Case: Basant Lal (Dead) By Lrs. and Another Vs. State of Uttar Pradesh and Another

by the High Court for the reasons that we shall give hereafter.It is no doubt true that s. 114-A of the Transfer of Property Act requires two conditions to be fulfilled before a suit for ejectment could lie-(1) that a notice should be given to the lessee specifying the particular breach complained of, and (2) that the lessee should be called upon to remedy the breach. If these conditions are fulfilled, then alone the lessor would be entitled to bring a suit for ejectment of the lessee. In the instant case, it is no doubt common ground that in the notice dated February 26, 1944 the appellants did not at all mention that the lessee should remedy the breach within a reasonable period to be fixed by the lessor, but that does not advance the case of the lessee because s.114-A merely bars a suit for ejectment of the lessee. In the instant case, as the land had been acquired for the purpose of the lessee, viz. , the Company, the question of filing a suit for ejectment did not arise at all. In fact, the lessees themselves filed a suit and obtained an injunction restraining the appellants from ejecting them before the land acquisition proceedings were taken in respect of the land in dispute. Thus, the non-compliance of sub-section (b) of s.114-A is of no consequence so far as this particular case is concerned.8. In the lease dated 2nd June, 1941, clause (6) clearly lays d own that within four months after the expiry of the period of the lease the lessee would be entitled to remove the stocks and machinery. The last part of that clause also empowers the lessor to re-enter possession and acquire title to the buildings, etc., that may be constructed by the lessee.9. Mr. Dixit, appearing for the State of U.P., relied on s.108(h) of the Transfer of Property Act which runs thus:"108(h). The lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased, but not afterwards, all things which he has attached to the earth, provided he leaves the property in the State in which he received it."10. He contended that even if the lease was determined, the title to the construction, etc., would vest in the lessor only if the lessee does not remove the materials at any time whilst he is in possession of the property leased. It was argued that in the instant case, as the leased land was acquired by the Government while the lessee was still in possession and continued to be in possession, by virtue of the land having been acquired, the lessor could not claim any title to the constructions or the materials. There could be no doubt that this is the real effect of clause (h) of s. 108 but s. 108 opens with a sort of a non-obstante clause which is as follows:"In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased."11. A construction of this clause clearly reveals that where there is a contract to the contrary the provisions of s.108(h) would not apply. In the lease dated June 2, 1941, there is not only an express clause under which the lessee was entitled to remove the stocks and materials within four months after the termination of the lease but thereafter there was another stipulation that in case the lessee failed to do so, all the buildings, etc., would become the property of the lessor. In this connection, the relevant part of the lease may be extracted thus:-"6. That within four months after the expiry of the period of lease, the lessees, their successors or assigns will be entitled to remove their stocks and machinery etc. pipelines, electric installation, fixtures, fittings, including stocks and materials of their constructions and fittings which stand on the plot of land shown by the letters A F H G in the accompanying map and will, on the expiry at the period of lease have over to the lessors the said plot of land (shown by letters A F H G in the accompanying map) duly levelled but the lessees would not be entitled to remove the boundary walls or any constructions or buildings which at present are created, which may be created during the period of lease on the plot of land shown by letters A B E F in the accompanying map and which is outside the compound of the lessees Oil Mills on the eastern side and on which at present stand twenty three quarters facing Hamirpur Road, as their quarters or any other buildings that may be created in their place or on their site as well as boundary walls would become the property of the lessors on the expiry of the period of lease, without any compensation being paid for the same by the lessors to the lessees." (Emphasis ours)12. Thus, although the lessee continued to remain in the premises after the expiry of the notice terminating the lease, yet by force of the express recitals in clause(6) extracted above, the buildings, etc., became the property of the lessors. Unfortunately, this aspect of the matter does not appear to have been considered by the High Court. In these circumstances, therefore, the conclusion is inescapable that after the Government acquired the property it was bound to pay compensation to the appellants not only for the land but also for the buildings and structures thereon.13. As, however, neither of the Courts below have assessed the compensation for the buildings, etc., as they stood in the year 1946 when the land was acquired, the matter will have to be determined by the District Judge afresh in so far as such compensation is concerned.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We find ourselves in complete agreement with the view taken by the High Court. There is no reliable evidence at all to show the exact date when the rent was accepted or, at any rate, the fact that the rent was accepted between the 26th February 1944, when the notice was sent, and the 30th June 1944, when the Company was asked to vacate the premises. Furthermore, the High Court has pointed out from the evidence of the appellants that the Company was treated as a trespasser ever since 26th February 1944, namely, the date when the notice was given and has held that any rent which the appellants accepted was really not rent but mere compensation for wrongful use and occupation of the land. In these circumstances, we fully endorse the finding of the High Court that there was no waiver of the notice such as was spelt by the District Judge. The High Court, however, upheld the order of the District Judge for a different reason which was that there could not be any forfeiture of the tenancy under s. 111(g) of the Transfer of Property Act unless a notice was given to the lessee by the lessor expressing his intention to terminate the lease and in addition a notice under s.114-A of that Act also affording an opportunity to the lessee to comply with the terms, the non-compliance of which would result in forfeiture. According to the High Court, as the second condition was not complied with, there was no forfeiture and hence the title to the structures, etc., continued to vest in the lessee and therefore after the Government acquired the land under the Land Acquisition Act, the appellants were not entitled to any compensation for the structures and the materials as claimed by them. We are, however, unable to agree with the view taken by the High Court for the reasons that we shall give hereafter.It is no doubt true that s. 114-A of the Transfer of Property Act requires two conditions to be fulfilled before a suit for ejectment could lie-(1) that a notice should be given to the lessee specifying the particular breach complained of, and (2) that the lessee should be called upon to remedy the breach. If these conditions are fulfilled, then alone the lessor would be entitled to bring a suit for ejectment of the lessee. In the instant case, it is no doubt common ground that in the notice dated February 26, 1944 the appellants did not at all mention that the lessee should remedy the breach within a reasonable period to be fixed by the lessor, but that does not advance the case of the lessee because s.114-A merely bars a suit for ejectment of the lessee. In the instant case, as the land had been acquired for the purpose of the lessee, viz. , the Company, the question of filing a suit for ejectment did not arise at all. In fact, the lessees themselves filed a suit and obtained an injunction restraining the appellants from ejecting them before the land acquisition proceedings were taken in respect of the land in dispute. Thus, the non-compliance of sub-section (b) of s.114-A is of no consequence so far as this particular case isthe lease dated 2nd June, 1941, clause (6) clearly lays d own that within four months after the expiry of the period of the lease the lessee would be entitled to remove the stocks and machinery. The last part of that clause also empowers the lessor to re-enter possession and acquire title to the buildings, etc., that may be constructed by theconstruction of this clause clearly reveals that where there is a contract to the contrary the provisions of s.108(h) would not apply. In the lease dated June 2, 1941, there is not only an express clause under which the lessee was entitled to remove the stocks and materials within four months after the termination of the lease but thereafter there was another stipulation that in case the lessee failed to do so, all the buildings, etc., would become the property of the, although the lessee continued to remain in the premises after the expiry of the notice terminating the lease, yet by force of the express recitals in clause(6) extracted above, the buildings, etc., became the property of the lessors. Unfortunately, this aspect of the matter does not appear to have been considered by the High Court. In these circumstances, therefore, the conclusion is inescapable that after the Government acquired the property it was bound to pay compensation to the appellants not only for the land but also for the buildings and structureshowever, neither of the Courts below have assessed the compensation for the buildings, etc., as they stood in the year 1946 when the land was acquired, the matter will have to be determined by the District Judge afresh in so far as such compensation isconstruction of this clause clearly reveals that where there is a contract to the contrary the provisions of s.108(h) would not apply. In the lease dated June 2, 1941, there is not only an express clause under which the lessee was entitled to remove the stocks and materials within four months after the termination of the lease but thereafter there was another stipulation that in case the lessee failed to do so, all the buildings, etc., would become the property of thealthough the lessee continued to remain in the premises after the expiry of the notice terminating the lease, yet by force of the express recitals in clause(6) extracted above, the buildings, etc., became the property of the lessors. Unfortunately, this aspect of the matter does not appear to have been considered by the High Court. In these circumstances, therefore, the conclusion is inescapable that after the Government acquired the property it was bound to pay compensation to the appellants not only for the land but also for the buildings and structures, neither of the Courts below have assessed the compensation for the buildings, etc., as they stood in the year 1946 when the land was acquired, the matter will have to be determined by the District Judge afresh in so far as such compensation is