Rawat Hardeo Singh v. State Of Rajasthan .

1. This second appeal arises out of a suit for ejectment and recovery of arrears of rent. Some apartments in the fort of Kurabad belonging to the plaintiff were taken on rent for locating the office of the Ranger of the Forest Department of the State, on a rent of Rs. 15 per month. A document in this respect was executed on July 1, 1958, by Ratan Lal, Ranger, in favour of the plaintiff. Rent was paid up to 31st March, 1968. But thereafter, rent from 1st April, 1968 fell into arrears. According to the plaintiff, rent was payable month by month on the first day of the next succeeding month and as rent was not paid according to the terms of tenancy, a notice of three months' was given on December 2, 1967, terminating the tenancy on the expiry of the period of three months. The notice purported to terminate the tenancy and was also intended to fulfil the requirements of Section 80 of the Code of Civil Procedure. As the State Government did not make payment of arrears of rent from April 1, 1968, nor did it vacate the premises, a suit for ejectment and recovery of Rs. 120 as arrears of rent, at the rate of Rs. 15 per month, was filed by the plaintiff on December 10, 1968, in the court of Additional Munsiff, Udaipur.

2. In the written statement filed by the State, it was admitted that the premises in dispute were taken on monthly rent of Rs. 15/- for the use of the forest range office, but it was pleaded that no notice under Section 80 of the Code of Civil Procedure was served upon the defendant nor the tenancy was properly terminated by a notice for a period of three months. It was also stated that the defendant did not commit any default in payment of rent but the amount of arrears of rent was sent by money-order, which the plaintiff refused to accept.

3. The trial court held that the alleged contract executed by Ranger Ratan Lal in favour of the plaintiff was not valid because of the provisions of Article 299 of the Constitution, as there was no contract in writing expressed in the name of the Governor of the State. It was also held that a proper notice under Section 80 of the Code of Civil Procedure was not served upon the defendant tenant, as the cause of action did not arise prior to the termination of the tenancy. However, a decree for Rs. 120 towards arrears of rent was passed on the basis of the admission of the defendant contained in the written statement regarding the existence of the tenancy at the rate of Rs. 15 per month, but the suit for ejectment of the defendant from the premises in question was dismissed.

4. A first appeal preferred by the plaintiff in respect of the relief of ejectment of the defendant from the premises in dispute was also dismissed by the Civil Judge, Udaipur. The first appellate Court also held that there was no valid contract of tenancy between the parties, creating the relationship of landlord and tenant, as the document executed by the Ranger Ratanlal was not in accordance with the provisions of Article 299 of the Constitution of India. But it was held that under Section 70 of the Contract Act, the plaintiff was entitled to reasonable recompense for the use and occupation of the premises in dispute by the defendant. It was also held that there was no clear notice of three months duration, ending with the month of tenancy and as such there was no compliance with the provisions of Section 106 of the Transfer of Property Act and further that a combined notice under Section 80 of the Code of Civil Procedure and Section 106 of the Transfer of Property Act could not have been given as no cause of action arose to the plaintiff to file a suit for ejectment before the termination of tenancy and in the absence of a proper notice terminating the tenancy, no foundation was Lald for serving the notice under Section 80 of the Code of Civil Procedure.

5. In this appeal, learned counsel for the appellant did not contest the finding recorded by the two courts below that on account of the provisions of Article 299 of the Constitution, no valid contract of tenancy came into existence between the parties on the basis of the rent-note executed by Ranger Ratanlal on July 1, 1958. It is also not in dispute that oral terms of tenancy cannot be taken into consideration as there was no valid contract between the parties, as contemplated under Article 299 of the Constitution. However, it is urged that a decree for possession should have been passed by the two courts below on the basis of the admissions of the defendant State contained in their written statement. Although, there is no valid contract of tenancy between the parties, yet as held by their Lordships of the Supreme Court in Ram Kumar Das v. Jagdish Chandra Deo, AIR 1952 SC 23, a lease implied by law may be inferred from payment and acceptance of rent. Moreover, the fact of tenancy is admitted in the written statement filed by the defendant State. It is also admitted in the written statement that the premises in dispute were taken on rent for locating the forest range office of the Forest Department on a monthly rent of Rs. 15 from July 1, 1958, and it has further been stated therein that it was contemplated between the parties that a three months' notice on either side shall be required for terminating the tenancy. Thus even if the document executed by Ratanlal Ranger on July 1, 1958, as well as the oral agreement regarding the terms and conditions of tenancy are completely excluded from consideration, yet merely on the basis of the aforesaid admission made by the defendant in the written statement, it can fairly be held that there was relationship of landlord and tenant between the parties and that the premises were taken on rent at the rate of Rs. 15 per month and that three months' notice on either side was required for vacation of the premises.

6. In Mulamchand v. State of Madhya Pradesh, AIR 1968 SC 1218 it was held that the provisions of Article 299 of the Constitution are mandatory in character and the contravention of the provisions of Article 299 nullified the contract and the same was rendered void. It was also held in the aforesaid case that although the plea of estoppel or ratification of such a contract could not be entertained, yet if something is done like money is deposited or goods are supplied or services are rendered in terms of the void contract, then the provisions of Section 70 of the Contract Act would be applicable. The liability is imposed in such cases upon the person to whom something has been delivered or goods supplied or services rendered, without any intention to act gratuitously and such person having enjoyed the benefit thereof, to make compensation to the former in respect of or to restore the things supplied or delivered. It may be observed that in all civilised systems of law, proper remedy must be provided to prevent a person from getting unjust enrichment or unjust benefit and restitution must be allowed in all such cases so as to place the parties as nearly as possible in the same position, as if the contract had not come into existence. If the effect of the contract of tenancy being void, on account of the non-compliance of the provisions of Article 299 of the Constitution, would be to deprive the owner of the property of the possession thereof for all times to come, then I must express my dissent from such a proposition. The contract between the parties was not made in accordance with law and is consequently void. The person, who is the owner of the property, is then entitled to restitution when the justice of the case so requires. The defendant State could not be allowed to take benefit of the plea of invalidity of the contract, on account of the non-compliance with the provisions of Article 299 of the Constitution in order to remain in perpetual possession of the property belonging to the plaintiff, the possession of which was handed over bona fide by him to the State with the intention of obtaining reasonable recompense for the use and occupation of the premises by the State. Of course, the plaintiff is not entitled to any compensation or damages for breach of contract because there was no contract lawfully entered into between the parties. But when a thing has been delivered with the intention to letting the same, then naturally the person who had so delivered the thing is entitled to the re-delivery thereof, even if no lawful contract was entered into between the parties. Thus, the plaintiff was entitled to restitution from the defendant and thereby seek re-delivery of possession of the property, which was the subject matter of a void contract.

7. Moreover, in the present case, on account of the admissions made by the defendant State in the written statement, no difficulty regarding restitution of possession of the property in dispute arises on account of the absence of a valid contract between the parties, creating the relationship of landlord and tenant. The plaintiff was thus entitled to the restoration of the property, the possession of which he had parted with on the basis of the invalid contract.

8. On the question of notice, learned Civil Judge held that the parties contemplated a three months' notice, but according to him the notice ought to have terminated with the end of the month of tenancy. The view taken by the learned Civil Judge is completely erroneous in law. If there is a contract to the contrary and a different period of notice is contemplated by the parties, then the requirements of Section 106 of the Transfer of Property Act, relating to giving of 15 days' notice expiring with the end of the month of tenancy, have no application. A Division Bench of this Court in Suraj Mal v. Seth Sita Ram, AIR 1955 Raj 1 took the same view. There was an agreement between the parties of giving one month's notice and it was held that the tenant could vacate at any time on giving one month's notice and there was no necessity of such a notice expiring with the end of the month of tenancy. Thus the notice given in the present case, being for a period of three months', could not be held to be invalid on the ground that it did not end with the month of tenancy.

9. The other ground on which the learned Chief Judge held the notice to be invalid was that a combined notice under Section 106 of the Transfer of Property Act and Section 80 of the Code of Civil Procedure could not have been given, because the termination of tenancy was part of the cause of action for riling the suit for ejectment and the cause of action did not arise until the expiry of the period of three months' notice, contemplated by the parties. In the notice Exhibit 1, which was given on behalf of the plaintiff on December 2, 1967, it has been mentioned that the tenancy may be considered to have been terminated on the expiry of a period of three months from the date of the receipt of the said notice. It has also been stated in that notice Exhibit 1 that although a two months' notice is required under Section 80 C.P.C yet a notice for a period of three months was given, as the cause of action for filing the suit would arise on the expiry of the period of three months, when the tenancy would stand terminated. It is no doubt true that the termination of the tenancy by service of a proper notice to quit forms part of the cause of action for filing the suit for ejectment, yet there is no basis for the proposition that a notice under Section 80 C.P.C could not be given before the date of the termination of the tenancy. If both the provisions are mentioned, in the notice, namely Section 106 of the Transfer of Property Act as well as Sec. 80 of the Code of Civil Procedure and if it is specified in the notice that the tenancy would terminate on a particular day that the right to sue would arise on the expiry of the period of the notice under Section 80 of the Code of Civil Procedure. I am unable to appreciate as to why such a combined notice should be considered to be invalid. The purpose of giving a notice under Section 80, C.P.C is to give intimation to the person, to whom the same is addressed, about the claim of the person sending the notice and that a suit would be filed if the claim of the sender was not satisfied or adjusted. Although, the notice under Section 80, C.P.C is the foundation for filing a suit against the State or Union Government and is a mandatory provision, yet it has been held by their Lordships of the Supreme Court in S.N Dutt v. Union Of India , AIR 1961 SC 1449 that though the terms of Section 80, C.P.C may not be strictly complied with, it does not mean that the terms of the notice should be scrutinised in a pedantic manner and some common-sense should be applied to the notice under Section 80, C.P.C Although the provisions of Section 80, C.P.C are mandatory in nature and have to be strictly complied with before a suit against the Government or a public servant could be entertained, yet the notice should be understood with the application of little common sense and to give effect to any other view would be to sacrifice the interests of substantial justice at the altar of mere superficial view of the matter.

10. In Smt. Rayabai v. The State of Maharashtra, AIR 1973 Bom 59 a similar question arose before the Bombay High Court. A combined notice under Sec. 106 of the Transfer of Property Act and under Section 80 of the Code of Civil Procedure was given and it was argued that the notice was defective, as it was given during the period tenancy subsisted and the cause of action for giving a notice under Section 80, C.P.C had not matured by a proper termination of the tenancy. The argument was repelled by a learned Judge of the Bombay High Court and it was held that if the notice satisfies the requirements regarding the contents of both the provisions, Section 106 of the Transfer of Property Act and Section 80, C.P.C, such a notice cannot be held to be invalid. It was pointed out that the object of giving a notice under Section 80, C.P.C is to give the public officer concerned an intimation of the claim which is going to be made against him and to give him reasonable time to consider the validity of the claim and to afford him an opportunity of settling the claim, if so advised, without litigation. Thus the purpose of a notice under Section 80, C.P.C is to inform the defendant of the nature of the suit intended to be filed and the relief sought to be claimed. As the notice given in the instant case made full and complete averments regarding the termination of the tenancy on the expiry of the period of three months from the date of the receipt of the notice and also spoke in clear terms that notice under Section 80, C.P.C would expire upon the termination of the tenancy and that the right to sue would accrue to the plaintiff on the expiry of such notice, it cannot be said that the object of giving a notice under Section 80, C.P.C has not been fulfilled or that the requirements of that provision have not been satisfied by the notice given in the present case. Once it is brought to the notice of the proposed defendant that the sender of the notice intended to terminate the tenancy and that the notice under Section 80, C.P.C would terminate subsequent to or along with the termination of the tenancy, then the validity of such a notice cannot be challenged on the ground that the cause of action for serving a notice under Section 80, C.P.C had not arisen. In my view, the notice Exhibit 1, given in the present case, sufficiently conveyed the requisite information to the proposed defendant and learned Government Advocate was unable to point out as to whether any prejudice was caused to the State on account of the giving of a combined notice terminating the tenancy and under Section 80, C.P.C The notice given in the present case cannot be held to be invalid merely because a combined notice was given by the plaintiff. I find myself in agreement with the view taken by the Bombay High Court in Reyabai's case (AIR 1973 Bom 59) and hold that the notice given in the present case, though a combined one, was perfectly valid.

11. No other point was argued before me by learned counsel for the parties.

12. In the result, the appeal succeeds and is allowed and the decree passed by the two courts below is modified. The plaintiff's suit for possession of the premises in dispute is also decreed, along with the suit for recovery of Rs. 120 and pendente lite and future compensation, at the rate of Rs. 15 per month, until the date of delivery of possession.

13. The parties are, however, left to bear their own costs in all the courts.

14. Learned counsel for the defendant respondent prays that some time may be allowed to the State to vacate the premises. A period of three months is allowed to the defendant State to hand over vacant possession of the premises in dispute to the plaintiff appellant. The decree for ejectment shall not be executed before the expiry of three months.

Appeal allowed.