Mohd.Zakariya vs VII Addl.DJ, Hardoi and others

S.H.A. Raza, J.—The only question involved in this writ petition is as to whether a suit for arrears of rent and ejectment from a public building, filed prior to 18.5.1983, will be governed by Section 20(2)(a) of the Act or will be governed by the general law. The petitioner by means of this writ petition has challenged the orders dated 1.11.1988, passed in revision by Vllth Additional District Judge, Hardoi, and dated 4.4.1987 passed by the Judge. Small Causes, Hardoi, dismissing the suit of the petitioner for arrears of rent and ejectment filed against opposite parties No. 3 to 5. It was averred that the petitioner who is the landlord of the premises in dispute let out a house to Union of India through the Secretary, Post and Telegraphs, Ministry of Communication and the Superintendent of Post Offices, Hardoi Region, Hardoi and the Post Master, Branch Post Office, Ganga Rampur Chauraha, Kasba and Pargana Mallawan, Tehsil Bilgram, district Hardoi i. e. opposite parties No. 3 to 5 on a monthly rent of Rs. 50/ per month. The petitioner filed a suit for arrears of rent and ejectment of the aforesaid tenants on 17/18th March, 1983 after giving them a notice under Section 80 CPC and a notice under Section 106 of the Transfer of Property Act terminating the tenancy as they failed to remit the rent for the period commencing from 1.3.1982 to 31.12.1982 to the petitioner inspite of several demands being made by him.

It was contended on behalf of the petitioner that U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter called the Act) was not applicable over the premises in dispute because the aforesaid suit was instituted by the petitioner on 17.3.1983 and at that time the premises in dispute was exempted from the operation of the Act. The premises in dispute came under ''Public Building'', defined under Section 3 of the Act, and by means of Section 2(1)(a) of the Act such buildings were exempted from the operation of the Act, hence the tenancy of the opposite parties No. 3 to 5 was determined by means of notice under Section 106 of the Transfer of Property Act and the suit was filed.

Although the tenants admitted the ownership of the petitioner as well as the arrears of rent commencing from the period 1.2.1983 to 31.12.82 amounting to Rs. 500/, their stand, in nutshell, was that the Act was applicable on them and in view of Section 20(4) of the Act they were not liable for eviction as they have tendered the requisite amount on the first date of hearing i.e. 15.7.1983 before the trial court as provided under Section 20(4) of the Act. However, the aforesaid tender was not accepted by the trial court on that date.

The contention of the petitioner is that before 18.5.1983 all the public buildings were exempted from the operation of the Act. On 18.5.83 by means of Ordinance No. 28 of 1983, Section 2(1)(a) of the Act was amended and the exemption granted to all the public buildings darlier was limited to any building of which the government or a local authority or a public sector corporation was the landlord. Hence, the buildings which were in the tenancy of the government were excluded from the exemption. This Ordinance was granted extension by Ordinance No. 43 of 1983 and 6 of 1984 and finally by means of U.P. Act No. 17 of 1985. The aforesaid amendment in Section 2(1)(a) of the Act was finally brought into force with effect from 18.5.1983. The aforesaid amendment in the Act i. e. the exclusion of the government tenanted buildings from the exemption clause 6f the Act under Section 2 of the Act was given retrospective effect from 18.5.1983 i. e. the retrospectivity of the aforesaid amending Act No. 17 of 1985 was valid only upto 18.5.1983 and not beyond. The suit of the petitioner was dismissed by the Munsif East, Hardoi i. e. the Judge Small Causes Court, Hardoi. The Vllth Additional District Judge, Hardoi, also dismissed the revision of the petitioner by giving a finding to the effect that since the aforesaid amendment in Section 2(1)(a) of the Act was retrospective in nature, htnce, though the suit was filed on 17.3 1983 and the amendment was brought on 18.5.1983 the Act had become applicable on the premises in dispute. The aforesaid decision of the lower court was based on a Full Bench decision of this Court in Punjab National Bank Vs. Sugan Chandra, (1985) 1 ARC 215.

The grievance of the petitioner is that in Punjab National Sank (supra), reference before the Bench was not as to whether the amendment under Section 2(1)(a) of the Act was retrospective in nature or not. Though the Full Bench had made its observation and has given its opinion in regard to this amendment but it was only obiter dictum and not ratio debidendi in the matter in issue and the courts below failed to consider the controversy and erred in dismissing the suit as well as the revision of the petitioner.

A counter affidavit has been filed on behalf of opposite parties No. 3 to 5. It has been averred that the law is well settled that a statute which is declaratory as distinct from being remedial takes retrospective effect. If a statute is in its nature declaratory act, the argument that it is not to be construed so as to take away its previously vested right is inapplicable.

The contention of the opposite party that Section 2(1)(a) and Section 3(o) of the U. P. Act No. 13 of 1972, as amended by U. P. Act No. 28 of 1976, are retrospective in operation and hence the decision of the lower courts, relying on the Full Bench of this Court in Punjab National Bank (supra) is perfectly legal, just and proper as the Full Bench had laid down that an Ordinance or Act which was declaratory in nature was to take effect retrospectively. Accordingly, the courts below relied on a ratio decidendi and not on Obiter dictum.

Hon''ble the Supreme Court in re : State of U.P. and another Vs. Malik Zarid Khalid, reported in (1988) 1 SCC, 145 has enunciated the law on the subject. In the said case the building was taken on lease by the State Government and so it fell within the definition of ''Public Building'' under Section 3(o), as introduced by U.P. Act No. 28 of 1976. It was, therefore, exempt from the application of the Act by reason of Section 2(1) as it stood at the relevant time. Accordingly, the remedy of the respondentlandlord to recover the possession lay under the general law and had to be enforced by a suit for recovery of possession. Hon''ble Mr. Justice Ranganath Misra and Hon''ble Mr. Justice Rangnathan have indicated as under:

�The subsequent legislation also reinforces the same conclusion. The 1976 amendment had come up for judicial interpretation and certain decisions referred to in the Full Bench Decision as well as the judgment presently under appeal had given the above literal interpretation to Section 3(0). If they had run counter to the true legislative intent, one would have expected the repeated Ordinances since 1983 and the ultimate Amendment Act of 1985 to have placed the position beyond doubt by a retrospective amendment. Though the Ordinance of 1977 made its amendment retrospective from July 5, 1976, these later amendments are all specifically given effect to from May 18, 1983. The effect of the decisions rendered remained untouched till then. The fact that the 1976 amendment marked a departure from the more restricted exclusion available earlier and the fact that the said restricted exclusion was again restored with effect only from May 18, 1983 militates against the correctness of adhering to this narrow interpretation even during the interregnum from May 5, 1976 to May 18, 1983.

It may now be considered whether the above interpretation renders Section 21(8) redundant. As pointed out by the Full Bench of the High Court not much thought has gone into the framing of this subsection which has failed to notice that clauses (ii) and (iv) of the Explanation to Subsection (1) which are referred to in it, had been omitted by an earlier clause of the same section of the same Act. The Ordinance of 1977 sought to remedy this position by deleting the words �Unless the Prescribed Authority js satisfied ...is applicable� used in the subsection but this Ordinance was allowed to lapse and the subsequent Ordinances and Amendment Act paid no heed to Section 21(8). Nevertheless, despite this clumsy drafting, one would certainly hesitate to given an interpretation to the definition clause in Section 3(0) which may have the effect of rendering this subsection otiose. But luckily that is not the position. As pointed out by counsel for the respondent, subsections (1), (1A) and (8) of Section 21 have to be read together. Though Section 2(1) excludes public buildings which we have interpreted to include building in which the government is only a tenant Section 21(1A) incorporates an exception to this exclusion, �notwithstanding anything contained in Section 2�, it permits an application for eviction being moved under Section 21(1)(a) of the Act by a landlord against any tenant but in the limited circumstance set out in that subsection viz. that the landlord has been in occupation ol a public building but had to vacate it as he had ceased to be in the employment of the government, local authority or corporation. In other words, the land of a building in which the government is a tenant could have moved an application under Section 21(1)(a) read with section 21(1A). This is what is prohibited by Section 21(8) absolutely in view of clauses (ii) and (iv) of Explanation 1 to subsection (1) being nonexistent. Section 21(8) makes it clear that while a landlord who is compelled to vacate a public building occupied by him due to cessation of his employment can proceed under the Act to evict any tenant occupying his property so that he may use his own property for his residential purposes, he will not be able to do so where his tenant is the government, a local authority or a public corporation. Thus read, Section 21(8) does not become otiose or redundant by accepting the wider interpretation of Section 3(0). This objection of the appellant is not, therefore, tenable.

�The Full Bench of the High Court has referred to one general aspect whtch appears to have considerably influenced it in preferring a narrower interpretation of Section 3(0). It referred to increasing difficulties faced even by government and other public bodies in securing proper accommodation for their functioning and the near impossibility, even for them, of securing alternative accommodation at comparative and nonexhorbitant rates once they are compelled to vacate their existing tenancies. The court posed to Itself the question whether the legislature can be said to have intended to exclude them from the benefits of the Act and throw them open to eviction by suits following a mere termination of tenancy by notice under Section 106 of the Transfer of Property Act, at the mere whim and caprice of their landlords. This, the court thought, was unlikely particularly when, prior to the Amendment Act of 1976 as well as subsequent to 1983, they could have been evicted only on one or other of the grounds available under Section 20 or Section 21 of the Act and more so because the amendment manifests an intention to extend to public corporations benefits previously available only to a government and to a local authority. The object of the exclusion in Section 2(1)(a), it is said, was to remove, in respect of buildings where the government or local authority was the landlord (either as a owner or principal lessee or requisitioning authority) the shackles imposed on other landlords but not to deprive these bodies, when they are mere tenants, of the protection available ta other tenants under the Act. Having regard to these considerations the Full Bench of the High Court has invoked a line of decisions of this Court and others which advocate that, in certain situations, importance should be attached to the �thrust of the statute� rather than to the literal meaning of the words used to justify their refusal to give the words of Section 3(o) full effect.�

�It is true that there are situations in which courts are compelled to subordinate the plain meaning of statutory language. Not unoften, courts do read down the plain language of a provision or give it a restricted meaning, where, to do otherwise may be clearly opposed to the object and scheme of the Act or may lead to an absurd, illogical or unconstitutional result. But we think that this mode of construction is not appropriate in the context of the present legislation for a number of reasons. In the first place, such an interpretation does not fit into the legislative history we have traced earlier. It does not explain why the legislature should have, while enacting the 1976 amendment, omitted certain operative words and ysed certain wider words instead. As we have pointed out earlier, if the idea had only been to add to the exclusion buildings owned or let out by public sector corporations, that result could have been achieved by a minor amendment to Section 21(1)(a) as it stood earlier. A conscious and glaring departure from the previous language, must be given its due significance. Secondly, the Rent Act is a piece of legislation which imposes certain restrictions on a landlord and confers certain protections on a tenant. It could well have been the intention of the legislature that the government, local bodies and public sector corporations should be free not only from the restrictions they may incur as landlords but also that they need not have the protection given to other ordinary tenants. To say that the legislature considered the government qua landlord to be in a class of its own and hence entitled to immunity from the restrictions of the Act but that, qua tenant, it should be on the same footing as other tenants will be an interpretation which smacks of discrimination. The legislature could have certainly intended to say that the government, whethet landlord or tenant, should be outside the Act. Thirdly, while it is true that the result of the interpretation we favour would be to facilitate easy eviction of government, local authorities and public corporations, there is nothing per se wrong about it because, with their vast resources or capacity to augment their resources, these bodies would not be in as helpless a position as ordinary tenants for whose benefit the legislation is primarily intended. On the other hand, the ultimate result of the interpretation accepted by the Full Bench will be to practically deny a landlord who has given his premises on rent to these bodies, any remedy to get back possession of his premises. The contingencies for which eviction is provided for in Section 20 are hardly likely to arise in the case of such tenants ; Section 21(1)(a) is taken out by Section 21(8) and, virtually, the only ground on which eviction can be sought by a landlord of such a building against such a tenant, on the interpretation urged by the petitioner, would be the one contained in Section 21(1)(b). It is debatable whether the legislature could have contemplated such a situation either. Fourthly, in this case, the legislature has applied its mind to the situation more than once subsequently. If its intention in carrying out the amendment had been misunderstood by the High Court or found ambiguous, the legislature was expected to rectify the situation by a piece of retrospective or declaratory legislation. The 1977 Ordinance was, but the later Ordinances and the 1985 Act are not, of this nature. They neither are, nor purport to be declaratory or retrospective from July 5, 1976. Atleast if the 1985 Act had been made retrospective from July 5, 1976, one could have thought it was a clarificatory piece of legislation. But the legislature has advisedly given these enactments effect only from May 18, 1983. This means that the amendment of 1976 was intended to be effective between July 5, 1976 and May 18, 1983 and it also means that the amendment of 1983 onwards is not intended to be read back for that period. Lastly, in any event, the interpretation given by us will create no lasting difficulties for the government and other organisations which are tenants only, since after May 18, 1983 they will be in a position to claim all the immunities available to other tenants under the Act.�

The effect of substitution of Section 2(1)(a) of U.P. Act No. 13 of 1972 by U.P. Act No. 17 of 1985 is that in respect of a building taken on lease by or on behalf of the State Government a suit can be maintained without any other grounds referred to in Section 20 of the U. P. Act No. 13 of 1972 being specified. This may not be said to be available whether (sic) the suit had been instituted prior to 1983 or in other words the cause of action had accrued prior to this date because clause (a) has been given retrospective operation with effect from May 18, 1983. The retrospectively given to clause (a) of Section 2(1) of the Act does not go beyond May 18, 1983. The suit was admittedly filed on 17.3.83 i. e. prior to May 18, 1983, hence the benefit of Section 20(4), 39 and 40 cannot be availed by the opposite parties. The Full Bench decision of this Court in Punjab National Bank (supra) was overruled by the Hon''ble Supreme Court in the case of State of U.P. and another vs. Mallik Zarid Khalid (supra). It was vehemently argued on behalf of the opposite party that on 15.7.1983 i. e. the first date of hearing, the opposite parties No. 3 to 5 deposited the rent. Even after coming into force of U.P. Act No. 17 of 1985 by means of which the aforesaid amendment in Section 2(1)(a) of the Act was given retrospective effect with effect from 18.5.1983, hence, on that date the deposit made by the opposite parties under Section 20(4) of the Act, when the suit was pending, was valid one. In 1987 Supreme Court, 2284 (in re Nand Kishore vs. Smt. Samundari Devi) their lordship of the Supreme Court have held that:

�The restriction on the right of a landlord to evict a tenant has been provided for in this Act under Section 20 and the language of Section 20 is also significant.

�20. Bar of suit for eviction of tenant except on specified grounds (1) Save as provided in subs. (2) no suit shall be instituted for the eviction of a tenant from a building notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner.

Provided that nothing in this subsection shall bar a suit for the eviction of a tenant on the determination of his teflancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceedings, which is either recorded in Court or otherwise reduced to writing and signed by the tenant.�

This is put in Chap IV with the heading �Regulation and Eviction� and the section starts with title which is printed in bold �bar of suit for eviction of tenant except on specified grounns� and again in the wording of the section itself it provides : �No suit shall be instituted for eviction. �This clearly indicates that the restriction put under S. 20 is to the institution of the suit itself and therefore it is clear that if the provisions of this Act applied then no suit for eviction can be instituted except on the grounds specified in the subsections of this Section. Keeping in view the language of this section if we examine the provisions contained in subs. (2) of S. 2 it will be clear that for a newly constructed building the provisions of this Act will not apply for 10 years and therefore so far as the restriction under S. 20 is concerned they will not apply and therefore it is clear that within 10 years as provided for in Cl. (2) of S. 2 restriction on the institution of suit as provided for in S. 20 cl. (1) quoted above will not be applicable and it is thus clear that during the pendency of the litigation even if 10 years expired the restriction will not be attracted as the suit has been instituted within 10 years and therefore restriction as provided for in Section 20 cannot be attracted.�

10'' Their lordships of the Supreme Court in Nand Kishore (supra) have clearly indicated that it is well settled that the rights of the parties will be determined on the basis of the right available to them on the date of the suit and relied upon Om Prakash Gupta''s case reported in AIR 1982 SC 1230. In view of the law laid down by the Hon''ble Supreme Court on the subject, the argument of the learned counsel for the opposite parties 3 to 5 that the right of the parties ought to be determined on the basis of the rights available to them on the date of the first hearing of the suit is fallacious.

For the reasons indicated hereinabove, orders dated 1.11.1988 and 4.4.1987 passed by the VIIth Additional District Judge, Hardoi and the Munsif East (Judge Small Cause Court), Hardoi, contained in Annexures1 and 2 to the writ petition are quashed. The opposite party No. 2, Judge Small Cause Court, Hardoi, is directed to decide the case afresh in accordance with law. In the circumstances of the case there shall be no orders as to cost.