# Smt. Vijaya Nigam v. District Judge and others

- **Citation:** (2006) 3 ILRA 1259
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-10-19
- **Case number:** Civil Misc. Writ Petition No. 27077 of 1993
- **Bench:** Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-vijaya-nigam-v-district-judge-and-others-40695
- **Pages:** 4

## Text

1258 INDIAN LAW REPORT ALLAHABAD SERIES [2006

47. Let judgment be certified to the
lower
court
immediately
with
transmission of the record of the case. The
court below shall report compliance
within one month. Appeal Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2006

BEFORE
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No. 27077 of 1993

Smt. Vijaya Nigam

...Petitioner
Versus
District Judge and others ...Respondent

U.P.
Act
No.
13
of
1972-Art-226
Constitution of India-Renewal of leaseimplied extension-not available-Month to
Month Tenancy-of Not extended By
Mutual
Consented
Agreement-No
Implied-Renewal.

Held-Para 9

The option for renewal even if exercised
by the lesseee, who continued to remain
in use and occupation of the premises,
could not claim that he was holding over
as a lessee since it cannot be said to be a
conduct signifying assent of the lessor to
continue the tenancy even on expiry of
lease period. The renewal has to be done
with express agreement or assent of the
lessor and hence there can be no implied
renewal
in
the
absence
of
such
agreement or assent of the lessor and
hence there can be no implied renewal in
the absence of such agreement or
assent.
Case law discussed:
1994 (Supp) (3) S.C.C. 694
1995) 5 S.C.C. 314
2002 (1) A.R.C. 319 Alld. H.C.
2005 (61) A.L.R. 865 Alld. H.C.

(Delivered by Hon'ble Sanjay Misra, J.)

1. The petitioner has filed this writ
petition for quashing the judgment and
order dated 16.4.1990 passed by the court
of Judge Small Causes Kanpur nagar in
S.C.C Suit No. 598 of 1983 (Smt. Vijaya
Nigam Versus Sudama Kumar) Whereby
the suit has been dismissed for ejectment
of the defendants and allowed for
recovery of arrears of rent and the
judgment and order dated 12.4.1993
passed by the Xth Additional district
Judge Kanpur in S.C.C. Revision No. 99
of 1990 (Smt. Vijaya Nigam Versus
Sudama Kumar) whereby the revision of
the petitioner has been dismissed.

2. Heard Sri Avinash Swaroop
learned counsel for the petitioner and Sri
Ramendra
Asthana,
learned
counsel
appearing on behalf of the respondents.
The petitioner who clains herself to be
owner and landlord of the shop No. 3
situate in Premised No. 62/3 Block 7,
Govind Nagar Kanpur filed the suit on the
allegations that the shop was constructed
in the year 1978 and was given on a rent
of Rs. 225 per month to the respondent
no.3 for a period of 11 months by a
written agreement. The period of tenancy
was extended by subsequent agreements
of 11 months each. The period of the last
agreement came to an end on 30.4.1983
where after the petitioner sent a notice
dated 7.5.1983 to quit which was received
by the respondent no. 3 on 16.5.1983. The
tenancy is alleged to have been terminated
upon the expiry of thirty days from the
date of service of notice.

3. The respondent no. 3 contested
the suit claiming therein that a permanent
irrevocable tenancy had been created by
virtue of the agreement and it would
3All] Smt. Vijaya Nigam V. District Judge and others 1259
therefore continue forever unless any
terms of the agreement were violated by
the respondent. The trial court framed
issues and on issue no. 1 as to whether
plaintiff is owner and landlord of the
premises in question, it held that the
petitioner was not owner and landlord of
the premises in question, it held that the
petitioner was not owner of the disputed
shop in as much as it has been taken by
the petitioner on lease of 99 years from
the
kanpur
development
Authority.
However, the trial court found that the
petitioner was landlord of the premises in
question. On issue no. 2 as to whether the
tenancy was permanent and irrevocable or
a month to month tenancy, the trial court
found that it was not a permanent
irrevocable tenancy it being dependent
upon the terms of the agreement and
further held that it was a tenancy for 11
months created by separate agreements
from time to time. On the issue as to
whether the provisions of U.P. Act No. 13
of 1972 would apply to the premises, the
trial court found that the shop in question
was not governed by the Act on the date
of institution of the suit. On the issue as to
whether tenancy of the defendant had
been legally terminated and whether
notice was legal and valid, the trial court
found that tenancy was not legally
terminated and the notice was illegal and
invalid. With respect to the issue of
default in payment of rent, the trial court
decided in favour of the tenant and found
that he was not in arrears of rent. It also
found that question of title was not
involved in the suit and the defence of the
respondent was not liable to be struck off
under Order XV Rule 5 Code of Civil
Procedure. It therefore, decreed the suit
for recovery of arrears of rent from
1.5.1983 to 18.7.1983 at the rate of Rs.
225/-permonth and for rent pendent elite
from 19.7.1983 to 15.4.1990 at the same
rate. However, he suit for ejectment of the
defendant from the shop in question was
dismissed.

4. The revisional court found that
the finding recorded by the trial court on
the question of fact and law were in
accordance with law and therefore, it has
dismissed the revision filed by the
petitioner.

5. The argument on behalf of
learned counsel for the petitioner is that
the notice under section106 of the
Transfer of Property Act served by the
petitioner upon the tenant was valid and
legal and both the courts below have
committed error in law in holding that the
notice was invalid and therefore, the
tenancy was not terminated. It is this
question alone which has been canvassed
by the learned counsel for the parties.

6. Upon going through the findings
recorded by the courts below the tenancy
by virtue of the last agreement admittedly
was up to 30.4.1983 where after no fresh
agreement was entered into between the
parties. The notice to quit was served on
the
respondents
on
16.5.1983
and
therefoe, the tenancy stood terminated
after expiry of thirty days of service. The
courts below have concurrently held that
the
tenancy was not a permanent
irrevocable tenancy but was governed by
the
terms
of
the
agreement.
The
agreement period of 11 months expired on
30.4.1983.
The
courts
below
have
however, held that since thee has been no
breach of any condition of the lease deed,
therefore, the notice to quit could not have
been given to the respondents validly and
legally. The courts below found that the
terms and conditions as enumerated in the
1260 INDIAN LAW REPORT ALLAHABAD SERIES [2006
lease had not been violated by the
respondents and therefore, the petitioner
was not entitled in law to terminate the
tenancy. It also found that since no default
had been committed in payment of rent
the notice to quit was illegal.

7. In support of their contention
learned counsel for the parties have
placed reliance on the decision of the
Hon'ble Supreme Court in the case of
Jiwan Dass Versus Life Insurance
corporation
of
India
and
another
reported in 1994 (Supp) (3) SCC 694 and
contended that a notice to quit under
section 106 of the Transfer of Property
Act in a month to month tenancy does not
contemplate of giving any reason for
terminating the tenancy. It is therefore,
contended that upon expiry of the 11
months lease period, the occupation of the
tenant would be month to month. Placing
reliance upon a decision of the Hon'ble
Supreme Court in the case of Janki Devi
Bhagat Trust Agra Versus Ram Swarup
Jain (dead) by LRS reported in (1995) 5
SCC 314 it has been contended that when
a lease was for a period not exceeding one
year it was not registerable and could be
looked into only for collateral purposes.

8. Relying upon a decision of this
Court in the case of Bank of Baroda
Versus Sardar Arvinder Singh and
another reported in 2002 (1) ARC 319, it
has been contended that after expiry of
the lease period when no fresh lease deed
is executed the tenancy becomes a month
to month tenancy and can be terminated
by giving notice under section 106 of the
Transfer of Property Act. Placing reliance
upon a decision of this Court in the case
of Smt. Prakash Rami Versus Vith
Additional District Judge and others
reported in 2005 (61) ALR 865 it has
been contended that for termination of
month to month tenancy one month's
notice under section 106 of the Transfer
of Property Act can be validly given and
it is not necessary that the tenant must be
a defaulter.

9. It is settled law that when a lease
is of a fixed period with a stipulation that
it can be extended by consent of the
parties, then, in the absence of such
consent there cannot be any implied
renewal of the tenancy. The option for
renewal even if exercised by the lesseee,
who continued to remain in use and
occupation of the premises, could not
claim that he was holding over as a lessee
since it cannot be said to be a conduct
signifying assent of the lessor to continue
the tenancy even on expiry of lease
period. The renewal has to be done with
express agreement or assent of the lessor
and hence there can be no implied
renewal in the absence of such agreement
or assent of the lessor and hence there can
be no implied renewal in the absence of
such agreement or assent. In the present
case the petitioner has neither expressly
nor impliedly agreed for renewal. There
was no mutual agreement for renewing
the lease after it had expired on
30.4.1983. Therefore, in the present case
the respondent cannot even claim to be a
lessee by holding over within the meaning
of section 116 of the Transfer of Property
Act since the essential ingredient of the
lessors assent to his continuing in
possession is absent, and therefore,
possession of the lessee in the absence of
any agreement to the contrary would only
amount to a month to month tenancy as
specified under section 106 of the
Transfer of Property Act which could be
terminated by notice. The courts below
found that the tenancy was governed by
3All] Battu Lal V. State of U.P. and others 1261
the terms of the agreement which expired
on 30.4.1983. It has also found that the
tenancy
was
not
permanent
nor
irrevocable. It was a month to month
tenancy
after
expiry
of
the
term.
Reasoning given by the courts below that
since no violation was committed by the
tenant of the terms of the lease and since
the tenant was not in default in payment
of rent therefore notice under section 106
of the Transfer of Property Act was
invalid
and
illegal
is
clearly
not
sustainable. The said view of the courts
below is illegal.

10. For the aforesaid reasons, the
writ petition succeeds and is allowed. The
impugned judgment and orders dated
16.4.1990 passed by the court of Judge
Small Causes Kanpur in S.C.C. Suit No.
598 of 1983 and the judgment and orders
dated 12.4.1993 passed by the Xth
Additional District Judge Kanpur Nagar
in S.C.C. Revision No. 99 of 1990 are
hereby quashed. The suit of the petitioner
for ejectment stands decreed. No order is
passed as to costs. Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2006

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 47083 of 2006

Battu Lal

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri B.K. Pandey

Counsel for the Respondents:
S.C.
Constitution of India, Art. 226-Principle
of Natural Justice-cancellation of fair
price shop licence-after service of charge
sheet-petitioner
given
explanation
without evidence-recording the reasons
are must for adjudging the validity of
order-the appellate authority also can
not record any reason for agree on
disagreement with the finding-matter
remitted back to the lisencing authorityfresh decision within three month-till
then cancellation order be kept in
abeyance.

Held: Para 6, 7 & 8

The licensing authority was required to
mention
the
charges
and
then
explanation given by the petitioner and
then evidence and thereafter the reasons
on which the explanation given by the
petitioner is not being accepted.

Thus it is clear that it is the first concern
and the duty of first court/authority to
critically examine the evidence/record
and by assigning reason to agree or not
to agree with the submission of a party
and then to pass order. If this is not
there then exercise can be safely said to
be faulty.

Accordingly this court is of the view that
instead of keeping the matter pending
before the appellate authority this court
straightway may intervene by exercising
its extraordinary powers which will save
time of everybody and thus the order of
the
Sub
Divisional
Office/Licensing
authority dated 7th June, 2006 by which
fair price shop license has been cancelled
is to be kept in abeyance. The matter has
to go back to the concerned licensing
authority again to revive the proceedings
for cancellation of fair price shop license
and he is to proceed to deal the same by
undertaking the process of evaluation as
indicated. It is for the petitioner to
cooperate in the proceedings and in the
event
there
is
non-cooperation
the
licensing
authority
will
be
free
to
proceed without waiting for cooperation
from the petitioner.