consent of both parties
and their counsel, an award was passed by the Lok Adalat on terms agreed to by
and between the parties and compromise memo is duly signed by the parties and
their respective counsel. Further, the landlord received possession of the
tenant's shop on 31.12.1998 in terms of clause 3(a) of the compromise and as
such, has already derived benefit in the said award. The landlord, however, has
taken up construction and has constructed a shopping complex and let it out to
various tenants. More importantly the learned counsel contends that questioning
the execution proceedings the landlord had filed CRP.No.3049 of 1999 wherein
also he was shown as minor represented by his mother.
The aforesaid revision petition was filed and disposed of after the landlord
attained majority, therefore, he chose to abide by the award of the Lok Adalat
and never questioned the award on the ground on which it is now sought to be
questioned. The learned counsel, therefore, submits that having received
advantage under the award it is not open for the landlord to now contend that
the provisions of Order 32 Rule 7 of CPC vitiate the award. Secondly, he
contends that the said provision per se has no application in proceedings before
the learned Rent Controller, which is governed by the Act and the Rules framed
thereunder and the provisions of CPC has limited application. Further, under
the Legal Services Authorities Act also, has no application of CPC and in fact,
Section 20 of the Legal Services Authorities Act mandates that the Lok Adalat
shall be guided by principles of equity and justice. He also contended that the
landlord has not taken up reconstruction in accordance with the sanctioned plan
and construction of the shops in the shopping complex, which exist, have already
been let out by the landlord to various other tenants by wrongfully denying the
benefit of award to the tenant. Thus, in short, the landlord having taken
advantage of the award, taken possession of the tenant's shop as per award,
demolished and reconstructed the shopping complex, instead of redelivering the
shop to the tenant the landlord has successfully dragged the proceedings for
over 10 years and at the same time, he is being benefited by rental income from
the tenants inducted in the complex.
9. Learned counsel for the landlord relied upon two decisions of the Supreme
Court in KAUSHALYA DEVI v. BAIJNATH SAYAL1 and DHIRENDRA KUMAR GARG v. SMT.
SUGANDHI BAI JAIN2 for the proposition that the compromise entered into and
decree passed in violation of Order 32 Rule 7 CPC is voidable against all
parties other than the minor.
10. Learned counsel for the tenant has relied upon KONDETI SURYANARAYANA v.
PINNINTHUI SESHAGIRI RAO3; PARVATIBAI SUBHANRAO NALAWADE v. ANWARALI HASANALI
MAKANI4; HIRALAL MOOLCHAND DOSHI v. BAROT RAMAN LAL RANCHHODDAS5; P.T. THOMAS v.
THOMAS JOB6 and PUSHPA DEVI BHAGAT v. RAJINDER SINGH7, which are in support of
his contentions with regard to the nature of the decree passed by the Lok Adalat
and the interpretation of the provisions of the Legal Services Authorities Act.
11. It may also be mentioned that during the pendency of this revision
petition before this Court on various dates and during the earlier hearings
before different learned Judges, the parties were called upon and filed memos
and counter memos showing the physical possession with regard to the shopping
complex and number of shops, if any, which are vacant and which can be allotted
to the tenant in the event of his success. In the memos, so filed before this
Court, the parties have stipulated their own respective terms while filing the
said memos and it is apparent that on account of the fresh terms and conditions
mentioned by either parties in their memos and counter memos there could not be
an agreement between the parties and the amicable solution to the existing
dispute could not be achieved.
The several memos and affidavits filed on behalf of both sides are available on
record and the learned counsel on either side have taken me through the
different memos and counter memos to contend that all possible steps were taken
by the respective parties for peaceful resolution of the present dispute but the
same could not materialize. Since most of the said memos were filed much
earlier to the hearing of this revision before me, I had directed the parties to
file fresh memos showing the present existing situation.
12. Learned counsel appearing for the landlord has thereupon filed an
affidavit of the landlord dated 22.03.2009 and the relevant portion of Para 2
thereof is as follows:
"2. I submit that at present shop A3, A4 and B2 are readily available for
occupation and A1 or A2 will be given to the respondent after evicting the
present tenants who are in occupation of those shops. I am ready and willing to
give any one of these shops to the respondent herein on usual terms and
conditions and also on execution of lease deed. Hence this affidavit."
The counter affidavit to the said affidavit is filed by the tenant.
Paragraphs 2 and 4 thereof are relevant and extracted hereunder:
"2. I submit that Shop A3, A4 and B2 are not convenient for the proposed
business of mine as they are on the rear side and there is a gunny bag repair
market on the rear side. Sweet meat shop cannot be established at that place,
the petitioner gave an affidavit dated 27.02.2004 in the above CRP before this
Hon'ble Court that he will not make any constructions in the open place. In
view of the same as already expressed in my replies, I am prepared to accept
Shop No.9 & 10 besides half of 8. However, if half portion of Shop No.8 is
granted I am prepared to pay for entire shop No.8 and pay proportionate extra
rent. If that is not possible I will accept shop No.9 & 10.
4. I further submit that the Petitioner is always making the offer
conditional and by imposing conditions contrary to the settlement Award/Decree.
Even in the present affidavit he refers to giving of one shop on usual terms and
conditions and execution of lease deed. One shop is not sufficient or
equivalent to the area agreed to as ordered in the settlement. Further, the
other terms including rents are already fixed in the Award. I am a statutory
tenant and as such I am advised that no lease deed is required. The present
offer also lacks bonafides."
13. However, though the parties were also present on the last date of hearing
when the aforesaid affidavit and counter affidavit were exchanged, the efforts
of both the learned counsel to resolve the controversy by advising their
respective clients also have failed and thereupon, it is necessary to decide
this revision petition on merits.
14. So far as the contention of the learned counsel for the landlord based on
Order 32 Rule 7 CPC is concerned, the same has to be appreciated in the
background of the crucial fact that the landlord has derived advantage and
benefit of clause 3(a) of the award of the Lok Adalat. The aforesaid eviction
petition was filed by the landlord as minor represented by his mother. The
landlord himself having filed the eviction case, in such a manner, cannot turn
around to claim that mother had not authority to represent the minor especially
when the landlord has received advantage of the aforesaid proceedings and
received possession of the tenant's shop within hardly 12 days of the award (the
date of award is 19.12.1998 and the tenant vacated and handed over his shop
premises to the landlord on 31.12.1998). Secondly, the landlord has constructed
shopping complex by demolishing the tenant's shop and has let out several shops,
which are newly constructed, to various tenants and he is getting rental income
wherefrom. Thirdly and most importantly, the landlord had questioned the
maintainability of the execution proceedings by approaching this Court in
CRP.No.3049 of 1999 by which time he had already attained majority even
according to the date of birth given by the landlord.
The said revision petition, which came to be decided in July 1999,
was also six months after attaining majority by the landlord. The said revision
petition was, thus, filed by the landlord by showing as if he is minor and still
represented by his mother. Further, in the execution proceedings the landlord
filed a counter dated 11.11.1999 and for the first time plea was raised on the
ground that his mother had no authority and he is not bound by the compromise
decree and the award of the Lok Adalat is not enforceable against him. The said
counter, however, is completely silent and there is no averment to show that the
aforesaid acts of the mother, assuming that she was not authorized, has been to
the detriment of the minor.
15. On the contrary, if one really has to ignore the filing of the eviction
petition before the learned Rent Controller, the execution petition and the CRP.
No.3049 of 1999 referred to above on the above ground; the tenant also will have
to be put back to the original position, as it existed at the time of filing of
the eviction case by the landlord. The said situation, however, does not exist
on the ground as the tenant had already vacated his premises on 31.12.1998 and
the landlord having demolished the same; has constructed a shopping complex. The
said plea of the landlord, therefore, cannot be countenanced and it is clear and
apparent that an attempt on the part of the landlord is only to raise hyper
technical pleas and to delay, if not, defeat the decree and deprive the tenant
of the possession of the shop to which he would be entitled to under the award
of the Lok Adalat.
16. Even otherwise, Order 32 Rule 7 of CPC has no application to the Act as
well as to the Legal Services Authorities Act. In fact, Section 25 of the Legal
Services Authorities Act has overriding effect and it cannot be said that the
Lok Adalat has not followed the mandate of Section 20(4) of passing an award in
accordance with equity and justice. So far as the decision in KAUSHALYA DEVI's
case (1 supra) relied upon by the learned counsel for the landlord is concerned
it was a case where the decree for partition was questioned by the minor
represented by his mother on the ground that the provisions of Order 32 Rule 7
of CPC have not been applied. Para 7 of the said decision is, however, relevant
to notice and the same is extracted as under:
"(7). The question as to the procedure which the minor should adopt in
avoiding such an agreement or decree has been the subject-matter of several
decisions, and it has been held that a compromise decree may be avoided by the
minor either by a regular suit or by an application for review by the court
which passed the said decree. The decision in Manohar Lal v. Jadu Nath Singh,
33 Ind App 128 (PC), is an illustration of a suit filed by the minor for
declaration that the impugned decree did not bind him. It is, however, not
necessary for us to deal with this aspect of the matter in the present appeal
any further."
In this case, it is evident that neither of the courses as mentioned above
are adopted by the landlord. Obviously, he could not have gone back and asked
that cancellation of the said compromise as he had derived advantage therein.
Thus, having obtained benefit of one part of the said compromise; when the
tenant demanded performance of the other part of the compromise the landlord has
come up with the present plea. The lack of bonafides on the part of the
landlord, therefore, is apparent from the record itself.
17. The learned Rent Controller, under the impugned order, has also gone into
the said question from the standpoint of the settled principle that the
executing Court cannot go beyond the terms of the decree. The learned Rent
Controller also noticed that the mother of the landlord was his natural guardian
and that it is she, who issued receipts to the tenant and in the injunction suit
O.S.No.85 of 1998 filed by the tenant no such plea was raised that the natural
mother cannot represent the landlord and the executing Court, in any case,
cannot decide the said aspect as it is bound by the said decree and cannot go
beyond the same. Further, the landlord is estopped from raising such a plea
after securing advantage out of the compromise.
18. As I have already mentioned above, no such plea is available to the
landlord as the learned Rent Controller's Court is not a civil Court and
application of the provisions of CPC is not automatic and is only limited.
Secondly, the Legal Services Authorities Act has overriding effect vide Section
20 thereof and thirdly even assuming that such a plea is tenable there is no
allegation on the part of the landlord that the actions of his natural guardian
mother are detrimental to his interest while, in fact, they have ultimately
worked to his advantage. In the light of the above, therefore, the said
contention of the learned counsel for the landlord is liable to be rejected.
19. Further contention of the learned counsel that no lease for a term more
than one year beyond the date in which the minor will attain majority can be
granted etc. is also not sustainable for the reason that under these proceedings
it is not as if the tenant is being granted a fresh lease. It is now well
settled that when eviction of tenant under Section 12 of the Act is sought for
the purpose of demolition and reconstruction, the landlord is bound to give an
undertaking to redeliver, after construction, similar accommodation to the
tenant. The pre-existing tenancy of the tenant, therefore, continues and it is
only in the interregnum period, when he vacates the premises and receives back
after reconstruction, that his tenancy remains under suspension. Thus, the
tenant, who occupies the premises after reconstruction, continues to be a
statutory tenant on the same terms and conditions. In the present case, by
virtue of the compromise and agreements between the parties before the Lok
Adalat it was agreed by the tenant to pay the enhanced rent by 20% on the rent
existing continuously for the last three years. Thus, except the aforesaid
modification, the statutory tenancy of the tenant continues even with respect to
reconstructed premises. As fortiori the tenant cannot be compelled and saddled
with new terms and conditions of lease as are enacted in the memos and
affidavits filed on behalf of the landlord before this Court while proposing to
allot alternate shops to the tenant. Once the tenancy of the tenant is held to
be statutory, the same cannot be frustrated by making fresh terms of lease on
the tenant. Since there is no lease for a fixed duration even with respect to
the reconstructed portions, the contention of the learned counsel for the
landlord that a lease for a period of more than one year is being granted under
the decree under execution and thereby the said decree violates Section 8(2)(b)
of the Hindu Minority and Guardianship Act is equally misconceived and liable to
be rejected.
20. Learned counsel for the tenant has relied upon a decision in KONDETI
SURYANARAYANA's case (3 supra) wherein Section 12 of the Act was considered by
the Honourable Supreme Court wherein it is held:
"...Therefore, when a landlord requires a building to be demolished, necessarily
he has to reconstruct the building on the same site of the building and on
reconstruction of new building the tenant has a right to re-enter in the said
premises."
In PARVATIBAI SUBHANRAO NALAWADE's case (4 supra) where the terms of the
decree mention a right of the defendant to an identical area in the new building
but after reconstruction the landlord did not deliver identical area to the
tenant, whereupon the tenant filed an application for restoration of possession
before the trial Court, which was dismissed as not maintainable and ultimately
the tenant was directed to file EP. In the meanwhile, the landlord had inducted
some third parties as tenants, who objected to the execution proceedings under
Order 21 Rule 9 CPC. The said proceedings were before the Honourable Supreme
Court and it was held:
"...In pursuance of a solemn compromise reached by the tenant (appellant's
father) and the landlord - respondent No.3 the possession f the premises was
handed over to the landlord in 1966 on the express stipulations that on the
construction of the new building the tenant would get an identical area therein.
The fresh construction was completed in 1967 and instead of honouring the pledge
given by it in the form of an "undertaking" the respondent inducted the writ
petitioners therein and did not make any offer to the tenant until the matter
reached the High Court on the second occasion. We do not, therefore, think that
there is any conceivable reason to condemn the appellant for an insistence to
benefit under the concerned decree or for any sympathy with the landlord, who
took advantage of the situation. The landlord was, therefore, made liable for
making its undertaking good as well as for any suitable compensation for the
gross delay of more than two decades."
21. In P.T. THOMAS's case (6 supra) the provisions of the Legal Services
Authorities Act were examined and the Honourable Supreme Court held that Lok
Adalat will pass award with the consent of the parties, therefore there is
nothing either to reconsider or to review the matter again. The award of the Lok
Adalat is an order by the Lok Adalat under the consent of the parties and it
shall be deemed to be a decree of the civil Court and therefore, the appeal
would not lie from the award of the Lok Adalat as under Section 96(3) of CPC.
The finality attached to the said decree cannot be permitted to be destroyed,
especially under the Legal Services Authorities Act, as it would amount to
defeat the very aim and object of the Act with which it has been enacted. Even
this Court in the matter of BOARD OF TRUSTEES OF THE PORT OF VISAK v. PRESIDING
OFFICER, LOK ADALAT8 held:
"...The award is enforceable as a decree and it is final. In all force,
the endeavour is only to see that the disputes are narrowed down and make the
final settlement so that the parties are not again driven to further litigation
or any dispute. Though the award of a Lok Adalat is not a result of a contest
on merits just as a regular suit by a Court on a regular trial, however, it is
as equal and on par with a decree on compromise and will have the same binding
effect and conclusive. Just as the decree passed on compromise cannot be
challenged in a regular appeal, the award of the Lok Adalat cannot be challenged
by any regular remedies available under law..."
The last of the cases cited by the learned counsel for the appellant in
PUSHPA DEVI BHAGAT's case was, however, a converse case where the tenant
attempted to defeat the compromise decree by raising several pleas against the
compromise, which was deprecated by the Honourable Supreme Court. The same has
no application to the facts of the present case.
22. As mentioned above, therefore, the landlord has resorted to the pleas as
above only to avoid the execution and for reasons best known to him, has not
taken any steps to question the said award either
on the ground of his mother being not empowered to represent him or
on the ground that the said compromise is to the detriment of the landlord. In
the absence of any such challenge to the decree even now, mere resisting the
decree in execution is clearly untenable.
The order of the Court below, therefore, cannot be said to either without
jurisdiction, improper, irregular or otherwise perverse and as such, no
interference under the revisional jurisdiction of this Court is called for.
23. This, however, leaves the last aspect to be considered namely, the
direction given in the operative portion of the impugned order whereby the
Advocate Commissioner was directed to reconstruct the shop for the tenant. It
is not in controversy that though a tenant,
who vacated the premises under Section 12 of the Act, cannot insist on
reconstructing a shop at the same place, he is, however, entitled to similar
accommodation on reconstruction. As per the compromise and award, it was agreed
between the parties that landlord would allot premises with dimension 40' x 15'
by 31.03.1999. Keeping in view the shopping complex constructed by the landlord
and dimension of each shop, the allotment of 40' x 15' shop would amount to
approximately
21/2 shops in the new complex. Even in the latest affidavit filed by the
landlord, which is extracted above, it is mentioned that shops A3, A4 and B2 are
readily available and A1 and A2 will be given to the tenant after the present
tenants vacate the same. Earlier memos also show that the landlord is willing to
give two shops in lieu of 40' x 15' shop mentioned in the compromise. The
tenant, however, filed a counter affidavit saying that the said shops A3, A4 and
B2 are not convenient as they are on the rear side and also close to the gunny
bag repair market and as such sweet shop cannot be established at that place.
The tenant, therefore, has offered to take shop Nos.9 & 10 and half of shop No.8
and to the extent of half of the shop, if it is not feasible, he is prepared to
pay for the entire shop No.8 and pay the proportionate extra rent. He has
further offered to take shop Nos.9 & 10 only if it is not possible to allot half
or full of shop No.8. No doubt, the landlord has filed a rejoinder memo denying
intention to allot shop Nos.9 & 10 to the tenant and offers shop Nos.B2 & B6 in
lieu of shop Nos.9 & 10.
24. It is evident from the aforesaid memos and counter memos; affidavits and
counter affidavits and rejoinder on behalf of either of the parties that in lieu
of the accommodation of 40' x 15' agreed to be allotted to the tenant as per the
decree; the tenant would be entitled to 21/2 shops of the newly constructed
shopping complex. Preference of the tenant to shop Nos.9 & 10 and half of or
entire shop No.8 is not acceptable to the landlord on account of the tenants now
existing. It is to be appreciated that though the tenant is entitled to 21/2
shops, keeping in view the compromise regarding accommodation of 40' x 15', he
is prepared to take two shops as against 21/2 shops provided he is allotted shop
Nos.9 & 10. The contention of the landlord that the said two shops cannot be
allotted on account of the tenants inducted therein cannot be accepted for the
simple reason that all the said tenants are inducted pending the present
litigation. The tenant herein had filed EP on 18.06.1999 itself and though 10
years have elapsed, during this litigation even if the landlord has created any
tenancy pending such litigation, the same is clearly covered by lis pendens and
no overriding right can be claimed either by the landlord or by any person on
his behalf when these execution proceedings are pending. The tenant, admittedly,
is deprived of the use of the premises for the last 10 years. As already held by
the Supreme Court in the decisions referred to above, the tenant would be
justified in seeking compensation for the said period for which the tenant was
deprived and on the contrary, the landlord was benefited by the rental income
and other incomes.
25. Keeping in view all the circumstances and with a view to shorten the
litigation; in lieu of the directions in the operative portion of the impugned
order, I deem it appropriate to issue the following directions:
1. The tenant shall be entitled to restitution of equivalent premises in lieu of
his entitlement to the area of 40' x 15'. The executing Court shall, therefore,
appoint an Advocate Commissioner to take possession of shop Nos.9 & 10 and
deliver the same to the tenant/decree holder in full and final satisfaction of
the decree of the Lok Adalat dated 19.12.1998. The tenant shall be entitled to
continue the tenancy of the said shops by paying rent at 20% over and above the
last three years rent, which he paid for the earlier premises in terms of the
agreed clause 3(c) under the compromise decree of the Lok Adalat.
2. The tenancy of the decree holder/tenant shall be statutory tenancy on the
same terms and conditions as the earlier tenancy prior to his vacation of Shop
No.4-11-39.
3. The tenant/decree holder shall also be entitled to appropriate damages/mesne
profits for a period of 10 years i.e. from 31.03.1999 till the date he is put in
possession of the shops, as aforesaid, at such rate as would be determined by
the executing Court. The tenant shall be at liberty to make an appropriate
application before the executing Court for the aforesaid purpose and after
giving due opportunity to the landlord and after recording the evidence, if any,
of either side, the executing Court shall pass appropriate orders thereon and
the amount so determined shall be payable by the landlord together with costs of
the execution proceedings and this CRP within a period of three (3) months from
the date of determination by the executing Court.
4. The executing Court shall endeavour to pass appropriate orders restoring the
possession of shop Nos.9 & 10 to the tenant within a period of two (2) months
from the date of receipt of a copy of this order and so far as determination of
damages, as directed above, is concerned, the same shall be determined within a
period of six (6) months from the date of application, if any, moved by the
tenant for the aforesaid purpose.
5. It is made clear that if no such application is moved by the tenant with
respect to the damages and compensation with four (4) weeks from today the
direction in that respect given herein shall stand withdrawn.
With the aforesaid directions, the revision petition is dismissed with costs
quantified at Rs.25,000/- payable by the petitioner to the respondent.
?1 AIR 1960 SC 790
2 AIR 1989 SC 147
3 AIR 2000 SC 70
4 AIR 1992 SC 1780
5 (1993) 2 SCC 458
6 AIR 2005 SC 3575
7 (2006) 5 SCC 566
8 2000 (5) ALT 577
as both parties consented, on 19.12.1998 the Lok Adalat passed an award under
Section 21 of the Legal Services Authorities Act, 1987. The terms of the award
are as follows:
Award under Sec.21 of the Legal Services Authorities Act, 1987
1. The respondent agreed to vacate the premises on 31.12.1998. The Petitioner
agreed to re-allot the premises with 40' x 15' shop by 31.03.1999.
2. The new construction measurements were reduced in view of the plan approved
by the Municipality.
3. The respondent agreed to pay previous rent for 3 years.
4. In view of the compromise in R.C.C.No.5 of 1998 is withdrawn. The petitioner
agreed to receive future rents by enhancing 20% on the rent existed for
continuously 3 years.
As per the award, the tenant vacated the premises on 31.12.1998 and thereafter,
the landlord has carried out the construction, which now comprises of several
shops as per the plan.
(b) While taking upon the said reconstruction, however, it is common case of the
parties that the place where the tenant's shop existed earlier is now left out
as open space for parking and in the rest of the area, shopping complex is
constructed. Since the tenant was to be put in possession of reconstructed shop
of the dimension 40' x 15' as per clause (1) of the award of the Lok Adalat, by
31.03.1999,
the tenant filed execution petition in E.P.No.63 of 1999 on 18.06.1999
requesting the executing Court/learned Rent Controller to appoint an Advocate
Commissioner to take possession of the property and to direct to reconstruct the
building under the supervision of the Advocate Commissioner at the cost of the
tenant and restitute the possession of the tenant. Questioning the
maintainability of said EP the landlord filed CRP.No.3049 of 1999 before this
Court under Article 227 of the Constitution of India. =
I deem it appropriate to issue the following directions:
1. The tenant shall be entitled to restitution of equivalent premises in lieu of
his entitlement to the area of 40' x 15'. The executing Court shall, therefore,
appoint an Advocate Commissioner to take possession of shop Nos.9 & 10 and
deliver the same to the tenant/decree holder in full and final satisfaction of
the decree of the Lok Adalat dated 19.12.1998. The tenant shall be entitled to
continue the tenancy of the said shops by paying rent at 20% over and above the
last three years rent, which he paid for the earlier premises in terms of the
agreed clause 3(c) under the compromise decree of the Lok Adalat.
2. The tenancy of the decree holder/tenant shall be statutory tenancy on the
same terms and conditions as the earlier tenancy prior to his vacation of Shop
No.4-11-39.
3. The tenant/decree holder shall also be entitled to appropriate damages/mesne
profits for a period of 10 years i.e. from 31.03.1999 till the date he is put in
possession of the shops, as aforesaid, at such rate as would be determined by
the executing Court. The tenant shall be at liberty to make an appropriate
application before the executing Court for the aforesaid purpose and after
giving due opportunity to the landlord and after recording the evidence, if any,
of either side, the executing Court shall pass appropriate orders thereon and
the amount so determined shall be payable by the landlord together with costs of
the execution proceedings and this CRP within a period of three (3) months from
the date of determination by the executing Court.
4. The executing Court shall endeavour to pass appropriate orders restoring the
possession of shop Nos.9 & 10 to the tenant within a period of two (2) months
from the date of receipt of a copy of this order and so far as determination of
damages, as directed above, is concerned, the same shall be determined within a
period of six (6) months from the date of application, if any, moved by the
tenant for the aforesaid purpose.
5. It is made clear that if no such application is moved by the tenant with
respect to the damages and compensation with four (4) weeks from today the
direction in that respect given herein shall stand withdrawn.
With the aforesaid directions, the revision petition is dismissed with costs
quantified at Rs.25,000/- payable by the petitioner to the respondent.
2009 (April.Part ) judis.nic.in/judis_andhra/filename=6493
THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR
Civil Revision Petition No.5156 of 1999
18-04-2009
Chekka Raghuram.
Dendukuri Murali Raju.
Counsel for petitioner: Mr. D.V. Sitharam Murthy
Counsel for Respondent: Mr. J. Prabhakar
Mr. K. Raghavacharyulu
:ORDER:
This revision though preferred under Section 115 of the Code of Civil
Procedure, 1908, is, in fact, a revision seeking to challenge the order of the
learned Rent Controller cum Junior Civil Judge, Tuni in E.P.No.63 of 1999 in
R.C.C.No.10 of 1998. Under the Andhra Pradesh Buildings (Lease, Rent and
Eviction) Control Act (for short 'the Act')
a revision is provided under Section 22 of the Act. This revision is, therefore,
being treated as one under Section 22 of the Act.
2. The petitioner herein is the landlord whereas the respondent herein is the
tenant of the premises bearing No.4-11-39, Tuni, East Godavari District and
carrying on business in running a sweet shop since 1989. The petitioner and the
respondent are hereinafter referred to as landlord and tenant respectively.
3. The facts, which gave to rise to the present proceedings, are as follows:
(a) The landlord sought eviction of the tenant and called upon the tenant
to vacate the premises under legal notice dated 21.05.1998. The tenant replied
to the said notice on 10.06.1998 denying all allegations. The tenant apprehended
highhanded eviction and therefore, filed O.S.No.85 of 1998 before the Junior
Civil Judge, Tuni for injunction. The tenant, thereafter, filed R.C.C.No.5 of
1998 before the Junior Civil Judge cum Rent Controller, Tuni under Section 8 of
the Act seeking to deposit the rents. The landlord, thereafter, filed
R.C.C.No.10 of 1998 seeking eviction of the tenant under Section
12 (1) of the Act seeking directions to deliver the possession of the petition
schedule premises. The said R.C.C.No.10 of 1998 was referred to Lok Adalat and
as both parties consented, on 19.12.1998 the Lok Adalat passed an award under
Section 21 of the Legal Services Authorities Act, 1987. The terms of the award
are as follows:
Award under Sec.21 of the Legal Services Authorities Act, 1987
1. The respondent agreed to vacate the premises on 31.12.1998. The Petitioner
agreed to re-allot the premises with 40' x 15' shop by 31.03.1999.
2. The new construction measurements were reduced in view of the plan approved
by the Municipality.
3. The respondent agreed to pay previous rent for 3 years.
4. In view of the compromise in R.C.C.No.5 of 1998 is withdrawn. The petitioner
agreed to receive future rents by enhancing 20% on the rent existed for
continuously 3 years.
As per the award, the tenant vacated the premises on 31.12.1998 and thereafter,
the landlord has carried out the construction, which now comprises of several
shops as per the plan.
(b) While taking upon the said reconstruction, however, it is common case of the
parties that the place where the tenant's shop existed earlier is now left out
as open space for parking and in the rest of the area, shopping complex is
constructed. Since the tenant was to be put in possession of reconstructed shop
of the dimension 40' x 15' as per clause (1) of the award of the Lok Adalat, by
31.03.1999,
the tenant filed execution petition in E.P.No.63 of 1999 on 18.06.1999
requesting the executing Court/learned Rent Controller to appoint an Advocate
Commissioner to take possession of the property and to direct to reconstruct the
building under the supervision of the Advocate Commissioner at the cost of the
tenant and restitute the possession of the tenant. Questioning the
maintainability of said EP the landlord filed CRP.No.3049 of 1999 before this
Court under Article 227 of the Constitution of India. In the said CRP the
landlord urged the contention that in view of G.O.Ms.No.636 dated 29.12.1983 any
building on construction is exempted from the provisions of the Act for a period
of 10 years and as such the executing Court had no jurisdiction. The said CRP
was contested and by order of this Court dated 27.09.1999 the CRP was dismissed
leaving it open for the landlord and the tenant to raise their respective
objections before the executing Court and directing the executing court to
dispose of the EP. Though time was stipulated by the said order the impugned
order herein came to be passed on 20.11.1999 by allowing the EP. Questioning
the said order the present revision is preferred by the landlord.
4. I have heard Sri D.V. Sitharam Murthy, learned counsel appearing for the
landlord and Sri J. Prabhakar, learned counsel appearing for the tenant.
5. The operative portion of the order impugned herein is questioned by the
learned counsel for the landlord on various grounds as mentioned below. In
order to appreciate the contentions on either side, it would be appropriate to
extract the operative portion of the impugned order.
1. Sri B. Kannayya Dora, Advocate is appointed as Commissioner to construct a
shop in the petition schedule property with measurements of 40 ft x 15 ft. The
Advocate Commissioner is directed to take possession of the petition schedule
site, construct a shop thereon with the measurements of 40 ft x 15 ft, as per
the plan approved by the Municipality and deliver possession thereof to the
petitioner-D.Hr.
2. The Petitioner - D.Hr.is directed to supply all the required material and
labour and meet the day to day expenditure as acquired by the Advocate
Commissioner for construction of the shop in the petition schedule property.
3. The Advocate Commissioner shall give notice be both parties before going to
execute the warrant.
4. The respondent J.Dr. is directed to submit the approved plan to the Advocate
Commissioner, In case the respondent - J.Dr. failed to submit the approved plan
the Advocate Commissioner is at liberty to get the copy of the approved plan
from Tuni Municipality.
5. The Advocate Commissioner shall maintain day to day account as to the
expenditure so incurred for construction of the shop in the petition schedule
property.
6. The Advocate Commissioner's fee is fixed at Rs.5,000/- tentatively to be paid
by the petitioner directly.
7. The petitioner-D.Hr. is entitled to recover the expenditure so incurred for
construction of the shop from the respondent-D.Hr.
8. After completion of the construction of the shop in the petition schedule
property, the Advocate Commissioner shall file a report into the Court.
6. It is contended by Mr. D.V. Sitharam Murthy that there could not have been
directions by the executing Court to the Advocate Commissioner to take
possession of the same portion on which the tenant's shop existed earlier and a
further direction to the Advocate Commissioner to take up construction at the
same place is also erroneous inasmuch as the earlier proposed plan had undergone
changes and the place where the shop earlier existed is now part of open space
and used as parking. He, therefore, contended that even assuming that a tenant
is entitled to construction of a shop in lieu of the one vacated by him, the
same cannot be at the same place.
7. In addition to the above, he raised the following contentions:
1. The very compromise decree passed by the Lok Adalat is in violation of Order
32 Rule 7 CPC inasmuch as the landlord was minor on the date of the said decree
and without leave of the Court the said compromise could not have been recorded.
On the said ground the decree itself is void and not binding on the minor. The
execution of the said decree equally does not bind on the minor. The provisions
of the Legal Services Authorities Act cannot ignore the mandate of Order 32 Rule
7 CPC as the said provision is intended to safeguard the interest of the minor
and in any case the principles therein equally apply to the adjudication by the
Lok Adalat also.
2. Under Section 8(2)(b) of the Hindu Minority and Guardianship Act, natural
guardian cannot lease out the property existing 5 years or for a term more than
one year beyond the date on which the minor attains majority. Thus, not only
Section 8 (1) and (2) are voidable at the instance of the minor there could not
have bee any lease and the compromise which was recorded before the Lok Adalat
does not bind the minor.
3. The date of birth of the landlord being 19.01.1981 (regarding which there is
no controversy), the minor's property could not have been dealt with by the
mother as a guardian when the father of the minor is alive.
It is, therefore, seen that the learned counsel for the landlord primarily
attacks the award of the Lok Adalat, which is the basis for the impugned
execution proceedings.
8. Per contra, Sri J. Prabhakar, learned counsel for the tenant, contended
that the conduct of the landlord in now taking up these hyper technical pleas
are to be rejected outright in view of the fact that the landlord though minor
represented by his mother filed the eviction petition being R.C.C.No.10 of 1998.
The same was referred to Lok Adalat and after recording consent of both parties
and their counsel, an award was passed by the Lok Adalat on terms agreed to by
and between the parties and compromise memo is duly signed by the parties and
their respective counsel. Further, the landlord received possession of the
tenant's shop on 31.12.1998 in terms of clause 3(a) of the compromise and as
such, has already derived benefit in the said award. The landlord, however, has
taken up construction and has constructed a shopping complex and let it out to
various tenants. More importantly the learned counsel contends that questioning
the execution proceedings the landlord had filed CRP.No.3049 of 1999 wherein
also he was shown as minor represented by his mother.
The aforesaid revision petition was filed and disposed of after the landlord
attained majority, therefore, he chose to abide by the award of the Lok Adalat
and never questioned the award on the ground on which it is now sought to be
questioned. The learned counsel, therefore, submits that having received
advantage under the award it is not open for the landlord to now contend that
the provisions of Order 32 Rule 7 of CPC vitiate the award. Secondly, he
contends that the said provision per se has no application in proceedings before
the learned Rent Controller, which is governed by the Act and the Rules framed
thereunder and the provisions of CPC has limited application. Further, under
the Legal Services Authorities Act also, has no application of CPC and in fact,
Section 20 of the Legal Services Authorities Act mandates that the Lok Adalat
shall be guided by principles of equity and justice. He also contended that the
landlord has not taken up reconstruction in accordance with the sanctioned plan
and construction of the shops in the shopping complex, which exist, have already
been let out by the landlord to various other tenants by wrongfully denying the
benefit of award to the tenant. Thus, in short, the landlord having taken
advantage of the award, taken possession of the tenant's shop as per award,
demolished and reconstructed the shopping complex, instead of redelivering the
shop to the tenant the landlord has successfully dragged the proceedings for
over 10 years and at the same time, he is being benefited by rental income from
the tenants inducted in the complex.
9. Learned counsel for the landlord relied upon two decisions of the Supreme
Court in KAUSHALYA DEVI v. BAIJNATH SAYAL1 and DHIRENDRA KUMAR GARG v. SMT.
SUGANDHI BAI JAIN2 for the proposition that the compromise entered into and
decree passed in violation of Order 32 Rule 7 CPC is voidable against all
parties other than the minor.
10. Learned counsel for the tenant has relied upon KONDETI SURYANARAYANA v.
PINNINTHUI SESHAGIRI RAO3; PARVATIBAI SUBHANRAO NALAWADE v. ANWARALI HASANALI
MAKANI4; HIRALAL MOOLCHAND DOSHI v. BAROT RAMAN LAL RANCHHODDAS5; P.T. THOMAS v.
THOMAS JOB6 and PUSHPA DEVI BHAGAT v. RAJINDER SINGH7, which are in support of
his contentions with regard to the nature of the decree passed by the Lok Adalat
and the interpretation of the provisions of the Legal Services Authorities Act.
11. It may also be mentioned that during the pendency of this revision
petition before this Court on various dates and during the earlier hearings
before different learned Judges, the parties were called upon and filed memos
and counter memos showing the physical possession with regard to the shopping
complex and number of shops, if any, which are vacant and which can be allotted
to the tenant in the event of his success. In the memos, so filed before this
Court, the parties have stipulated their own respective terms while filing the
said memos and it is apparent that on account of the fresh terms and conditions
mentioned by either parties in their memos and counter memos there could not be
an agreement between the parties and the amicable solution to the existing
dispute could not be achieved.
The several memos and affidavits filed on behalf of both sides are available on
record and the learned counsel on either side have taken me through the
different memos and counter memos to contend that all possible steps were taken
by the respective parties for peaceful resolution of the present dispute but the
same could not materialize. Since most of the said memos were filed much
earlier to the hearing of this revision before me, I had directed the parties to
file fresh memos showing the present existing situation.
12. Learned counsel appearing for the landlord has thereupon filed an
affidavit of the landlord dated 22.03.2009 and the relevant portion of Para 2
thereof is as follows:
"2. I submit that at present shop A3, A4 and B2 are readily available for
occupation and A1 or A2 will be given to the respondent after evicting the
present tenants who are in occupation of those shops. I am ready and willing to
give any one of these shops to the respondent herein on usual terms and
conditions and also on execution of lease deed. Hence this affidavit."
The counter affidavit to the said affidavit is filed by the tenant.
Paragraphs 2 and 4 thereof are relevant and extracted hereunder:
"2. I submit that Shop A3, A4 and B2 are not convenient for the proposed
business of mine as they are on the rear side and there is a gunny bag repair
market on the rear side. Sweet meat shop cannot be established at that place,
the petitioner gave an affidavit dated 27.02.2004 in the above CRP before this
Hon'ble Court that he will not make any constructions in the open place. In
view of the same as already expressed in my replies, I am prepared to accept
Shop No.9 & 10 besides half of 8. However, if half portion of Shop No.8 is
granted I am prepared to pay for entire shop No.8 and pay proportionate extra
rent. If that is not possible I will accept shop No.9 & 10.
4. I further submit that the Petitioner is always making the offer
conditional and by imposing conditions contrary to the settlement Award/Decree.
Even in the present affidavit he refers to giving of one shop on usual terms and
conditions and execution of lease deed. One shop is not sufficient or
equivalent to the area agreed to as ordered in the settlement. Further, the
other terms including rents are already fixed in the Award. I am a statutory
tenant and as such I am advised that no lease deed is required. The present
offer also lacks bonafides."
13. However, though the parties were also present on the last date of hearing
when the aforesaid affidavit and counter affidavit were exchanged, the efforts
of both the learned counsel to resolve the controversy by advising their
respective clients also have failed and thereupon, it is necessary to decide
this revision petition on merits.
14. So far as the contention of the learned counsel for the landlord based on
Order 32 Rule 7 CPC is concerned, the same has to be appreciated in the
background of the crucial fact that the landlord has derived advantage and
benefit of clause 3(a) of the award of the Lok Adalat. The aforesaid eviction
petition was filed by the landlord as minor represented by his mother. The
landlord himself having filed the eviction case, in such a manner, cannot turn
around to claim that mother had not authority to represent the minor especially
when the landlord has received advantage of the aforesaid proceedings and
received possession of the tenant's shop within hardly 12 days of the award (the
date of award is 19.12.1998 and the tenant vacated and handed over his shop
premises to the landlord on 31.12.1998). Secondly, the landlord has constructed
shopping complex by demolishing the tenant's shop and has let out several shops,
which are newly constructed, to various tenants and he is getting rental income
wherefrom. Thirdly and most importantly, the landlord had questioned the
maintainability of the execution proceedings by approaching this Court in
CRP.No.3049 of 1999 by which time he had already attained majority even
according to the date of birth given by the landlord.
The said revision petition, which came to be decided in July 1999,
was also six months after attaining majority by the landlord. The said revision
petition was, thus, filed by the landlord by showing as if he is minor and still
represented by his mother. Further, in the execution proceedings the landlord
filed a counter dated 11.11.1999 and for the first time plea was raised on the
ground that his mother had no authority and he is not bound by the compromise
decree and the award of the Lok Adalat is not enforceable against him. The said
counter, however, is completely silent and there is no averment to show that the
aforesaid acts of the mother, assuming that she was not authorized, has been to
the detriment of the minor.
15. On the contrary, if one really has to ignore the filing of the eviction
petition before the learned Rent Controller, the execution petition and the CRP.
No.3049 of 1999 referred to above on the above ground; the tenant also will have
to be put back to the original position, as it existed at the time of filing of
the eviction case by the landlord. The said situation, however, does not exist
on the ground as the tenant had already vacated his premises on 31.12.1998 and
the landlord having demolished the same; has constructed a shopping complex. The
said plea of the landlord, therefore, cannot be countenanced and it is clear and
apparent that an attempt on the part of the landlord is only to raise hyper
technical pleas and to delay, if not, defeat the decree and deprive the tenant
of the possession of the shop to which he would be entitled to under the award
of the Lok Adalat.
16. Even otherwise, Order 32 Rule 7 of CPC has no application to the Act as
well as to the Legal Services Authorities Act. In fact, Section 25 of the Legal
Services Authorities Act has overriding effect and it cannot be said that the
Lok Adalat has not followed the mandate of Section 20(4) of passing an award in
accordance with equity and justice. So far as the decision in KAUSHALYA DEVI's
case (1 supra) relied upon by the learned counsel for the landlord is concerned
it was a case where the decree for partition was questioned by the minor
represented by his mother on the ground that the provisions of Order 32 Rule 7
of CPC have not been applied. Para 7 of the said decision is, however, relevant
to notice and the same is extracted as under:
"(7). The question as to the procedure which the minor should adopt in
avoiding such an agreement or decree has been the subject-matter of several
decisions, and it has been held that a compromise decree may be avoided by the
minor either by a regular suit or by an application for review by the court
which passed the said decree. The decision in Manohar Lal v. Jadu Nath Singh,
33 Ind App 128 (PC), is an illustration of a suit filed by the minor for
declaration that the impugned decree did not bind him. It is, however, not
necessary for us to deal with this aspect of the matter in the present appeal
any further."
In this case, it is evident that neither of the courses as mentioned above
are adopted by the landlord. Obviously, he could not have gone back and asked
that cancellation of the said compromise as he had derived advantage therein.
Thus, having obtained benefit of one part of the said compromise; when the
tenant demanded performance of the other part of the compromise the landlord has
come up with the present plea. The lack of bonafides on the part of the
landlord, therefore, is apparent from the record itself.
17. The learned Rent Controller, under the impugned order, has also gone into
the said question from the standpoint of the settled principle that the
executing Court cannot go beyond the terms of the decree. The learned Rent
Controller also noticed that the mother of the landlord was his natural guardian
and that it is she, who issued receipts to the tenant and in the injunction suit
O.S.No.85 of 1998 filed by the tenant no such plea was raised that the natural
mother cannot represent the landlord and the executing Court, in any case,
cannot decide the said aspect as it is bound by the said decree and cannot go
beyond the same. Further, the landlord is estopped from raising such a plea
after securing advantage out of the compromise.
18. As I have already mentioned above, no such plea is available to the
landlord as the learned Rent Controller's Court is not a civil Court and
application of the provisions of CPC is not automatic and is only limited.
Secondly, the Legal Services Authorities Act has overriding effect vide Section
20 thereof and thirdly even assuming that such a plea is tenable there is no
allegation on the part of the landlord that the actions of his natural guardian
mother are detrimental to his interest while, in fact, they have ultimately
worked to his advantage. In the light of the above, therefore, the said
contention of the learned counsel for the landlord is liable to be rejected.
19. Further contention of the learned counsel that no lease for a term more
than one year beyond the date in which the minor will attain majority can be
granted etc. is also not sustainable for the reason that under these proceedings
it is not as if the tenant is being granted a fresh lease. It is now well
settled that when eviction of tenant under Section 12 of the Act is sought for
the purpose of demolition and reconstruction, the landlord is bound to give an
undertaking to redeliver, after construction, similar accommodation to the
tenant. The pre-existing tenancy of the tenant, therefore, continues and it is
only in the interregnum period, when he vacates the premises and receives back
after reconstruction, that his tenancy remains under suspension. Thus, the
tenant, who occupies the premises after reconstruction, continues to be a
statutory tenant on the same terms and conditions. In the present case, by
virtue of the compromise and agreements between the parties before the Lok
Adalat it was agreed by the tenant to pay the enhanced rent by 20% on the rent
existing continuously for the last three years. Thus, except the aforesaid
modification, the statutory tenancy of the tenant continues even with respect to
reconstructed premises. As fortiori the tenant cannot be compelled and saddled
with new terms and conditions of lease as are enacted in the memos and
affidavits filed on behalf of the landlord before this Court while proposing to
allot alternate shops to the tenant. Once the tenancy of the tenant is held to
be statutory, the same cannot be frustrated by making fresh terms of lease on
the tenant. Since there is no lease for a fixed duration even with respect to
the reconstructed portions, the contention of the learned counsel for the
landlord that a lease for a period of more than one year is being granted under
the decree under execution and thereby the said decree violates Section 8(2)(b)
of the Hindu Minority and Guardianship Act is equally misconceived and liable to
be rejected.
20. Learned counsel for the tenant has relied upon a decision in KONDETI
SURYANARAYANA's case (3 supra) wherein Section 12 of the Act was considered by
the Honourable Supreme Court wherein it is held:
"...Therefore, when a landlord requires a building to be demolished, necessarily
he has to reconstruct the building on the same site of the building and on
reconstruction of new building the tenant has a right to re-enter in the said
premises."
In PARVATIBAI SUBHANRAO NALAWADE's case (4 supra) where the terms of the
decree mention a right of the defendant to an identical area in the new building
but after reconstruction the landlord did not deliver identical area to the
tenant, whereupon the tenant filed an application for restoration of possession
before the trial Court, which was dismissed as not maintainable and ultimately
the tenant was directed to file EP. In the meanwhile, the landlord had inducted
some third parties as tenants, who objected to the execution proceedings under
Order 21 Rule 9 CPC. The said proceedings were before the Honourable Supreme
Court and it was held:
"...In pursuance of a solemn compromise reached by the tenant (appellant's
father) and the landlord - respondent No.3 the possession f the premises was
handed over to the landlord in 1966 on the express stipulations that on the
construction of the new building the tenant would get an identical area therein.
The fresh construction was completed in 1967 and instead of honouring the pledge
given by it in the form of an "undertaking" the respondent inducted the writ
petitioners therein and did not make any offer to the tenant until the matter
reached the High Court on the second occasion. We do not, therefore, think that
there is any conceivable reason to condemn the appellant for an insistence to
benefit under the concerned decree or for any sympathy with the landlord, who
took advantage of the situation. The landlord was, therefore, made liable for
making its undertaking good as well as for any suitable compensation for the
gross delay of more than two decades."
21. In P.T. THOMAS's case (6 supra) the provisions of the Legal Services
Authorities Act were examined and the Honourable Supreme Court held that Lok
Adalat will pass award with the consent of the parties, therefore there is
nothing either to reconsider or to review the matter again. The award of the Lok
Adalat is an order by the Lok Adalat under the consent of the parties and it
shall be deemed to be a decree of the civil Court and therefore, the appeal
would not lie from the award of the Lok Adalat as under Section 96(3) of CPC.
The finality attached to the said decree cannot be permitted to be destroyed,
especially under the Legal Services Authorities Act, as it would amount to
defeat the very aim and object of the Act with which it has been enacted. Even
this Court in the matter of BOARD OF TRUSTEES OF THE PORT OF VISAK v. PRESIDING
OFFICER, LOK ADALAT8 held:
"...The award is enforceable as a decree and it is final. In all force,
the endeavour is only to see that the disputes are narrowed down and make the
final settlement so that the parties are not again driven to further litigation
or any dispute. Though the award of a Lok Adalat is not a result of a contest
on merits just as a regular suit by a Court on a regular trial, however, it is
as equal and on par with a decree on compromise and will have the same binding
effect and conclusive. Just as the decree passed on compromise cannot be
challenged in a regular appeal, the award of the Lok Adalat cannot be challenged
by any regular remedies available under law..."
The last of the cases cited by the learned counsel for the appellant in
PUSHPA DEVI BHAGAT's case was, however, a converse case where the tenant
attempted to defeat the compromise decree by raising several pleas against the
compromise, which was deprecated by the Honourable Supreme Court. The same has
no application to the facts of the present case.
22. As mentioned above, therefore, the landlord has resorted to the pleas as
above only to avoid the execution and for reasons best known to him, has not
taken any steps to question the said award either
on the ground of his mother being not empowered to represent him or
on the ground that the said compromise is to the detriment of the landlord. In
the absence of any such challenge to the decree even now, mere resisting the
decree in execution is clearly untenable.
The order of the Court below, therefore, cannot be said to either without
jurisdiction, improper, irregular or otherwise perverse and as such, no
interference under the revisional jurisdiction of this Court is called for.
23. This, however, leaves the last aspect to be considered namely, the
direction given in the operative portion of the impugned order whereby the
Advocate Commissioner was directed to reconstruct the shop for the tenant. It
is not in controversy that though a tenant,
who vacated the premises under Section 12 of the Act, cannot insist on
reconstructing a shop at the same place, he is, however, entitled to similar
accommodation on reconstruction. As per the compromise and award, it was agreed
between the parties that landlord would allot premises with dimension 40' x 15'
by 31.03.1999. Keeping in view the shopping complex constructed by the landlord
and dimension of each shop, the allotment of 40' x 15' shop would amount to
approximately
21/2 shops in the new complex. Even in the latest affidavit filed by the
landlord, which is extracted above, it is mentioned that shops A3, A4 and B2 are
readily available and A1 and A2 will be given to the tenant after the present
tenants vacate the same. Earlier memos also show that the landlord is willing to
give two shops in lieu of 40' x 15' shop mentioned in the compromise. The
tenant, however, filed a counter affidavit saying that the said shops A3, A4 and
B2 are not convenient as they are on the rear side and also close to the gunny
bag repair market and as such sweet shop cannot be established at that place.
The tenant, therefore, has offered to take shop Nos.9 & 10 and half of shop No.8
and to the extent of half of the shop, if it is not feasible, he is prepared to
pay for the entire shop No.8 and pay the proportionate extra rent. He has
further offered to take shop Nos.9 & 10 only if it is not possible to allot half
or full of shop No.8. No doubt, the landlord has filed a rejoinder memo denying
intention to allot shop Nos.9 & 10 to the tenant and offers shop Nos.B2 & B6 in
lieu of shop Nos.9 & 10.
24. It is evident from the aforesaid memos and counter memos; affidavits and
counter affidavits and rejoinder on behalf of either of the parties that in lieu
of the accommodation of 40' x 15' agreed to be allotted to the tenant as per the
decree; the tenant would be entitled to 21/2 shops of the newly constructed
shopping complex. Preference of the tenant to shop Nos.9 & 10 and half of or
entire shop No.8 is not acceptable to the landlord on account of the tenants now
existing. It is to be appreciated that though the tenant is entitled to 21/2
shops, keeping in view the compromise regarding accommodation of 40' x 15', he
is prepared to take two shops as against 21/2 shops provided he is allotted shop
Nos.9 & 10. The contention of the landlord that the said two shops cannot be
allotted on account of the tenants inducted therein cannot be accepted for the
simple reason that all the said tenants are inducted pending the present
litigation. The tenant herein had filed EP on 18.06.1999 itself and though 10
years have elapsed, during this litigation even if the landlord has created any
tenancy pending such litigation, the same is clearly covered by lis pendens and
no overriding right can be claimed either by the landlord or by any person on
his behalf when these execution proceedings are pending. The tenant, admittedly,
is deprived of the use of the premises for the last 10 years. As already held by
the Supreme Court in the decisions referred to above, the tenant would be
justified in seeking compensation for the said period for which the tenant was
deprived and on the contrary, the landlord was benefited by the rental income
and other incomes.
25. Keeping in view all the circumstances and with a view to shorten the
litigation; in lieu of the directions in the operative portion of the impugned
order, I deem it appropriate to issue the following directions:
1. The tenant shall be entitled to restitution of equivalent premises in lieu of
his entitlement to the area of 40' x 15'. The executing Court shall, therefore,
appoint an Advocate Commissioner to take possession of shop Nos.9 & 10 and
deliver the same to the tenant/decree holder in full and final satisfaction of
the decree of the Lok Adalat dated 19.12.1998. The tenant shall be entitled to
continue the tenancy of the said shops by paying rent at 20% over and above the
last three years rent, which he paid for the earlier premises in terms of the
agreed clause 3(c) under the compromise decree of the Lok Adalat.
2. The tenancy of the decree holder/tenant shall be statutory tenancy on the
same terms and conditions as the earlier tenancy prior to his vacation of Shop
No.4-11-39.
3. The tenant/decree holder shall also be entitled to appropriate damages/mesne
profits for a period of 10 years i.e. from 31.03.1999 till the date he is put in
possession of the shops, as aforesaid, at such rate as would be determined by
the executing Court. The tenant shall be at liberty to make an appropriate
application before the executing Court for the aforesaid purpose and after
giving due opportunity to the landlord and after recording the evidence, if any,
of either side, the executing Court shall pass appropriate orders thereon and
the amount so determined shall be payable by the landlord together with costs of
the execution proceedings and this CRP within a period of three (3) months from
the date of determination by the executing Court.
4. The executing Court shall endeavour to pass appropriate orders restoring the
possession of shop Nos.9 & 10 to the tenant within a period of two (2) months
from the date of receipt of a copy of this order and so far as determination of
damages, as directed above, is concerned, the same shall be determined within a
period of six (6) months from the date of application, if any, moved by the
tenant for the aforesaid purpose.
5. It is made clear that if no such application is moved by the tenant with
respect to the damages and compensation with four (4) weeks from today the
direction in that respect given herein shall stand withdrawn.
With the aforesaid directions, the revision petition is dismissed with costs
quantified at Rs.25,000/- payable by the petitioner to the respondent.
?1 AIR 1960 SC 790
2 AIR 1989 SC 147
3 AIR 2000 SC 70
4 AIR 1992 SC 1780
5 (1993) 2 SCC 458
6 AIR 2005 SC 3575
7 (2006) 5 SCC 566
8 2000 (5) ALT 577
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