STATE OF U P Vs. SUDHA DEVI BHARGAVA

JUDGEMENT

(1.) S. K. Phaujdar J. The present appeal is directed against the judgment and decree dated 10-10-1989 passed by the 3rd Additional Civil Judge, Mathura, in Civil Appeal No. 83 of 1988. The first appellate court had reversed a decree of dismissal dated 24-3-1988 passed by the IVth Additional Civil Judge, Mathura in O. S. No. 408 of 1986 and decreed the suit of the plaintiff (appellant before the first appellate court) directing the defendant (police department) to deliver vacant possession of the suit property to the plaintiff. By the appellate court decree there was a direction for recovery of damages also.

(2.) SMT. Sudha Devi Bhargawa, the present respondent, was the plaintiff before the court of first instance. Her mother-in-law was the owner of the suit property. As stated in the plaint, in 1972 only one phatak (gate) of the suit property was let out to the police department on a monthly rent of Rs. 60/- and there was a stipulation that the plaintiff would have a right to ingress and egress to and from the property in question through this gate (phatak ). The property consisted of a godown, certain rooms and a court-yard the plaintiff got the property on the strength of a will ex ecuted by her mother-in-law and, it was alleged, that in 1985 the police personnel had occupied the inner portions of the property (which was not let out to them) and had caused substantial damage to the property to the tune of Rs. 5,000/ -. On a notice to vacate the property, the defendants failed to vacate. Section 80, CPC notice also proved futile and the suit was filed for eviction and possession and for damages. The defendants (the present appellant) came out with a case in their written statement that the whole of the suit property including the gate in question was let out to the police department in the year 1975 and eviction was not permissible except under the provisions of the U. P. Act No. 13 of 1972. The trial court held that the tenancy was for the whole of the premises and there was no damage caused to the property by the defendants and, accordingly, the trial court dismissed the suit. The first appellate court, on an appeal by the plaintiff, engaged itself to see when the suit property was given to the defendants for use and occupation in 1972 or 1975. The first appellate court also lays stress on the question of the status of the defendants as tenant, trespasser or a licensee. The first appellate court was of the view that the entire property was given by the plaintiff to the defendants in 1972 and they were in posses sion over the entire property since then. It was, however, of the view that there could not have been any lease as, according to it, a lease could only be created by way of a registered document. The first appellate court was also of the view that Article 299 of the Constitution of India required that all contracts made in exercise of executive powers of a State shall be expressed to be made by the Governor of the State. He came to the conclusion that the possession of the defendant on the suit property was that of a licence and the licence could be revoked at any time even by filing of the suit and, accordingly, the appeal was allowed and the suit of the plaintiff was decreed. It is necessary to mention here that the suit was filed not for the whole of the property but for the inner part of the property only, barring the gate (phatak) which was admittedly under a lease.

(3.) LEARNED counsel for the appellant relied on a decision of the Allahabad High Court, as reported in 1981 ALJ 248. There was an oral lease in this case for a building let out to the government. It was held that the Article 299 of the Constitu tion was not applicable. The lease accordingly would not be invalid for non- com pliance of Article 299. Reliance was also placed on a decision of the Madras High Court as reported in AIR 1951 Mad 855. The Court considered a case of lease of a building for residence of police officials and it was held that the State Government was not a tenant as the lease was entered into by the Superintendent to Police who was not an officer empowered to execute a contract on behalf of the Governor. Reliance was also placed on a third case, as reported in 1989 ALJ 397. A building was let out to the Government and the Government was discharging its duties and obligations as tenant and paying rent, it was held that the Government was estopped from raising a plea at the stage of revision that the tenancy was not created by executing an agreement as per provisions of Article 299. The learned counsel while relying on this case-law submitted that this law of estoppel would be applicable in the present case for the plaintiff who was aware of the occupation of the inner portion of the premises by the defendant and who had realised rent from 1972 to 1986 without any protest.