Allahabad High Court Judgement

Allahabad High Court Judgement

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice at mail@myadvocates.club
JUDGEMENT HEADLINE : Benefit Of Section 29-A Of 1972 Rent Act Is Not Available To A Tenant If Only Temporary Structures Are Raised With The Consent Of The Landlord.
JUDGEMENT TITLE : Rameshwar Dayal Agarwal Vs. Pawan Kumar & Others. On 31/01/2012 By Allahabad High Court
CASE NO : WRIT - C NO. 39629 OF 2004.
CORAM : Hon'ble Dilip Gupta,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved On 13.12.2011
Delivered On 31.01.2012
Court No.7

Civil Misc. Writ Petition No.39629 Of 2004
Rameshwar Dayal Agarwal
Vs.
Mr. Pawan Kumar & Ors.
~~~~~~~

Hon'ble Dilip Gupta, J.

The Decree Holder Has Filed This Petition For Quashing The Order Dated 11th December, 1997 By Which The Objections Filed By The Judgment-debtors On 9th July, 1976 In Execution Case No.232 Of 1976 Seeking The Benefit Of Section 29-A Of The U.P. Urban Buildings (Regulation Of Letting, Rent And Control) Act, 1972 (hereinafter Referred To As The '1972 Act') Were Allowed And It Was Ordered That If The Enhanced Annual Rent And The Costs Were Deposited By The Judgment Debtors, The Decree For Eviction Shall Stand Discharged. The Said Execution Case Was Filed On 22nd May, 1976 By The Plaintiff Of Original Suit No.915 Of 1964 For Execution Of The Decree Dated 12th May, 1975 For Eviction Of The Defendants From The Plot Of Land And Recovery Of Arrears Of Rent. The Petitioner Has Also Sought The Quashing Of The Judgment And Order Dated 25th August, 2004 By Which The Revision Filed By The Petitioner For Setting Aside The Aforesaid Order Dated 11th December, 1997 Was Dismissed.
The Question That Arises For Consideration In This Petition Is Whether The Benefit Of Section 29-A Of The 1972 Act, Which Was Inserted With Effect From 5th July, 1976 By U.P. Act No.28 Of 1976, Was Available To The Judgment Debtors. In Effect, What Needs To Be Decided In This Petition Is Whether The Tenant, With The Consent Of The Landlord, Had Erected Any Permanent Structure On The Land And Incurred Expenses In Execution Thereof Because In That Event, As Provided For In Section 29-A Of The 1972 Act, No Decree For Eviction Of The Tenant From Any Land To Which The Section Applies Could Be Passed Or Executed Except On One Or More Grounds Mentioned In Section 20(2) Of The 1972 Act, Provided The Tenant, Within A Period Of Three Months From The Commencement Of The Section, By An Application To The Court, Unconditionally Offers To Pay To The Landlord, The Enhanced Rent Of The Land For The Entire Period In Suit And Onwards At The Rate Of 10% Per Annum Of The Prevailing Market Value Of The Land Together With Costs Of The Suit.
Original Suit No.915 Of 1964 Was Filed By The Plaintiff For Eviction Of The Defendants From The Plot Of Land And For Recovery Of Arrears Of Rent With The Allegation That The United Provinces (Temporary) Control Of Rent And Eviction Act, 1947 (hereinafter Referred To As The '1947 Act') Was Not Applicable To The Plot Of Land And Though The Tenancy Of The Defendants Stood Terminated On 24th February, 1964 On The Expiry Of The Period Mentioned In The Notice, The Defendants Did Not Deliver Vacant Possession. The Suit Was Partly Decreed On 18th January, 1966 For Recovery Of A Sum Of Rs.429.20 Only And The Relief For Eviction Of The Defendants Was Denied On The Ground That The 1947 Act Was Applicable Since What Was Leased To The Defendants Was "accommodation" As Defined Under Section 2(a) Of The 1947 Act And The Contention Of The Plaintiff That Only Plot Of Land Had Been Leased Was Not Accepted. The Landlord Preferred Civil Appeal No.103 Of 1966 Which Was Allowed On 13th April, 1970 Holding That Plot Of Land Had Been Leased And, Therefore, The 1947 Act Did Not Apply. Accordingly, The Decree Of The Trial Court Was Modified As A Result Of Which The Suit Of The Plaintiff For Eviction Of The Defendants Was Decreed And The Defendants Were Given One Month's Time To Vacate And Remove Their Machinery And Constructions From The Land. The Defendants Preferred Second Appeal No.960 Of 1970 In The High Court Which Was Dismissed On 12th May, 1975 And Special Leave Petition No.2030 Of 1975 Filed By Them Was Also Dismissed By The Supreme Court.
The Decree Holder Filed Execution Application On 22nd May, 1976 Which Was Registered As Execution Case No.232 Of 1976. The Judgment Debtors, However, Filed Objections Under Section 47 Of The Code Of Civil Procedure In The Execution Case On 9th July, 1976 Seeking Benefit Of The Newly Added Section 29-A Of The 1972 Act By Contending That The Tenants Had, With The Consent Of The Landlord, Erected Permanent Structures On The Open Piece Of Land And Had Incurred Expenses In Execution Thereof. The Objections Filed By The Judgment Debtors Were Allowed On 11th December, 1997 Holding That The Tenants, With The Consent Of The Landlord, Had Erected Permanent Structure And Incurred Expenses In Execution Thereof And So The Decree For Eviction Of The Tenants Was Discharged On Deposit Of The Enhanced Annual Rent With Costs. The Revision Filed By The Landlord Was Dismissed By The Judgment And Order Dated 25th August, 2004.
It Needs To Be Noticed That When The Suit Was Filed In 1964, The 1947 Act, Which Came Into Force With Effect From 1st October, 1946, Was In Force. The Said Act Did Not Apply To Any Building Or Part Of A Building Which Was Under Erection Or Was Constructed On Or After 1st January, 1951 And Under Section 3 Of 1947 Act, No Suit Could Be Filed Without The Permission Of The District Magistrate, Against A Tenant, For His Eviction From Any "accommodation" Except On One Or More Grounds Mentioned In Section 3.
"Accommodation" Was Defined Under Section 2 Of The 1947 Act Which Is As Follows:-
(a) "Accommodation" Means Residential And Non-residential Accommodation In Any Building Or Part Of A Building And Includes -
(i) Gardens, Grounds And Outhouses, If Any, Appurtenant To Such Building Or Part Of A Building;
(ii) Any Furniture Supplied By The Landlord For Use In Such Building Or Part Of A Building;
(iii) Any Fitting Affixed To Such Building Or Part Of A Building, For The More Beneficial Enjoyment Thereof;
but Does Not Include Any Accommodation Used As A Factory Or For An Industrial Purpose Where The Business Carried On In Or Upon The Building Is Also Leased Out To The Lessee By The Same Transaction."

"Landlord" And "Tenant" Were Also Defined Under Section 2(c) And 2(g) Of The 1947 Act Which Are As Follows:-
(c)"Landlord" Means A Person To Whom Rent Is Payable By A Tenant In Respect Of Any Accommodation And Includes The Agent, Attorney, Heir Or Assignee Of Such Person;

(g) "Tenant" Means The Persons By Whom Rent Is, Or But For A Contract Express Or Implied Would Be Payable For Any Accommodation.

The 1947 Act, Therefore, Would Not Be Applicable If Open Piece Of Land Was Let Out To The Tenant. It Is For This Reason That Original Suit No.915 Of 1964 Was Filed The Plaintiff Against Ram Kumar And Krishna Kumar For Decree Of Eviction From The Plot Of Land And For Recovery Of Arrears Of Rent And Damages With The Allegation That The Provisions Of 1947 Act Were Not Applicable To The Case. It Was Alleged That The Plaintiff Was The Owner Of Plot No.106; That The Defendants Took On Lease The Said Plot With Boundary Wall, Gate, Pipe And Khaprail (tile Shed) Under The Lease Deed Dated 30th August, 1952 With Effect From 1st September,1952 On A Monthly Rent Of Rs.100/- For A Period Of Three Years For The Purpose Of Starting Dal Mill, Oil Mill And Flour Mill; That The Period Of The Said Lease Expired On 30th August, 1955 Which Was Thereafter Renewed For A Further Period Of Two Years; That Subsequently The Defendants Agreed To Pay Rs.125/- Per Month With Effect From 1st July, 1959; That Since The Plaintiff Required The Plot For Establishing His Own Factory, Notice Dated 21st August, 1963 For Termination Of The Tenancy On The Expiry Of Six Months From Service Of The Notice As Well As For Delivery Of Possession Was Served On The Defendants On 24th August, 1963 And The Tenancy, Therefore, Stood Terminated On 24th February, 1964; That The Defendants Failed To Vacate The Plot And Deliver Possession Thereof To The Plaintiff; That The Defendants Had Completely Dismantled The Khaprail Standing On The Land And Raised Certain Unauthorised New Constructions In A Portion Thereof Without The Consent And Permission Of The Plaintiff And Since The Defendants Had Not Vacated The Land, They Were Liable To Pay Damages For Use And Occupation Thereof At The Rate Of Rs.125/- Per Month With Effect From 25th February, 1964.
Defendant No.2-Krishna Kumar Filed A Written Statement Which Was Adopted By Defendant No.1-Ram Kumar. It Was Pleaded Therein That The Accommodation In Dispute Was Not A Plot But Originally Consisted Of One Khaprail Shed, Boundary Wall With Gate And Pipe And As The Land Was Appurtenant To The Building, The 1947 Act Was Applicable; That The Plaintiff Had Given Assurance To The Defendants That The Tenancy Was Being Treated As A Permanent Tenancy And So The Defendants Had Spent A Sum Of Rs.20,000/- In Making New Constructions On The Land And So They Were Not Liable For Eviction; That The Lease Deed Dated 30th August, 1952 Expired On 30th August, 1955 But The Tenancy Continued With Mutual Consent And Was Still Continuing On The Principle Of Holding Over. Paragraph 4 Of The Written Statement Was Amended Subsequently On 14th October, 1965 And The Defendants Pleaded That There Was An Agreement Between The Parties In 1958 That The Tenancy Of The Defendants Shall Be Treated As Permanent In Case The Rent Was Enhanced To Rs.125/- Per Month And The Constructions Made By The Defendants Will Also Be Treated As Permanent.
The Suit Was Tried On The Basis Of The Following Issues:-
1.Whether The Provisions Of The U.P. Control Of Rent And Eviction Act, 1947 Were Applicable To The Tenancy In Suit ?
2.Whether The Defendants Are Holding The Land Under A Permanent Tenancy?
3.Whether The Notice Is Invalid As Alleged In Para 17 Of The Written Statement?
4.Whether The Defendants Are Entitled To Get The Cost Of Constructions From The Plaintiff As A Condition Precedent For Their Ejectment? If So, Its Value?
5.Whether The Plaintiff Alone Is Not Entitled To Maintain The Suit?
6.Whether The Defendants Had Made Full Deposit Of The Amount Claimed In Munsif's Court U/s 7C, U.P. Act III Of 1947 To The Knowledge Of The Plaintiff Preceding The Date Of Suit? If So, Its Effect?
7.To What Relief, If Any, Is The Plaintiff Entitled?
8.Was There Any Agreement Between The Parties As Pleaded In Paragraph 4 Of The Written Statement Of The Defendants No.2? Its Effect.

Issue No.1 Was Decided By The Trial Court In Favour Of The Defendants And It Was Held That The 1947 Act Was Applicable For The Reason That Plot Of Land Alone Was Not Let Out To The Defendants And The Plot With Khaprail Was Let Out And This Was "accommodation" As Defined Under Section 2(a) Of The 1947 Act.
Issue Nos. 2 And 8 Were Decided Together And It Was Held That The Defendants Were Not Holding The Suit Land Under Permanent Tenancy And That There Was No Agreement Between The Parties In 1958, As Pleaded In Paragraph 4 Of The Written Statement. Issue No.4 Was Decided Against The Defendants And It Was Held That In The Absence Of Any Agreement As Pleaded In Paragraph 4 Of The Written Statement, It Will Be Unreasonable To Hold That The Plaintiff Encouraged The Defendants By His Conduct To Raise Constructions On The Plot. However, As The 1947 Act Was Found To Be Applicable, The Decree For Eviction Of The Tenants Was Not Granted But The Plaintiff Was Held Entitled To Recover A Sum Of Rs.429.20 As Rent From 1st February, 1964 To 16th May, 1964.
Feeling Aggrieved By That Part Of The Decree Which Denied Eviction Of The Defendants From The Plot Of Land, The Plaintiff Preferred Civil Appeal Which Was Numbered As Civil Appeal No.103 Of 1966 In Which The Following Points, As Has Been Noticed In The Judgment, Arose For Consideration.
1. That The Constructions In Dispute Had Been Made In 1952 And So U.P. Act III Of 1947 Did Not Apply To The Case.
2. That Even If It Was Found That The Constructions Had Been Made Before 1951, The Subject Matter Of The Lease Was Not Covered By The Definition Of The Word, "accommodation", Given In Clause (a) Of Section 2 Of U.P. Act III Of 1947, And So The Aforesaid Act Was Not Applicable To The Case.
3. That Since U.P. Act III Of 1947 Was Not Applicable To The Case, The Decree For Ejectment Of The Defendants Should Have Been Passed.

The First Appellate Court Rejected The Contention Of The Appellant That The 1947 Act Was Not Applicable Since The Constructions Existing At The Time Of Letting Had Been Made After 1st January, 1951 And It Was Held That The Khaprail Shed, Boundary Wall And One Gate Existed On The Land In Dispute In 1948. The First Appellate Court, However, Further Found That The 1947 Act Will Not Apply As The Subject Matter Of The Lease Deed Was Open Land And Not "accommodation" As Defined In Section 2(a) Of The 1947 Act. The First Appellate Court, Therefore, Held That The Plaintiff Was Entitled To The Decree For Eviction Of The Defendants From The Land.
The Judgment Debtors-defendants Filed Second Appeal No.960 Of 1970 Which Was Dismissed By The High Court By The Judgment And Order Dated 12th May, 1975.
Special Leave Petition No.2030 Of 1975 Filed By The Judgment Debtors Against The Aforesaid Decision Of The High Court Was Also Dismissed By The Supreme Court.
The Defendants Did Not Comply With The Decree And So The Decree Holder Put The Decree Into The Execution On 22nd May, 1976 Which Application Was Registered As Execution Case No.232 Of 1976.
During The Pendency Of The Execution Case, Section 29-A Was Inserted In The 1972 Act By U.P. Act No.28 Of 1972 With Effect From 5th July, 1976.
The Judgment Debtors Filed An Application Dated 9th July, 1976 With A Prayer That The Enhanced Annual Rent Contemplated By Section 29-A Of The 1972 Act May Be Determined By The Court And Upon Payment Of Necessary Amount Within Such Time As May Be Fixed By The Court, The Decree For Eviction Be Discharged And The Execution Be Dismissed. It Was Asserted That The Objectors Were Entitled To The Protection Under Section 29-A Of The 1972 Act Since The Objectors, With The Consent Of The Landlord, Had Erected Permanent Structure And Had Incurred Expenses In Execution Thereof. A Reply Was Filed By The Decree Holder To The Aforesaid Objections. It Was Stated That The Benefit Of Section 29-A Of The 1972 Act Was Not Available To The Judgment Debtors As At No Point Of Time The Decree Holder Or Predecessor In Interest Had Given Consent For Erecting Permanent Structures And Nor Had The Judgment Debtors Invested Rs.20,000/- In Erecting The Structures. The Judgment Debtor Ram Kumar Expired In 1978 And The Second Judgment Debtor Krishna Kumar Expired In 2001. Only Pawan Kumar, Heir Of Krishna Kumar, Contested The Execution Proceedings.
The Objections Filed By The Judgment Debtors In Execution Case No.232 Of 1976 Were Allowed By The Order Dated 11th December, 1997 By Giving Benefit Of Section 29-A Of The 1972 Act For The Following Reasons:-
(i) The Contention Of The Decree Holder That It Had Been Determined In The Suit That The Structures Had Been Raised Without The Consent Of The Landlord Cannot Be Accepted For The Reason That Such A Finding Was Not Given Either By The Trial Court Or The Appellate Court.
(ii)It Is Admitted To The Parties That A Written Lease Deed Dated 30th August, 1952 Was Executed When The Land Was Given On Rent.
(iii) According To The Decree Holder, Only Temporary Structure Could Have Been Raised In Terms Of The Said Lease Deed, While According To The Judgment-debtors, Permanent Structure Could Be Raised. The Lease Deed Permitted All Kinds Of Structures To Be Raised And, Therefore, It Has To Be Seen Whether The Structures Raised By The Tenants Were Permanent Or Temporary.
(iv) The Tenant, With The Consent Of The Landlord, Erected Permanent Structures And Expenditure Was Also Incurred By Him.
(v) The Annual Rent Of The Plot Is Rs.4000/-.

The Decree Holder Filed Civil Revision No.28 Of 1998 Which Was Allowed By The Order Dated 15th September, 2001. This Order Was Assailed By The Judgment Debtors In Writ Petition No.38777 Of 2001 Which Petition Was Allowed By The Judgment And Order Dated 3rd December, 2001 For The Reason That In Case The Revisional Court Was Of The Opinion That The Executing Court Had Failed To Take Notice Of Material Evidence On Record Or Misread The Evidence, It Should Have Remanded The Case To The Executing Court For Reconsideration In The Light Of The Observations And Findings And The Matter Was Remitted To The Revisional Court To Decide It Afresh. Civil Appeal No.6842 Of 2003 Filed By The Decree Holder Against The Aforesaid Judgment Was Disposed Of By The Supreme Court By The Judgment And Order Dated 29th August, 2003 Which Is As Follows:-
"Leave Granted.
In Exercise Of Writ Jurisdiction The High Court Vide Its Impugned Order Set Aside The Order Of The District Court Passed In Exercise Of Revisional Jurisdiction. However, During The Course Of Its Order Directing The Remand, The High Court Made The Following Observations:-
"In Case, The Revisional Court Was Of The Opinion That The Executing Court/trial Court Has Failed To Take Notice Of Material Evidence On Record Or Misread Evidence Of A Party, Or A Question Going To The Root Of Jurisdiction Has Not Been Considered, It Ought To Have Clearly Summarised The Same By Supporting With Valid Reasons And Thereafter Remanded Back Case To The Executing Court/trial Court For Reconsideration In The Light Of Its Observations And Findings And Decide The Matter Afresh."
In The Facts And Circumstances Of The Case, After Hearing The Learned Counsel For The Parties, We Are Of The Opinion That The High Court Should Not Have By Making The Abovesaid Observation Pre-empted The Discretion Of The Revisional Court. The Abovesaid Direction Is Set Aside. The Revisional Court Shall Be Free To Hear And Dispose Of The Revision In The Manner It Deem Fit In Exercise Of The Jurisdiction Vesting In It.
The Appeal Be Treated As Disposed Of.
No Order As To The Costs."

The Revisional Court, After Remand, By The Judgment And Order Dated 25th August, 2004 Dismissed Revision No.28 Of 1998 Filed By The Decree Holder For The Following Reasons:-
(i) A Reading Of Clauses 3 And 6 Of The Lease Deed Dated 30th August, 1952 Indicates That The Landlord Had Given Permission To Make Constructions But The Lease Deed Does Not Specify Whether Permanent Or Temporary Constructions Could Be Made. In Such Circumstances, To Determine Whether The Consent By The Landlord Was For Temporary Or Permanent Structures, The Period For Which The Lease Was Granted And The Extent To Which The Structures Could Be Raised For Doing The Business Have To Be Examined.
(ii) Though The Lease Deed Was For The Three Years And The Period Could Be Extended By Two Years, But The Tenancy Continued For 11 Years Without Any Hindrance And The Rent Was Also Enhanced From Rs.100 To Rs.125/- Per Month. The Lease Deed Provided That The Tenants Could Take The Power Connection For The Purpose Of Starting The Dal Mill, Oil Mill And Flour Mill And To Construct Office, Floor, Tin-shed Etc. For Running The Business And To Attach Things To The Land For Running Or Developing The Business. This Indicates That The Tenancy Was Given For A Substantial Period Because Otherwise, No Tenant Will Establish A Factory And In View Of The Type Of Constructions That Were Permitted To Be Raised, It Should Be Taken That The Consent Was Given By The Landlord For Raising Permanent Structures And The Judgment Debtor Has Also Raised Permanent Structures. The Contention Of The Revisionists That The Landlord Had Not Given Consent For Raising Permanent Structures And The Consent Was Only For Erection Of Temporary Structure Like Tin-shed Etc. Cannot Be Accepted.

Learned Counsel For The Petitioner Has Submitted That The Benefit Of Section 29-A Of The 1972 Act Will Not Be Available To The Judgment Debtors As The Landlord Had Not Given Any Consent For Erecting Permanent Structure On The Open Land And Nor The Judgment Debtors Had Been Able To Substantiate That They Had Incurred Expenses In Execution Thereof; That Even Though What Was Let Out Was Not "accommodation" As Defined In Section 1947 Act, Yet Only Open Piece Of Land Had Not Been Let Out Since The Plot Consisted Of Khaprail Shed In The Middle Of The Land; That Section 29-A Of The 1972 Act Does Not Operate Retrospectively To Nullify A Final Decree Passed In A Suit; That "other Proceedings" Contemplated Under Section 29-A(6) Of The 1972 Do Not Include Execution Proceeding, Particularly In View Of Explanation To Section 29-A Of The 1972 Act; That Even Otherwise, From The Report Of The Advocate Commissioner, It Is More Than Apparent That Only Temporary Structures Had Been Raised By The Tenant; That The Executing Court Did Not Correctly Determine The Annual Payable Rent In Respect Of Such Land And That Exemplary Costs Should Be Imposed Upon The Judgment Debtors As They Have Managed To Retain Possession Of The Plot By Filing Frivolous Objections Even Though They Were Required To Vacate The Plot On The Expiry Of Three Years With Effect From 1952 Which Period Was Subsequently Extended By Two Years.
Learned Counsel For The Respondents Has, However, Submitted That The Executing Court As Also The Revisional Court Committed No Illegality In Giving The Benefit Of Section 29-A Of The 1972 Act To The Judgment Debtors As The Tenants, With The Consent Of The Landlord, Had Erected Permanent Structures On The Open Land And Had Incurred Expenses In Execution Thereof. It Is His Submission That Under The Lease Deed Dated 30th August, 1952, The Tenant Could Raise Permanent Structures And The Tenants Did Raise Permanent Structures And Incurred Expenses And That Only Open Piece Of Land Had Been Let Out To The Tenants In View Of The Findings Recorded By The First Appellate Court And The High Court In The Second Appeal And The Contention Of The Landlord That Open Piece Of Land Had Not Been Let Out Is Not Correct. He Has Also Submitted That The Benefit Of Section 29-A Of The 1972 Act Was Available To The Tenants Even If The Execution Proceedings Were Pending And That The Annual Rent Had Been Correctly Determined By The Executing Court.
I Have Considered The Submissions Advanced By Learned Counsel For The Parties.
Though Number Of Issues Have Been Raised By Learned Counsel For The Parties But The Issue That Needs To Be First Considered Is Whether The Landlord Had Given Consent To The Tenants To Erect Any Permanent Structure On The Land Because If It Is Held That The Landlord Had Not Given Such A Consent, It Will Not Be Necessary To Decide The Other Issues.
The Dispute In The Present Petition Centres Around Section 29-A Of The 1972 Act. The 1947 Act Was Not Applicable If Land Was Let Out And Even The 1972 Act Initially Was Not Applicable If Land Was Let Out. Open Piece Of Land Was Brought Within The Ambit Of The 1972 Act By U.P. Act No.28 Of 1976 By Insertion Of Section 29-A In The 1972 Act With Effect From 5th July, 1976.
It Will, Therefore, Be Appropriate To Reproduce Section 29-A Of The 1972 Act Which Is As Follows:-
"29-A. Protection Against Eviction To Certain Classes Of Tenants Of Land On Which Building Exists.-(1) For The Purposes Of This Section, The Expressions "tenant" And "landlord" Shall Have The Meanings Respectively Assigned To Them In Clauses (a) And (j) Of Section 3 With The Substitution Of The Word "land" For The Word "building".
(2)This Section Applies Only To Land Let Out, Either Before Or After The Commencement Of This Section, Where The Tenant, With The Landlord's Consent Has Erected Any Permanent Structure And Incurred Expenses In Execution Thereof.
(3) Subject To The Provisions Hereinafter Contained In This Section, The Provisions Of Section 20 Shall Apply In Relation To Any Land Referred To In Sub-section (2) As They Apply In Relation To Any Building.
(4) The Tenant Of Any Land To Which This Section Applies Shall Be Liable To Pay To The Landlord Such Rent As May Be Mutually Agreed Upon Between The Parties, And In The Absence Of Agreement, The Rent Determined In Accordance With Sub-section (5).
(5) The District Magistrate Shall On The Application Of The Landlord Or The Tenant Determine The Annual Rent Payable In Respect Of Such Land At The Rate Of Ten Per Cent Per Annum Of The Prevailing Market Value Of The Land, And Such Rent Shall Be Payable, Except As Provided In Sub-section (6) From The Date Of Expiration Of The Term For Which The Land Was Let Or From The Commencement Of This Section, Whichever Is Later.
(6)(a) In Any Suit Or Appeal Or Other Proceeding Pending Immediately Before The Date Of Commencement Of This Section, No Decree For Eviction Of A Tenant From Any Land To Which This Section Applies, Shall Be Passed Or Executed Except On One Or More Of The Grounds Mentioned In Sub-section (2) Of Section 20, Provided The Tenant, Within A Period Of Three Months From The Commencement Of This Section By An Application To The Court, Unconditionally Offers To Pay To The Landlord, The Enhanced Rent Of The Land For The Entire Period In Suit And Onwards At The Rate Of Ten Per Cent Per Annum Of The Prevailing Market Value Of The Land Together With Costs Of The Suit (including Costs Of Any Appeal Or Of Any Execution Of Other Proceedings).
(b) In Every Such Case, The Enhanced Rent Shall, Notwithstanding Anything Contained In Sub-section (5), Be Determined By The Court Seized Of The Case At Any Stage.
(c) Upon Payment Against A Receipt Duly Signed By The Plaintiff Or Decree-holder Or His Counsel Or Deposit In Court Of Such Enhanced Rent With Costs As Aforesaid Being Made By The Tenant Within Such Time As The Court May Fix In This Behalf, The Court Shall Dismiss The Suit, Or, As The Case May Be, Discharge The Decree For Eviction, And The Tenancy Thereafter Shall Continue Annually On The Basis Of The Rent So Enhanced.
(d) If The Tenant Fails To Pay The Said Amount Within The Time So Fixed (including Any Extended Time, If Any, That The Court May Fix Or For Sufficient Cause Allow) The Court Shall Proceed Further In The Case As If The Foregoing Provisions Of This Section Were Not In Force.
(7) The Provisions Of This Section Shall Have Effect, Notwithstanding Anything To The Contrary Contained In Any Contract Or Instrument Or In Any Other Law For The Time Being In Force.

Explanation:-For The Purposes Of Sub-section (6) Where A Case Has Been Decided Against A Tenant By One Court And The Limitation For An Appeal Therefrom Has Not Expired On The Date Immediately Before The Commencement Of This Section, This Section Shall Apply As It Applies To Pending Proceedings, And The Tenant May Apply To That Court For A Review Of The Judgment In Accordance With The Provisions Of This Section"

"Tenant", "Building" And "Landlord" Have Been Defined In Section 3(a), 3(i) And 3(j) Of The 1972 Act And Are As Follows:-
3(a) "tenant", In Relation To A Building, Means A Person By Whom Its Rent Is Payable, And On The Tenant's Death-
(1) In The Case Of A Residential Building, Such Only Of His Heirs As Normally Resided With Him In The Building At The Time Of His Death;
(2) In The Case Of A Non-residential Building, His Heirs;
Explanation.-- An Occupant Of A Room In A Hotel Or A Lodging House Shall Not Be Deemed To Be A Tenant
..........
3(i) "building", Means A Residential Or Non-residential Roofed Structure And Includes-
(i) Any Land (including Any Garden), Garages And Outhouse, Appurtenant To Such Building;
(ii) Any Furniture Supplied By The Landlord For Use In Such Building;
(iii) Any Fittings And Fixtures Affixed To Such Building For The More Beneficial Enjoyment Thereof.

3(j) "landlord", In Relation To A Building, Means A Person To Whom Its Rent Is Or If The Building Were Let, Would Be, Payable And Includes, Except In Clause (g), The Agent Or Attorney, Or Such Person."

A Bare Perusal Of Section 29-A(2) Of The 1972 Act Indicates That The Section Will Apply Only To Land Let Out Either Before Or After The Commencement Of The Section Where The Tenant, With The Landlord's Consent, Has Erected Any Permanent Structure And Incurred Expenses In Execution Thereof. Thus, In Order To Get The Benefit Of This Section, A Tenant Has To Establish That (1) Only Land Had Been Let Out Either Before Or After The Commencement Of The Section; (2) The Tenant, With The Consent Of The Landlord, Has Erected Permanent Structure On The Land Let Out; And (3) The Tenant Has Incurred Expenses In Execution Thereof.
The Judgment Debtors Contend That The Protection Of Section 29-A Of The 1972 Act Was Available To Them As Land Had Been Let Out And With The Consent Of The Landlord They Had Erected Permanent Structures And Incurred Expenses In Execution Thereof. The Decree Holder Contends That The Consent For Erecting Any Permanent Structure Had Not Been Given By The Landlord And Nor The Tenants Had Incurred Expenses In Execution Thereof. The Executing Court As Well As The Revisional Court Have Accepted The Contention Of The Judgment Debtors And, Accordingly, This Petition Has Been Filed By The Landlord/decree Holder.
What Has, Therefore, To Be Examined First Is Whether The Landlord Had Given Consent To The Tenants To Erect Permanent Structures On The Open Land Because Then Alone Will The Benefit Of Section 29-A Of The 1972 Act Be Available To The Tenants.
"Permanent Structure" Has Not Been Defined Under The 1972 Act And So Aid Of Dictionary And The Decisions Earlier Rendered By The Courts Have To Be Taken.
The Meaning Of "permanent Structure" In Concise Law Dictionary 3rd Edition 2010, Is :-
"If A Structure Is Such In Quality That Is Not Easily Removable, Like A Furnace Or Water Tank Then It Is A Permanent Structure.
Permanent Character Of Structure Has To Be Determined, Having Regard To The Nature Of The Structure, Materials Used In The Making Of The Structure And The Manner In Which The Structure Is Erected, And In The Light Of The Above Considerations, Structure Made Of Bamboos And Iron Sheets Is Not Permanent Structure."
The Meaning Of The Word "permanent" In Law Lexicon Is :-
"Permanent" Is Defined To Mean Not Temporary, Or Subject To Change; Abiding, Remaining Fixed, Or Enduring In Character, State, Or Place.
The Meaning Of The Word 'permanent' According To Lexicographers, Is Continuing In The Same State, Or Without Any Change That Destroys Form Or Character, Remaining Unaltered Or Unremoved, Abiding, Durable, Fixed, Lasting, Continuing; As A Permanent Impression, Permanent Institution."

The Meaning Of The Word "structure" In Stroud's Judicial Dictionary Is :-
"In Its Ordinary Sense, Means Something Which Is Constructed In The Way Of Being Built Up As Is Building.
Although The Question What Is Structure Is A Question Of Fact, The Question What Is A Structure Within The Meaning Of A Particular Statute Or Regulation Is A Mixed Question Of Law And Fact."

In Smt. Sharda Devi & Ors. Vs. Khudawand Tala Reported In 1979 ALJ 803, This Court Explained What The Words "erect" And "structure" Used In Section 29-A Of The 1972 Act Mean And It Will Be Useful To Reproduce The Relevant Portion Of The Judgment Which Is As Follows:-
"27. The Word 'erect' Is Like So Many Words In The English Language Not A Word With A Fixed Definite Meaning And Is Capable Of Being Used In Many Senses. Some Of The Senses In Which The Word 'erect' Or Erection Has Been Used Are Given In Words And Phrases Permanent Edition Volume 15. Illustration Of The Senses In Which The Word Has Been Used Are Given Below;
"In The Common Understanding And Language Of The People When We Speak Of The 'erection' Or 'construction' Of A House Or Building, We Mean The Erection Of A New House Or Building, And Not To Repairing Of An Old One."
"A Statute Authorising A Mechanic's Lien For Labour Performed Or Materials Furnished In Erecting Or Constructing A Building Does Not Warrant A Lien For Remodelling Or Repairing A House The Walls Of Which Were Allowed To Stand Though Newly Faced And In Which The Owner Continued To Live While The Work Was Being Done."
"Where The Structure Of A Building Is So Completely Changed That In Common Parlance It May Be Properly Called A New Building Or A Rebuilding, The Process Of Change Is Such An Erection Or Construction Of A Building As To Be Within The Meaning Of That Phrase As Used In Laws Giving Mechanics Liens."
"Adding A Story To A House Already Erected Is Erecting A Building, Within The Meaning Of An Ordinance Providing That No Person Shall Erect Any Building In A Certain Portion Of The City, Except Of Certain Materials. There Is No Difference In The Meaning Of The Word 'erect' When Applied To The Whole Building, And When Applied To A Part Of A Building. In Both Cases It Means To Build.
"It Is Not Necessary That A New Building Should Be Distinct From And Independent Of An Older Building In Order To Be Deemed A Building Erected. Thus Wings Added To A House Are Regarded As Buildings."
The Word 'erected' Was Explained Thus In A Case.
"Where A Building, Partly Brick And Partly Frame Was Removed And After Its Removal A Celler Was Dug Under It And Walled Up, And A New Chimney Built And The House Newly Weather Boarded And Plastered It Was A Building 'erected' Within The Meaning Of The Mechanic's Lien Law. In Re Burling's Estate Pa. 1 Ashm. 377, 378."
28. Before Proceeding Further With The Judgment It Is Necessary To Give Some Of The Meanings Of The Word 'structure' Which Has Been Used In Section 29-A Of The Act.
29. The Word, Structure, Has Been Defined In Words And Phrases Permanent Edition Volume 40 In A Number Of Ways. Some Of The Definitions Are Given Below:-
"A Structure Is Something Constructed Or Built."
"The Word, Structure In Workmen's Compensation Act, Section 2, Laws 1913 Page 335 Means Anything That Is Built Or Constructed."
"The Term Structure When Applied To A Material Thing Made By Human Labour Means Something Composed Of Parts Or Portions Which Have Been Put Together By Human Exertion."
"Structure" Is Defined To Be That Which Is Built Or Constructed, An Edifice Or A Building Of Any Kind In The Widest Sense, Any Production Or Piece Of Work, Artificially Built Up Or Composed Of Parts And Joined Together In Some Definite Manner, Any Construction."
The Word 'structure' Has Been Defined With Reference To An Offence In The Aforesaid Volume In The Following Words:
"In Its Broadest Sense A Structure Is Any Production Or Piece Of Work Artificially Built Up Or Composed Of Parts Joined Together In Some Definite Manner And In Such Sense A Fence Is A Structure."
30. In Volume IX Of A New English Dictionary' Historial Principle, The Meanings Of The Word Structure Have Been Given:
One Of The Meanings Is That Which Is Built Or Constructed.
"5-A. A Building Or Edifice Of Any Kind Specially A Pile Of Building Of Some Considerable Size Or Imposing Appearance.
6. In A Wider Sense A Fabric Frame Work Of Material Parts Put Together"
(emphasis Supplied)

While Examining The Provisions Of The Section 29-A Of The 1972 Act, This Court In Smt. Sharda Devi & Ors. (supra) Examined Whether Constructions Erected Over The Land By The Tenant Were "structure" And Whether The Constructions Were "permanent". The Tenant Had Put Up A Tin-shed And Contended That Existence Of A Room And Verandah Covered By A Tin-shed, Though Supported By Wooden Beams, Would Be "permanent Structure" Within The Meaning Of Section 29-A Of The 1972 Act And In This Context The Decision Of This Court In Narkandeshwar Mahadeoji Maharaj Vs. Gopal Das, Reported In 1969 ALJ 440 Was Relied Upon. The Court Held That The Lease Deed Gave The Tenant A Right To Remove The Material On The Determination Of The Lease And Construction Of A Tin-shed Is Not Of Permanent Character And Cannot Be Said To Be A "permanent Structure" Within The Meaning Of Section 29-A Of The 1972 Act. The Court Also Held That The Purpose Of Section 29-A Of The 1972 Act Is Entirely Different From The Purpose Of Section 108 (p) Of The Transfer Of Property Act And, Therefore, The Aid Of The Decision In The Case Of Narkandeshwar Mahadeoji Maharaj (supra) Cannot Be Taken. The Observations Of The Court Are As Follows:-
"The Two Questions Which Have To Be Decided In This Case Are:-
(i) Whether The Constructions Erected Over The Land By The Tenant With The Consent Of The Landlord Are Of A Nature Contemplated By The Word Structure In Section 29-A Of The Act?
and The Second Question Is In A Sense Subordinate Question:-
(ii) Whether The Constructions Which Have Been Made By The Defendant-tenant Are Permanent Structures?
------------------
36. The Learned Counsel For The Tenant Submits That The Tin-shed Must Be Deemed To Be A Permanent Structure. He Submits That The Existence Of A Room And A Verandah Covered By A Tin-shed, Though They Are Supported Wooden Purlines (beams), Would Not Prevent Them From Being A Permanent Structure Within The Meaning Of Section 29-A Of The Act. The Concept Of A 'permanent Structure' According To Him Has Been Explained In The Case Reported In (1969 All L.J. 440); Narkandeshwar Mahadeoji Maharaj Vs. Gopal Das Wherein It Was Held That For The Purposes Of Section 108 (p) Of The Transfer Of Property Act A 'permanent Structure' Was One That Had A Life Co-extensive With The Duration Of The Lease. ............
.............
38.That Object Of Section 108 Of The Aforesaid Provision Was To Preserve The Property Leased By A Lessor To A Lessee In Basically The Same Condition That Was Leased. The Framers Of The Statute In Order To Protect The Lessor Enacted Sub-clause (p) Of Section 108.
39. The Question However, Is Whether The Interpretation Placed On The Words "permanent Structure" In Section 108 (p) Should Be Applied While Determining The Nature Of Same Words Used In Section 29-A Of The Act.
40. Section 108 (p) As Seen Earlier Was Enacted In The Interests Of The Lessor, Whereas Section 29-A Was Enacted In Derogation Of The Rights Of The Landlord And In The Interests Of The Tenant. Thus The Object Of Both The Sections Is Different.
41. There Can Be Cases Coming Under Section 29-A Where There Is No Lease Executed By The Landlord In Favour Of Tenant. In The Instant Case, The Lease Was Only For A Period Of One Month At The Rate Of Rent Of Rs.12/- Per Month. A Structure Which Has A Life Of Only A Month, For Instance Wooden Thatch (hut), Would Not Be A 'permanent Structure' Within The Meaning Of Section 29-A (2) Though Expenses May Have Been Incurred In The Erection Of Such Hut. The Lease Executed Between The Parties In The Instant Case Gave The Tenant A Right To Remove The Malba (material) On The Determination Of The Lease If No Price Was Agreed Upon Between The Lessor And The Lessee. The Nature Of The Construction Shows That It Was Essentially Not Of A Permanent Character And Cannot Be Deemed To Be A Permanent Structure Within The Meaning Of Section 29-A(2) Of The Act.
...........
48. The Court Has Necessarily To Take Into Account The Area Of The Vacant Land Let Out And The Extent Of The Permanent Structures Erected Thereon With The Consent Of The Landlord By The Tenant. An Interpretation Of The Statute Which Does Not Take These Two Factors Into Account Is Likely To Defeat The Intention Of The Legislature As Landlords Are Unlikely To Give Their Consent In Future To Fresh Constructions By Tenants. At A Time When There Is A Shortage Of Accommodation Of Many Types In Urban Areas The Legislature Could Not Have Intended To Retard Further Constructions."
(emphasis Supplied)

In This Connection, Reference Also Needs To Be Made To The Decision Of This Court In Smt. Riazi Begum Vs. Adarsh Kumar Jauhari, 1985 (2) ARC 89. The Court Examined Whether The Structure Raised On The Land Was "permanent Structure" In The Context Of Section 29-A Of The 1972 Act And Observed That If It Was Intended To Be There Only Temporarily, It Will Be A "temporary Structure", But If The Intent Was To Enjoy It Permanently And The Structure Is Of A Substantial Nature, It Will Be Regarded As A "permanent Structure". The Court Noticed That A Large Piece Of Land Was Initially Let Out To The Defendants For The Purpose Of Starting A Fuel Wood Stall And The Tenant Was Permitted To Raise Constructions Which Had To Be Removed By Him On The Expiry Of The Term. The Court Held That, In Such Circumstances, Construction Was Not Of A Permanent Structure And The Tenant Was Not Entitled To The Protection Of Section 29-A Of The 1972 Act. The Observations Are :-
"29. Same Is The Position About The Question Whether The Structure Raised On The Land In Dispute Was Permanent. Whether Any Construction Is A Permanent Structure Or Not Depends Upon The Facts Of Each Case. It Also Depends Upon The Intention With Which A Structure Was Raised. If It Was Intended To Be There Only Temporarily, It May Be Temporary Structure But If The Intent Was To Enjoy It Permanently And The Structure Is Of A Substantial Nature, It May Be Regarded As A Permanent One. This Would Again Depend Upon The Kind Of Material Used And The Purpose For Which It Was Erected. If It Was Intended To Be Used Permanently In The Sense That It Is Intended To Be Used As Long As The Owners Liked, The Structure May Be Permanent But If It Was Intended To Be Used Only For A Temporary Period, Then The Same May Be Taken To Be Temporary. Thus Much Will Depend Upon The Nature And Extent Of A Particular Construction And The Intention And The Purpose For Which The Construction Had Been Made. Looking To These Aspects Of The Matter, We Will Notice That Here A Large Piece Of Land Was Initially Let Out To The Defendant For The Purpose Of Starting A Fuel Wood Stall. The Tenant Was Specifically Permitted To Raise Constructions Which Had To Be Removed By Him On The Expiry Of The Term. .................... This Shows That All Around The Disputed Structure Walls Of Either The Plaintiff Or Of Other Persons Existed And The Only Construction That Might Have Been Raised By The Tenant Was A Small Portion Of The Wall Towards The West. On All Other Sides, There Exist Pillars Only Having An Opening Or Gate In Between. A Small Platform Like Construction Used As A Seat For Defendant's Business Is Also There. In Such A Large Open Area, A Small Construction Like This Cannot Be Said To Be A Permanent Structure So As To Attract Section 29-A. What Appears To Be The Intention Behind Section 29-A(2) Is That Constructions Of A Substantial Nature Must Have Been Raised Over A Considerable Portion Of Land. This Would Be Obvious From The Use Of The Expression "and Incurred Expenses In Execution Thereof" In Sub-clause (2) In Relation To The Permanent Structure. What It Provides Is That Besides The Construction Being Permanent The Tenant Should Also Have Incurred Expenses In Execution Thereof. These Words Would Be Meaningless If Any Structure Of Howsoever Small Size Were To Be Treated As 'permanent Structure' So As To Attract The Applicability Of Section 29-A. That Does Not Appear To Be The True Intention Of Law. It Is Only In These Cases Where The Land That Was Let Out Was Substantially Covered By Constructions Of A Considerable Value That This Provision Can Apply. May Be The Legislature Had In Mind A Number Of Purwas Which Existed In The Towns Where The Land Was Let Out By Zamindars To Poor Section Of People For Raising Their Residential Houses And Other Constructions On Payment Of A Nominal Ground Rent. In Such Cases Usually Substantial Portion Of The Areas Let Out Is Covered By Those Structures And It Was This Class Of People Who Were Intended To Benefit From Section 29-A. The Present Is Not A Case Falling In That Category At All And I Cannot Agree With The Courts Below That It Was A Permanent Structure To Which Protection Of Section 29-A Should Be Given."
(emphasis Supplied)

In Suka Ishram Chaudhari Vs Jamnabai Ranchodas Gujarathi & Ors., AIR 1972 BOMBAY 273, The Bombay High Court Also Considered Whether Permanent Structure Had Been Raised On The Plot Of Land. The Court Observed That The Intention Of The Party Has To Be Seen And Emphasised That It Should Not Be Difficult For The Lessee To Vacate It Without Causing Any Injury To The Land And The Land Also Does Not Loose Its Identity. The Observations Are :-
"10. The Petitioner Has Taken On Lease Only The Plot Of Land. He Has Not Taken Any Premises. After Taking This Open Plot Of Land He Had In The Beginning Constructed A Temporary Tin Shed. In 1963 Theft Was Committed From The Southern Side, And, Therefore, In Order To Protect Himself As Well As His Goods, He Constructed The Wall In Brick And Mortar. He Has Also Constructed A Partition Wall To Divide For His Convenience And For His Beneficial Use. The Rest Of The Construction Is A Tin Shed. Now, Can It Be Said That The Petitioner Has Erected Any Permanent Structure By Constructing The Southern Wall And The Partition Wall? After All While Determining The Permanent Character Of A Structure It Is Always Necessary To See The Nature Of The Structure And Mode And Degree Of Annexation. It May Also Be Necessary To See The Intention Of The Party Who Puts Up The Structure. The Nature Of The Structure On The Whole Is Temporary Structure Except For This Wall. If The Landlord Finds Reasons To Eject The Petitioner, In My View, It Will Not Be Difficult For The Petitioner To Vacate The Open Plot Of Land Without Causing Any Injury To It. Construction Of The Wall In My View Therefore Will Not Cause Any Injury To The Open Plot Of Land Which Was Leased To Him. This Is Not A Case Where Substantial Improvement Was Made By The Petitioner To The Premises, Which Were Leased Out To Him And Which, If Removed, Will Cause Injury To The Open Plot Of Land.
11. What Is The Nature Of These Walls And The Degree Of Annexation? What Was The Intention Of Tenant When He Constructed These Walls ? The Nature And Mode Therefore Of Annexation Of Its Degree Can Be Gathered By The Intention With Which The Tenant Had Built The Wall Though In Brick And Mortar. It Is Done To Prevent The Thieves From Breaking Open The Shed Which Was Exposed To The Road. The Intention Therefore Was Not To Have A Permanent Structure But To Save Himself And His Goods In That Temporary Shed. The Whole Shed Is Still There. It Is All Of A Temporary Character. The Walls Are But Small Annexations. The Open Plot Of Land Will Never Lose Its Identity In The Process Of The Removal Of The Wall. The Wall Is But An Insignificant Part Of The Temporary Shed. The Original Nature Of The Open Plot Of Land Is Not Materially Altered Or Interfered With........................"
(emphasis Supplied)

In Shankarlal Ramratan Shet Vs. Pandharinath Vishnu Phatak, AIR 1951 BOMBAY 385, It Was Held That Mere Fixing In Earth Of A Compression Machine And Electric Fittings Of A Petrol Pump, Though They May Be Fixtures, Will Not The Permanent Structures Erected On The Premises.
In Narayan Chand Das Vs. Panna Lal And Anr, 1969 AWR 52, Which Is A Case Under The Provisions Of The 1947 Act, It Was Held That Where A Landlord, While Letting Out An Open Piece Of Land To Tenant, Permitted The Tenant To Construct Tin-shed Etc., And The Tenant Was Allowed To Take Away The Materials Of The Constructions At The Time When He Left The Land, The Land Will Not Become An Accommodation Within The Meaning Of The 1947 Act.
It Is In The Light Of What Has Been Stated Above That It Has To Be Determined Whether The Lease Deed Dated 30th August, 1952 Permitted The Tenants To Erect Any Permanent Structure.
It Is Sought To Be Urged By The Judgment Debtors That The Lease Deed Dated 30th August, 1952 Permitted The Tenants To Erect Permanent Structures On The Land Let Out, While The Case Of The Decree Holder Is That The Lease Deed Does Not Permit Erection Of Permanent Structure On The Land Let Out.
It Will, Therefore, Be Appropriate To Refer To The Terms Of The Lease Deed. The Lease Deed Is In Hindi And The English Translation Of The Relevant Portion Will Read As Follows:
"Sri Babu Ram Gupta, Son Of Lala Kunhoo Lal Gupta, Resident Of Swaroop Nagar, Kanpur
............First Party
AND
Ram Kumar And Kishan Kumar Sons Of Lala Laxman Swaroop, Caste Agrawal, Resident Of 109/222, Jawahar Nagar, Kanpur.
............Second Party

Be It Known That Plot No.106, Block Scheme No.1, Situated At Juhi, Area Darshanpurva, Kanpur, Which Has A Built Boundary Wall, A Pipe, A Gate And A 'Khaprail' (tile Shed) In The Middle, Is Owned And Possessed By The Fist Party And The First Party Is The Absolute Owner In Possession And Occupation Of It And There Is No Other Claimant Or Co-sharer In Of It. The Second Party Wants To Take The Aforesaid Plot For A Period Of Three Years On Rent For Starting A Karkhana And Is Ready To Abide By The Undermentioned Conditions And The First Party Has Agreed To Let It Out On Rent. Therefore, Both The Parties, With Free Will And Sound Mind, Intelligence And Wisdom, Agree To Abide By The Terms And Conditions Contained In This Deed:-
1. That The First Party Has Let Out The Entire Aforesaid Plot With Boundary Wall, Pipe, Khaprail And Gate Existing On The Said Plot On A Monthly Rent Of Rs.100/- To The Second Party With Effect From 1.9.1952 For A Period Of Three Years And The Second Party Has Taken The Entire Plot With Pipe, Boundary Wall, Khaprail And Gate With Effect From 1.9.1952 For Three Years On Monthly Rent Of Rs.100/- For The Purpose Of Starting Dal Mill, Oil Mill And Flour Mill.
2. That The Second Party Shall Regularly Pay The Monthly Agreed Rent To The First Party After Obtaining The Rent Receipts. Oral Payment Shall Not Be Accepted.
3. That The Second Party Shall Have The Right To Obtain The Power Connection And Start The Factory And For Running The Karkhana, बनवाये (i.e. Make) And डलवाये (i.e. Put Up Or Lay) Office, Floor And Tin-shed Etc. And Fix Things To The Land For Conveniently Running Or Developing The Business To Which The First Party Will Have No Objection.
4. That The Second Party Will Pay Rent As Aforesaid Agreed Month By Month By The Last Date Of The Month By Receiving Rent Receipts With The Condition That If The Rent Remains Due For Two Months, The First Party Shall Be Entitled To Realize The Rent Due Along With Damages And Cost From The Second Party For Which The Second Party Will Have No Objection.
5. That In Case The Monthly Rent Is Regularly Paid, The First Party Will Not Dispossess The Second Party Prior To The Expiry Of Three Years And Will Not Be Entitled To Increase The Rent And In The Same Manner, The Second Party Will Not Vacate The Aforesaid Plot Prior To Three Years From The Date Of Commencement Of The Tenancy, Otherwise They Shall Be Liable To Pay Rent For The Entire Period Of Three Years, Even Though The Period Of Three Years May Not Have Been Completed.
6. That On The Expiry Of Three Years Period, The Second Party Shall Remove, At Their Own Cost, Whatever Tin-sheds, Machinery Etc. Which They May Install For Which The First Party Will Not Object.
7.That After The Expiry Of Three Years, If The Second Party Wants To Continue The Tenancy Over The Aforesaid Plot, Then The First Party Will Extend The Aforesaid Period For Further Two Years On The Same Rate Of Rent On Execution Of An Additional Lease Deed.
8.That The Second Party Will Themselves Run The Business On The Aforesaid Plot And Will Not Sublet It To Any Sub-tenant.
9.That It Will Be Duty Of The Second Party To See That The Boundary Wall As Well As The Gate And Pipe And Khaprail Are Not Damaged In Any Manner And Shall Take Care To Protect The Same And Have Them Repaired............."

The Lease Deed Has, Therefore, To Be Critically Examined To Find Out The Nature Of The Structures That Could Be Erected By The Tenants. Under The Lease Deed, The Plot Which Had A Boundary Wall, Pipe, Gate And Khaprail In The Middle Was Let Out To The Tenants On A Monthly Rent Of Rs.100/- With Effect From 1st September, 1952 For A Period Of Three Years For The Purpose Of Starting Dal Mill, Oil Mill And Flour Mill. Under Clause (3) Of The Deed, The Tenant Could Obtain The Power Connection And Start The Factory And For This Purpose The Tenant Could Make Or Put Up Office, Floor, Tin Sheds Etc. For Running The Business And Fix Things To The Land But It Was Also Clearly Stipulated In Clause (6) Of The Deed That On The Expiry Of Three Years, The Tenants Shall Remove, At Their Own Cost, The Tin-sheds, Machinery Etc. Which They May Install. The Lease Deed Also Provides That The Boundary Wall As Well As The Gate And Khaprail Shall Not Be Damaged By The Tenants And The Tenants Shall Take Care To Protect Them And Have Them Repaired.
What Has, Therefore, To Be Seen Is Whether The Lease Deed Dated 30th August, 1952 Permits "permanent Structures" To Be "erected" Because To Get The Benefit Of Section 29-A Of The 1972 Act, The Tenant Has To First Establish That The Landlord Had Given Consent For Erecting Permanent Structure On The Plot Of Land Let Out To Him.
What Is Important To Note At This Stage Is That The Defendants Had Moved An Amendment Application For Incorporating Additional Pleas In Paragraph 4 Of The Written Statement To The Extent That Apart From The Written Lease Deed Dated 30th August, 1952, There Was Also An Oral Agreement Between The Parties In 1958 That The Tenancy Of The Defendants Shall Be Treated As Permanent In Case The Rent Was Enhanced To Rs.125/- Per Month And The Constructions Made By The Defendants Shall Also Be Treated As Permanent. Issue No.8 That Was Framed By The Trial Court Was Whether There Was Any Agreement Between The Parties As Pleaded In Paragraph 4 Of The Written Statement And This Issue Was Decided Against The Defendants Holding That There Was No Such Agreement. Thus, The Consent For Raising Permanent Structures Has To Be Examined Only In Terms Of The Lease Deed Dated 30th August, 1952 Since There Is No Other Agreement Between The Parties.
Though The Lease Deed Dated 30th August, 1952 Does Not Mention About "permanent" Or "temporary" Structures, But On A Complete Reading Of The Lease Deed, There Is No Doubt That Only "temporary Structures" Could Be "erected" By The Tenants. From The Decisions Referred To Above, It Is Seen That Intention Of The Parties, The Nature Of The Structures That Could Be Raised, The Total Area Of The Land Let Out And The Condition That The Structures Have To Be Removed After The Expiry Of The Term Of The Lease Are Important Factors To Be Examined. Open Piece Of Land Had Been Let Out To The Tenant Under The Lease Deed For A Specific Period Of Three Years For The Purpose Of Running A Dal Mill, Oil Mill And Flour Mill And For This They Could Obtain The Power Connection. Clause 3 Of The Leased Deed Specifically Uses Two Words Namely "डलवाये" And "बनवाये". In English, "डलवाये" Would Mean "put Up" Or "lay" And "बनवाये" Would Mean "make" Or "build". The Tenants Could, Therefore, Make Or Build An Office, Put Up Tin Sheds And Lay The Floors Etc. For Running The Business And Could Also Fix Machinery To The Land. Thus, When About 10000 Sq. Feet Of Land Was Let Out To The Tenants For A Period Of Three Years And Permission Under The Lease Deed Was Only To Make Office, Lay Floors And Put Up Tin-sheds With The Specific Condition That The Tenants Shall Remove The Tin Sheds And Machinery, At His Own Cost, After The Expiry Of Three Years, It Cannot Be Said That Consent Was Given By The Landlord For Erecting Permanent Structures. The Office Could Be Established In The Tin-shed And Permission For Laying Floor Was Given For Drying The Pulses (दाल). A Tin-shed, As Noticed Hereinabove, Has Always Been Considered To Be A Temporary Structure. The Intention Of The Landlord Was Absolutely Clear That The Lease Was For A Fixed Period Of Three Years Which Could Be Renewed By Two Years And After The Expiry Of The Period Of Lease, The Land In Its Original Form Was Required To Be Restored To The Landlord Since The Tin Sheds And Machinery Which The Tenant May Have Installed Were Required To Be Removed By Him. The Very Fact That The Landlord Required The Tenants To Remove, On The Expiry Of The Term Of The Lease, The Tin-sheds, Machinery Etc. They May Have Installed Clinches The Issue In Favour Of The Decree Holder And Against The Judgment Debtors Because The Tin-sheds As Also The Machinery Attached To The Land Could Easily Be Removed Without Changing The Character Of The Land Or Causing Any Damage.
It Is Also Clear From The Dictionary Meanings That A "permanent Structure" Is Such Which Is Not Easily Removable And Structure Made Of Bamboos And Iron Sheet Is Not "permanent Structure". The Word "permanent" Is Used In Contradiction To The Word "temporary" And "permanent" Is Something Which Is Enduring In Character And Remains Unaltered Or Unremoved. "Structure" Is Something Which Is Constructed Or Built. Thus, If The Work Of Erection Of A Structure Is Substantial Or Brings About A Substantial Change In The Character Of The Premises And It Is Not Merely A Small Physical Change Of Temporary Nature, Such Work Of Erection Will Be Of Permanent Nature. The Nature Of The Construction And Intention With Which It Is Made Are Relevant For Determining Whether Any Permanent Structure Has Been Erected. If On An Open Plot Of Land A Structure Is Raised, It May Not Be A Permanent Structure If It Can Be Removed Without Causing Harm Or Detriment To The Plot Of Land.
In Smt. Sharda Devi & Anr. (supra), The Court Held That The Tin-sheds Raised On Open Plot Of Land Would Not Be Permanent Structure, Particularly When The Deed Gave The Tenant The Right To Remove The Materials On The Determination Of The Lease. In Smt. Riazi Begum (supra), The Court Also Held That When Permission Was Given To The Tenant To Start Fuel Wood Stall In The Open Land And Raise Structures Which Had To Be Removed By Him On The Expiry Of The Term, The Structure Would Not Be A Permanent Structure. In Suka Ishram Chaudhari (supra), The Court Also Held That For Determining Whether A Structure Is Permanent Or Temporary It Has Also To Be Seen Whether The Landlord Is Able To Evict The Tenant From The Open Land Without Causing Injury To The Land. In Shankarlal Ramratan Shet (supra), The Court Held That Fixing Of Machinery And Electric Fittings Will Not Be Permanent Structures Erected On The Premises. In Narayan Chand Das (supra), The Court Held That The Nature Of The Open Plot Of Land Will Not Be Converted To "accommodation" So As To Attract The Provisions Of The 1947 Act, Even If Open Plot Of Land Was Let Out And The Tenant Was Permitted To Construct Tin Sheds And Take It Away When He Left The Land.
It Should Not Be Forgotten That The 1947 Act Was Not Applicable If Land Was Let Out Since It Was Applicable Only The "accommodation" And Even The 1972 Act, Prior To The Insertion Of Section 29-A With Effect From 5th July, 1976, Was Not Applicable If Land Was Let Out. Section 29-A Of The 1972 Act Was Enacted To Give Protection To A Tenant Who, With The Consent Of The Landlord, Erected Permanent Structure And Incurred Expenses Thereof. The Consent For Raising Structures Was, Therefore, Required To Be Strictly Considered In The Terms Of The Lease Deed And Not Beyond The Terms Of The Lease Deed.
The Executing Court As Well As The Revisional Court Completely Misread The Terms Of The Lease Deed And Recorded A Perverse Finding That The Lease Deed Permitted All Kinds Of Structures To Be Raised Whether They Were Temporary Or They Were Permanent And Since Permanent Structures Had Been Raised, The Benefit Of Section 29-A Of The 1972 Act Was Available To The Tenants. The Revisional Court Even Went To The Extent Of Holding That Though The Lease Deed Was For A Period Of Three Years And Could Be Extended By Another Two Years, But Since It Continued For About 11 Years Without Any Hindrance And Permission Was Given To The Tenants To Run The Factory, It Should Be Presumed That The Tenancy Was Given For A Substantial Period Otherwise, No Tenant Will Establish A Factory. This Finding Is Also Perverse And Against The Terms Of The Lease Deed Which Specifically Provided That It Was For A Period Of Three Years Which Could, In Case The Tenants So Desired, Be Extended For Another Two Years Only. The Alleged Oral Agreement Of 1958 Regarding Permanent Tenancy And For Treating The Constructions Raised By The Defendants As Permanent Was Not Accepted By The Court.
Such Being The Position, The Court Has No Hesitation In Holding That Under The Terms Of The Lease Deed Dated 30th August, 1952 The Tenants Had Only Been Given Permission To Erect Temporary Structures And, Therefore, The Protection Of Section 29-A Of The 1972 Act Was Not Available To The Tenants.
It Is, Therefore, Not Necessary For The Court To Examine The Other Legal Issues Raised By Learned Counsel For The Parties, Even If It Is Assumed That The Tenants Had Incurred Expenses In Raising The Structures And The Structures That Were Actually Raised Are Permanent Structures.
The Impugned Orders Dated 11th December, 1997 And 25th April, 2004, Therefore, Cannot Be Sustained As It Has Been Found That The Tenants Are Not Entitled To The Benefit Of Section 29-A Of The 1972 Act.
The Decree For Eviction Had Attained Finality In 1976 And The Execution Application Was Filed On 22nd May, 1976. It Took 21 Years For The Executing Court To Decide The Objections Filed By The Judgment Debtors In 1997 And The Revisional Court Took Another Seven Years To Decide The Revision In 2004. Thus, More Than 35 Years Have Lapsed But The Decree Holder Has Yet To Reap The Fruits Of The Decree. The Total Area Of The Plot That Was Let Out With Effect From 1st September, 1952 On A Monthly Rent Of Rs.100/- For A Period Of Three Years Is 10,000 Sq. Feet. The Tenants, However, Did Not Handover Vacant Possession Of The Plot After Expiry Of The Lease Period And, Therefore, After Termination Of The Tenancy On 24th February, 1964, The Suit Was Filed Which Was Partly Decreed On 18th January, 1964 For Recovery Of Rs.429.20 But The Civil Appeal Filed By The Plaintiff-landlord Was Allowed On 13th April, 1970 And Decree For Eviction Was Passed Which Was Confirmed By The High Court And The Special Leave Petition Was Also Dismissed By The Supreme Court. The Plot Is Situated In Juhi Area At Kanpur Nagar. The Tenants Are Still In Possession Of The Plot Measuring 10,000 Sq. Feet. It Is, Therefore, A Fit Case Where Direction Should Be Given To The Executing Court To Ensure That The Decree Is Expeditiously Executed.
It Has Also To Be Seen Whether Exemplary Costs Should Be Imposed Upon The Respondents. In This Connection, The Decision Of The Supreme Court In Ramrameshwari Devi & Ors. Vs. Nirmala Devi & Ors., (2011) 8 SCC 249 Needs To Be Noticed.
The Supreme Court Pointed Out That When Party Is Harassed For A Considerable Period In Totally Frivolous And Dishonest Litigation, Costs Should Be Imposed And The Observations Are :-
"36. According To The Learned Amicus Curiae, Every Lease On Its Expiry, Or A Licence On Its Revocation Cannot Be Converted Itself Into Litigation. Unfortunately, Our Courts Are Flooded With These Cases Because There Is An Inherent Profit For The Wrongdoers In Our System. .........
37. It Is A Matter Of Common Knowledge That Lakhs Of Flats And Houses Are Kept Locked For Years, Particularly In Big Cities And Metropolitan Cities, Because Owners Are Not Certain That Even After Expiry Of Lease Or Licence Period, The House, Flat Or The Apartment Would Be Vacated Or Not. It Takes Decades For Final Determination Of The Controversy And Wrongdoers Are Never Adequately Punished. Pragmatic Approach Of The Courts Would Partly Solve The Housing Problem Of This Country.
.........
54. While Imposing Costs We Have To Take Into Consideration Pragmatic Realities And Be Realistic As To What The Defendants Or The Respondents Had To Actually Incur In Contesting The Litigation Before Different Courts. We Have To Also Broadly Take Into Consideration The Prevalent Fee Structure Of The Lawyers And Other Miscellaneous Expenses Which Have To Be Incurred Towards Drafting And Filing Of The Counter Affidavit, Miscellaneous Charges Towards Typing, Photocopying, Court Fee Etc.
55. The Other Factor Which Should Not Be Forgotten While Imposing Costs Is For How Long The Defendants Or Respondents Were Compelled To Contest And Defend The Litigation In Various Courts. The Appellants In The Instant Case Have Harassed The Respondents To The Hilt For Four Decades In A Totally Frivolous And Dishonest Litigation In Various Courts. The Appellants Have Also Wasted Judicial Time Of The Various Courts For The Last 40 Years.
56. On Consideration Of Totality Of The Facts And Circumstances Of This Case, We Do Not Find Any Infirmity In The Well Reasoned Impugned Order/judgment. These Appeals Are Consequently Dismissed With Costs, Which We Quantify As Rs. 2,00,000/- (Rupees Two Lakhs Only). We Are Imposing The Costs Not Out Of Anguish But By Following The Fundamental Principle That Wrongdoers Should Not Get Benefit Out Of Frivolous Litigation. The Appellants Are Directed To Pay The Costs Imposed By This Court Along With The Costs Imposed By The High Court To The Respondents Within Six Weeks From Today."

Taking Into Consideration The Totality Of The Circumstances, The Nature Of The Objections Raised By The Judgment Debtors To Retain The Plot Of Land That Was Leased To Them For A Period Of Three Years With Effect From 1st September, 1952 And Renewed For Another Two Years And The Fact That Though More Than 35 Years Have Lapsed But The Landlord Has Yet To Receive Possession Of The Plot, It Is Fit Case Where Heavy Costs Should Be Be Imposed Upon The Judgment Debtors.
The Impugned Order Dated 11th December, 1997 Passed By The Executing Court As Also The Judgment And Order Dated 25th April, 2004 Passed By The Revisional Court Are, Accordingly, Set Aside And The Objections Filed By The Judgment Debtors In Execution Case No.232 Of 1976 Are Rejected.
The Writ Petition Is, Accordingly, Allowed With Costs Quantified At Rs.1,00,000/- (Rs.One Lac Only) Which Shall Be Deposited By Respondent No.1 Pawan Kumar Before The Executing Court Within A Period Of One Month From Today.
The Executing Court Shall Ensure The Execution Of The Decree Within A Period Of One Month From Today By Using Police Force, If Necessary, Which Shall Be Made Available To The Executing Court On A Request Made To The Senior Superintendent Of Police, Kanpur Nagar. It Is Made Clear That The Executing Court Shall Not Entertain Any Objections That May Be Filed By The Judgment Debtors Or Any Person Claiming Under Them.

Go to Navigation