DWARKA NATH Vs. RECEIVER TEHSILDHAR REVENUE SRIGANGANAGAR

JUDGEMENT

(1.) One Dwarka Nath had applied for being declared insolvent under Section 28(2) of the Provincial Insolvency Act (hereinafter to be referred as "the Insolvency Act") on 5-7-71. The learned District Judge declared him insolvent on 17-8-72. The learned District Judge had also appointed Tehsildar, Sriganganagar as receiver of the insolvent property under Section 56 of the Insolvency Act. The receiver took poosession of the property of the insolvent including two shops No. 48 and 49 Ravindra Path, Sriganganagar which were allotted by Muncipal Council, Sriganganagar to the insolvent. On 3-3-80 the receiver auctioned the rights of occupancy of the disputed shops on rental basis and the highest bid of one Rishi Kumar at Rs. 325/- per month of rent over and above the rent payable to the Municipal Council was accepted. On 8-4-82 the shops were put in possession of Rishi Kumar after a regular rent deed was executed. Thereafter the rent was enhanced by Rs. 750/- per month with the consent of Dwarka Nath and permission of the Court.

(2.) On 13-9-82 Dwarka Nath was discharged and the receiver was directed to vacate the shops and hand over the possession thereof to the discharged insolvent i.e. Dwarka Nath, Rishi Kumar filed objections on the ground that he was inducted in the shop as a tenant and as the disputed shops were situated in Sriganganagar where Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be referred as "the Rajasthan Premises Act") was in force and therefore he could not be evicted without having recourse to the provisions of that Act. According to Rishi Kumar only symbolic possession of the shop could be given to Dwarka Nath and physical possession could not have been directed to be given. Dwarka Nath contended that the shops were given on rent only for a limited period by the receiver and he was entitled to be put back in possession on his being discharged from insolvency and after the period for which the lease was given was over. On 12-12-83 Addl. District Judge, Sriganganagar held that in the circumstances of the case only symbolic possession could have been given and physical possession could not have been given to the discharged insolvent. Against this order the present appeal has been filed by Shri Dwarka Nath, the discharged insolvent. He died during the pendency of the appeal and Smt. Shanti Devi was brought on record as his legal representative. She also died and Shri Rajan Verma was brought on record as her legal representative.

(3.) It was contended on behalf of the appellant that there was no privity of contract between the insolvent Dwarka Nath and Rishi Kumar and there was no relationship of tenancy between them. It was contended that whatever the receiver did was done after obtaining specific orders from the Court and therefore the lease, if any, was executed for limited period during the pendency of the proceedings under the orders of the Court by the receiver. It was therefore contended that any such lease would come to an end as soon as the insolvent was discharged and lease period was over. It was further contended that the appellant was entitled to physical possession and not a symbolic possession because the lease was originaly granted to Rishi Kumar for a fixed term of one year and after expiry of that period from 1-4-80 to 30-9-81, thereafter from 1-10-81 to 31-3-82 and the last least was granted for the period from 1-4-82 to 30-9-82. It was contended that all the four leases were thus granted to the lessee in compliance with the orders of the Court and the receiver only acted as an agent of the Court. It was therefore contended that after the lease expired on 30-9-82 Rishi Kumar had no right to be on the premises because he had acquired the rights of occupancy up to 30-9-82 only. In the circumstanes of the case it was directed that protection of the Rajasthan Premises Act was not available to Rishi Kumar. It was further contended that Rishi Kumar had entered into the transaction with open eyes for a period of one year initially and every time the period of his occupancy was extended, it was for a fixed period under the permission of the Court. He cannot therefore claim to be entitled to some thing which the Court had not permitted the receiver to give to him. It was further contended that the premises belonged to the Municipal Council, Sriganganagar and therefore by virtue of Section 2 (2) of the Rajasthan Premises Act, the provisions of the Act did not apply to such property and for that reasons also Rishi Kumar could not have claimed protection under the Act. It was also contended that in the order of discharge passed by the District Court on 13-9-82 it was specifically directed that vacant possession of the shops be handed over to Dwarka Nath after the period of lease was over and therefore the same Court could not have taken directed symbolic possession only to be given of the shops.