Ran Singh v. Sagar Chand .

2. This is a revision petition against an order of the Appellate Authority, Kangra affirming the order of the Controller directing the petitioner to hand over possession of the premises to the respondent.

3. The respondent landlord applied under Section 13(3)(i)(iii) of the East Punjab Urban Rent Restriction Act for possession of the premises let out to the petitioner.

4. The application was based on several grounds one of them being that the respondent bona fide required the premises for his own occupation. The Controller ruled in favour of the respondent, and allowing the application directed the petitioner to put the respondent in vacant possession of the premises by January 15, 1974. An appeal by the petitioner has been dismissed by the Appellate Authority on September 16, 1976.

5. In this revision petition, it is urged on behalf of the petitioner that by accepting rent after serving the notice to quit the respondent must be deemed to have waived the notice. Reliance is placed on Section 113 of the Transfer of Property Act, Section 113 provides:

“A notice given under Section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it shoving an intention to treat the lease as subsisting.”

6. My attention has been invited to a number of cases where it has been held that acceptance of rent by the landlord after service of a notice to quit would ipso facto be treated as a revival of the tenancy and therefore attract Section 113. These cases, however, are not concerned with situations arising under the Rent Control Acts which, it cannot be disputed, have materially altered the general law.

7. In Pulin Behary Shaw… v. Miss Lila Dey…., AIR 1957 Cal 627 a Division Bench of the Calcutta High Court declared that payment and acceptance of rent after the termination of the contractual tenancy, in a case governed by the Rent Control Act, could be attributed either to a revival of the contractual tenancy or to the “statutory tenancy” governing the relationship between the parties by the operation of the Rent Control Act. It was painted out that in the circumstances as the payment and acceptance of rent was not unequivocal a waiver of the notice to quit could not be construed. In B.K Narayana Iyengar v. H.V Subba Rao, AIR 1958 Mys 113 the Mysore High Court laid down that while the payment and acceptance of rent for a period subsequent to the termination of the tenancy should be taken as evidence of an intention of the parties to treat the lease as subsisting, that was not true where the parties were governed by the Mysore House Rent and Accommodation Control Act. That was so because the tenant, notwithstanding the termination of the contractual tenancy, continued to be entitled by virtue of the statute to possession of the premises and was, therefore, liable to pay rent. The position was explained by the Supreme Court in Ganga Datta Murarka v. Kartik Chandra Das, AIR 1961 SC 1067 where it observed:

“Where a contractual tenancy to which the rent control legislation applies has expired by efflux of time or by determination by notice to quit, and the tenant continues in possession of the premises by virtue of statutory protection, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy.”

8. This case was followed by the Rajasthan High Court in Roshanlal v. Kailash Prasad, AIR 1973 Raj 141 where reference has also been made to Davies v. Bristow, (1920) 3 K.B 428 and Morrison v. Jacobs., (1945) 1 K.B 577. With respect I am in entire agreement with the view taken in those cases.

9. Unlike the position obtaining under the general law, where a tenant is no longer entitled to possession on the termination of his tenancy, the position is entirely different under the Control of Rent and Eviction Acts, where notwithstanding the termination of the contractual tenancy, the tenant continues to be entitled to possession. As a result of such continuing possession he becomes liable to pay to the landlord a sum equal to the rent. When the landlord accepts the amount, he does so on the basis that the tenant has become liable to pay it by reason of the operation of the statute. It would, therefore, not be correct to say that the landlord has agreed to accept the tenant under a renewed contract of tenancy. The first contention of the petitioner is rejected.

10. The second contention of the petitioner is that the termination of the tenancy is invalid inasmuch as the entire tenancy has not been terminated and part only of the premises are covered by the “notice to quit.” It is pointed out that a parcel of land was included within the tenancy. The learned District Judge has examined the material on the record and has come to the conclusion that the land was never included in the tenancy. The petitioner relies on a copy of the Jamabandi for the year 1967-68 which shows him entered as a “non-occupancy tenant” of the land. The presumption raised by this entry has been rebutted by material evidence on the record demonstrating that the land was never part of the premises let out to him.

11. The next contention of the petitioner is that the learned District Judge has erred in refusing compensation in respect of the structure raised by him on the property let out to him. The learned District Judge has found that the structure was in fact not raised by the petitioner. I have no hesitation in holding that the learned District Judge was justified in that finding.

12. The last contention of the petitioner is that when the respondent was due to retire from Government service only on May 31, 1967, he could not maintain his petition for ejectment on January 6, 1966 on the ground that he required the premises for his personal occupation. It is urged that the position obtaining on the date of the application must be taken into account, and on that date the landlord did not require the accommodation for himself. In my opinion, the contention is completely answered in J.G Kohli v. F.C Haryana, 1976 Ren CR 98 : (AIR 1976 Pun and Har 107) where the Punjab High Court has held that it is not the requirement of the law that the landlord's need must be immediate and existing on the date of the application for ejectment. It is apparent that the landlord is entitled to anticipate his requirement arising in a reasonably foreseeable future.

13. The revision petition is dismissed with costs.

14. Petition dismissed.