Prasanna S/O Ramaswamy Iyengar Proprietor Laxmi Janardhana Bakery Vs. S. Nagalaxmi W/O Late C.S. Shankaranarayanashetty and ors. - Court Judgment

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- labour & services punishment: [p.d.dinakaran, cj & mohan shantanagoudar,j] misconduct of employee held, once the court comes to the conclusion that the charges are proved and are of serious, it cannot interfere with the quantum of punishment. in the present case, the appellant was charged with misconduct of issuing false caste certificates and, after holding domestic enquiry, the appellant was compulsorily retired. the appellate authority reduced the punishment to one of reduction of emoluments to the minimum in the pay scale in the cadre in which the appellant was working. dismissal of the writ petition filed against that order was in accordance with law. - janardhan, learned counsel for the appellant contended that the courts below have failed to notice that the lease of the premises having been granted for running the bakery it includes manufacturing of bakery products, therefore, such a lease has to be considered as a lease for manufacturing purposes, therefore in terms of section 106 of the t. 11. on the other hand, learned counsel for the respondents contended that the courts below have concurrently held that the defendant has failed to prove that the lease was granted for manufacturing purpose and the said finding being a finding of fact, this court cannot re-appreciate the same. therefore, rule of construction as envisaged in section 106 would not be applicable as the statutory requirement of section 107 of the act has not been satisfied. the plea of the appellant that 15 days' notice terminating the present tenancy is bad in law would not be sustainable. in the judgment of the supreme court though this question was raised, the apex court has not given its opinion on the said aspect of the matter since the court found that the tenant therein had failed to prove that the lease was for manufacturing purpose.k.n. keshavanarayana, j.1. this second appeal by the defendant in o.s. 114/2000 on the file of the principal civil judge (jr.dn.) channarayapatna, is directed against the concurrent judgments of the courts below decreeing the suit filed by the respondents/plaintiffs and directing the appellant/defendant to deliver the vacant possession of the suit schedule property to the plaintiff.2. the facts are:one sri. c.s. shankaranarayana shetty was the landlord and the appellant/defendant is the tenant of the shop premises situated in b.m road, channarayapatna town. the monthly rent of the premises was initially rs. 300/- and subsequently it was enhanced to rs. 550/-. the shop premises was leased to the defendant for running bakery and accordingly, the defendant has been running the bakery in the name and style of sri lakshmi janardhana bakery. c.s. shankaranarayana shetty terminated the lease of the defendant by serving a 15 days notice on him alleging that though the lease was only for selling the bakery products, he has been using the said premises for manufacturing the bakery products. thereafter, he filed suit for ejectment on that ground. the defendant contested the suit inter alia contending that the lease was also for manufacturing of bakery products and not for merely selling the bakery products. he further contended that since the lease was for manufacturing purpose, the termination of lease by 15 days notice is invalid in terms of section 106 of the transfer of property act (hereinafter referred to as t.p. act), as such, the plaintiff is not entitled for the relief of possession as sought.3. the trial court in the light of the pleadings of the parties, framed the following issues:i) does the plaintiff prove that defendant is liable to deliver the possession of suit schedule property in favour of defendant being terminated as required under the law?ii) does the plaintiff prove that the defendant has violated the terms of lease. consequently the defendant is liable to hand-over the suit property in favour of the plaintiff?iii) does the defendant proves that his hardship explained in para-13 of the written statement are sustainable. consequently, defendant got protection from eviction on the assertion made in is. written statement?iv) whether the plaintiff is entitle for the relief sought in the present suit?v) what order or decree?4. the plaintiff examined himself as pw. 1 apart from examining one s. nagalakshmi as pw. 2. copy of the legal notice and the acknowledgement were marked as exs. p1 and p2. on the other hand, the defendant examined himself as dw. 1 and also another witness d.r. srinivasa iyengar as dw.2. he produced exs. d1 to d7. during the pendency of the suit, the original plaintiff died and thereafter, his wife and children came on record as lrs. and they are respondents 1 to 7, in this appeal.5. the trial court on assessment of oral and documentary evidence, by judgment dated 17.12.2003 answered issue nos. 1 & 4 in the affirmative and issue nos. 2 & 3 in the negative holding that, as the defendant has not produced any acceptable evidence to show that the lease was for manufacturing purpose, the termination of tenancy by 15 clays notice is valid, therefore, the plaintiff is entitled for the relief of possession and consequently the trial court decreed the suit and directed the defendant to hand-over the vacant possession of the premises. aggrieved by the said judgment and decree, the defendant filed appeal in r.a. no. 10/2004 on the file of the civil judge (sr.dn.), channarayapatna.6. the lower appellate court on re-assessment of the oral and documentary evidence, disposed of the appeal by judgment and decree dated 20.03.2008 dismissing the appeal and up-holding the judgment and decree of the trial court. the lower appellate court during the course of its judgment framed the following points for consideration.i) whether the trial court went wrong in holding that termination of tenancy is proper?ii) whether the impugned judgment and decree of the trial court calls for interference?iii) what order?7. the lower appellate court concurred with the findings of the trial court on all issues. it is against these concurrent, judgment of the courts below, the appellant/defendant has presented this appeal.8. while admitting this appeal on 27.05.2008, the following substantial question of law was framed for consideration.:whether both the courts below are right in holding that the termination of tenancy by issuing 15 days notice is valid, when the appellant has produced documents to show that he has been using the same for manufacturing purpose and under section 106(i) of the t.p. act, six months notice to be given for terminating the tenancy?9. upon service of notice of this appeal, respondents have appeared through their learned counsel. i have heard sri. g. janardhan, learned counsel appearing for the appellant and sri. anandaram, learned counsel appearing for the respondents/plaintiffs.10. sri. janardhan, learned counsel for the appellant contended that the courts below have failed to notice that the lease of the premises having been granted for running the bakery it includes manufacturing of bakery products, therefore, such a lease has to be considered as a lease for manufacturing purposes, therefore in terms of section 106 of the t.p. act such a lease can be terminated only by six months notice, as such, termination by giving 15 days notice was invalid, therefore, the judgments of the courts below are perverse and illegal.11. on the other hand, learned counsel for the respondents contended that the courts below have concurrently held that the defendant has failed to prove that the lease was granted for manufacturing purpose and the said finding being a finding of fact, this court cannot re-appreciate the same. it is also the submission of the learned counsel for the respondents that, assuming for the purpose of argument that the lease was for manufacturing purpose, since it is not established by the defendant that the lease for manufacturing purpose was for more than one year and as, such lease was not entered into in accordance with section 107 of t.p. act, the lease was not required to be terminated by six months notice, therefore, the termination of the lease by issuing 15 days notice is valid, as such, there is no illegality or irregularity committed by the courts below in decreeing the suit.12. i have bestowed my serious considerations to the submissions made on both sides. no doubt, both the courts below have concurrently held that the defendant has not produced any acceptable evidence to show that the lease was for manufacturing purpose. nevertheless, it: is an undisputed fact that the lease of the premises was granted to the defendant for running the bakery. running of a bakery should necessarily include preparation of the bakery products. therefore, it is reasonable to hold that the lease granted for running bakery unit should necessarily be for manufacturing purpose also. therefore, by assuming that the lease granted in favour of the appellant was for manufacturing purpose, let me proceed to consider whether such a lease was required to be terminated by six months notice as required by section 106 of the t.p. act. it is not the case of the defendant that the lease granted in his favour is evidenced by any registered document. as per 1st part of section 106 of the t.p. act, there is a legal fiction that if the lease of immovable property is for agricultural or manufacturing purposes it shall be deemed to be the lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice. section 107 of the t.p. act deals as to how the leases to be made. according to this section, lease of immovable property from year to year or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. therefore, the question would be as to whether the deemed provision contained in part-i of section 106 is controlled by section 107 or not. in my opinion, this question is no mere res integra in the light of the two judgments of the hon'ble supreme court, in shri. janakt devi bhagat trust, agra v. ram swarup jain (dead) by lrs. : air 1995 sc 2482, this very question came up for consideration before the apex court. as could be seen from the said decision, the lease involved in that case was evidenced by an unregistered document and it was for a manufacturing purpose and such lease was terminated by issuing a month's notice. the validity of the termination notice came up for consideration. the apex court in para-6, has held that even though lease may be for manufacturing purpose, and if the lease was not from year to year, six months notice was not required. it was further held that the lease for more than one year should be by registered document as required by section 107 of the t.p. act. the observation made by the apex court in para-6 reads thus:6. section 106 provides, inter alia, that in the absence of a contract between the parties, a lease of immoveable property for manufacturing purposes shall be deemed to be a lease from year to year terminable by six months' notice. in the present case there is a clear finding to the effect, that the lease in question was not from year to year or for a period exceeding one year. therefore, even though the lease may be for a manufacturing purpose, since the lease was not from year to year, six months' notice was not required. a mannfacturing lease which is not from year to year does not require six months' notice of termination. it. will fall in the second half of section 106, requiring fifteen days' notice of termination. a lease from month to month or a lease other than a lease from year to year is terminable by fifteen days' notice. hence, the notice in the present case is a valid notice to quit. the high court, having come to the conclusion that the lease was not for a period exceeding one year, and was not a lease from year to year, erred in holding that six months' notice to quit was required. such a notice is required, provided there is no contract to the contrary, only when a manufacturing lease is, or is deemed to be, from year to year. this not being the case, the lease is terminable by fifteen days' notice even if the lease is a manufacturing lease.(underlining is mine)13. again, in samir mukherjee v. devinder k. bajaj : air 2001 sc 1696, the same question arose for consideration before the apex court. the apex court in paras 5, 6, & 7, has observed thus:5. section 106 lays down a rule of construction, which is to apply when the parties have not specifically agreed upon as to whether the lease is yearly or monthly. on a plain reading of this section, it is clear that legislature has classified leases in to two categories according to their purposes and this section would be attracted to construe the duration of a valid lease in the absence of a contract or local law or usage to the contrary. where the parties by a contract have indicated the duration of a lease, this section would not apply. what this section does is to prescribe the duration of the period of different kinds of leases by legal fiction-leases for agricultural or manufacturing purposes shall be deemed to be lease from year to year and all other leases shall be deemed to be from month to month. existence of a valid lease is a pre-requisite to invoke the rule of construction embodied in section 106 of transfer of property act.(emphasis as in the original)6. section 107 prescribes the procedure for execution of a lease between the parties. under the first paragraph of this section a lease of immovable property from year to year or for any term exceeding one year or reserving yearly rent can be made only by registered instrument and remaining classes of leases are governed by the second paragraph that is to say all other leases of immovable property can be made either by registered instrument or by oral agreement accompanied by delivery of possession.7. in the case in hand we are concerned with an oral lease which is hit by the first paragraph of section 107 of the transfer of property act. under section 107 parties have an option to enter into a lease in respect of an immovable property either for a term less than a year or from year to year, for any term exceeding one year or reserving a yearly rent. if they decide upon having a lease in respect of any immovable property from year to year or for any term exceeding one year, or reserving yearly rent, such a lease has to be only by a registered instrument. in absence of a registered instrument no valid lease from year to year or for a term exceeding one year or reserving a yearly rent can be created. if the lease is not a valid lease within the meaning of the opening words of section 106 the rule of construction embodied therein would not be attracted. the above is the legal position on a harmonious reading of both the sections.(emphasis as in the original)in this decision, the judgment in janaki devi bhagat trust's case referred to supra has also been referred and followed. the ultimate conclusion of the apex court is found at para-10, which reads as under:10. in the present case though the appellant has claimed that it was a lease for manufacturing purpose, admittedly there was no registered written lease. therefore, rule of construction as envisaged in section 106 would not be applicable as the statutory requirement of section 107 of the act has not been satisfied. the plea of the appellant that 15 days' notice terminating the present tenancy is bad in law would not be sustainable.(emphasis as in the original)14. in view of the law laid down by the apex court in the aforesaid two decisions, it is not open to the appellant/defendant to contend that the termination of lease in this case was not valid. admittedly, the tease in the present case is not evidenced by a registered document as required under section 107 of the t.p. act. therefore, the lease granted cannot be termed as year to year lease though granted for manufacturing purpose. therefore, such a lease is not required to be terminated by six months notice. under these circumstances, the courts below have rightly held that the termination of the lease by serving 15 days notice was valid. the constitution bench's decision of the supreme court in : air 1973 sc 425 allenbury engineers pvt. ltd. v. shri ram krishna dalmia and ors. and decision of this court in air 1971 mysore 368 john augustine peter mirande and anr. v. n. datha naik relied upon by the learned advocate for the appellant, have no relevance. in the judgment of the supreme court though this question was raised, the apex court has not given its opinion on the said aspect of the matter since the court found that the tenant therein had failed to prove that the lease was for manufacturing purpose. under those circumstances, the apex court did not go into the question whether section-107 has any impact on section-106 of the t.p. act. that very question has been answered in the aforesaid two decisions of the supreme court. therefore, in the light of the judgements of the supreme court cited supra, the judgment of this court in air 1971 mysore 365, (supra) has no relevance to the facts of the present case. in view of the above, i do not see any ground to interfere with the judgment of the courts below. the substantial question of law framed is answered hi the affirmative.15. accordingly, the appeal is dismissed. however, the appellant/defendant is granted six months time from today to vacate and hand-over the vacant possession of the schedule properties subject to payment of the arrears of rent, if any, and the current rent.