Sunday, 12 August 2018

Whether it is necessary to pay stamp duty on possession receipt?

 In the present case, after getting a decree for possession, the landlord, the petitioners constructed the new building. It appears that the tenant exercised his right under section 17-B of the Act. Thereafter when the building was completed there was some delay in handing over possession of the new tenement to the tenant and that is how a Contempt Petition was filed by the tenant. During the pendency of this proceeding, the parties agreed and the landlord agreed to hand over possession of the tenement, as, in law, they were bound to, in view of the provisions as provided under section 17-B read with section 17-C, of the Act. In the present case, the figure of rent was mentioned in the receipt of possession at Rs. 140/- per month and the parties agreed that is proper and reasonable rent. Therefore, it cannot be construed that this document is either, a rent note or a lease deed in any sense of the term. It is at best a receipt of possession of the new tenement handed over under section 17-C of the Act. It puts on record as to how the possession was handed over. It puts on record as to how the litigation has come to an end. It is a recording letter. No stamp duty is contemplated on such recording letter.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 34 of 1988

Decided On: 19.09.1988

 Sunderi Shivram Shetty  Vs. Mohamed Hussain Shaikh Mohamed Umar

Hon'ble Judges/Coram:
Hosbet Suresh, J.

Citation: 1989(1) Bom CR 122


1. The petitioners had filed a Civil Suit bearing No. 1040 of 1968 in the Court of Small Causes, Pune, as against the respondent herein for recovery of possession of certain premises under section 13(1)-(hh) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (herein after referred to as "the Bombay Reny Act"). The trial Court decreed the suit and the decree was confirmed by the Appellate Court. The petitioners obtained possession of the premises and after giving suitable undertaking constructed a new building. As required under the law, the respondent was given one tenement in that new building. It appears that there was some delay in handing over possession of the new tenement and, therefore, the respondent had taken certain contempt proceeding. However, during the pendency of the said proceeding, the petitioners handed over to the respondent the possession of the new tenement and a receipt of possession dated March 15, 1980 came to be passed by the respondent.

2. Thereafter the petitioners filed another suit being Civil Suit No. 1245 of 1982 in the Court of Small Causes, Pune, as against the respondent for possession of the said tenement on the ground of arrears of rent. The suit was decreed in the favour of the petitioners on February 6, 1986. The respondent thereafter preferred an appeal being Appeal No. 605 of 1986 in the District Court, Pune. During the pendency of this appeal, the petitioners' filed an application for production of additional evidence. The petitioners application was allowed by the District Court and the matter was remanded back to the Court of Small Causes, Pune, for recording additional evidence. The petitioners produced the said receipt of possession dated March 15, 1980, referred to above. The respondent raised an objection as to the admissibility of the said receipt on the ground that the said document is a lease deed and that it has not been properly stamped. The learned Judge heard both the sides and finally passed an order dated August 20, 1987 whereby he held that the said receipt is a lease deed for an indefinite period and the document has not been stamped as required by the law and the document will have to be impounded and he directed that the document in question be sent to the Collector of Pune to recover deficit stamp duty and penalty, in all amounting to Rs. 18,700/- from the petitioners. It is against this order the petitioners have preferred the present civil revision application.

3. The respondent has not chosen to appeal in this matter. However, it appears that the learned Judge, when he issued Rule, also directed that a notice be given to the Government Pleader. That is how Kum. Geeta Shastri, Assistant Government Pleader, appeared before me and made submissions.

4. The relevant portion of the said receipt of possession dated March 15, 1980 is as follows:

Receipt of Possession, Date: 15-3-1980 :-

Party taking in writting :-

1) Shri N. Shivaram Shetti, residing at House No. 405, Ganesh Peth, Pune 2.

2) Smt. Sundari Shivaram Shetti, residing at aforesaid.

Party giving in writing :

1) Shri Shaikh Mohammad Shaikh Mahammad Umar, residing at House No. 1103, Raviwar Peth, Pune-2.

(I) give the receipt of Possession in writing as under :-

1. The Property bearing Ganesh House No. 405, situate at Pune Peth, being of your ownership and management is in your possession by the right of full ownership. With regards to the said property, a suit was going on in the Court regarding the rental 'Jagya' (i.e. premises) between you and us. In this matter you gave us a notice on the date 4-3-1980 and asked us to take possession of the rental premises as per the undertaking given in the suit. According to the said notice, House No. 405 situate at Ganesh Peth, Pune, being the property containing therein a shop premises admeasuring 40' x 8' and having a frontage, being situation the ground floor of the said building, aburding on Ranapratapsing Road (Leading toward the Gurudwara), together with a loft thereon, has been handed over by you to us this day in proper condition and we have taken the same in our actual possession without any dispute as your monthly tenant.

2. We have agreed to pay to you in advance every month Rs. 140/- (in words Rupees one hundred forty only), being the rent of the said premises, together with the Municipal Cess. This rent is proper and reasonable rent and there is no dispute about that."

Thereafter the said writing further recorded that the contempt petition instituted by the respondent as also the said Suit No. 1040 of 1968 would not be "conducted hereafter" and it further records that parties have no dispute left and nothing remains to be received by the respondent from the petitioners regarding costs etc.

5. The learned Judge held that the document in question is essentially a rent note and that there is no question of revival of the old tenancy inasmuch as the tenancy had already been terminated by the decree of the Court in the former proceedings. He further observed that whatever might be the reason as to how the tenement was allotted to the defendant, the fact remains that for the first time, the defendant, were inducted as tenants in the tenement in the new building, and the parties agreed that the rent of the said premises shall be Rs. 140/- per month. He mainly relied on the case of Santosh Pundlik v. Ramdas, reported in MANU/MH/0594/1985 : 1985 Mh.L.J. 973. He then held that the document in question is a lease deed for an indefinite period and would require stamp duty which is payable for a deed of conveyance. He then calculated annual rent at Rs. 1,680/- (i.e. Rs. 140/- x 12) and ten times thereof would come to Rs. 16,800/- on which the stamp duty payable would be Rs. 1,700/-. He then levied ten times penalty thereon and that is how he arrived at the total figure of Rs. 18,700/- as stamp duty and penalty payable on the said document. I am told that the document has not yet been sent to the Collector.

6. Mr. Shah relying on the case of In re Narayandas Nathuram, reported in A.I.R. 1943 Nagpur 97, submitted that the revenue authority of the Government is not the necessary party in this revision. It is true that the Government need not be heard in this matter at this stage. But at the same time since it is a matter of stamp duty and, therefore, would ultimately affect the Government, there is nothing wrong if the Government Pleader is heard and I find no fault in the fact that the learned Judge at the state of issuing Rule also gave directive that the notice be issued to the Government.

7. Miss Shastri, the learned Assistant Government Pleader, raised an initial objection that the civil revision application under section 115 of the Code of Civil Procedure is not maintainable as against an order passed by the Court for impounding a document. Miss Shastri relied on the case of Lokmat Motor Service v. New Lokmat Loadging, reported in A.I.R. 1945 Nag 178. In this case the learned Judge proceeded on the basic that the Court had the power under section 35 of the Stamp Act to impound the document if it thought that the document was not properly stamped and to admit it in evidence only in its being properly stamped, and that such a decision cannot be the subject matter of revision by High Court. That was because under section 61 of the stamp Act if an Appellate or Revisional Court thinks that the proper duty and penalty have not been realised, and that a higher duty or penalty ought to have been realised, that, that Appellate or Revisional Court may make observations to that effect and determine the amount of duty any penalty payable. In other words, his approach was that the remedy, if any, has to be availed of under the Stamp Law and not under section 115 of the Code of Civil Procedure.

8. But in the case of In re Narayandas Nathuram referred to above, Justice Vivian Bose, as he then was, took note of the fact that such revisions have been entertained by various High Courts. He held in that matter that the Court has no jurisdiction to impound a document in question which has nothing to do with the case before it and so set aside the order. But he observed that if the document had not been sent to the Collector they will not be sent and will be handed back to the applicant. But if they have been sent, he made it clear "that the matter has passed out of the jurisdiction of this and the lower Court and I have no power to call in question any act of the Collector".

9. Mr. Shah then referred to various judgments from different High Courts in support of his contention that a revision application is maintainable, in particular, the case of Ramnath v. Ram Bahadur, reported in MANU/UP/0102/1973 : AIR1973All290 , and the case of Raghunath v. Seetharama, reported in A.I.R. 1972 Mys 344. In the latter case, the Mysore High Court relying on the Supreme Court case of Javer Chand v. Pukhraj Surana, reported in MANU/SC/0036/1961 : [1962]2SCR333 , observed that where the Court below decides the question arising under the Stamp Act and passes an order that the disputed document is a promissory note duly stamped and such admissible in evidence, the order has to be challenged without delay in revision and cannot be kept for adjudication at a late stage. If the order is not challenged at that stage, it is not open either to the trial Court itself or to a Court of appeal or revision to go behind that order. The Jammu & Kashmir High Court is the case of 'Rahim Paray v. Mst. Janti, reported in A.I.R. 1957 J. & K. 49, also observed that there is nothing in section 61 of the Stamp Act which can prevent the High Court from exercising its revisional jurisdiction under section 115 of the Code of Civil Procedure.

10. In the case of Poonamchand v. M/s. Bastiram, reported in MANU/RH/0058/1969, the Court observed that the question as to whether the document is admissible or not is a matter of procedure and if, therefore, a decision of the case is arrived at in the exercise of its jurisdiction that decision can certainly be revised under section 115 of the Code of Civil Procedure. However, the Court seems to be making a distinction that if the contention of the application is that the document does not require any stamp or it is sufficiently stamped, the revision would lie. But, if the contention is that the document is insufficiently stamped which includes documents which require to be stamped but are unstamped, no revision would lie against an order offering to admit the document in evidence on payment of a certain amount of duty and penalty.

11. However, in the case of J.M.A. Raju v. K. Bhatt, reported in MANU/GJ/0062/1976 : AIR1976Guj72 , a Full Bench of the Gujarat High Court, dissented from all the abovementioned cases, and after considering various judgments of the Supreme Court regarding the scope of section 115 or the Code of Civil Procedure, took a view that no revision is possible and held that :

"...in view of the fact that the principal object of the Indian Stamp Act is to collect revenue for the State and the stringent provision of the Stamp Act have been enacted with a view to see that the revenue of the state are realised to the utmost extent as provided by law, once the trial Court decides to admit a document as properly or sufficiently stamped, the decision has to be accepted as final and the matter has to be treated as closed and it is not open to any superior Court either in appeal or revision to sit in judgment over the decision to admit the document in evidence. We may point out that the bar of section 36 of Stamp Act applies only to the decision of the trial Court to admit the document in evidence. If the trial Court decides not to admit a particular document in evidenced it is always open to the aggrieved party to make it a ground of appeal before the Court of Appeal, and get the matter decided by the Appellate Court. But so far as the decision to admit the document on record is concerned, once the trial Court, rightly or wrongly, decides to admit the document in evidence, in the sense in which the Supreme Court explained that phrase in Javer Chand v. Pukhrai Surana, MANU/SC/0036/1961 : [1962]2SCR333 (supra) the matter, so far as the parties are concerned, is closed".
In coming to this conclusion the Full Bench strongly relied on the decision in the case of Prabhudas v. Bhogilal, reported in MANU/GJ/0054/1968 : AIR1968Guj236 , where there is an elaborate discussion of the meaning of the words "case decided " occurring in section 115 of the Code of Civil Procedure, also of the scope of Clauses (a), (b) and (c) of section 115 of the Code of Civil Procedure. The Full Bench then relied on the following passage of the Division Bench (i.e. Paragraph A.I.R. 9 240 :

"The question whether the document Exhibit 4/1 was a promissory note and was, therefore, by reason of inadequacy of stamp inadmissible in evidence was clearly a question within the jurisdiction of the trial Court and the decision of this question one way or the other did not have any relation to the jurisdiction of the trial Court. It cannot be said that by erroneous decision of this question the trial Court clutched at jurisdiction it did not possess or refused to exercise jurisdiction vested in it by law. Nor can it be said that the trial Court in arriving at the decision acted in breach of any provision of law or committed any error of procedure in the course of the trial which could be regarded as material. Of course it must be conceded that if the decision of the trial Court was erroneous, the error committed by the trial Court was undoubtedly an error of law, for the decision turned on the question whether the document Exhibit 4/1 was a promissory note within the meaning of section 2(22) of the Stamp Act which would be clearly a question of law but this error of law did not have relation to and was not concerned with the jurisdiction of the subordinate Court and, therefore, none of the three clauses of section 115 was attracted in the present case. The revision application was, therefore, incompetent..."
The Full Bench then took note of the decision in D.L.F. Housing etc. Co. v. Sarup Singh, MANU/SC/0491/1969 : [1970]2SCR368 which considered the decisions of the Privy Council in the case of Balakrishna Udayar v. Vasudeva Ayyar A.I.R. 1917 P.C. 71 and also the earlier decision in the case of Keshardeo v. Radha Kissen, MANU/SC/0006/1952 : [1953]4SCR136 and in particular quoted the following passage at Page 2327:

"The mass of reported cases only serve to show that the High Courts do not always appreciate the limits of their jurisdiction under this section. The legal position was authoritatively laid down by the Privy Council as far back as 1894 in Raja Amir Hassan Khan v. Sheo Baksh Singh..... ..... The Privy Council again pointed out in Balakrishna Udayar v. Vasudeva Ayyar, 1971 P.C. 71..... ..... that this section is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved. This view was approved by this Court in Keshardeo v. Radha Kisan..... .....and has since been reaffirmed in numerous decisions."
As regards the case in hand, the Full Bench held.....

"..In the in instant case it is obvious that when the trial Court Judge decided to admit the document in evidence, he was exercising jurisdiction vested in him by law and it is obvious in the light of the decision in Keshardeo Chamaria v. Radha Kissen, MANU/SC/0006/1952 : [1953]4SCR136 (supra) the under Clause (c) the High Court can entertain a Revision Application only if there is some illegality of material irregularity in the manner of arriving at that decision and not in the decision itself."
12. What is significant is that in this very judgment, the Full Bench referred to certain observations of Mathew, J. in M.L. Sethi v. R.P. Kapur, MANU/SC/0245/1972 : [1973]1SCR697 and opined that Mathew, J., could not have introduced any new concept while considering the meaning of the word "jurisdiction" under section 115 of the Code of Civil Procedure. It is apt that I quote the observations of Mathew, J. (in paragraph 10) :

"The word "jurisdiction" is a verbal cast of many colours. Jurisdiction originally seems to have had the meaning which Lord Reid ascribed to it in Anisminic Ltd. v. Foreign Compensation Commission(1969)2 A.C. 147, namely, the entitlement "to enter upon the enquiry in question". If there was an entitlement to enter upon an inquiry into the question, then any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lord Denman in R. v. Bolton (1841)1 Q.B. 66. He said that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry. In Anisminic Ltd. (1969)2 A.C. 147 Lord Reid said:

But there are many cases where, although the Tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions, giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive."

Then we have the following observations.

"The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdiction. This comes perilously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of a statute can be represented as 'basing their decision on a matter with which they have no right to deal', 'imposing an unwarranted condition' or 'addressing themselves to a wrong question'. The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statue, which will give little guidance. It is really a question of how much latitude the Court is prepared to allow. In the end it can only be a value judgement (See H.W.R. Wade, 'Constitutional and Administrative. Aspects of the Amismenic case' Law Quartery Review, Vol. 85, 1969, P. 1971. Why is it that a wrong decision on a question of limitation or res judicata was treated as a jurisdictional error and liable to be interfered with in revision? It is a bit difficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the Court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can only be that the error of law was considered as vital by the Court. And there is no yardstick to determine the magnitude of the error other than the opinion of the Court."
13. While I need not say that Mathew, J. has introduced any "new concept", it cannot be gainsaid that he has not subscribed to any narrow technical view of the matter. When we say that the High Court can entertain a Revision Application only if there is some illegality or material irregularity in the manner of arriving at a decision and not in the decision itself, where do we draw the line? When Shelat, J. relying on Javer Chand v. Pukhraj Surana, MANU/SC/0036/1961 : [1962]2SCR333 (supra) interfered in revision in a similar situation, the Full Bench brushed aside the same on the ground that the learned Judge had not considered the scope of the different clauses of section 115 (See para 24). This is where I am unable to agree with the Full Bench when it says that once the trial Court passes an order under section 35 of the Indian Stamp Act (equivalent to section 34 of the Bombay Stamp Act) no revision under section 115 of the Code of Civil Procedure can be entertained. I would rather follow that Masodkar, J., said in Sanjay Cotton Co. v. Omprakash, MANU/MH/0053/1973 : AIR1973Bom40 :

"It follows, therefore, that if the Court undoubtedly having jurisdiction proceeds in the matters before it contrary to law or with material irregularity in procedure affecting the rights of the parties to a lis and decides a case which would take in also the interlocutory stages, the matter is amenable to the power conferred by section 115 of the Code of Civil Procedure. In that view, if a party complaining before this Court can successfully show that in the conduct of the proceeding pending in the lower Court a matter has been concluded with material irregularity or involving illegality. I am of the view that the proceedings can be properly brought before this Court under the provisions of section 115 of the Code of Civil Procedure."
14. In the present case, the trial Court first come to the conclusion that the receipt for possession in a "rent-note" and then on the basis of such a finding it invoked its jurisdiction under section 34 of the Bombay Stamp Act and passed the impugned order. The petitioners did not accept this finding. The document has not yet been admitted, nor has it been sent to the Collector. It is at this stage the order has been challenged in Revision. In my view, if the earlier finding is erroneous, the Court could have had no jurisdiction to invoke section 34 of the Act, and such an order is liable to be interfered with under section 115 of the Code of Civil Procedure, as one having been passed without jurisdiction or with material illegality in the exercise of its jurisdiction.

15. It is here, a brief consideration of the scheme of the Bombay Stamp Act, 1958, in so far as it relates to admissibility of documents in trials, becomes relevant. Section 34 of the Bombay Stamp Act is the provision under which the learned Judge passed the order stating that the said document shall not be admissible in evidence unless the stamp duty and penalty is paid. It is open to the party to pay the stamp duty and the penalty and then approach the Collector under section 38 of the Act, but, it only provides for refund of a portion of the penalty in excess of rupees or refund of the whole penalty so paid. Under section 43 of the Act it is open to a person who has paid duty or penalty under section 34 to recover the same from some other person who was bound to bear the expense of providing proper stamp for such instrument. Again, under section 44 of the Act, the provision relates to only refund of penalty or excess duty paid in certain cases, where the penalty has been paid under section 34 of the Act. Under section 57 of the Act, it is open to the trial Court if it feels doubts as to amounts of duty, to be paid in respect of any instrument under Clause (a) of the proviso to section 34, may draw up a statement of the case and refer it, with his own opinion thereon, for the decision of the High Court. But, under sub-section (4) of section 57, no Court shall take action if the document has already been impounded or the penalty is levied as provided under section 34 of the Act.

16. It is interesting to note that there is no provision under the Bombay Stamp Act, making an order passed under section 34 of the Act, as final and conclusive, nor is there any provision to the effect that the same cannot be challenged in Revision under the Civil Procedure Code. If the contention is that section 35 the Act, is such a provision, it must be construed on its own language. Section 35 is as follows :

"Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped."
It means that when a document is admitted in evidence, whether by virtue of an order under section 34 of the Act, or otherwise it cannot be called in question on the ground that the same has not been duly stamped, except as provided in section 58 of the Act. Section 58 of the Act, again, is not any provision providing for Appeal as such, as against any order under section 34 of the Act. It only says that the Appellate Court may take such order into consideration, and if it is of the opinion that such a document should not have been admitted in evidence without the payment of duty and penalty under section 34, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect and determine the amount of duty chargeable etc. Thereafter the earlier procedure regarding impounding and forwarding to the Collector will mutalis mutandis apply. I am prepared to assume that once a party pays the duty and penalty and the document is admitted it then ceases to be a matter between the litigants, as it then passes on to the realm of the Revenue Authorities, the question being only one of refund of excess payment. In such an event, there can be no question of challenge by way of Appeal or Revision. But, if at the instance of an apponent, the trial Court passes an erroneous order compelling a party to pay duty, and the party affected wants to challenge the same, at that stage, it cannot be said that no Revision would lie. It is here, I would usefully quote what the Lahore High Court said in Uttam Chand v. Permanand A.I.R. 1942 Lah 265.

"If the misguided act of the Subordinate Judge take presumably at the most ill-conceived suggestion of the defendant's Counsel is countenanced, there will be no end to the mischief done in the Courts below. It is always overzeal in a matter that spoils things and in this case both the defendant's Counsel and the Subordinate Judge were guilty of it."
17. This takes me to the other import contention as to whether the receipt of possession referred to above is a lease deed or not. Miss Shastri, learned Assistant Government Pleader, drew my attention to the definition of lease as given under the Stamp Act, under section 2 sub-section (n) which reads as follows:

"..."lease" means a lease of immovable property and includes also,--

(i) a Patta:

(ii) a Kabulayat, or other undertaking in writing not being a counterpart of a lease to cultivate, occupy or pay or deliver rent for immovable property;

(iii) any instrument by which tolls of any description are let;

(iv) any writing on an application for a lease intended to signify that the application is granted."

Mr. Shah on the other hand submitted that this receipt of possession would not fall within any of the four items above.

18. In the case of Santosh Pundlik v. Ramdas, reported in MANU/MH/0594/1985 : 1985 Mh.L.J. 973, on which the learned Judge had relied upon, the facts are that the tenant had executed "a rent note" dated February 15, 1979 which contained the terms and conditions as to payment of monthly rent and also that the tenant would not sub-let the premises and that he would not use the suit premises for any other purpose than the purpose for which it is let out. That rent note also contained a term that at the time of vacating the premises, previous intimation of fifteen days would be given by the landlord. There were various other terms and conditions also. Construing such a rent note the learned Judge held that that was a lease deed and stamp duty was payable under Article 36 of Schedule 1 of the Act.

19. In the present case the document itself is described as receipt of possession and the only relevant terms with regard to tenancy is that the defendant have agreed to pay to the plaintiff in advance every month Rs. 140 being the rent of the said premises together with the Municipal Cess and that rent is proper and reasonable rent and there is no dispute about that. There is nothing else which can be construed as any terms of the tenancy as such.

20. In my view, the learned Judge is clearly in the error when he described the document as a document creating tenancy. This receipt of possession has to be construed in the light of what preceded in the earlier proceedings. The plaintiff had filed a suit under section 13(1)(hh) of the Bombay Rent Act, 1947. Under section 13(1)(hh), it is open to a landlord to file a suit for recovery of possession of any premises if the premises consist of not more than two floors and are reasonable and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting new building on the premises sought to be demolished. Thereafter there are various restrictions as to how such a suit should be dealt with, which we will find under section 13(3)(A) of the Act. The object of the law is to see that the landlord is not allowed to pull down the building and or dishouse the tenants unless the landlord produces a certificate granted by the Tribunal that the new building be erected by him shall contain not less than two times the number of residential tenements, and not less than two times the floor area, contained in the premise sought to be demolished. It shall also contain a statement that the demolition of the premises be commenced by him not later than one month, and shall be completed not later than three months, from the date he recovers possession of the entire premises and the work of erection of the new building shall be completed by him not later than fifteen months from the said date. Of course, there is a provision for further extension of time, if necessary. But, what is significant is that under the scheme of the Act, it is not that the erstwhile tenancy comes to an end on the landlord filing a suit under section 13(1)(hh). In law no tenancy comes to an end when a landlord institutes a suit under section 13(1)(hh). The scheme of section 13(1)(hh) together with the procedure contemplated in that behalf under section 13(3)(A) and section 13(3)(B) of Act is to enable the landlord to develop the property while it is permissible under the law, and in such an event to give necessary facility and for that purpose to recover possession from the tenant concerned, with an assurance that on completion of the new building the tenant shall be rehabilitated as provided under the law. That is contemplated under sections 17-A, 17-B, and 17-C of the Act. If the landlord after recovering possession does not demolish the structure, it is open to the tenant to approach the Court and make an application that he be given the possession back to him. Thereafter, under section 17-B of the Act, once the erection of a new building has been commenced by the landlord, the tenant may, within six month from the date on which he delivered vacant possession of the premises to the landlord, give notice to the landlord of his intention to occupy a tenement in the new building on its completion on the following conditions viz. that he shall pay to the landlord the standard rent in respect of the tenement and his occupation shall be on the same terms and conditions on which he occupied the premises immediately before the eviction. Under section 17-C of the Act, the landlord is bound, not less than three months before the date on which the erection of the new building is likely to be completed, to intimate to the tenant the date on which the said erection shall be completed, and on the said date the tenant shall be entitled to occupy the tenement assigned to him.

21. In the present case, after getting a decree for possession, the landlord, the petitioners constructed the new building. It appears that the tenant exercised his right under section 17-B of the Act. Thereafter when the building was completed there was some delay in handing over possession of the new tenement to the tenant and that is how a Contempt Petition was filed by the tenant. During the pendency of this proceeding, the parties agreed and the landlord agreed to hand over possession of the tenement, as, in law, they were bound to, in view of the provisions as provided under section 17-B read with section 17-C, of the Act. In the present case, the figure of rent was mentioned in the receipt of possession at Rs. 140/- per month and the parties agreed that is proper and reasonable rent. Therefore, it cannot be construed that this document is either, a rent note or a lease deed in any sense of the term. It is at best a receipt of possession of the new tenement handed over under section 17-C of the Act. It puts on record as to how the possession was handed over. It puts on record as to how the litigation has come to an end. It is a recording letter. No stamp duty is contemplated on such recording letter.

22. The learned Judge referred to the fact the tenancy had been determined by virtue of a decree under section 13(1)(hh) of the Act. It is true that the decree has been passed as against the tenant, but the tenant has exercised his right under section 17-B of the Act. Till such time, the tenant gives notice under section 17-B of the Act, his tenancy remains in abeyance. Once such notice is given, the same becomes enforceable as and when the new building is completed. In the present case, the landlord has also given an undertaking that they would give possession of a new tenement to the tenant. In view of this legal position, the landlord are bound to give the premises back to the tenant on the old terms and conditions as provided under the statute but with a right that the rent shall be at a particular figure which the parties agree as proper and reasonable. There is no new tenancy in a situation of this type. It is the statute that has brought about this relationship, the object being to sustain and continue the erstwhile lease in respect of the new tenement assigned to him by the landlord.

In the result, I pass the following order :

The impugned order dated August 20, 1987 is set aside.

Rule, accordingly, is made absolute with no order as to costs.



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