Mahendra Pal Singh vs IInd Additional District Judge and Others

S.R. Singh, J.—These are four connected petitions directed against judgment and order dated 8-9 1983, whereby eviction of the tenant from the premises known as Minerva Castle previously known as Jura House situate at Kulri Mussoorie and release thereof in favour of the Respondent landlord u/s 21 of the U.P. Urban Building (Regulation of Letting Rent and Eviction) Act 1972 (in short the ''Act'') was directed by the Prescribed Authority and also against the appellate order dated 10-2-1989, dismissing the tenant''s appeal and affirming the judgment and order contemplating eviction and release passed by the Prescribed Authority. The petition filed by Sri Mahendra Pal Singh, being writ petition No. 2791 of 1989, shall be treated as the leading cage In the set of the present petitions.

The matrix of the facts, in so far as it may be found relevant for the purposes of discussion of the submissions made by the learned Counsel Appearing for the parties, is set out as below.

late Sri K.R. Bahuguna father of the Respondent No. 3 was, admittedly, the owner and landlord of the building in question. He told the building to one M/s. Nahar Singh, Kishan Chandra by means of a registered sale deed dated 27-0-1958 but at the same time, an agreement of reconveyance was entered into between the Vendor and the Vendee, according to which the right to get the property reconvened on payment of Rs. 20,000/- at any time in a span of six years, was reserved with the Vendor, Sri K.R. Bahuguna. It appears that Sri K.R. Bahuguna was not in a position to get the property reconvened in terms of the agreement of reconveyance dated 27-10-1958 within the stipulated period. However, before expiry of the period of six years specified in the agreement for reconveyance dated 27-10-1958, a fresh agreement for sale was entered into between M/s. Nahar Singh Kishan Chand and Sri K R. Bahuguna on 24-10-1964 The sale consideration, according to this agreement, was Rs. 30.000/- out of which, a sum of Rs. 500/- was paid by way of earnest money to M/s, Nahar Singh and Kishan Chand and the balance amounting to Rs. 29,500/- was decidedly agreed to be paid by Sri K.R. Bahaguna to M/s. Nahar Singh Kishan Chand at the time of registration. According to the said agreement, Sri K R Bahuguna was bestowed the right to get the sale deed executed in his favour in terms of the agreement at any time within a span of eight years, failing which, the agreement stipulates, he was to forfeit the earnest money of Rs. 500/- and in addition thereto, he was to pay a sum of Rs. 10,000/- to M/s, Nahar Singh Kishan Chand.

It transpires from the record that M/s. Nahar Singh Kishan Chand were not willing to execute the sale deed despite notice, whereupon a suit, it being suit No. 122 of 1971 was instituted by Sri K.R. Bahuguna against M/s. Nahar Singh Kishan Chand impleading therein its proprietors for specific performance of contract for sale. The suit was decreed vide judgment and decree dated 9-2-1978 in terms of a compromise according to which the sale consideration was raised to Rs. 40,009/- from Rs. 30.008/- as agreed upon between the parties Entire sale consideration was paid to the Defendants M/s. Nahar Singh Kishan Chand and others at the time of the very execution of the compromise on 9-2-1978 but they failed to execute the sale deed in terms of she decree, whereupon the sale deed was executed by the court on 12th Day of June 1979. According to the sale deed, Sri K.R. Bahuguna became entitled to receive rent from 1-4-1978.

The other development that took place in between period is that M/s. Nahar Singh Kishan Chand, the erstwhile owner of the building In question, filed a suit, it being suit No. 6 of 1965 for ejectment and recovery of arrears of rent against the then tenant Sri Ravindra nath Malhotra. The suit was decreed on 22-6-1965 and decree was maintained by the High Court, vide Judgment and decree dated 2 1-1967,, dismissing the appeal preferred against the judgment and decree dated 22-6-1965. M/s. Nahar Singh Rishan chand obtained possession of main past of the building in question on 4-8-1967 The next development of vital significance is that Sardar Labh Singh the father of the Petitioner, sri Mahendra Pal Singh applied for allotment of the building under the provisions of U.P. Temporary Control of Rent, Letting and Eviction Act, 1947 (in short the Rent Control Act of 1947) and vide allotment order dated 16-10-1967. the main portion of the building was allotted to Sardar Labh Singh while three cottages attached to the main, building were allotted to Ram Kishan Jyoti Prasad, Mohd ishaq respectively, who were in possession thereof from before, through the previous tenant namely, Sri R.N. Malhotra. The eviction proceeding In execution of the decree passed la suit No. 6 of 1965 was pending at the tine of allotment. Sardar Labh Singh and M/s. Nahar Singh Kishan Chand both went up in revision against the order of allotment before the Commissioner, who by his order dated 8-12 1967, modified the allotment order dated 16-10-1976 and allotted the entire premises Including the aforesaid three cottage in favour of Sardar Labh Singh.

It would appears from the record that the erstwhile owner M/s. Nahar Singh Kishan chand were reluctant to deliver possession to the allottee Sardar Labh Singh and they even filed a suit for injunction against him in the Court of Civil; Judge, Dehradun, However, as stated during the course of argument by Sri K.M. Dayal, learned Senior Advocate appearing for the Petitioner, the possession of the main portion of the building was delivered to Sardar Labh Singh on 1-1-1968. The delivery of possession was followed by execution of a leases deed dated 25-1-1968 according to which the premises in question was let out to Sardar Labh Singh for a period of one year from 1st January 1968 to 31st December 1968, on a rent of Rs. 7300/- payable in two instalments of Rs. 3650/- each on 30th June 1968 and 31st December 1968, The tenancy was described as monthly tenancy according to the English Calendar month The lease transaction was, however, held to be unfair by the 1st Addl. Civil Judge, Dehradun in Civil suit No. 190 of 1970 Sardar Labh Singh v. Nahar Singh Kishan Chand Instituted for fixation of rent which was decreed with costs and Rs. 3020/-per month was the rent fixed by the court by means of the said decree. This was, however, followed by mother lease deed executed on 28-11-1979, according to which the lesser M/s Nahar Singh Kishan Chand agreed to let out the entire property known as Minerva hotel, Kuiri, Mussoorie to the lessee for a fixed period of 2ft years in the first instance on his agreeing to pay a rent for the main building at the rate of Rs. 5000/- per month and giving assurance that he would not challenge the said agreement of rent of Rs. 5000/ per annum in future. The fixed period of 20 years according to the lease was to commence w.e.f. 1-12-70 and end on 30th November 1990, The tenancy was described as yearly and lessee was to pay a rent of Rs. 5000/- in two Instalments of Rs. 2500/- each of on 30th June and 30th December every sear. The lessee was given two options to renew the lease.

The tenant namely Sardar Labh Singh died in December 1972. The tenancy devolved upon his sons, namely, Mahendra Pal Singh Jasmider Singh and Jaspal Singh and widow Smt. Joginder Kaur.

The Respondent No. 3 moved a petition u/s 21 of the Act before the Prescribed Authority/Civil Judge, Dehradun (Mussoorie) praying for an order of eviction of the Petitioner Mahendra Pal Singh from the building in question. The eviction was sought on the ground that the Respondent landlord was due to retire from service of the India. As my from the post of Colonel on 31-7-82 and he had to vacate his official residence by Sept 30, 1982. He wanted the accommodation in question to run a Lodging house business therein to augment his income necessary to meet the ever-rising prices and to maintain the status and living standard of the family which he enjoyed during the course of his services and also to meet the education expenses of his growing children and lateron to cattle them In life. The other ground on which the release was sought by the Respondent landlord was that he bonafide required the premises in question for occupation by himself for residential purposes inasmuch as Mussoorie being his home-town, he wanted to settle there permanently. In Paragraph 3 of the application it was stated by the Respondent landlord that he had to vacate his official residence situate at 27, Mall Road, Delhi Cantt. by 30th Sept. 1982 on account of cassation of his service due to retirement on superannuation w.e.f. 31-7-82. In Paragraph 12 of the release application, it was stated that the tenant had three well Established restaurant business being run a under the name of Neelam and had recently constructed a Hotel building, where he was carrying on the lodging and boarding house business in the name and style of Hotel Neelam International'' situate in the vacantly of the building in question It was also sloped that the tenant had big hotel establishment in Bombay also and would not suffer any hardship in the event of his eviction from the premises in question. On the other hand. It was alleged, the landlord would encounter greater hardship in the event of release application being rejected the application was filed on 13-9-1982.

The application for release was contested by the Petitioner namely, Mehendra Pal Singh interalia on the grounds that the alleged need of landlord was born of his banafide and wag a specious one; that the Petitioner would be divested of his vital source of livelihood and would there by suffer irreparable loss in case the order of eviction was passed against him; that the premises in dispute was given for a fixed period of 60 years vide registered lease deed dated 28-11-1970 and the lease period having not expired, the release application was not maintainable; and, that Sardar Labh Singh died in Dec. 1972 leaving behind his widow Smt. Joginder Kaur sons Jaswinder Singh and Jaspal Singh besides himself, i.e. Mahendra Pal Singh who are carrying on the hotel business in partnership and the tenancy devolved upon all of them and therefore, the application was legally not maintainable in the absence or joint tenants.

The Prescribed Authority held that after his retirement from the Indian Army, the Respondent landlord required the build tag in question for occupation by himself and members of his family and also for business purposes in order to augment his income, The Prescribed Authority placed reliance upon the provisions contained in Clause (iii) of the Explanation to Section 21(1) of the Act as it stands substituted by U P. Act No. 31 of 1985 with effect from 18th May 1983 and held that the representation made by the landlord in his release application that he needs the building for residential purposes for him and members of his family shall be deemed sufficient and no proof was required. On merits also the Prescribed Authority gave credence to the case of landlord and held that his need for building in question was genuine and born of his bonafide requirements. On the question of comparative hardship, the Prescribed Authority held that in view of the provisions contained in Clause (iii) of the Explanation to Section 21(1) of the Act, there was no warrant to compare the likely hardship of the parties. Nevertheless, the Prescribed Authority proceeded to weigh the likely hardship of the parties on the basis of the material on record and held that the Respondent-landlord would be exposed to greater hardship in the event of the release application being rejected than the hardship, if any, likely to visit on the tenant in the event of the release application being allowed. ID this connection, the Prescribed Authority recorded a categorical finding that the tenant-Petitioner had got two well-established restaurants under the name and style of Neelam Restaurant and one restaurant attached to hotel Neelam International besides a hotel business in Bombay. It was held by the Prescribed Authority that though the hotel Neelam International was owne by a Private Limited Company but the company was formed by none else than the tenant Petitioner Mahendra Pal Singh, his mother and brothers. On this other hand, held the Prescribed Authority, the Respondent landlord had no Immovable property other than the one in question and had no other source of income than what he gets by way of pension plus rent from the building in question. On the question of non-joinder of necessary parties, the Prescribed Authority held that the Petitioner Mahendra Pal Singh could not file any evidence worth reliance to vouch for the fact that after the death of his father, his brothers and mother had ever claimed the tenancy rights in the building in dispute and alternatively, the Prescribed Authority held that brothers and mother of the Petitioner Mahendra Pal Singh would be deemed to have surrendered their tenancy rights and accordingly, the Prescribed Authority held that Mahendra Pal Singh was the only tenant of the building in question and that the release application was not bad as a result of non-Joinder of the alleged co-tenants. On the tenants plea that the application was not maintainable before expiration of the period fixed in lease deed dated 28-11-1970, the Prescribed Authority held that the lease-deed dated 28-11-70 was an outcome of fraud against the real owner and could not therefore, be binding upon the Respondent-landlord. The Prescribed Authority in this connection placed reliance upon a decision of this Court in Hukum Chand Vs. Smt. Hazra Begum and Others, wherein it has been held that a lessor cannot execute a lease for a period subsequent to his ceasing to be the lessor. The Prescribed Authority was of the view that the lease deed dated 28-11-1970 being en out come of fraud the transferee of the right of reversion was not bound by the lease deed.

The Prescribed Authority also held that the lease-deed was never acted upon between the parties, while recording the aforesaid conclusion as to the legality of the lease-deed dated 28-11-1970 the Prescribed Authority repelled the contention raised on behalf of the tenant that the authorities under the Act would not be competent to traverse on the validity of the lease-deed The reason dished out by the Prescribed Authority in repelling the contention is that the question regarding validity of the lease-deed having been raised incidentally, the authorities under the Act, were competent to go into it. It is in view of these findings that the Prescribed Authority held that the release application was maintainable by the landlord.

Aggrieved by the order of the Prescribed Authority the tenant Petitioner Mahendra Pal Singh went up in appeal. The appellate authority by its judgment and order dated 22-12-1983 set aside the order of the Prescribed Authority and remanded the case to it with a direction to register the case to its original number and thereafter, to dispose it of in accordance with law and in this light of the observations made in the body of the Judgment. The appellate Authority in its judgment dated 22-12-1983 held that all the heirs of Sardar Labh Singh had to be impleaded and given opportunity of hearing before passing any order of eviction u/s 21 of the Act. The appellate authority in its judgment dated 22-12-1983 also took the view that since the Respondent landlord was claiming the accommodation in question for commercial purposes, he would cot be entitled to get the benefit of Explanation (iii) to Section 11(1) of the Act and in order to get an order of eviction against the tenant, the Respondent landlord had to prove his bonafide requirements for himself, In that event, the question of comparative hardship was also to be looked into as contemplated by the 4th proviso to Section 21(1) of the Act, However, the appellate authority, in the context of the argument made on behalf of the Respondent landlord that he claimed the disputed accommodation bonafide for residential purposes and for the purposes of running hotel business with a view to augment his income, had left the issue to be decided by the Prescribed Authority, As to the validity of the lease deed dated 28-11-1970 and its implication in view of the proviso to Section 21(4) of the Act, the appellate authority did not return any finding in its Judgment dated 22-12-1983 and relegated it to the Prescribed Authority to be delved into after opportunity to the parties to make proper pleading with regard to these questions and to have their say in the matter.

The aforesaid appellate order dated 22-12-1983 was, however, quashed by the High Court vide judgment and order dated 12-2-1987 passed in Misc. Writ Petition No. 4104 of 1984 and the matter was remitted back to the appellate authority to adjudicate upon the controversy between the parties on the basis of the evidence on record.

Pursuant to the High Court''s order dated 12-2-1987, the appellate authority by its order dated 1-5-1987 gave an opportunity to the landlord Respondent to implead the other legal heirs of the deceased tenant Sardar Labh Singh Accordingly an application for amendment was moved for impleadment of Smt. Joginder Kaur widow of Sardar Labh Singh, Sri Jaspal Singh and Sri Jaswinder Singh, sons of Sardar Labu Singh, Smt. Narender Kaur and Smt. Harbanch Kaur and Smt. Trilochan Kaur, daughters of Labh Singh and they were impleaded vied order dated 11-5-1987 as opposite parties 2 to 7 in the release application. The validity of the order dated 1-5-1987 was challenged by the Petitioner by means of a writ petition in the High Court The writ petition waS dismissed by means of judgment and order dated 20-11-1987.

Smt. Joginder Kaur and Sri Jaspal Singh filed a joint written statement and denied the allegations of the landlord. The pleas taken by them in their Joint written statements were identical to the pleas taken by Petitioner-Mahendra Pal Singh. Sri Jaswinder Sirgh filed a separate written statement and the plea taken by him in opposition of the release application were also identical to the pitas taken by Mahendra pal Singh. The daughters of applicant Sardar labh Singh. however did rot file any written statement despite notice.

For reasons assigned in its judgment, the appellate authority held that the release application was not barred by proviso to Sub-Section (4) of Section 21; that the case of the landlord-Respondent was covered by Sub-section (1-A) of Section 21 and Explanation (iii) to Section 21(1) of the Act; that the need of the landlord was bonafide and genuine, that the land lord would suffer greater hardship in the event of the release application-being rejected and that the plea as to release application being not maintainable due to the reason of the fact that notice period of six months bad not expired before the institution of the application as contemplated by the First Proviso to Section 21(1) of the Act shall be deemed to have been waived by the tenant in view of the fact that no such plea was taken before the Prescribed Authority and further that the plea was of little significance In view of the fact that the landlord''s case was covered by Sub-section (1-A) of Section 21 of the Act under which no such inhibition is visualised, it was on the above findings that the appeal failed and was dismissed by the appellate authority maintaining the order passed by the Prescribed Authority at a result thereof.

I have heard Sri L.P. Nathani and Sri K.M. Dayal, learned Senior Advocates appearing for the tenant Petitioner and Sri Sudhir Chandra, learned Senior Advocate appearing for the Respondent landlord.

The first questions that crops up for consideration is as to whether the application for eviction of the tenant moved u/s 21 of the Act was not maintainable in view of the fact that it was filed within three years of the purchase of the premises by the Respondent-landlord from its erstwhile owner M/s Nahar Singh. Kishan Chand and before expiration of six months'' notice contemplated by the 1st proviso to Section 21(1) of the Act.

Section 21(1)(a) of the Act, provides that the Prescribed Authority may, on an application of the landlord in that behalf order eviction of a tenant from the building under tenancy or any specified portion thereof if it Is satisfied that the building is banafide required either in its exiting form or after demolition and new construction by She landlord for occupation fey himself or for any member of his family or any person for whose benefit it Is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the Trust

The first proviso to Sub-section (1) of Section 21 contemplates that where the building was in occupation of a tenant since before Its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be ''entertainers'' on the ground mentioned in clause (a) unless a period of three years has elapsed since the date of such acquisition and the landlord has given a notice in that behalf to the tenant not less than six months before such application and that such notice may be given even before expiration of the aforesaid period of three years.

The word entertain occurring in the First Provio, came up for consideration before K.C Jaswal, J.( as he then was) in Nanda Ballabh Gururani v. 4th Addl. District Judge Nainital 1979 ARC 178 , and it was held that the word entertain means ''proceed to consider on merits or adjudicate upon''. The learned lodge placed reliance upon decision of the Supreme Court in Lakshmi Rattan Engineering Works Ltd. Vs. Asstt. Commr. Sales Tax, Kanpur and Another, , wherein the Supreme Court had an occasion to construe the meaning of the word ''entertain'' occurring in proviso to Section 9 of the UP. Sales Tax Act, 1948 and their Lordships of the Surname Court took the view that the word ''entertain'' means "admit to consideration''. Division Bench decisions of this Court in Dhoom Chand Jain Vs. Chaman Lal Gupta and Another, , and in Dhoom Chand Jain Vs. Chaman Lal Gupta and Another, , wherein the Court was cornered with the import of the word certain occurring in Order 21 Rule 90 CPC were also relied upon by the learned Judge in the raise of Nanda Ballabh Guvurani (Supra). It was held by the learned Judge that she application for release of a premises moved by the landlord u/s 21(1)(a) within three years of its purchase would be maintainable, but it cannot be admitted to hearing within three veers of the purchase of the building by the landlord. The same view has been taken by A. Banerji (as he then was) in Ram Kripal Singh v. 5th Addl. District Judge Moradabad 1983 (1) ARC 195. It was observed by the learned Judge as under:

In my opinion, presentation of an application u/s 21 of the Act is not tantamount to its being entertained The word ''entertain'' would embrace in its fold something more than mere filing or issuing mere notice thereof. The intention of the provision appeals to be that no application for release of a building u/s 21 of the Act is to be made within a period of three years from the date of the purchase of the building.

The construction of the word ''entertain'' as aforesaid is lent support by a recent decision of the Supreme Court in Sri Shyam Kishore v. Municipal Corporation of Delhi JT 1992 (4) SC 335.

Sri L.P. Nathani, learned Counsel appearing fur the Petitioner very fairly conceded that the release application filed by the landlord within three years of the purchase of the building by him was maintainable though is was not liable to be decided finally before expiry of the said period. Sri Nathani, however, urged that the prohibition enacted in the First proviso to Section 21(1) of the Act in so far as, it relates to giving of six months'' notice, operates against the very institution of the application inasmuch as the word ''entertained'' does not qualify the expression ''unless'' the land lord has given a notice in that behalf to the tenant not less than six months before such application occurring in the proviso, Accounting to Sri Nathani the very object of the proviso in so far as it is postulates giving of six months notice'' of the tenant would be frustrated if it woe to be held that the inhibition contained In the proviso applies to the entertainment of the application as distinguished from is institution.

In reply, Sri Sudhir Chandra learned Counsel appearing for the Respondent landlord urged that the word ''entertained'' has been used for both the conditions of expectation of three years from the date of purchase and six months from the date of notice and also that the proviso has no application to the facts of the preset case firstly for the reason that the present is a case of re-purchase and not of purchase and secondly, for the reason that the case falls under Sub-section (1-A) of Section 21 and not exclusively u/s 21(1)(a) of the Act.

Having bestowed my anxious consideration to the submissions advanced by the learned Counsel for the parties, I veer round to the opinion that the requirement of giving six months ''notice to the tenant is a condition precedent to the institution of the application for release on grounds mentioned in Section 21(1)(a) of the Act. The expression ''before such application'' occurring after the expression ''landlord has given notice in that behalf to the tenant not less than six months'' is significant. It is deducible from the said expression that the Legislature has left some words after the expression ''before such application'' to be understood and supplied by the courts The comprehended words in my judgment are ''is filed'' or is moved or'' is instituted'' The complete expression in my opinion should be unless a period of three years has elapsed since the date such application and the landlord has given notice in that behalf to the tenant not less than six months before such application is filed/moved/instituted. If the words ''is entertained'' are read after the expression ''before such application'', the sentence would turn out to be grammatically incorrect inasmuch as the word ''entertained'' has already been used in the preceding part of the proviso and its repetition after the expression ''before such application'' would impart grammatical imperfection to the sentence That apart, the object of giving six months'' notice would be defeated If it is held otherwise The object of notice is to enlighten the tenant sufficiently in advance that his new landlord needs the building for his personal use and occupation so that he (tenant) may ascertain well in time as to whether the requirements of his new landlord are genuine and bonafide and find out an alternative accommodation for himself If he considers the landlord''s need to be bonafide or be ready to contest the release application if the landlord''s need is not bonafide one.

In ''Nazuk Jahan v. Addl. District Judge 1981 ARC 530, the Supreme Court has been pleased to hold that the notice contemplated by the proviso to Section 21 of the U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972 cannot be a casual or oral request to the tenant, but a formal demand, ordinarily in writing and clearly Insisting on vacant possession after the requisite period " No useful purpose or giving notice insisting on vacant possession would be served if the notice were to be given after the Institution or filing of the release application in as much as such purpose can be achieved by serving the notice of the release application itself.

In Bhusan v. District judge Ghaziabad 1983 (2) ARC 79, it was observed as under by A.N. Varma J. though the question did not arise on the facts of that case:

In my view what is requited is that the application u/s 21(1)(a) should not be filed before the expiry of six months from the giving of notice to the tenant.

The notice in the present case, was given to the tenant on 24-6- 1982 and the application for release was filed on Sept 13.1982. The application for release was thus admittedly fifed before expiration of six month notices period. It was, therefore, liable to be rejected but for the reasons to be dilated upon hereafter.

The tenant Petitioner had admittedly not raised before the Prescribed Authority the plea that the application having been filed before expiration of notice period was not (sic) It may be pertinent to mention that even the Petitioners in the connected writ petitions who were impleaded for the first time before the appellate court too did not raise the plea in then written statements. The plea was raised at the appellate stage during the course of argument and in my opinion the appellate authority km rightly turned down the plea as to non-compliance with the second condition stipulated in the first proviso to Section 21(1) of the Act on the ground that the tenant Petitioner would be deemed to have waived the plea. Waiver apart the notice contemplated by the First proviso to Section 21(1) can of be treated at per with a notice for determination of tenancy contemplated by Section 106 of the transfer of Property Act i termination of tenancy Is not a condition precedent for meeting eviction of a tenant u/s 21 while it is an ''essential requirement for instituting a suit under the general law of landlord and tenant governed by Section 106 of Transfer of propriety Act. It is in this backdrop that want of notice determining the tenancy u/s 106 is fatal to a suit for eviction of a tenant while it cannot to considered fatal for eviction of a tenant u/s 21 of the Act for the reason that tenancy as provided under Sub-section (6) of Section 21, stands determined by operation of law on expiration of a period of one month from the date of the order of eviction.

The Institution of application for release before expiration of notice period of six months does not, in my opinion affect the jurisdiction of the Prescribed Authority and cannot therefore, be. assailed on the ground that the application for release was filed helot before expiation of notice-period of six months in this back-ground of the matter I am of the opinion that substantial compliance of the proviso to Section 21(1) of she Act with regard to requirements of giving six months notice would be sufficient It is not a case where no notice at all was given. The tenant Petitioner has not shown any prejudice to him because of the institution of the release application during the operation of the notice period.

In Abdul Jabbar v. VII Addl. District Judge 1989 (1) ARC 277 relied upon by Sri Naithani, no notice as all was given and the observation that the notice is a mandatory condition precedent to the enter-attainability of the application was per incuriem.

The fact that the application for release was instituted before the expiry of notice-period of six months cannot be regarded as fatal for yet another reason. Sri Sudhir Chandra learned Counsel appearing for the Respondent landlord urged that the first proviso to Section 21(1) has not application to the facts of the present case for the reason that the eviction of the tenant was not based solely on grounds mentioned in clause (a) of Sub-section (1). Rather the case as pleaded in the release application was covered by Sub-section (1-A) of of Section 21. The question therefore, that comes to the fore for consideration is whether the application for release was covered by the provisions of Sub-section (1-A) of Section 21 of the Act.

The authorities under the Act have no doubt recorded a finding of fact on bonafide nature of the Landlord''s requirement in terms of Clause (c) of Section 21(1) of the Act, but they have also recorded a categorical finding that the-provisions of Sub-section (1-A) were attached to the facts of the power case Sub-section (1-A) provides that notwithstanding anything contained in Section 2, the Prescribed. Authority, shall on the application of a landlord in that behalf, order eviction of a tenant from any building under tenancy, if it is satisfied that the landlord of such building was in occupation on a public building for residential purposes which be had to vacate on account of the cessation of his employment it is also provided that an application under this Sub-section may also be given by a landlord in occupation of such public building at any time within a period of one year before the expected dated of cessation of his employment but the order of eviction on such application shall take effect only on the date of his actual cessation.

It has been found as a fact by the authorities under the Act and the same has not been questioned by the learned Counsel appearing for the Petitioners that the Respondent no. 3 was occupying a public building at 27, Mall Road, Delhi Cantt. In his capacity as Colonel in the Indian Army from which post he stood superannuated with effect form 31st July 1982, and vacated his official residence on 30th Sept. 1982. The application for release as stated herein before was filed on 30thSept. 1982. The application for release as stated herein before was filed on 13th Sept. 1982. The Sub-section is couched in a mandatory language as would be evident from the fact that the legislature has employed the expression "Prescribed Authority shall order the eviction of the tenant form any building under tenancy" in Sub-section (1-A) as distinguished from the expression "the Prescribed Authority may order the eviction of a tenant from any building under tenancy" in Sub-section (1) and a similar expression in Sub-section (2) of Section 21 of the Act. The Prescribed Authority has not been given any option with regard to making an order of eviction in a case covered by Sub-section (1-A) whereas under Sub-section (1) the Prescribed Authority has a wide discretion depending Upon the proof or otherwise of bonafide requirements of landlord and likely hardship The Prescribed Authority under Sub-section (1-A) is left with no discretion but to order eviction of a tenant from any building under tenancy If it is satisfied that the landord of such building was in occupation of a public building for residential purposes which he had to vacate on account of cessation of his employment. The mandate of legislature is further amplified and lent strength o by reason of the fact that Sub-section (1-A) has overriding effect as would be evident from the non-obstante clause ''notwithstanding'' used therein, the Sub-section over-rides the provisions of Section 2 which exempts from the purview of the Act certain categories of buildings including a building within the period of 10 years from the date on which Its construction Is completed it is evident that even in respect of a building not covered by the Act the specified landlord may seek eviction of the tenant under Sub-section (1-A) of the Act instead of filing a regular suit and the Prescribed Authority on being satisfied that the landlord of such building was in occupation of a public building for residential purposes which he had to vacate on account of sensation of his employment, would direct eviction of the tenant notwithstanding the fact that the building does not come within the purview of the Act and is covered by Exemption Clauses of Section 2 of the Act.

The expression "any building under tenancy'' occurring in Sub-section (1-A) cantos significant. From the tenor of the sub-section, it is evident that the expression any building under tenancy" would embrace within its sweep any building whether falling within the purview of the Act or not, and any building whether residential or non-residential. I do not find any substance in the submission made by Sri k.P. Naithani that Sub-section (1-A) may by attracted only in a case where the building sought to be released is a residential building.

The view that I am taking finds support from the view taken la Purushottam Saran v. III Addl. District Judge 1981 ARC 524, and in Col. Brown Cambridge School Dehradun v. Addl. District Judge Dehradua 1988 (2) RC 183.

In the conspectus of the facts and circumstances of the present case, I am of the opinion that the release application filed by the Respondent landlord was fully covered by Sub-section (1-A) of the Act notwithstanding the fact that the building in question is being used by the tenant for hotel and lodging house purposes. Eeven otherwise, according to New Lexicon Webster Dictionary, the word hotel means "a large building with a resident staff, providing accommodation and even meals." in this view of the matter, the fact that the building in question is being used by the tenant as hotel and lodging, would not change it''s character of a residential building. The Respondent landlord requires the building in question both for residential purposes and for purposes of carrying and ruining a lodging house business in Ramrik Lal Pitamber Das Mehta v. indradamn Amrat Lal Sheth AIR 1964 SC 1776, followed in K.A. Anthappai V.C. Ahmmaed 1992 (2) ARC 372, It has been held by the Supreme Court that even if the landlord intends to make certain alteration in the building for his occupation it would not affect the bonafide nature of his requirement. Sub-section (1-A) of Section 21. in my opinion. is fully attracted in the facts and circumstances of the case and the authorities under the Act have committed no error in taking that view In this view of the matter, the fact that the release application was instituted before expiration of the period of six months as contemplated by the First Proviso to Sub-section 21(1), would not be deemed to be fatal inasmuch as the proviso is not attracted with its application in a case of eviction of tenant sought on the ground mentioned in Sub-section (1-A).

The landlord is repaired to prove his banafide need under Clause (a) of Sub-section (1) whereas the fact that the landlord was in occupation of a public building for residential purposes which he had to vacate on account of cessation of his employment is a clinching proof of his bonafide need for purposes of Sub-section (1-A).

The authorities under the Act have held that the case on hand is also covered by Explanation (iii) to Sub-section (1) of Section 21. The explanation in so far at it Is relevant, is quoted below.

Explanation: In the case of a residential building:

(i)... .

(ii)... .

(iii) where the landlord of any building is:

(i) a serving or retired Indian Soldier as defined in the Indian Soldiers (litigation) Act 1925 (IV-1925) and such building was let out at any time before his retirement, or

(ii) a widow of widow of such Soldier and such building was let out at any time before the retirement or death of her husband whichever occurred earlier; And such landlord needs such building for occupation by himself or the members of his family for residential purposes then his representation that he needs the building for residential purposes for himself or the members of his family shall be deemed sufficient for purposes of Clause (a) and where such a landlord owns more than one building, this provision shall apply in respect of one building only.

The relevant explanation as it stood at the time of Institution of the application i.e. before its amendment by U.P. Act 31 of 1985 with effect from 18-5-1983 reads as under:

Explanation: In the ease of a residential building-(i)... .

(ii)... .

(iii) where the landlord is a member of the Armed Forces of the Union and the Prescribed Authority under the Indian Soldiers (Litigation) Act 1925 (Act No. IV/1923) has Issued a certificate in his favour that he Is serving under special condition within the meaning of Section 3 of that Act, then his representation that he needs the building for residential purposes for members of his family, whose particulars are specified are the application, shall be deemed sufficient for the purposes of clause (a).

The learned Counsel appearing for the Petitioner assailed the view taken by the Authorities under the Act as to the applicability of Explanation (iii) to Sub-section (1)21 on the ground that clause (iii) of the Explanation as it stands at present, was substituted by U.P. Act 31 1985 with effect from 18th May, 1913 and therefore, proceeds the argument, the provisions so substituted, would have no application to pending proceedings. It was urged by the learned Counsel that Explanation aforesaid applies to a residential building and not to a non-residential building and that the expression any building'' occurring in Explanation (iii) is held to be of wide amplitude to cover a non-residential building, It would not apply to present case in view of the fact that it would affect a vested right and ''therefore, it cannot be given greater retroactivity than the case given by the legislature Itself and the proceedings pending from before 18th May, 1983 would be governed by unamended Clause (iii) of Explanation as ft stood before its substitution by U.P. Act 31 of 1985.

It is true that having regard to the object and purpose of the Act, it would not be a non-sequiter to hold that landlords'' claim for eviction against a tenant must be a bonafids one whether the eviction is sought under Sub-section (1) or Sub-section (1-A) or Sub-section (2) of Section 21 of the Act, But it holds squally true that in the ease of eviction sought under Sub-section (1) or Sub-section (2) the landlord has to prove his bonafide requirement and the tenant in that event is not precluded from showing, except in cases provided for in the Explanation to Sub-section (1), that the landlord''s claim for eviction is not bonafide one, while in the case of eviction sought under Clause (iii) of the Explanation to Sub-section (1) on under Sub-section (1-A) the landlord is absolved from adducing evidence to prove the bonafide nature of his requirement and likely hardship, being in his favour Both,, these things i.e. the bonafide nature of requirement and the likely hardship ate statutorily taken to be established and proved on mere proof of basic facts mentioned in these provision. The scope and area of defence to eviction under Clause (iii) of the Explanation to Section 21(1) is limited to a defence that the landlord is neither a serving nor a retired Indian Soldier as defined in the Indian Soldiers (Litigation) Act, 1925 nor a widow of such soldier and that the building sought to be released was not let out at any time before his retirement or in the case of widow, before the retirement or death of the soldier-husband, whichever, occurred earlier. Similarly the scope of defence open to a tenant against an eviction sought under Sub-section (1-A) is confined to a plea that the landlord was not in occupation of a public; building for residential purposes which he had to vacate an cessation of his employment as alleged by him. These provisions have been enacted for the benefit of a specified class of landlord i.e. the Indian Soldiers including their widows and a landlord in occupation of a public building for residential purposed who had to vacate the public building on cessation of his employment. The classification is just and reasonable. The object sought to be achieved is that an Indian Soldier and, in the case or his death, his widow and a public servant in occupation of a public building which he had to vacate on cessation of his employment should not be dragged into time consuming and unavoidably uncertain allegation alter retirement, death or cassation of employment as the case may be.

The argument of Sri Naithani that the Explanation as it stood before its amendment by Amending Act 31 of 1985 was confined to the needs of the members of the family of an Indian soldier serving under special condition within the meaning of Section 3 of Act No. IV of 1925 and It was applicable to a residential building, whereas Clause (iii) of the Explanation as it stands amended by Amending Act 31 of 1985 with effect from 18th May 1983 has been made applicable to any building and extended to retired soldiers and the widow of Indian Soldier and thus, proceeds the argument, a vested right of defence would be taken away if the Amending Act is held applicable retrospectively i.e. to pending proceedings, does not appeal to me The fact that the Explanation as originally enacted, was confined to a residential building and to the members of the family of an Indian Soldier serving under special conditions whereas after its amendment by U.P. Act 31 of 1935, Claus (iii) of the Explanation has been, made reapplication to ''any building'' and to any soldier whether serving or retired and his widow, does not in my opinion, affect any of the vestal rights of the tenants of such building Accordingly the amended provision would apply to a pending proceedings and therefore, the representation made by the Respondent landlord that he requires the promises for residential purposes has to be taken to be true and It is also not required to be proved by him that the likely hardship would be on his side.

The provision contained In the Explanation is, in fact, for the benefit of a specified category of landlord and the According Act has simply enlarged the benefit contemplated by the Explanation to any building and extended it to retired Indian Soldiers and their widows, without in any way taking away any vested right of the tenants of any such building. In my judgment if an additional benefit is conferred to a landlord during the pendency of litigation, the landlord would be entitled to avail of such benefits. It is evident that by the Amending Act, the scope of the Explanation has been enlarged and it has been made applicable to any building whether residential or non-residential extended to retired Indian Soldier and widows of serving or retired Indian Soldier. it would be ridiculous to suggest that in order to get the benefit of the amended provision the landlord should withdraw his application and file it afresh.

Before I part with this point, I would like to observe that an Explanation added to a statutory provision, as held by Supreme Court in S. Sunderan V.R. Pattabhiraman AIR 1985 SO 582 is although not a substantive provision in any sense of the term and it is merely meant to explain and clarify certain ambiguities which may have crept in the statutory provision, but the Explanation in question appears to be substantive provision in the sense that it specifies a category of landlord for the purpose of giving it a special treatment and from the language used in the Fourth Proviso to Section 21(1) of the Act. it appears that the Explanation is an integral part of the said proviso and that being so, it acquires tenor and colour of the substantive enactment itself which is, as held by Supreme Court in paragraph 42 of its decisions in the case of Section Sunderan (supra), one of the purpose sought to be served by a proviso. That being so on the finding recorded by the authorities under the Act and also on the basis of unreputable presumption contained in the Explanation, the Respondent landlord was entitled to release of the premises under Clause (iii) of the Explanation to Sub-section (1) of section ii of the Act as well.

The next question of vital and decisive importance is as to whether the Petitioner was protected by the proviso to Sub-section (4) of Section 21 of the Act According to Sub-section (4) of Section 21 of the Act, an order under Sub-section (1) or Sub-section (1-A) or Sub-section (2) may be made irrespective of the fact that the tenancy has not been determined. Provided that no such order shall be made in the case of a tenancy created for a fixed term by a registered lease before the expiry of such term.

The argument of the learned Counsel appearing for the Petitioner is that direction to let issued be the District Magistrate u/s 7 of the Rent Control Act, 1947 did pot result in to the creation of tenancy which came into being for the first time as a result of lease deed dated 25-1-1968, followed by lease deed dated 28-1-1970, creating a fixed term tenancy for a period of 20 year in the first instance with two options reserved to the lesse. The, sheet-anchor of this submission of Sri Naithani is the Full Bench decision of this Court in Udhoo Dass Vs. Prem Prakash and Another, . the rival submissions made by Sri Sudhir Chandra is that the tenancy case into existence by virtue of allotment order dated 16-10-1967 as modified by revisional order dated 8 12-1967 followed by delivery of possession of the major portion of the demised premises with effect from 1-4-1968 and therefore, proceeds the argument, the proviso to Sub-section (4) is not attracted. There are other allied and related submissions of the learned Counsel for the parties which I propose to deal with and dilate upon at a later and appropriate stage in this judgment.

In order to appraise the question raised at the bar in the correct perspective it would be necessary to focus on the concept of tenancy us understood under the general law of the land and the one under the Rent Acts. According to the Halsbury''s laws of England:

The relationship of landlord and tenant arises as a rule when one person, the landlord with intent to create a tenancy, confers on another, the tenant, the right to the exclusive possession of land miens or buildings. The grant or demise must be either for a time which is subject to a definite limit originally, as in the case of a lease for the term of years certain, or for a time which, although originally indefinite, can be made subject to a definite limit by either party as of light by that party giving appropriate notice to the other, for example a tenancy from year to year. The interest in the property which remains in the landlord is called reversion, and as a rule, there is incident to it the right to receive from the tenant payment of rent for the use of the property. "Halsbury''s Laws of England Fourth Edition, Volume 27, Para (1).

Section 105 of the Transfer of Property Act, 1882, the general Law applicable in India, defines lease and the concept of tenancy visualised by the section is more less the same as aforesaid A lease according to the section is a transfer of a right to enjoy the property of the lessor, made for a certain time or in perpetuity, under which the lessee is put in possession of the property in consideration of a price called the premium paid or promised or of money or other thing of value called the rent. Obviously, the relationship of landlord and tenant visualised as aforesaid comes into being as a result of contract and it is accordingly, culled a contractual tenancy.

But it is now too well settled that a tenancy may arise under or by reason of a statute The relationship of landlord and tenant under Rent Acts may be thrust upon parties by virtue of the provisions contained in such Acts even though, no contractual relationship had existed between them at all. In certain cases where the contractual tenancy is determined by efflux of time or forfeiture or notice etc. the relationship of landlord and tenant is allowed to continue under the Rent Acts even after determination of contractual tenancy Such a tenancy is loosely called as a ''statutory tenancy'' and a statutory tenant continues in possession by reason of protection afforded by the appropriate Rent Act.

The Rent Control Act, 1947 did not expressly exclude the provision of the General Law on the subject contained in the Transfer of Properly Act and Contract Act but Section 10 of the Rent Control Act, 1947 provided that any order made or deemed to have been made under this Act, shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this act or any instrument therewith effect by virtue of any enactment other than this Act (Emphasis supplied). The general law of tenancy contained in the Transfer of Property Act could not therefore, prevail over the special law contained in the Rent Control Act, 1947 Nov under U.P. Act 13 of 1972 Section 38 expressly excludes the applicability of the Transfer of Property Act.

Under the general law, the rights and liabilities of the landlord and tenant depend to a large extent upon contract between them as would be evident from the opening sentence in the absence of a contract or local usage to the contrary" occurring in Section 108 of the Transfer of Property Act. A landlord has unbridled power under the Transfer of Property Act to eject his tenant but by virtue of Section 3 of the Rent Control Act, 1947 and Section 70 of the U.P. Act 13 of 1972 the grounds of eviction are well defined and the eviction of a tenant on any other ground is expressly barred. Under the general law, a lessee can transfer or assign his Interest la the lease there under, but sections 25 of U.P. Act 13 of 1972 prohibits a tenant from sub -letting the whole of the building under his tenancy. He may, however, sub-let a part of the building under his tenancy with the permission in writing of she landlord and of the District Magistrate, otherwise the sub-letting would give rise in a deemed vacancy u/s 12 and provide a ground for eviction u/s 20 of the Act. Under the Rent Control Act 1947 also subletting was prohibited except with the permission of the landlord.

As noticed hereinbefore, the premises in dispute was allotted to the Petitioners'' fritter Sarder Labh Singh by the DISTRICT Magistrate, vide allotment ruder dated 16-10-67 as modified by the revisional order dated 8-12-1967 and the allottee was admitted put in possession of the major portion of the building on 1 4-1968 The question for consideration is as to whether the allotment order issued in favour of Sardar Labh singh u/s 7 of the Rent Control Act, 1947 followed by delivery of possession was sufficient to testify to a relationship of landlord and tenant creating tenancy vis-a-vis the demised premises independently of any lease-deed or whether the tenancy came into being only upon the execution of the lease-deed dated 25-1-1968 and again on execution of lease deed 28-11-1970.

In Udhoo Dass Vs. Prem Prakash and Another, a three judge Full Bench of this Court held that a. contract of tenancy between the landlord ad the third party not being an allotte u/s 7 of the Rent Control Act, 1947 is not void and that the order issued by the District Magistrate directing the landlord ''to let'' does not confer any tenancy rights upon the allotte and that he cannot become a tenant unless a contract of tenancy has been entered into between him and the landlord. The landlord-tenant relationship, according to the Full Bench is governed by the provisions of the Transfer of Property Act and the Contract Act.

It may be noticed that the dispute before the Full Bench was between a tenant inducted into the premises as a result of agreement of tenancy between him and the landlord or such perishes. The question was whether such a tenant was entitled to protection of the Rent Control Act, 1947 and to plead. In defence to a suit for eviction brought against him, that he was not liable to eviction except on one or more grounds mentioned in section 3 of the said Act. No allotte was in picture.

Udhao Das v. Prem Prakash (supra) was over-ruled by a larger bench of five Judges in Abdul Hamid v. Mohd. Ishaq 1974 ALJ 676, and it was held as under:

A special order u/s 7(2) is passed often without the consent of the landlord and at occasions against his wishes. Once an allottee is not to the liking of the landlord, the later would never enter into contract of tenancy with the allotte. Even though the landlord may not enter into a contract of tenancy with the allottee, he can occupy the accommodation and pay rent as contemplated by the law. Consequently, inspite of there being no contract between the landlord and if ieranf the possession of the allotted shill be as a tenant and there shall exist a relationship of landlord and tenant. As defined in the Act landlord one fore one who is entitled to recover rent while the allottee is a tenant being liable to pay rent to the landlord. The relationship between the two will thus be based not on contract, but under the statutory provisions. The relationship can thus be regarded as one of statutory tenancy. It is true that a statutory tenant does not enjoy all the benefits and privileges of a lessee as detailed in the Transfer of Property Act, but for so long as he is in occupation of the accommodation he enjoys the status of a tenant and he can easily be called a statutory tenant. See Anand Nivas Pvt. Ltd v. Anandji Kalyanjl''s Pedhi.

Thus the District Magistrate has no power to dictate the term of tenancy or to direct the landlord to enter into a contract of tenancy with the allottee, but once the order of allotment is passed and the allottee takes possession of the accommodation, the relationship between the landlord and the allottee acquires the status of landlord and tenant though the relationship is, to a large extent,, to be governed by the special law namely, the present Act.

The learned Counsel for the petitioner, however, placed reliance upon Supreme Court decisions in Murlidhar Aggarwal and Another Vs. State of Uttar Pradesh and Others, and in Nanakram v. Kundalrai AIR 1986 SC 1193 and urged that the view taken in Udho Das v. Prem Prakaih (Supra) having been approved by the Supreme Court, still holds good and to quotable as a binding precedent The submission is misconceived. It is clear from paragraph 16 of the report in (sic) case (supra) that the Supreme Court has approved the Foil Bench in Udhao Das v. Prem Prakash only in so far as it has bean held therein that a lease made in violation of the provisions of section 7(2) of the Rent Control Act, W47 would be valid between the parties and would create the relationship of landlord and tenant between them although it may not bind the authorities. The view taken by the Five Judge Full Bench in Abdul Hamecd''s case that "once the order of allotment is passed and the allottee takes possession of the accommodation the (sic) between the landlord and the allottee acquires the status of landlord and tenant "with which I am in respectful agreement, is not affected by the Supreme Court''s decision in Murlidhar''s case (supra). Position in Nanakram (Supra) was similar.

The question can be examined from another angle. Section 2(g) of the Rent Control Act, 1947 defines tenant to mean a person by whom the rent is or bus for a contract express or implied, would be payable for any accommodation. Landlord has been defined by section 2(c) to mean a person to whom Rent is parable by so tenant in respect of any accommodation and includes the agent, attorney, heir or assignee of such person. Rule 5 of the Control of Rent and Eviction Rules, 1949 visualizes that the allottee shall, unless he intimates in writing to the District Magistrate, his refusal to accept the accommodation, within seven days of the receipt of the order, be liable for refit from the date of allotment. It is evident from the rule that the liability to pay rent may be fastened upon the allottee with effect from the date of (sic) order, unless the allottee intimates in writing to the District Magistrate, he refusal to accept the accommodation within seven days of the receipt of the order. However, the rule has to be read alongwith section 5(5) of the Act and it appears that the data of commencement of the rental liability may be fixed by the Court u/s 5(5) of the Act read with tale 5 of the Rules in the light of the facts and circumstances of a given case. For example, in the present case where the erstwhile landlords there stoves obstructed the delivery of possession to the allottee and in fact, (sic) filed a Civil suit for injunction, what should be the dale of commencement of tenancy? In my opinion, in a situation like this. Rule 5 of the rules has to be read reasonably and it is to be construed in such manner as to fasten rental liability upon the tenant with effect from the date of Derry of possession pursuant to allotment order. In other capes where there is no obstruction ort the part of the landlord to the delivery of possession and the tenant does net intimate in writing to the District Magistrate his refuse to accept the accommodation within seven days, he would become liable so payment from the date of allotment order Thus sections 2(g) and 5(5) of the Rent Control Act, 1947 read with Rule 5 of the rules made under the said Act lead to a logical conclusion that if an allotment order issued u/s 7 of the said Act Is followed by delivery of possession, the tenancy would came into being from the date of possession. It is true that an allotment order by itself may not result in creation of tenancy being only an order or direction ''to let'' but when such order or direction ''to let'' is followed by delivery of possession, the relationship of landlord and tenant would certainly come into being resulting in creation of tenancy. In this view of the matter, I am of the opinion that allotment order issued in favour of Sardar Labh Singh followed by delivery of possession with effect from 1-4-1965, resulted in creation of tenancy vis-a-vis the processes in (sic). The submission made by Sri L.P. Nrithani that relation hip of landlord and tenant between (he erstwhile owners of the property and Sardar labh Singh came into being for the first time on execution of the lease deed datable 25-1-1968 and again on execution of the subsequent lease-deed dated 28-11-70 is not acceptable to me The Full Bench decision In the case of Udhao Das v. Prem Prakash (supra) holding that the order issued by the District Magistrate does not confer any tenancy right in favour of the; allottee unless a contract of tenancy has been entered into between the allottee and the landlord has been over-ruled by a larger Full Bench of five Judges in Abdul Hsmld v. Mohd Ishaq 1974 AU 676, an noticed herelnbelois and the Supreme Court in Murlidhar''s case (supra) was not concerned with the question whether the allotment order issued u/s 7 of the said Act followed by delivery of possession results in creation of tenancy independently of any contractual lease within the meaning of section 105 of the Transfer of Property Act. No allottee was la picture before the Suprerre Court.

Having held that the tenancy in the instant case was created in favour of Sardar Labh Singh not on the basis of any contract between the then landlords and Sardar Labh Singh but by order of allotment followed by delivery of possession, I now venture upon the question; whether the tenancy so created under the Rent Control Act, 1947 could be converted into a fixed-term tenancy?

In paragraph 563 of the Halsbury''s Laws of England, Fourth Edition, Volume 27 at page 451, it has no doubt been observed that by agreement a statutory tenant can validly turn his statutory tenancy into a contractual tenancy "but in my opinion, a tenancy created either under the Rent Control Act, 1947 or under U.P. Act 13 of 1972, cannot be converted into a fixed term tenancy The reason is that a fixed-term tenancy, implies that on its determination by illus of time, the tenant will have no legal right to remain in possession of the tenanted premises and the landlord can get a decree of eviction against the tenant but then this would abort the very object of the aforesaid Acts. Section 3 of Rent Consol Act, 1947 and section 20 of the U.P. Act 13 of 1972 prohibit eviction of a tenant occupying a premises under a tenancy created by or under these Acts except on grounds enumerated in these sections. Accordingly, and agreement or lease-deed converting a tenancy created by or under the aforesaid Acts into a fixed term tenancy would be of no legal moment. A tenant can successfully repudiate the clause in the lease-deed or agreement converting the tenancy created by or under the Act into a fixed term and put a defence on the basis of the provisions postulation prohibition against eviction except on statutorily specitied grounds against the relief of eviction sought for by the landlord. Conversion of a tenancy created by or under the Acts aforesaid into a fixed term tenancy would be repugnant to the very scheme of these Acts and If it is set afoot, it would rebound on the legislative object sought to be achieved by these Acts Therefore, any contract or agreement converting the tenancy created by under the Acts aforesaid into a fixed term tenancy would be void as to be miliating against the provisions of section 23 of the aforesaid Contract Act and would, in my opinion, be hit by the doctrine.of ''contracting out of the Rent Acts."

Expounding the doctrine of contracting out of the Rent Acts'', It has been observed In paragraph 563 of the Halsbury''s Laws of England, Fourth Edition, Volume 27, p. 450 as under-

A tenant cannot contract out of his rights under the Rent Acts, and therefore cannot bind himself so pay more than proper rent. Similarly, so long as a statutory tenant remained in occupation, he cannot by any contractual arrangement forfeit his rights to he protected; nor is it possible to it incorporate into a tenancy a term which in effect provides a ground for dispossession. IF IT IS UNCONNECTED WITH THE USER OF THE premises.

(Emphasis supplied)

It has been further observed in the same very paragraph of the Halsbury''s Laws of England that "the parties cannot be prevented by any estoppel from retying their, rights under the Acts, whether the estoppel results from agreement of conduct, or, it seems, from a decision of the Court.

At this juncture, I may refer to an authority of the Supreme Court relevant on the point under consideration. In Shri Lachoo Mal Vs. Shri Radhey Shyam, , the Supreme Court has laid down the following exposition of law--

The general principle is that every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy Thus the maxim which sanctions the non-observance of the statutory provision is cuillbet licet renuntiare juri prose introducto (See Maxwell on Interpretation of Statutes, Eleventh Edition, Page? 375 and 376) If there is any express prohibition against contracting out of a statute in it then no question can arise of any one entering Into a contract which is so prohibited but where there is no such prohibitions it will have to be seen whether an act is Intended to have a more extensive operation, as a matter of public policy. In Haisbury''s Laws of England Volume 8, Third Edition, St Is stated in paragraph 248 at page 143.

As a general rule. any pet: ^n cm enter into a binding contract to waive the benefits conferred under him by an Act of Parliament, or, as it is sold can contract himself out of she Act, unless It can be shown that such an Agreement is in the circumstances of the petitioner case contrary to public policy. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the legislature has expressly provided that any such agreement shall be void.

In the footnote it is pointed out that there are many statutory provisions expressed to apply "notwithstanding any agreement to the contrary", and also a stipulation by which a lessee is deprived of his right to apply for relief against forfeiture for breach of covenant (Law of Property Act, 1925). Section 23 of the Indian Contract Act provides:

The consideration or object of an agreement is lawful, unless-it is forbidden by law; or is of such a capture that, if permitted, a would defeat the provisions, of any law or is fraudulent; or involves or (sic) injury to the person or properly of another of the Court regards (sic) 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.

X X X

We are unable to hold that the performance of the agreement which was entered Into between the parties in the present case would involve an illegal or unlawful act, in our Judgment section 1-A was meant for the benefit of owners of buildings which were under erection or were constructed after January 1, 1951. It a particular owner did not wish to avail of the benefit of that section there was no bar created by it in the way of his waiving or giving up or abandoning the advantage or the benefit contemplated by the section. No question of policy, muchless public policy was involved and such a benefit or advantage could always be waived That Is what was done (sic) the present case and we are unable to agree with the High Court that the consideration or object of the agreement emitted into between the parties in June 1962 was unlawful in view of section 23 of the Contract Act.

In ray opinion a tenancy created by or under the Rent Acts is a matter of status It has accused, more or less, a statutory character and is governed by the provisions of the Rent Acts Rights and liabilities of lesser and lessee u/s 108 of the Transfer of Property Act are subject to a contract or legal usage to the contrary whereas a tenancy created by or under the Act. Is not subject to any contract or legal usage except in so far as it is expressly provided in certain matters as far example matters covered by Section 5 of the Rent Control Act, 1947 and Section 4(2) and 7 of the U.P. Act No. 13 of 1972. Terms and conditions of tenancy governed by provisions of the Rent Acts cannot, in my opinion, be altered to the prejudice of either party by an agreement.

In Lachoo Mal''s case (supra) an agreement during the tenancy governed by U.P. Act 3 of 1947 was entered into to the effect that the tenant would vacate premises for reconstruction and landlord would redeliver same after reconstruction. The Supreme Court head that no question of policy muchless public policy was involved and further that of a particular owner did not wish to avail of the benefit of section 1-A of U.P. Act 13 of 1972, he would be taken to have waived the advantage or the benefit in as much as section 1-A was not based on public policy Reliance was also placed on Raj Narain Jain v. III Addl. District Judge 1979 ARC 485. In that case the tenancy was created by a registered (sic) dated 20-3-1948. One of the terms of registered deed was Vhat the tenants shall not be liable to eviction at the insatiate of the landlords except en the ground that they were in arrears of rein for a Full yea. Landlords filed application u/s 21 of U.P. Act 13 of 1912. The tenants took the plea that the application was barred by section 21(4) of the Act. The Division Beach held that section 21 doss not prohibit a landlord from entering into a covenant of the nature referred to above which was cot against section 23 of the Contract Act inasmuch as it was not a covenant surrendering any protection under the Act. It was also held that there is nothing in the Act to prevent a landlord from waiving his rights under the Act and that there is no public policy involved in section 21 of the Act as far as it restricts the rights of the landlord to obtain an order for the eviction of his tenant on certain limited grounds. In my opinion, the decision has no application to the facts of the present case which is not a case of restricting the right to certain grounds but of waiving the right altogether for a fixed term Further the covenant converting the statutory tenancy into a contractual tenancy is not permissible In law as it would, if enforced, expose the tenant to eviction on a ground other than those mentioned in sections 20 and 21 and thus it amounts to surrendering the protection under the Act. The division Bench WHS concerned with a covenant which had no adverse impact upon tenants interest and the lease in that case was not created by or under U.P. Act 3 of 1947.

Taking into consideration the combined impact of the aforesaid authorities. I am of the opinion that the lease-deed dated 28-11-1970 converting the tenancy created under the Rent Control Act, 1947 in favour of Sardar Labh Singh into a fixed-term tenancy, in substance, provided a ground for eviction of the tenant on determination of tenancy by efflux of time which as discussed above, is not permissible under the law. The clause fixing term of tenancy in the lease-deed dated 28-11-70 was, in my opinion, void against the tenant and on the same principle it can be said that it was void against the landlord as well inasmuch as the landlord cannot be prevented by any estoppel from relying upon his rights under the Act. If the law permits the landlord to seek eviction of his tenant occupying the premises under a tenancy created as a result of an order of allotment, ho cannot in law be estopped from relying upon such rights. Public policy Involved in section 21 is that extra and surplus accommodation with a landlord would be easily available for allotment inasmuch as a landlord having the advantage and benefit of getting the accommodation released in his favour when bonafide required by him would not unnecessarily withhold extra surplus accommodation with him. This object of the Legislature would suffer a setback if a statutory tenancy is allowed to be converted into a fixed-term tenancy as the one in question As held by the Supreme Court in Delhi Transport Corporation v. Delhi Transport Corporation Mozdoor Congress AIR 1991 SO 101, a contract which has a tendency to Injure public welfare or public interest is one against public policy. It depends upon the times and climes as also the social milieu in which the contract is sought to be enforced.

Section 3 of the Rent Control Act, 1947 and sections 20 and 21 particularly clause (iii) of the Explanation to sub-section (1) and subsection (1-A) of section 21 of the Act are intended to sub serve a larger public Interest as well and are based on public policy. In this view of the matter, I am of (the opinion that Clause (1) of the lease-deed dated 28-11-70 Is void both against the tenant as well as against the landlord and it entails no binding efficacy inasmuch as it amounts to contracting out of the Rent Acts.

Sri L.P. Naithani, learned Counsel appearing for the petitioner, however, urged that the proviso to Section 21(4) of the Act suggests that the concept of fixed-term tenancy is not repugnant to the scheme of the Act. The submission of the learned Counsel carrier no substance. The proviso, in my opinion, does not apply to a case where tenancy is created by or under the Rent Control Act, 1947 or under the U.P. Act 13 of 1972 for, as held above, fixation of term of tenancy Is repugnant to the scheme of the Acts aforesaid. The proviso, in my opinion, applies to a case of contractual tenancy created for fixed term by registered lease deed in the case of a building which is not within the purview of the Act at the time of creation of tenancy, but which comes within the purview of the Act subsequently during the currency of the term of tenancy. The proviso, may also apply to tenancy referred to in the proviso to Sub-section (1) of Section 20 of the U.P. Act 13 of 1972 which visualizes that the institution of a suit for eviction of a tenant on the determination of his tenancy by efflux of time where a tenancy for fixed term was entered into by or in pursuance of a compromise or adjustment envied at with reference to a suit, appeal, revision or execution proceedings which is either recorded in court or otherwise reduced in writing or signed by the tenant, shall not be barred.

I do not find any illegality in the conclusions arrived at by the appellate authority that the order of allotment was the basis of tenancy in favour of Sardar Labh Singh and that the tenancy was not created for the first time on 28-11-1970 by a registered lease within the meaning of the proviso to Sub-section (4) of Section 21 of the Act in as much as Sardar Labh Singh became entitled to get the possession of the building in question and to enjoy the same by virtue of the allotment order and as soon as he obtained possession w.e.f. 1-4-78, he acquired the status of tenant. The question of creation of a tenancy by the tease deed dated 28-11-70 does net arise. The lease-deed was Ineffective in so far as creation of tenancy is concerned which was a fact already accomplished on 1-4-1978.

The learned Counsel for the petitioner also assailed the finding that a fresh lease started with effect from 1-4-1978 and the earlier lease dated 28-11-1970 was not acted upon. The conclusion of the appellate authority that afresh case started with effect from 1-4-1978 and that the earlier lease dated 28-11-1970 was not acted upon is based primarily on evidence showing that the petitioner had been paying the rent at the rate of Rs. 6000/- per annum with effect from 1-4-1978 as against the rent at the rate of Rs. 5000/- per annum agreed upon between the erstwhile owners and Sardar Labh Sineli vide reseeded dated 28-11-1970 coupled with the fact the rebate clause of the lease-deed dated 28 -11-1970 was not acted upon, at least, by or against the purchaser-landlord-respondent No. 3.

The learned Counsel for the petitioner cited before me N.M. Ponniah Nadar Vs. Kamalakshmi Ammal, and Krishna Kumar Khemka v. Criudteys Bank PIC AIR 1991 SC 899in support of his contention that some variations-Increase or reduction in rent does not result in the creation of a new tenancy.

It is true that the appellate Court was not right In holding that a fresh lease started with effect from 1-4-1978, but having regard to my conclusions in the fore-gone paragraphs that the tenancy in favour of Sardar Labh Singh was crested pursuant to an order of allotment Issued under sec Hon 7 of U.P. Act No. 3 of 1947 which conferred up n him the right to enjoy the holding End rot by virtue of the lease-deed dated 28-11-70, I am of the opinion that the above conclusion arrived at by the Appellate Authority would not vitiale the ultimate order of eviction. I also do not consider it imperative to traverse upon other allied submissions advanced by the learned Counsel for the parties concerting the binding of erecter of the lease-deed dated 28-11-70 nor do I consider it necessary to express any opinion on the question as to whether in view of prior agreement for sale the erstwhile owner M/s. Nahar Singh Kishsn Chand could have lawfully executed the lease (sic). In favour of Sardar labh Singh for a period of 20 years in the first instance with two options to the tenant

Certain authorities including Hukum Chand v. Smt. Hazara Begum AIR 1982 Alld. 215, referred to in the impugned Judgment and Hanumant Kumar Telisara v. Mohan Lal 1988 (1) All RC 330 SC), were cited at the bar for and against the proposition that M/s. Niihar Singh Kishan Chand having already entered Into an agreement for sale with K.R. Bahuguna was not correct to grant a lease its favour of Sardar Labh Singh, operating beyond the period of cessation of their Interest in the property by reason of a sale-deed being executed in favour of K.R. Bahuguna pursuant to the decree passed for the specific performance of prior agreement. It was argued by the learned Counsel for the respondent that Sardar Labb Singh had notice of the registered agreement for sale executed by erstwhile owner it favour of K.R. Bahugusa and that the transaction of lease was not in good faith and as such various covenant and terms specified In the lease dated 28-11-70 were rot binding on the Vendee-respondent-landlord The learned Counsel for the respondent on she other hand urged that M/S. Nahar Singh kihlun Chand were the absolute owners and had every right to create a lease binding on a purchaser as K.K. Bahuguna was. All these and other allied questions do not survive to be answered in the back-ground of my view that tenancy in favour of Sardar Labh Singh was not created by registered lease 28-11-70 to as to attract the provisions of the proviso to Sub-section (4) of section 21 of the Act and that clause (iii) of the Expl. to sub-section (1) as also Sub-section (1-A) of section 21 being based on public policy, the contract corner ting the tenancy created under the Act into a fixed term tenancy is void being hit by section 23 of the Contract Act end the principle of "contracting out of statute."

So far as the question regarding competence and jurisdiction of the authorities under the Act to go into the validity or otherwise of the lease deed Is concerned, I am of the opinion that they have the competence and (sic), an held by appellate Authority, to go into the question which in the present case arose academy in the context of Sub-section (4) of section 21 of the Act Relationship of landlord and tenant was not disputed. The lease-deed was up for consideration only in the context of the nature and binding efficacy of the lease brought about by conversion of a statutory tenancy "into e contractual one, In Babulal Bhuramal and Another Vs. Nandram Shivram and Others, , the Supreme Court baa held that a question of title to premises which does not arise out of the Act, Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 or any of its provisions may he determined impudently. It has been explained by the Supreme Court that a title which could not be established outside the Act hat which (sic) under the provision, of the Act by virtue of a claim made thereunder must be determined by the authorities under the Act and a title de-hors the Act may be determined in anyother court of competent Jurisdiction. The same principle is applicable to the facts of the present case.

Lastly, it may be pointed out that the term of tenancy expired during the pendency of this writ petition and the renewal of lease as contemplated by the lease-seed has not been bionic (sic) a (sic) for specific pet for mince is sake to be fending. Right to enjoy the property on the bastes of the lease transaction dated 8-11-70, does not subsist at the moment. In the facts and circumstances of the case, I do not consider to necessary to examine the implications of the said suit.

So far as the connected writ petitions are concerned, the only additional point canvassed in support of these petitions, was that the petitioners therein were impleaded for the first time before the appellate court which resulted in deprivation of their rights to appeal and also their rights to contest the case effectively. The controversy in my opinion, Is no longer res-integra in view of the fact that the order pursuant to which the petitioners in the connected writ petitions were impleaded as opposie parties to the release application at the appellate stage was challenged in this Court by means of a writ petition which was dismissed by this Court vide judgment reported in 1988 (1) ARC 173. It is now not open to them to say that they have been deprived of any right to appeal.

No other point remains to be considered, These petitions lack merits and are liable to be dismissed.

In the result, the petition fails end is dismissed. Interim order stands discharged Parties to bear their own costs. The order will govern the fate of the connected writ petitions.

After I delivered the lodgment learned Counsel for the petitioner prayed for five months time to vacate the premises. In the facts and circumstances of the case the tine upto January 31, 1993 is allowed provided the petitioner deposits entire amount of rent upto 31st January, 1993 including arrears by December 4, 1992.