SC Orders Status Quo On Allahabad HC Direction To Evict 28 Anglo Indian Families From Lease Land In Prayagraj [Read Order]

As per the petition, these families had been in occupation of about 11906.90 sq. meters land for about 95 years, by way of lease hold rights. Admittedly, there lease expired in June, 1997; notwithstanding which they had been in possession till date.

Declaring that such occupation amounted to 'Tenant at Sufferance', the Allahabad High Court upheld the State's order cancelling the lease, passed in March, 2012.

Before the Supreme Court, the petitioners contended that their lease was renewable every 30 years for a total period of 90 years. On its first expiry in June 1997, they sent an application to the Nazul Superintendent concerned for renewal of the lease for a further period of 30 years. However, no decision was taken on the said application and accordingly, they approached the DM, who passed an order in March 2012, thereby cancelling the aforesaid lease on the ground of unauthorized construction.

Tenant Holding-Over

The main argument made by the petitioners is that they were not Tenant at Sufferance but rather Tenant Holding-Over.

Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The lessee holding over on the other hand holds the premises with the consent of the lessor. In such a case, the assent of the landlord to the continuance of the tenancy after the determination of the tenancy creates a new tenancy.

"Lease Deed dt. 07.03.1984 w.e.f 12.06.1967 stood expired on 11.06.1997 and thereafter the Petitioner has been occupying the premises as a 'Tenant Holding-Over' for almost 21 years with the consent of the Respondent.

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The Petitioner continued to be in possession of the leased out premises after 11.06.1997 and continued to pay rent to the lessor / State Government within the knowledge of the Respondent No. 3," their counsel argued.

Accordingly it was argued that the DM could not have evicted the Petitioners without following the mandatory provisions of Section 116 r/w Section 106 of the Transfer of Property Act, 1882.

Reliance was placed on State of U.P. v. Zahoor Ahmad, (1973) 2 SCC 547, whereby the Supreme Court held that cases where the lessee was permitted to continue on the premises after the determination of lease period and rent was also realized from it, would amount to a 'Tenant Holding-Over' and the provision of Section 116 of the Transfer of Property Act, 1882, will apply.

(Section 116 of the Act contemplates the effect of holding over)

Arbitrariness

The petitioners went on to state that even in the field of contracts, the government has to act fairly and adhere to the parameters of Article 14 of the Constitution, as held in Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214.

However, the UP State Govt. was highly unjustified in passing an order of eviction, "since the creation of a park by displacing 28 families from their residential premises reeks of arbitrariness and is violative of Article 14 of the Constitution".

Legitimate Expectation

The petitioners pointed out that the Principal Secretary of the State had categorically observed vide its order dated November 26, 2015, that the lease of the Petitioners was improperly cancelled and it had directed the Respondent to submit its report to the Committee and the decision if any, was to be taken on merits by the said Committee at the Secretariat level.

Thus, the petitioners had the legitimate expectation to be afforded a hearing before the resumption of leased land, that too after a long period of occupation, and there was also a legitimate expectation of being treated fairly by having their application for renewal considered on merits after due hearing at the Government Secretariat level.

However, the State paid no heed to their expectations nor to the order of the Principal Secretary, thereby undermining the principle laid down by the top court in Lalaram v. Jaipur Development Authority, (2016) 11 SCC 31, which reads as under,

"requirement of non-arbitrariness in a State action, which as a corollary, makes it incumbent on the State to consider and give due weight to the reasonable or legitimate expectations of the persons, likely to be affected by the decision, so much so that any failure to do so would proclaim unfairness in the exercise of power, thus vitiating the decision by its abuse or lack of bona fides."

Order

Asking the parties to maintain status quo, the bench of Justice RF Nariman and Justice S. Ravindra Bhat said,

"Issue notice. Status quo, as of today, shall be maintained by the parties in the meantime."

The matter has now been posted for February 4, 2020.

The Petitioner was represented by Senior Advocates Mukul Rohatgi and Kavin Gulati, assisted by AOR Rohit Amit Sthalekar and Advocate Sankalp Narain.

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