TMI Blog1993 (5) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Clauses (h) and (g) of Section 2 of the Contract Act declare that all agreement which are enforceable by law are contracts and those which are not enforceable by law are void. 4. Essential components of a valid Contract are provided in Section 10 of the Contact Act. These are as below. (i) Competence of the parties to the agreement; (ii) Free consent of the parties; (iii) Lawfulness of consideration and object of the agreement; and (iv) Absence of express declaration under the Contract Act rendering the agreement to be void. 5. Of the above noted four basic ingredients, lawfulness of the object of the agreement and absence of express declaration under the Contract Act rendering the agreement to be void are pertinent in the context of investigation of the questions under consideration. 6. Section 23 of the Contract Act envisages that object of an agreement will be unlawful, if - (a) it is forbidden by law; or (b) is of such a nature that, if permitted, it would defeat the provisions of any law; or (c) is fraudulent; or (d) involves or implies injury to the person or property of another; or (e) the Court regards it as immoral, or opposed to pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorised occupant of such building or part. 17. Conditions of making allotment order. - (1) Where the District Magistrate receives an intimation, under sub-section (1) of Section 15, of the vacancy or expected vacancy of building any allotment order in respect of that building shall be made and communicated to the landlord within twenty-one days from the date of receipt of such intimation, and where no such order is so made or communicated within the said period, the landlord may intimate to the District Magistrate the name of a person of his choice, and thereupon the District Magistrate shall allot the building in favour of the person so nominated unless for special and adequate reason to be recorded he allots it to any other person within ten days from the receipt of intimation of such nomination : Provided that where the landlord has made an application under clause (b) of sub-section (1) of Section 16, for the release of the whole or any part of the building or land appurtenant thereto in his favour, the said period of twenty-one days shall be computed fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a building without an order of allotment/release will clearly contravene the provisions of Sections 11 and 13 of the new Act. Under Section 31 such contravention is punishable with specified sentence of imprisonment or with fine or with both. By providing penalty for the offender the Legislature will be deemed to have intended to forbid the formation of any agreement of letting or occupation of a building which runs counter to the mandate contained in Sections 11 and 13 of the new Act. Obviously, the prohibition is designed to further and achieve one of the objects of the new Act, namely, regulation of letting of specified classes of buildings situate in urban areas. 14. Any agreement formed with the object to let or occupy the building subject to and governed by the new Act, except in pursuance of an allotment/release order besides being clearly forbidden, if permitted, wilt defeat the provisions of Sections 11, 13 and 17 of the new Act resulting in frustration of one of the avowed objects of the said Act, namely, regulation of letting the building falling within its ambit. It will also be opposed to public policy of the new Act which is to vest the control of letting and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndlord to let or not to any person any accommodation which is or has fallen vacant or is about to fall vacant. Hon'ble D. S. Mathur, C. J., with whom Hon'ble Prem Prakash, J. concurred, held that an agreement to let out an accommodation in contravention of the old Act was an agreement forbidden by law or was at least of such a nature that, if permitted, it would defeat the provisions of the law as contemplated by Section 23 of the Contract Act rendering the agreement void. This dictum still holds the field and is fully applicable to an agreement made in contravention of the provisions of Sections 11 and 13 of the new Act. 19. The questions engaging the attention herein have been the subject matter of consideration of a Division Bench of this Court in Geep Industrial Syndicate Ltd., Allahabad v. The Rent Control and Eviction Officer, Allahabad, 1982 All U 857. The Division Court held as below: Section 11 of the Act imposes a prohibition or restriction against letting without an allotment order. Section 12 contemplates of certain contingencies in which a landlord or tenant of a building would be deemed to have ceased to occupy it. Section 13 provides for restrictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation to a specified person and may be valid or voidable between the parties thereto is not applicable to an agreement the very formation whereof law interdicts; or which is of such a character that, if permitted, it would frustrate the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the court regards it as immoral or opposed to public policy. Neither party can enforce said agreement. No legal relations come into being from an agreement offending a Stature or public policy. 24. From the provisions contained in Ss. 11, 13, 17 and 31 of the new Act it is as clear as the light of day that an agreement involving transaction of either letting by the landlord or occupation by any person of any buildings except in pursuance of an order of allotment or release being prohibited has to be treated to have been invalidated by the Statute rendering it void and unenforceable in a court of law. No remedies are open to either party to an agreement the very formation of which is illegal by virtue of any provision of a Statute. 25. It is firmly settled that if an agreement is made to do or suffer a prohibited act, that agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of five Hon'ble Judges in the case of Abdul Hamid v. Md. Ishaq. No substantial support can, therefore, be drawn from it. 28. The decision of the Hon'ble Supreme Court in the case of Murlidhar Agarwal v. State of Uttar Pradesh, is founded on the decision in the case of Udhoo Dass v. Prem Prakash. By itself, it does not declare any law except approving the view of the Full Bench expressed in Udhoo Dass v. Prem Prakash. The ratio of Murlidhar Agarwal's case cannot, therefore, be taken to apply to the cases which are covered by the new Act (See Geep Industrial Syndicate Ltd., Allahabad v. The Rent Control and Eviction Officer, Allahabad). 29. The question that engaged the attention of the Hon'ble Supreme Court in Nanakram v. Kundalrai, was whether a lease between a landlord and a tenant for letting and occupation of a house in contravention of clause 22 of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter called 'the Rent Control Order') could be attacked as void transaction in a proceeding between the parties? 30. Clauses 22 and 23 of the Rent Control Order, being material, are extracted below : 22(1). Ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rent Control Order empowers the Deputy Commissioner to order the landlord within a stipulated period to let out the house to any person falling in any of the specified categories. The power to order the landlord to let out the house can be exercised only if the landlord while intimating vacancy does not state that he needs the house for his own occupation or he fails to satisfy the Deputy Commissioner that the house is so needed. If the landlord states his need for the house and satisfies the authority about the need the Deputy Commissioner has no choice except to permit him to occupy the house. 32. Sub-clause (2)of clause 23 of the Rent Control Order provides that if no order either requiring him to let out the house or permitting him to occupy the same is passed within the period specified in sub-clause (1), the landlord shall be free to let the vacant house to any person. 33. It is to be noticed that neither the prohibition against letting of the house nor the power of the Deputy Commissioner to order the landlord to let out the house to its nominee is absolute. In the circumstance specified in sub-clause (2) of clause 23 the landlord enjoys complete freedom to let out t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consistent with clause 22, should not be binding as between the parties thereto, it is not a void transaction. With utmost humility and reverence it is stated that above observations are not compatible with provisions of Ss. 10 and 23 of the Contract Act. Otherwise also, it is most respectfully pointed that the statement of law contained in the said observation is, perhaps, in conflict with the law declared in the decisions of the Hon'ble Supreme Court in Waman Shriniwas Kini v. Rati Lal Bhagwan Das Co., Shrikrishna Khanna v. Additional District Magistrate, Kanpur and Manna Lal Khetan v. Kedar Nath Khetan. 38. Hon'ble A. N. Ray, the then Chief Justice of India, in his judgment rendered in the case of Manna Lal Khetan v. Kedar Nath Khetan, enunciated the legal position in this regard thus : Where a contract, express or implied, is expressly or by implication forbidden by statute, no court will lend its assistance to give it effect (see Melliss v. Shirley Local Board, (1885) 16 QBD 466). A contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition. The penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge, Meerut is sound and, therefore, approved. 42. Outcome of the above deliberation unequivocally leads to the following inevitable and inescapable answers to the twin questions referred : 1. An agreement of lease between the landlord and the tenant for letting and occupation of a building in contravention of the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is void. 2. The said agreement is unenforceable in law and no decree for ejectment of the tenant can be passed in favour of the landlord on the basis thereof. Sudhir Chandra Verma, J. 43. I am in full agreement with the opinion of Brother D.S. Sinha, J. S.R. Singh, J. 44. Petition on hand came up for hearing before one of us (S. C- Vernia, J.) who, during the course of argument before him, found that there was a conflict of opinion expressed in Navin Chand Sharma v. 6th Addl. District Judge, Meerut 1983 (1) ARC 50: AIR 1983 All 116), on one hand, in Smt. Ram Sakhi Dwivedi v. Rania Kant Gupta 1988 (2) are 164 : 1988 All LJ 989), on the other, as to whether a contract of tenancy entered into after the enforcement of the Act being in contravention of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also the creation of contractual tenancy in his favour though he disputed the rate of rent. At the same time, it was also pleaded by the defendant in his written statement that the U. P. Act 13 of 1972 was applicable to the suit premises and therefore, the contract of lease being in contravention of the Act was void and unenforceable by law. The plea as to the suit instituted on the basis of the said contract being not cognizable by Small Causes Court, was also raised. 47. A preliminary issue was struck by the learned trial Court as to whether the court had jurisdiction to try the suit. The said issue was decided in favour of the plaintiffs. Thereafter the suit was taken up for final disposal and as many as six issues were framed including the issue as to whether the contract between the parties being void, was not enforceable by law (Issue No. 5). The learned Judge, Small Causes Court held that the U.P. Act 13 of 1972 was applicable to the building in question and that the tenancy in favour of the defendant was not created under any order of allotment passed by the Rent Control and Eviction Officer and he was allowed to occupy the suit premises without giving any intimation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llotment, as the case may be, under S. 16 of the Act and therefore urged the learned counsel, the provisions of U.P. Act 13 of 1972 would not in any manner be defeated on account of a contractual lease created otherwise than in pursuance of the order of allotment. 49. Sri Wajahat Hussain Khan, learned counsel appearing for respondent No. 3, urged that tenancy created in contravention of express prohibition contained in S. 11 of the U.P. Act 13 of 1972, is illegal and void by virtue of S. 6(h) of the Transfer of Property Act read with S. 23 of the Contract Act and being a void transaction, the lease shall be deemed to be non-existent for ail legal purposes and therefore, unenforceable by law. 50. With a view to appreciating the submissions made at the bar, the concept of tenancy and the element of contract and of transfer of interest in Immovable property involved in a lease, may first be scanned. 51. In Halsbury's Laws of England (4th Edition, Vol. 27, Part I dealing with general principles of creation of tenancy), 'lease' has been described as under : The relationship of landlord and tenant arises as a rule when one person, the landlord with intent to crea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vides that when at the desire of the promissor, the promises or any other person has done or abstained from doing or does or abstains from doing or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise. Every promise and every set of promises, forming consideration for each other, is an agreement. 57. An agreement not enforceable by law is said to be void while an agreement enforceable by law is a contract. According to S. 10 of the Contract Act, all agreements are contracts, if they are made by free consent of the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void by the Act. 58. In other words, contracts may be invalidated either by the illegality of the object or consideration itself or by the incapacity of the promissor to enter into such contracts. Section 23 of the Contract Act provides that the consideration or object of an agreement is lawful, unless -- (1) it is forbidden by law or, (2) is of such a nature that, if permitted, it would defeat the provisions of any law or, (3) is fraudulent or involves or implies injury to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while considering the word 'object' in S. 23 of the Contract Act in the context of enforceability of the debt secured to celebrate the marriage of a minor which was prohibited by Child Marriage Restraint Act, 1929, held that the word 'object' in S. 23 means 'purpose' or 'design' of the contract. The same meaning has been given to the word 'object' by Supreme Court in Gurmukh Singh v. Amar Singh [1991] 1 SCR 885. It has been observed at pages 82-83 as under : Section 23 of the Contract Act adumbrates that the consideration or object of an agreement is lawful unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provision of any law; or is fraudulent, or involved or implied injury to the persons or property of another; or the court regard it as immoral or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. The word 'object' would mean the purpose and design which is the object of the contract, if it is opposed to public policy which tends to defeat any pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dehors any merits. What is meant by the expression 'forbidden by law' in S. 23 of the Contract Act has very succinctly been stated by Pollack and Mulla in their book on 'Indian Contract and Specific Relief Acts', 10th Edition, P. 231 as thus : Forbidden by law -- 'An act or undertaking is equally forbidden by law whether it violates a prohibitory enactment of the legislature or a principle of unwritten law. But in India, where the criminal law is codified, acts forbidden by law seem practically to consist of acts punishable under the Penal Code and of acts prohibited by special legislation or by regulations or orders made under authority derived from the legislature. The above meaning of the term 'forbidden by law' occurring in S. 23 of the Contract Act has been approved of by the Supreme Court in Gheru Lal Parekh v. Mahadeo Das AIR 1959 SC 781. 67. A combined reading of Ss. 11, 13 and 31 would unequivocally make it clear that letting of a building governed by U.P. Act 13 of 1972 otherwise than in pursuance of an order of allotment is 'forbidden by law' within the meaning of Section 23 of the Contract Act as explained above. 68. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a contract is also hit by the same very provisions of law and is nothing but a still-born transaction being illegal and void from the very inception. It is true that what is void cannot be equated with what is forbidden by law as held by the Supreme Court in Cheru Lal Parekh's case AIR 1959 SC 781. But the converse is not, in view of S. 23 of the Contract Act. The tenancy is illegal because it was created against express and explicit statutory prohibition contained in S. 11 of the Act and void because it is based on 'consideration' and 'object' which are 'forbidden by law' within the meaning of S. 23 of the Contract Act. I am, therefore, of the opinion that agreement to let out a premises governed by U.P. Act 13 of 1972 otherwise than in pursuance of an order of allotment is illegal and void and the lease created in pursuance thereof, outside the limited statutory sanction contained in the expression save as hereinafter provided used in S. 11 of the U.P. Act 13 of 1972, is also rendered illegal and void for the same very reason and that being so, the lease shall be treated as non-existence. 71. The distinction between illegal and void contracts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved that the words if permitted occurring in the expression consideration or object of an agreement is lawful, unless it is of such nature that, if permitted, it would defeat the provisions of any law used in Section 23 of the Contract Act, in the context of the section, mean 'if accepted', 'if allowed'. As explained earlier in this judgment, the landlord's promise to let out his building to the tenant in consideration of the latter's promise to pay money called rent for use and occupation of the building without an order of allotment is of such a nature that 'if permitted' it would defeat the provisions of Sections 11 and 13 of U. P. Act 13 of 1972. The purpose and design of an agreement of lease without an order of allotment run counter to the scheme of the Act and object sought to be achieved by it. 76. In Navin Chandra Sharma's case (supra), A. N, Verma, J, has very succinctly and correctly laid down the law on the question in the following words- ..... the interdict against the letting and occupation of an accommodation after coming into force of the enactment is express and absolute. Letting or occupation otherwise than under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtainly come in the way of an effective implementation of the purpose of the Act and is bound jo frustrate its object inasmuch as the immediate availability of the building for being allotted to a needy person is frustrated/thwarted. 78. Therefore, in my opinion, the contract of letting and occupation of a building otherwise than in pursuance of an order of allotment is of such a nature that 'if permitted' it would defeat the provisions of law. Any other view of the question would be non-sequitur and destructive of the objectives of the Act. 79. It is true that mere agreement of lease in itself may not be illegal for what is forbidden is letting without an allotment order but if the consideration or objects of the agreement are found to be tainted with the kind of illegality which is struck by Section 23 of the Contract Act, the agreement would be rendered void. The object of the agreement of lease when carried out and given effect to gets materialised in letting and occupation which, in absence of an order of allotment are unlawful being prohibited by Sections 11 and 13 of the U. P. Act 13 of 1972 and punishable under Section 31. Such an agreement is tantamount to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng an accommodation to be used is not forbidden by any law; it is entering into a contract of tenancy in contravention of an order made under Section 7(2) by a District Magistrate -- that may be said to be a forbidden act. But it is an act forbidden by a District Magistrate and not by law within the meaning of Section 23. An order made under Section 7(2) by a District Magistrate may have the force of law but is not law. The U. P. (Tenancy) Control of Rent and Eviction Act does not contain any provision prohibiting the letting out of an accommodation by a landlord. It contains no such provision as 'do not let out in contravention of an order made under Section 7(2) or do not let out in contravention of any provision contained hereunder or any order made hereunder. in ARLP Firm v. U. P. Kyaing AIR 1939 Rangoon 305 (FB), it was stated that law in the phrase forbidden by law means judicial statute law. An agreement does not cease to be a contract merely because it is forbidden by law; it ceases to be a contract only if its consideration or objects is forbidden by law or it itself is declared to be void under Sections 24 etc. of the Contract Act. Sections 24 etc. have not decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der sense and must be understood in the sense of the term explained in Art. 13(3) of the Constitution. 84. It may also be noted that 'Udho Das' was specifically overruled by a larger Bench of five Judges in Abdul Hamid v. Mohd. Ishaq AIR 1975 All 166 . It was, of course, referred to and approved by the Supreme Court in Murlidhar v. State of U. P [1975] 1 SCR 575. 85. In Murlidhar (supra) the lease in favour of the tenant was created in violation of the provisions of Section 7(2) of U. P. Act No. 3 of 1947 and the tenant was sought to be evicted as unauthorised occupant. The Supreme Court dealt with the question as under : In Udho Das v. Prem Prakash AIR 1964 All 1 a Full Bench of the Allahabad High Court took the view that a lease made in violation of the provisions of S. 7(2) would be valid between the parties and would create the relationship of landlord and tenant between them although it might not bind the authorities concerned. In the tight of this ruling the correctness of which we see no reason to doubt -- we think that the respondent was a tenant..... Now, the landlord and the tenant cannot, by their agreement, bind the District Magistrate. In spite o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akash..... After referring to Murlidhar's case (supra), the learned Judge observed as below. From the above, it would appear that in case of an illegal letting or subletting, the view taken was that the contract may be binding on the parties to it, but not on the authorities which would mean that the possession of a person who has been illegally let in would be unauthorised. Sections 11 and 13 of the present Act make that position very clear. No one now can neither let out any premises without an allotment order nor can anyone occupy the same. If any one occupies the premises without an allotment order, he would not only be an unauthorised occupant but also liable to prosecution under Section 31 of the said Act. 88. In my opinion, the above observation in Geep Syndicate case (supra) represents the correct legal position that Udho Das and Murlidhar (supra) are no longer relevant and quotable as binding precedents in view and context of Sections 11, 13 and 31 of U. P. Act No. 13 of 1972 particularly because of the reason that U. P. Act 3 of 1947 had no provision similar to U. P. Act 13 of 1972. 89. The next case law relied upon by Sri P. N. Saxena is a decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be binding as between the parties thereto. It is not avoid transaction. There is nothing in the Rent Control Order declaring it to be so. Now if the lease is not void then it is not open to either party to avoid the lease on the ground that is inconsistent with clause 22. The parties would be bound, as between them to observe the conditions of the lease, and it cannot be assailed by either party in a proceeding between them ....... 90. Sri S. N. Saxena urged that just as the provisions of the Rent Control Order, the provisions of the U. P. Act No. 13 of 1972 too do not mandate that the District Magistrate must eject a person who has entered into possession of a house in violation of Section 11 of the U. P. Act No. 13 of 1972, and therefore, urged the learned Counsel, the proposition of law laid down by the Supreme Court in Nanakram's case (supra) is applicable to the facts of the present case on all fours. 91. The submission made by the learned counsel is attractive. But with the greatest respect at my command, I am of the view that the above quoted authority of the Supreme Court in Nanak Ram's case (supra) cannot be taken as binding precedent on questions which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the decision in Nanak Ram's case does not warrant any change in the view that I have expressed earlier in relation to the validity and legality of the lease transaction. 94. The only other case law which requires consideration on the point, is the decision of learned single Judge (A. P. Misra, J.) in Smt. Ram Sakhi Devi v. Rama Kant Gupta 1988 (2) All RC 164 : 1988 All LJ 989. The learned Judge has held at p. 172 as under : In view of the clear enunciation of law on this point, there is no room for doubt that any lease or agreement would not be void merely because it is illegal or in contravention of the Act unless it can be shown that it is an obstruction in the implementation of public policy laid down under the said Act. Even in the present case, nothing has been shown as to the Act which declares such transaction to be void ..... 95. In my humble opinion, the aforesaid view taken by the learned single Judge in the case of Smt. Ram Sakhi Devi (supra) does not lay down the correct law and, therefore, it cannot be approved of. The Division Bench decision in case of Geep Syndicate Ltd. Allahabad (supra) appears to have been distinguished by the learned Judge under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t into which he has entered : (a) Where the plaintiff seeking recovery of the property given to the defendant in an illegal transaction has withdrawn from a transaction and approached the court before the illegal purpose of the transaction can be executed in whole or in part; (b) Where the plaintiff is not in pari delicto with the defendant; (c) Where the plaintiff though in pari delicto with the defendant suffered from any incapacity of the nature which vitiates a contract or was as a matter of fact forced to be party to the illegality by reason of the compulsions of social or economic inequality having a bearing upon the bargaining capacities of the parties; and, (d) Where the plaintiff does not have to rely on the illegality to make out his claim. 99. The learned author has further stated the principle in the following words : There is yet one more factor which may defeat an ostensibly valid contract. It is that of illegality. Public policy imposes certain limitations upon freedom of contract. Certain objects of contract are forbidden or discouraged by law; and though all other requisites for the formation of a contract are complied with, yet if these objects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the illegal contract, but simply relies on his title to the property. This principle is extremely difficult of application since it is frequently hard to determine whether a plaintiff is relying upon his title, or upon the contractual provisions of title, or upon the contractual provisions of the illegal agreement. For example, it seems probable that a landlord can recover premises let to a tenant under an illegal agreement once the term of years has expired; but it is a matter of doubt whether he could recover them in the meantime under a covenant which provided for forfeiture for non-payment of rent. Would he be relying on his independent right of ownership, or (more probably) upon the contractual provisions of the illegal lease ? 102. In Waman Sriniwas v. R. B. and Company AIR 1959 SC 689, 'A' was the tenant for about 20 years in the premises known as 'Fida Ali Villa' situate at kalyan in Bombay. The building was purchased by 'R' who gave notice to 'A' to vacate as he wanted to construct a new building on the site of the old building. 'A' agreed to vacate and 'R' to let to him a portion of his new building. 'A' had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to assist the plaintiff in an agreement the object of which was to do an illegal act. The respondent. is only seeking to enforce his rights under the statute and the appellant cannot be permitted to assert in a court of justice any right founded upon or growing out of an illegal transaction. -- 106. The Supreme Court further held -- ..... Whether Court would aid the appellant in enforcing a term of agreement which Section 15 of the Act declares to be illegal. By enforcing the contract the consequence will be the enforcement of an illegality and infraction of a statutory provision ..... 107. The observations of the Supreme Court in Manna Lal Khetan [1977] 2 SCR 190 (supra) at p. 430, para 20 may also be quoted usefully on the point under discussion. It is well established that a contract which involves in its fulfilment the doing of an act prohibited by statute is void. The legal maxim 'A' pactis privatorum public juri non derogatory means that private agreements cannot alter the general law. Where a contract express or implies, is expressly or by implication forbidden by statute, no court can fend its assistance to give it effect. (See Mellis v. Shirley LB) W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tenancy either flowing from any provisions of the U.P. Act 13 of 1972 or from Section 108 of the Transfer of Property Act or from any term or covenant of the agreement of lease running counter to the provisions of the U.P. Act 13 of 1972. Thus the landlords's right to recover rent from the tenant occupying the building under void lease is un-enforceable by law for that is a right flowing directly from a void (nonexistent) transaction. The rent being an integral constituent of lease is not recoverable from the tenant if the tenancy is void ab initio. But the claims pertaining to other rights and liabilities flowing from ownership or from Section 13 of the U.P. Act -13 of 1972, are enforceable. In my opinion, the landlord's right to recover possession and claim damages for use and occupation by the so called tenant, of the building in occupation of the latter under a void lease, being referable to landlord's paramount title as against the tenant, is enforceable by law. The right flows from ownership as also from Section 13 of U.P. Act 13 of 1972, which declares the possession of a tenant occupying the building otherwise than under an order of allotment as unauthorise ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
