Ram Agyan Singh v. Murlidhar Agarwal, Allahabad High Court, Judgment, Law, casemine.com

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Case Number

First Appeal No. 82 of 1970

Judges

S.N Dwivedi
H.C.P Tripathi, JJ.

Acts

Rule 6 of the U.P (Temporary) Control of Rent and Eviction Rules
U.P (Temporary) Control of Rent and Eviction Act, 1947
Sec. 10 of the Agra Tenancy Act 1901.
Secs. 56 and 86, Land Revenue Act.
Rent Control and Eviction Acts
U.P Amending Act XXIV of 1952.
Sec. 23 Contract Act
Land Revenue Act
Rent Control Act

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Smart Summary

Factual and Procedural Background

The suit concerns a building at 31 Sheocharan Lal Road, Allahabad, which the parties agree is an "accommodation" under the U.P. (Temporary) Control of Rent and Eviction Act, 1947 ("the Act"). Ram Swarup Gupta (original owner) executed a registered lease dated 13 October 1952, granting occupation to the appellant, Ram Agyan Singh, for ten years from 1 January 1953. On 26 March 1962 Ram Swarup Gupta sold the accommodation to the plaintiffs (the present respondents), who instituted the suit seeking ejectment of the appellant. The plaintiffs alleged that after expiry of the lease term the appellant was a trespasser or, alternatively, a tenant in arrears of rent for more than three months and therefore liable to ejectment. The appellant denied default, claimed protection as a statutory tenant under the Act and contended he could not be evicted without permission of the District Magistrate; he also pleaded that he was holding over after the lease term. The plaintiffs replied that clause 20 of the lease-deed waived the benefits of the Rent Control and Eviction Acts and therefore barred the appellant from claiming protection under the Act.

The Civil Judge decreed the plaintiffs' suit and directed ejectment, holding (inter alia) that clause 20 prevented the appellant from claiming protection under Section 3 of the Act, and alternatively that even if clause 20 were void the entire lease would be void making the appellant a trespasser from the outset. The Civil Judge also held that an order under Rule 6 of the U.P. (Temporary) Control of Rent and Eviction Rules (a release order) amounted to permission of the District Magistrate under Section 3. The appellant appealed. The High Court (Dwivedi, J.) allowed the first appeal: it set aside the portion of the decree directing ejectment and dismissed the plaintiffs' suit for ejectment on the ground that it was instituted without the permission of the District Magistrate under Section 3. The Court modified certain monetary awards (specifying the period for which Rs. 1,280/- was decreed as rent) and set aside awards of damages at Rs. 1,200/- per month; other parts of the trial court's judgment and decree were left intact. Costs were directed to be apportioned according to success and failure.

Legal Issues Presented

Whether the appellant can claim protection under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, despite occupying the accommodation without an allotment order under Section 7(2).
Whether clause 20 of the lease-deed (which purports to waive the benefit of the Rent Control and Eviction Acts and declares those Acts inapplicable to the deed) bars the appellant from claiming protection under Section 3.
Whether a release order under Rule 6 of the U.P. (Temporary) Control of Rent and Eviction Rules amounts to the permission of the District Magistrate required by Section 3 of the Act.

Arguments of the Parties

Appellant's Arguments

The appellant asserted he is a statutory tenant under the Act and cannot be evicted without permission of the District Magistrate (i.e., he sought protection under Section 3).
He denied any default in payment of rent.
He pleaded that he was holding over after expiry of the lease term (an issue left open by the High Court once the suit was dismissed for want of DM permission).
He contended that clause 20 either does not bind him after expiry of the lease or, if it is claimed to bind him, that it is void as against public policy and the Act.

Plaintiffs' Arguments

The plaintiffs contended that because the lease was executed after commencement of the Act and the appellant had not obtained an allotment order under Section 7(2), the appellant would not be a "tenant" within the meaning of Section 3 on expiry of the lease.
They relied on an interpretation (and earlier practice of the Court) that a post-Act lease without an allotment order might be void, though they conceded that a Full Bench in Udho Dass v. Prem Prakash had held such a lease creates a landlord-tenant relationship during the term.
The plaintiffs relied on clause 20 of the lease (waiver clause) and argued it barred the appellant from claiming the benefit of the Act; they further argued the waiver applies beyond the lease term by reference to the word "ever" in the clause.
The plaintiffs argued that a release order under Rule 6 by the District Magistrate in their favour should be treated as the permission required by Section 3 for instituting an ejectment suit.
They advanced an argument (rejected by the High Court) that the extension of the duration of the Act by a subsequent amending statute meant the parties were bound only by the Act as it existed at execution and not by later extensions (an argument the Court described as ingenious but unacceptable).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Udho Dass v. Prem Prakash (1963 A.L.J. 406) — Full Bench	Held that a lease-deed executed after commencement of the Act without an allotment order is not void and creates landlord-tenant relationship between the parties during the term.	Relied on to hold that the appellant was a tenant during the lease term and hence a "tenant" within Section 2(g) and Section 3 for purposes of protection under the Act.
University of Allahabad v. Smt. Kamla Mehrotra (Second Appeal No. 301 of 1966; decided 10/12/1968)	A learned single Judge took the same view as the Court is taking regarding the meaning of "tenant" under the Act.	Cited to support the conclusion that a person occupying without an allotment order can nonetheless be a tenant under Section 3.
Sis Ram v. Asghar Ali (I.L.R. 35 All. 19)	Illustrates that parties cannot by agreement defeat statutory provisions enacted to achieve a public policy; a duty imposed by statute cannot be waived by private agreement.	Used as an example of the class of cases where statutes impose duties or protect classes and agreements that defeat those objectives are void; supports invalidity of clause 20.
Prokash Chandra v. E.E. Adlam (I.L.R. 30 Cal. 696)	Example of a contract void because it seeks to add to or derogate from the functions of a Court (a statutory duty cannot be waived by parties).	Illustrates the principle that parties cannot contract away a statutory duty; courts applied the principle in declaring clause 20 ineffective.
Bollapragada Ramamurthy v. Thammanca Gopayya (A.I.R. 1917 Mad. 892)	Cited among authorities that a statutory duty cannot be waived by private agreement.	Supports the general principle that clause 20's attempted waiver of statutory protections is void.
Bhagwati Prasad v. Chatrapal (A.I.R. 1947 All. 38)	Authority in the same category concerning non-waiver of statutory duties/ protections.	Referred to as part of the body of case law invalidating agreements that would defeat statutory protections.
Browning v. Morris (1778 2 Cowp. 790)	Principle that contracts prohibited by positive statutes enacted to protect one class from another are unenforceable and the protected party may recover despite participation in the transaction.	Quoted to emphasize that clause 20 (which seeks to defeat statutory protection) is forbidden where the statute protects a vulnerable class.
Kearley v. Thomson (1890 24 B.D. 742)	Illustrates the rule that in cases of oppressor and oppressed the protected party may recover regardless of an illegal contract.	Applied as authority for invalidity of agreements that would deprive a protected tenant of statutory safeguards.
Mistry Amar Singh v. Serwano Wofunira Kulubya (1963 3 W.L.R. 513)	Privy Council decision holding that a member of a protected class cannot be estopped by agreement from claiming statutory protection.	Relied upon to show the statute-like scheme comparable to Section 3; used to support voidness of clause 20 when it seeks to defeat statutory protection.
Kok Hoong v. Leong Cheong Kweng Mines Ltd. (1964 2 W.L.R. 150)	Privy Council decision used to illustrate social policy considerations that disallow enforcement of agreements that defeat statutory protections for classes or the public interest.	Quoted for the proposition that social policy embodied in a statute may prevent application of estoppel or private agreements contrary to that policy.
Pirag v. Sital Pershad (A.I.R. 1914 All. 374)	Another early authority on the non-waivability of statutory protections intended for the benefit of a class.	Listed among cases supporting the doctrine that statutory protections cannot be contracted away by those they protect.
Moti Chand v. Ikram Ullah Khan (A.I.R. 1916 P.C. 59)	Privy Council decision holding agreements contrary to the policy of a statute (Agra Tenancy Act) void; the policy could not be defeated by agreement.	Discussed at length and applied to the present facts to show compulsory protection is a feature of welfare statutes and such protection cannot be waived by executory agreement.
Dupagunata Subramanian v. Govind Petar Satyanadham (A.I.R. 1942 Mad. 391)	Authority in the class of cases where statute protects a class and agreements defeating that protection are void.	Included among supporting authorities for invalidity of clause 20.
Varada Borgar Raju v. Kirthali Avatharam (A.I.R. 1965 Andhra Pradesh 86)	Another cited decision exemplifying the principle that statutory protection cannot be waived by members of the protected class.	Used to support the Court's view that clause 20 is void as it seeks to deny statutory protection.
U.P. Electric Supply Co. Ltd. v. H.V. Bown (A.I.R. 1968 All. 95)	Cited as an authority on similar principles regarding non-waiver of statutory protections.	Referred to in the array of authorities reinforcing the Court's statutory-protection analysis.
Ram Kumar Das v. Jagdish Chandra Deo (A.I.R. 1952 S.C. 23)	Authority on acceptance of rent and recognition of tenancy by conduct of parties.	Applied to hold that because both original lessor and the plaintiffs accepted rent, the appellant was a tenant as against them.
Asa Ram v. Mst. Ram Kali (A.I.R. 1958 S.C. 183)	Case on tenancy arising from conduct and acceptance of rent by the landlord.	Used to support the conclusion that acceptance of rent established the appellant's tenancy vis-à-vis the plaintiffs.
Abhilakh Ram v. Uma Shanker (1950 A.L.J. 817)	A single Judge decision that ignored an agreement between landlord and tenant.	Noted as part of the mix of authorities; contrasted with other Division Bench decisions.
Sahab Uddin v. Mohan Lal (1951 A.L.J. 722)	Single Judge decision accepting that a tenant could waive the benefit of the Act.	Noted by the Court but distinguished because it was a single Judge decision with little discussion.
Radhey Lal v. Mst. Lareti (1952 A.L.J. 30)	Single Judge decision in the line of cases where waiver was permitted by a single Judge.	Cited and distinguished as not persuasive authority in light of Division Bench and higher authority reasoning.
Ram Agyan Singh v. District Magistrate (Writ Petition No. 1198 of 1966)	Single Judge decision referenced among authorities on waiver/tenant protection.	Mentioned as earlier single Judge authorities; not followed for broader doctrine.
Amulya Chandra Butta v. Mst. Bibi Ahmadi Begam (1954 A.L.J. 120)	Division Bench decision that did not give effect to an agreement contravening the Act.	Referred to as supportive Division Bench authority for not enforcing agreements that defeat Act protections.
L. Kanhaiya Lal v. Sri Unraro Singh (1958 A.L.J. 640)	Division Bench decision declining to enforce agreement contrary to the Act.	Cited to reinforce the Court's view that clause 20 should not be given effect.
S. Raja Chetty v. Jagannathdas Govindas (A.I.R. 1950 Mad. 284)	Madras High Court allowed a landlord to abridge his own rights by agreement; distinguishable because the landlord was not among a protected class.	Distinguished on facts and policy; the Court explained the difference between allowing a landlord to abridge his rights and allowing a tenant to be deprived of statutory protection.
Satish Chandra Ray Chaudhury v. Bimalendu Sen (A.I.R. 1951 Assam 27)	Assam High Court view aligning with single Judge decisions allowing waiver.	Noted, but treated as less persuasive in light of Division Bench and Privy Council precedents dealing with statutory protection.
Kok Hoong / Hoong's case (Privy Council — discussed in text)	Privy Council principle that social policy underlying a statute can preclude application of estoppel or similar private-law bars where public interest or protection of a class is involved.	Quoted to underline that public policy in statutes may require denial of legal validity to certain transactions notwithstanding private estoppel or conduct.

Court's Reasoning and Analysis

The Court structured its reasoning around the two central issues it identified: (1) whether the appellant is a "tenant" entitled to protection under Section 3 of the Act despite lacking an allotment order under Section 7(2); and (2) whether clause 20 of the lease-deed can bar the appellant from claiming such protection.

On the meaning of "tenant" and Section 3:

The Court observed that the Full Bench decision in Udho Dass v. Prem Prakash holds that a lease executed after commencement of the Act without an allotment order is not void and does create a landlord-tenant relationship for the term. The plaintiffs had conceded that the appellant was a tenant during the lease term by virtue of that decision.
The Court rejected the plaintiffs' submission that absence of an allotment order excludes the appellant from being a "tenant" under Section 3. It emphasized the definition of "tenant" in Section 2(g) — a person by whom rent is or but for a contract would be payable — and noted the parties' conduct (payment and acceptance of rent) established tenancy as against the plaintiffs.
The Court reasoned that construing "tenant" in Section 3 to mean only a tenant under an allotment order would deprive occupants without allotment orders of important statutory privileges (citing Sections 4, 7-B, 7-D, 7-E and other provisions) and would frustrate the Act's purpose; therefore the appellant is a "tenant" under Section 3.

On clause 20 and its legality:

The Court examined clause 20, which purported that "no party will ever claim the benefit" of the Rent Control and Eviction Acts and that those Acts were inapplicable to the deed.
It rejected the appellant's technical reading that the clause bound the parties only during the lease term: the use of the word "ever" indicated an intention to make the waiver perpetual, and hence if valid would bar the appellant even after expiry of the lease.
The Court applied established principles (cases grouped into three classes) that agreements cannot validly (a) waive a statutory duty, (b) deprive an oppressed/protected class of statutory protection, or (c) nullify social policy embodied in statutes benefiting a section of the public. It concluded clause 20 falls within these categories and is therefore void.
Specifically, Section 3 confers power coupled with duty on the District Magistrate to grant or refuse permission for ejectment after considering both landlord and tenant interests; parties cannot agree to oust that duty or power. Clause 20 was found to seek to waive duties of both the District Magistrate and the court and thus to be void.
The Court rejected the plaintiffs' argument that the release order under Rule 6 should be treated as permission under Section 3: a Rule 6 release order concerns vacant accommodations and considers only the landlord's needs, whereas Section 3 permission concerns occupied accommodations and requires consideration of the tenant's needs as well; thus the two are distinct and a Rule 6 release is not equivalent to Section 3 permission.

On tenancy by conduct and severability:

The Court held clause 20 severable from the remaining terms of the lease. Independently, there was ample evidence (acceptance of rent by the original lessor and by the plaintiffs; specific admitted payments) that the appellant was a tenant as against the plaintiffs up to specified dates.

Conclusion of analysis:

Because the appellant was a tenant under Section 3 and the plaintiffs' suit for ejectment was instituted without the permission of the District Magistrate as required by Section 3, the suit could not be entertained and had to be dismissed. The Court therefore set aside the parts of the trial decree directing ejectment and the award of monthly damages at Rs. 1,200/- from the date of the suit until recovery of possession; it preserved and modified other monetary awards (notably decreeing Rs. 1,280/- as rent due for a specific period).

Holding and Implications

Holding:

APPEAL ALLOWED — The plaintiff's suit for ejectment is dismissed for want of the permission of the District Magistrate under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947; the trial court's decree insofar as it directed the ejectment of the appellant is set aside.

Specific consequential orders and immediate effects on the parties:

The trial court's judgment and decree directing ejectment of the appellant from premises No. 31 (New) and 27 (Old) Sheocharan Lal Road, Allahabad, are set aside.
The trial court's monetary awards largely stand subject to modification: the amount of Rs. 1,280/- is decreed as rent due by the appellant for the period from 1 December 1967 to 2 January 1968; the award of damages at Rs. 1,200/- per month from the date of suit until recovery of possession is set aside. Other decretal parts (including costs of notice and Bhumi Bhawan Kar) remain but are subject to the Court's modification and apportionment directions.
As to costs, the High Court directed that costs in both courts shall be awarded according to success and failure of the parties (i.e., parties shall pay and get costs in accordance with outcome).
The release order under Rule 6 of the Rules is not to be treated as equivalent to permission under Section 3; therefore, the absence of express Section 3 permission is fatal to the plaintiffs' ejectment claim.

Broader implications:

The Court's decision applies established principles concerning the interpretation and effect of welfare-oriented statutory provisions: where a statute confers protections and imposes duties (here, protecting tenants from eviction without District Magistrate permission), private agreements that seek to oust such statutory protection or duty are void. The opinion relies upon prior Full Bench, Division Bench, Privy Council, and other authorities to reach this conclusion. The decision resolves the dispute between these parties on the basis of statutory construction and existing precedents; the Court did not state that it was laying down a new, free-standing precedent beyond its application of those authorities.

Disposition: Appeal allowed. The plaintiffs' suit for ejectment is dismissed for want of District Magistrate's permission under Section 3; specified monetary decrees modified as recorded above.

Appeal allowed.

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Ram Agyan Singh v. Murlidhar Agarwal

Dwivedi, J.:— We allow the First Appeal and set aside the judgment and decree of the Civil Judge in so far as he directs the ejectment of the appellant from the premises No. 31 (New) and 27 (Old) Sheocharan Lal Road, Allahabad. The judgment and decree awarding the amounts of Rs. 1,280/- as rent due, Rs. 100/- as costs of notice and Rs. 4,518/- as Bhumi Bhawan Kar will, however, stand subject to this modification that the first amount of Rs. 1,280/- is decreed by us as rent due by the appellant from the 1st of December, 1967 to 2nd of January, 1968. The judgment and decree awarding damages at the rate of Rs. 1,200/- per month to the plaintiff-respondent from the date of the suit till the recovery of actual possession are set aside. The remaining part of the judgment and decree of the trial court stands. But as regards the costs here as well as in the trial court parties shall pay and get costs in accordance with their success and failure.

2. We shall give our reasons later.

3. Dwivedi, J.:— We are now giving reasons in support of our order dated October 28, 1970, dismissing the plaintiff's suit for ejectment of the defendant-appellant.

4. We are concerned with a building situate at 31 Sheocharan Lal Road, Allahabad. Admittedly it is an accommodation under the U.P (Temporary) Control of Rent and Eviction Act, 1947 (herein below called the Act).

5. The former owner of the accommodation was one Ram Swarup Gupta. He let it out to the appellant, Ram Agyan Singh. The lease is a registered document. It was executed on October 13, 1952. The lease was for a term of ten years. The term was to commence from January 1, 1953.

6. Ram Swarup Gupta sold the accommodation to the plaintiffs by a registered sale deed, dated March 26, 1962. The suit out of which this appeal has arisen was instituted by them. The main relief claimed by them is the ejectment of the appellant from the accommodation. In their plaint they alleged that after the expiry of the term of the lease the appellant is a trespasser; even if he is still a tenant, he is liable to ejectment as he is a defaulter in payment of arrears of rent for more than three months. The appellants filed a written statement contesting their claim. He alleged that he is a statutory tenant under the Act and cannot be evicted without the permission of the District Magistrate. He denied that he has defaulted in payment of rent. He also pleaded that he was holding over after the expiry of the term of the lease. The plaintiffs then filed a replication. In their replication they alleged that as under clause 20 of the lease-deed the appellant has agreed to waive the benefit of the Act, he cannot now claim to be a statutory tenant.

7. The Civil Judge decreed the suit. He found that the appellant was not holding over after the expiry of the term of the lease. He also found that prima facie the appellant is protected by Sec. 3 of the Act. But he held that he cannot claim protection of Sec. 3 on account of clause 20 of the lease-deed. He also held that even if clause 20 is void, the entire lease will be void and that the appellant's possession will then be that of a trespasser from the very outset. Sec. 3 will accordingly not apply. In the end, he also held that the order passed under Rule 6 of the U.P (Temporary) Control of Rent and Eviction Rules for release of the accommodation in favour of the plaintiffs amounts to permission of the District Magistrate under Sec. 3. So the suit should be deemed to have been filed with the permission of the District Magistrate under Sec. 3.

8. Obviously the two nerve-centre issues of the case are: (1) whether the appellant can claim protection of Sec. 3 of the Act; (2) whether clause 20 of the lease deed bars him from seeking that protection. The other issues on which the Civil Judge has recorded findings are appendages to these central issues. Accordingly we will first examine these two issues.

9. Sec. 3(1) of the Act, in so far as it is material, reads…….., no suit shall, without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation…………” Sec. 3 gives qualified protection from eviction to a “tenant”. “Tenant” is defined in Sec. 2(g). “Tenant” is the person by whom rent is, or but for a contract, express or implied, would be payable for any accommodation.”

10. Although the lease-deed was executed after the commencement of the Act, it is admitted by the parties that the appellant never obtained an allotment order in his favour from the District Magistrate under Sec. 7(2) of the Act. The argument of counsel for the plaintiffs is that as the appellant had not obtained an allotment order, he would not be a tenant under Sec. 3 on the expiry of the term of the lease. It may be mentioned at this stage that for some time this Court has been taking the view that a lease-deed executed after the commencement of the Act without an allotment order of the District Magistrate under Sec. 7(2) is void. But in Udho Dass v. Prem Prakash 1963 A.L.J 406. a Full Bench of our Court has now taken the view that such a lease-deed is not void and that it creates between the parties the relationship of landlord and tenant. Counsel for the plaintiffs has, therefore, conceded that by virtue of the lease-deed the appellant became the tenant of Ram Swarup Gupta and of the plaintiffs during the term of the lease. But relying on the said Full Bench decision he submits that as the District Magistrate is not bound by the lease and as he can evict the appellant under Sec. 7-A of the Act, the appellant is not a tenant under Sec. 3. We are unable to accept this submission. The appellant is a tenant according to the Full Bench decision. As he had been paying rent to Ram Swarup Gupta and, after sale by him, to the plaintiffs, he is a tenant within the meaning of Sec. 2(g) of the Act. Accordingly he is a tenant under Sec. 3. The landlord and tenant by their agreement cannot bind the District Magistrate and cannot bruze his power under Sec. 7-A. The District Magistrate may treat the accommodation as vacant and evict therefrom the tenant who is in occupation of the accommodation without an allotment order. This is his statutory obligation. But the plaintiffs are estopped from denying that the appellant is their tenant. As against them the appellant is a tenant under Sec. 3. The Act itself makes a distinction between a tenant by virtue of an allotment order and a tenant otherwise than by virtue of an allotment order. In most of the sections of the Act the word “tenant” alone is used. But Sec. 7-B provides that when any tenant, who is in occupation of an accommodation in pursuance of an order made under Sec. 7(2), is in arrears of rent for more than three months, the landlord may make an application to the Munsif for an order of ejectment of the tenant from the accommodation. It will thus appear that the Act applies not only to a tenant who occupies an accommodation under an allotment order under Sec. 7(2) but also to a tenant who is occupying the accommodation without an allotment order. If the word “tenant” in Sec. 3 is construed as “tenant under an allotment order”, then the tenants who have been occupying an accommodation without an allotment order will be deprived of several material privileges conferred upon them by the Act. For instance. Sec. 7-D provides that no landlord shall without just and sufficient cause cut off or withhold any of the amenities enjoyed by the tenant. The tenant may, if the landlord cuts off or withholds the amenities, make an application to the District Magistrate complaining of such contravention. The District Magistrate shall hold an enquiry. If he is satisfied that there has been a contravention, he will direct that the tenant may have such amenities restored and the cost thereof may be deducted from the rent payable to the landlord. Sec. 7-E provides that every landlord shall be bound to keep the accommodation in the occupation of a tenant wind-proof and waterproof and to carry out other repairs which he is bound by law, contract or custom. If the landlord fails to carry out annual white-washing, recolouring and periodical repaire, the tenant may notice require him to carry out the same. If the land lord fails to do so, the tenant may himself carry out the same at a cost not exceeding one month's rent, for the accommodation and deduct the amount from the rent. Sec. 4 is important. It provides that it shall not be lawful for a landlord to take or receive for admitting a tenant to any accommodation any premium or other additional payment of any sort whatsoever over and above the rent payable therefor under the provisions of the Act. There is no doubt that the word “tenant” in Sec. 4 should be construed to include not only a tenant who occupies an accommodation under an allotment order but also a tenant who occupies an accommodation under a lease from the landlord but without an allotment order. If the word “tenant” in Sec. 4 is construed as suggested by counsel for the plaintiffs, its purpose will be largely frustrated.

11. In University of Allahabad v. Smt. Kamla Mehrotra Second Appeal No. 301 of 1966 decided on December 10, 1968., a learned single Judge has taken the view which we are now taking. Having regard to the definition—clause, the scheme and other provisions of the Act, we are of opinion that the appellant is a tenant, under Sec. 3 even though he is occupying the accommodation without an allotment order. He accordingly gets protection under Sec. 3. The plaintiffs suit for his ejectment will be liable to be dismissed if it is found that it was instituted without the permission of the District Magistrate.

12. Clause 20 of the lease-deed provides: “That this agreement of lease has been made between the parties with the knowledge of the existing Rent Control and Eviction Acts. The parties do hereby agree and declare that no party will ever claim the benefit of the said Acts and that the provisions of the said Acts have been agreed by mutual consent to be inapplicable to this deed.” Before we examine the legality of clause 20, we shall clear off the two hurdles placed by counsel for the appellant. It is firstly said that clause 20 seeks to bind the parties during the term of the lease only; it does not bind the parties after the expiry of the term. We do not agree with this interpretation of clause 20. Clause 20 expressly states that no party will “ever” claim the benefit of the Act. It seems to us that the word “ever” clearly suggests that the parties agreed that they would never claim the benefit of the Act. So if clause 20 is valid, it will estop the appellant from seeking the benefit of Sec. 3 even after the expiry of the term of the lease. The Act is a temporary Act. In the first instance it was enacted for a period of two years. But its term was extended upto 1952 by an Amending Act in 1948. Its term was again extended upto 1954 by the U.P Amending Act XXIV of 1952. The term of the Act has again and again been extended so that on the date of the institution of the suit the Act was in force. Clause 20 uses the word “existing Rent Control and Eviction Acts” in its first sentence. The argument of the appellant is that this phrase means the Act as it stood at the time of the execution of the lease-deed. The parties are bound by that Act only. It is said that when the life of the Act was extended by the U.P Amending Act XXIV of 1952 after the execution of the lease-deed, the Act became a new Act and that the parties are not bound by this new Act. It is an ingenious argument and does not appeal to us at all. Merely because the life of the Act was extended by the U.P Amending Act XXIV of 1952 after the execution of the lease-deed, it cannot be held that the Act after this extension is a new Act.

13. We shall now examine the legality of clause 20. Clause 20 contains two stipulations. The first stipulation is that the parties will never claim the benefit of the Act. The second stipulation is that the provisions of the Act will be inapplicable to the lease-deed. The Civil Judge has held that having regard to Sec. 23 Contract Act the second stipulation is clearly void. But he has taken the view that the first stipulation is out of the grip of Sec. 23. We have not been able to appreciate this distinction. The effect of the two stipulations is one and the same. The object of both the stipulations is to defeat the provisions of the Act.

14. According to the preamble the purpose of the Act, is inter alia, “to prevent the eviction of tenants” from an accommodation. Sec. 3(1) is cast in imperative language. It uses the expression, “shall be filed.” Again, the language is prohibitive—“no suit shall without the permission of the District Magistrate, be filed—in any civil court.” If any landlord institutes a suit for eviction of his tenant without the permission of the District Magistrate, he commits an offence and is punishable under Sec. 15 of the Act. The object of Sec. 3 is to give protection to a tenant from eviction from an accommodation. The policy of the legislature is that the District Magistrate should consider the claim of the landlord and the needs of the tenant before granting permission. Sec. 3 has been enacted on account of alarming scarcity of accommodation in the State. The legislature has enacted the law with the laudable object of protecting tenants from rack-rent and other kinds of exploitation by greedy and grasping landlord. Clause 20 excludes the operation of Sec. 3. It is dearly forbidden by the prohibitive language of Sec. 3. In any case, it defeats the object of Sec. 3. It appears to us that clause 20 is void.

15. Courts have held an agreement to be void under Sec. 23 or a similar rule in three types of cases: (1) a statute may encumber a person with a duty; (2) a Statute may be enacted for protecting the oppressed from the oppressor; (3) a statute may be enacted with the intention of protecting the general public or a section of the general public. In the first class, the person charged with the statutory duty cannot waive the performance of his duty. He may waive rights but not duties. Sis Ram v. Asghar Ali I.L.R 35 All. 19., Prokash Chandra v. E.E Adlam I.L.R 30 Cal. 696., Bollapragada Ramamurthy v. Thammanca Gopayya A.I.R 1917 Mad. 892., Bhagwati Prasad v. Chatrapal A.I.R 1947 All. 38.. In the second class, the oppressed cannot waive the statutory protection. Browning v. Morris 1778 2 Cowp. 790., Kearley v. Thomson 1890 24 B.D 742.. In the third class also, a member of the protected class cannot waive the statutory protection. Mistry Amar Singh v. Serwano Wofunira Kulubya 1963 3 Weekly Law Reports 513.. Kok Hoong v. Leong Cheong Kweng Mines Ltd. 1964 2 W.L.R 150., Sis Ram v. Asghar Ali, Pirag v. Sital Per shad A.I.R 1914 All. 374., Moti Chand v. Ikram Ullah Khan A.I.R 1916 P.C 59., Dupagunata Subramanian v. Govind Petar Satyanadham A.I.R 1942 Mad. 391., Varada Bor gar Raju v. Kirthali Avatharam A.I.R 1965 Andhra Pradesh 86. and U.P Electric Supply Company Limited v. H.V Bown A.I.R 1968 All. 95..

16. Taking up the cases in the first class, in Sis Ram's case a tenant had agreed to pay his landlord for the use of land rent as well as certain zamindari dues in kind. He failed to pay zamindari dues and the landlord instituted a suit for recovery of those dues. A Division Bench of this Court held that the contract was void as it was intended to defeat the object of Secs. 56 and 86, Land Revenue Act. According to the Court, the object of these sections was to rid the Courts of such claims. In Prokash Chandra Sarkar's case, the defendant promised to pay the Receiver salary without leave of the Court. He however, failed to pay the agreed salary. The Receiver then instituted a suit for recovery of the agreed salary. The agreement was held to be void for the Court alone could determine the fee or commission of the Receiver and parties could not by their act add or derogate from the functions of the Court without authority from the Court itself. In Ramamurthy's case the defendant had agreed not to plead the bar of limitation. It was held that the agreement was void. Same view was taken in Bhagwati Prasad's case. It will thus appear that in each of these cases a duty was cast on the Court. The duty was either not to decide claims barred by Secs. 56 and 86, Land Revenue Act or suo motu dismiss the suits barred by limitation, or fix the fee payable to the Receiver for the performance of his duties. As the Court itself could not waive these duties, it was held that the parties, by agreement, could not create a situation in which the Court could be absolved from performing its duties.

17. Sec. 3 gives power to the District Magistrate to grant or refuse permission in appropriate cases after considering the claim of the landlord and the needs of the tenant. Power is coupled with a duty. The District Magistrate cannot agree to give up performance of this power coupled with duty. What cannot be done directly cannot also be done indirectly. As he himself cannot waive this power coupled with a duty, the parties cannot form an agreement which will deprive the District Magistrate of the power coupled with duty.

18. Again, if the landlord fails to satisfy the Court that he has obtained the permission of the District Magistrate, the Court is bound to dismiss the suit. Clause 20 cannot be deployed to absolve the court from this duty.

19. The effect of clause 20 is the waiver of the duties of the District Magistrate and the court. It is therefore void.

20. In Browning's case Lord Mansfield said: “But, where contracts or transactions are prohibited by positive statutes, for the sake of protecting one set of men from another set of men; the one, from their situation and condition; being liable to be oppressed or imposed upon by the other; there, the parties are not in pari delicto; and in furtherance of those statutes, the person injured, after the transaction is finished and completed, may bring his action and defeat the contract. In Kearley's case; Lord Justice Fry said: “In these cases of oppressor and oppressed, or of a class protected by statute, the one may recover from the other, notwithstanding that both have been parties to the illegal contract.” In Kulubya's case Sec. 2 of, the Land Transfer Ordinance provided that no non-African shall without the consent in writing of the Governor occupy or enter into possession of any land of which an African is registered as proprietor or make any contract—to purchase or to take on lease or accept a gift inter vivos or a bequest of any such land or of any interest therein other than a security for money without the consent in writing of the Governor. Kulubya let out his land to Amar Singh without the permission of the Governor. Thereafter he instituted a suit for recovery of possession. Amar Singh pleaded the agreement as bar. His plea was negatived by the Privy Council. It was held that as Kulubya was a member of the protected class of Africans, the agreement will not estop him from claiming possession. The language and scheme of Sec. 3 of the Act resemble the language and scheme of Sec. 2 of the Ordinance. The object of clause 20 is forbidden by Sec. 3. At any rate, the object of clause 20 is to defeat the provisions of Sec. 3.

21. In Hoong's case the appellant sued the respondent for money. The respondent pleaded that the appellant was estopped from claiming the amount by virtue of a previous judgment given in an earlier action, between them. In other words, the plea of res judicata was taken by the respondent. The amount was due under an agreement in writing. The respondent alleged that the appellant was a moneylender at the time of the agreement. As the agreement was not registered under the provisions of the Bills of Sale Ordinance, it was void and unenforceable. It was further alleged that the appellant not having furnished any note or memorandum of the agreement as required by Sec. 10 of the Moneylenders Ordinance to the respondent before making of the loan, the agreement was void. The earlier judgment was there on the point. It was against the respondent. At the same time it was found that the agreement was in contravention of Sec. 10 of the Moneylenders Ordinance. The question then arose whether the respondent could get over the bar of res judicata by relying on Moneylenders Ordinance. The Privy Council held that it could. It was held that the agreement was void. Elaborating on this aspect, Viscount Radclifle said: “In their Lordship's opinion a more direct test to apply in any case such as the present…………. is to ask whether the law that confronts the estoppel can be seen to represent a social policy to which the court must give effect in the interests of the public generally or some section of the public, despite any rules of evidence as between themselves that the parties may have created by their conduct or otherwise.” It was further said; “General Social policy does from time to time require the denial of legal validity to certain transactions by Lertain persons. This may be for their own protection, as in the case of the infant or other category of persons enjoying what is to some extent a protected status, or for the protection of others who may come to be engaged in dealing with them, as, for instance, the creditors of a bankrupt. In all such cases there is no room for the application of another general and familiar principle of the law that a man may, if he wishes, disclaim a statutory provision enacted for his benefit, for what is for a man's benefit and what is for his protection are not synonymous terms. Nor is it open to the court to give its sanction to departures from any law that reflects such a policy, even though the party concerned has himself behaved in such a way as would otherwise the his hands.” In Sis Ram's case the Court held that the policy of the Land Revenue Act was to protect tenants from payment of anything which is not rent for use of land. Same view was taken in Pirag's case.

22. It is proper to deal with Motichand's case at some length. Ikram Ullah agreed to execute a deed of relinquishment of his rights in the Sir Lands when he sold the proprietary interest to Motichand. Later he went back on his agreement and did not execute the relinquishment. Thereupon Motichand instituted a suit for damages for breach of the agreement. The suit was dismissed by our Court. The Privy Council affirmed our decision. It was held that the agreement was unlawful because it was in contravention of Sec. 10 of the Agra Tenancy Act 1901. Refuting the argument based on agreement, Sir John Edge said: “It appears to their Lordships that it cannot be doubted that the ‘policy of Act No. 11 of 1901 is to secure and preserve to a proprietor whose proprietary rights in a mahal or in any portion of it are transferred otherwise than by gift or by exchange between co-sharers in the mahal a right of occupancy in his “Sir” lands, and—in the land which he has cultivated continuously for twelve years at the date of the transfer, and that such right of occupancy is by the Act secured and preserved to the proprietor, who becomes by a transfer the ex-proprietor whether he wishes it to be secured and preserved to him or not and notwithstanding any agreement to the contrary between him and the transferee. The policy of the Act is not to be defeated by any ingenious devices, arrangements, or agreements between a vendor and a vendee for the relinquishment by a vendor of his “sir” land or land which he has cultivated continuously for twelve years at the date of the transfer………. All such devices, arrangements and agreements are in contravention of the policy of the Act and are contrary to law and are illegal and void, and cannot be enforced by the vendee in any civil court or in any Court of Revenue.” The concept of compulsory protection expounded by Sir John Edge is a fundamental tenant of the welfare State. On account of his weaker position the tenant is given protection under Sec. 3. He cannot be evicted without the permission of the District Magistrate even though he may have earlier agreed to give up the benefit of Sec. 3.

23. Clause 20 falls in the second and third classes also and is void for it seeks to withhold protection from a member of the protected class in contravention of the social policy animating Sec. 3. The appellant cannot waive the protection of Sec. 3. We are unable to appreciate how an inference may be drawn from the fact that the appellant may voluntarily vacate the premises on the expiry of the term of his lease that clause 20 is not void. There is a world of difference between the appellant voluntarily vacating the premises on the expiry of the term of the lease and his eviction through Court against his wishes. A tenant may voluntarily vacate the premises on the expiry of the term of his lease. The act does not prohibit him from doing so. It will be his unilateral action. It does not, however, follow from this that if he had earlier made an executory promise of disclaiming the protection of the Act, he cannot resist eviction when he later changes his mind and decides not to vacate the premises. An executory promise will be void and unenforceable if the tenant later changes his mind and refuses to vacate. In such a contingency the landlord cannot rely on the executory promise to get over the roadblock of Sec. 3. Sec. 3 prohibits him from evicting the tenant against his wishes without the permission of the District Magistrate.

24. In Abhilakh Ram v. Uma Shanker 1950 A.L.J 817. a learned single Judge ignored the agreement between the landlord and the tenant. But in Sahab Uddin v. Mohan Lal 1951 A.L.J 722., Radhey Lal v. Mst. Lareti 1952 A.L.J 30. and Ram Agyan Singh v. District Magistrate Writ Petition No. 1198 of 1966. was held that the tenant could waive the benefit of the Act. These decisions are decisions by a single Judge. There is no discussion in these cases. In Amulya Chandra Butta v. Mst. Bibi Ahmadi Begam 1954 A.L.J 120. and L. Kanhaiya Lal v. Sri Unraro Singh 1958 A.L.J 640. the Court did not give effect to the agreement between the landlord and the tenant which was in contravention of the Act. These are Division Bench decisions.

25. In S. Raja Chetty v. Jagannathdas Govindas A.I.R 1950 Mad. 284. there was an agreement between a landlord and his tenant that the former may evict the tenant if the latter was in arrears of rent for two months. The Rent Control Act gave the landlord the right to evict a tenant if he was in arrears for one month only. The landlord instituted a suit for eviction of the tenant on the ground that he was in arrears of rent for one month. The tenant pleaded that the landlord was estopped by the agreement from taking the benefit of the Act. The Madras High Court accepted his plea and dismissed the suit. The case is clearly distinguishable because the landlord is not a member of the protected class nor is he oppressed. Again, there was no question of waiver of duty. Indeed, Chief Justice Rajamannar conscious of these distinctions said: “Even assuring that a plausible argument can be raised that on the grounds of public policy the tenant should not be bound by any term inconsistent with the Act which is to his detriment, we see no offence to public policy in allowing landlord to abridge his rights. Otherwise it comes to this, that an Act intended to prevent unreasonable eviction of tenants can be used for the perpetration of the very thing sought to be prevented.” In Satish Chandra Ray Chaudhury v. Bimalendu Sen A.I.R 1951 Assam 27. the Assam High Court took the same view as in Shahab Uddin's case. But in this case also there is no discussion of the three types of cases already referred to by us.

26. Clause 20 is, we think, severable from the rest of the terms of the lease deed. Assuming that clause 20 is in severable and even then the appellant is the tenant of the plaintiffs. There is ample evidence to show that Ram Swarup Gupta had been accepting rent from the appellant. Indeed he instituted a suit for recover of rent. That suit has now been decreed by the High Court. There is also evidence to prove that the plaintiffs, have also accepted rent from the appellant. In paragraph 9 of the plaint, the plaintiffs claimed payment of rent of Rs. 11,032.25 from the appellant for the period between March 26, 1962 and December 31, 1962. It is admitted in paragraph 10 of the plaint that on March 26, 1963 the appellant paid to the plaintiffs counsel, Sri S.N Misra the sum of Rs. 11,032.25 through a Bank pay order towards arrears of rent. Thus both Ram Swarup Gupta as well as the plaintiffs have accepted that the appellant was their tenant till December 31, 1962. They have accepted rent from him. Therefore, the appellant will become tenant. Ram Kumar Das v. Jagdish Chandra Deo A.I.R 1952 S.C 23. and Asa Ram v. Mst. Ram Kali A.I.R 1958 S.C 183..

27. Counsel for the plaintiffs has also submitted that the release order made in their favour by the District Magistrate under Rule 6 of the U.P (Temporary) Control of Rent and Eviction Rules should be deemed to be the permission of the District Magistrate under Sec. 3. This argument is not correct. A release order under Rule 6 is made when an accommodation is vacant; on the other hand, the District Magistrate is invited to grant permission under Sec. 3 when the accommodation is occupied by a tenant. The considerations for release are, therefore; different from the considerations for permission under Sec. 3. While making an order for release of an accommodation the District Magistrate is required to consider only the needs of the landlord. But while granting permission to the landlord under Sec. 3 the District Magistrate is required to consider not only his needs but also the needs of the tenant. Accordingly the release order cannot be deemed to be a permission under Sec. 3. Admittedly there is no express permission of the District Magistrate under Sec. 3. So the suit for ejectment cannot be entertained. As we are dismissing the plaintiff's suit for eviction on this ground, we do not express any opinion on the argument of the appellant that after the expiry of the term of his lease he was holding over.

Appeal allowed.

Ram Agyan Singh v. Murlidhar Agarwal

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Plaintiffs' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ram Agyan Singh v. Murlidhar Agarwal

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