Smt. Radha Devi vs Prescribed Authority and Others

N.D. Ojha, J.—One Gopal Das was the tenant of shop No. 31/36, Mohalla Rawatpara, Agra. He died leaving the Petitioner as his widow and Respondents 3 to 14 as his sons and daughters. According to the Petitioner, Gopal Das had been occupying the shop in dispute as a tenant fur the last over 60 years, Thus there is no dispute that the said shop has been in existence from long before the coming into force not only of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) but also of U.P. (Temporary) Control of Rent and Eviction Act, 1947. An application was made by Respondent No. 2, the landlord of the aforesaid shop, u/s 21 of U.P. Act No. 13 of 1972 for ejectment of the tenants. This application was ultimately allowed by the appellate authority. A writ petition was instituted challenging the aforesaid order which was dismissed. The matter was thereafter taken in appeal to the Supreme Court. That appeal too was dismissed and an undertaking was given on behalf of the tenants by Ram Babu Respondent No. 3, one of the sons of the deceased Gopal Das, before the Supreme Court that the shop will be vacated by 31st July, 1979. Notwithstanding the said undertaking the shop was, however, not vacated and proceedings for delivery of possession to the landlord by ejectment of the tenants in pursuance of the order passed u/s 21 were initiated. An objection was filed by the Petitioner in these proceedings too but the same has been repelled. Aggrieved the Petitioner has instituted this writ petition.

The only point which has been urged by counsel for the Petitioner is that since the shop in dispute had been constructed long before the commencement of U.P. Act 13 of 1972 and not after its commencement, the said Act 13 of 1972 was not applicable and the application u/s 21 of this Act was not maintainable. Reliance in support of this submission has been placed by counsel for the Petitioner on the decision of the Supreme Court in Ratan Lal Shinghal v. Smt. Murti Devi 1979 AWC 752. Considerable emphasis has been placed by counsel for the Petitioner on the following observations made in the said case

Shri G.L. Sanghi, Counsel for the Petitioner, has raised neat point of law, as he describes it, that Act 13 of 1972, by which new buildings constructed during the period of 10 years would be given exemption from the operation of the Act, does not apply to buildings constructed prior to the amendment. His contention is that ordinarily a statute like this is prospective in operation, unless there is clear legislative intent to the contrary. We are inclined to agree with him that this legislation is not retrospective and would have gone further to give him relief on that basis....

The point of law is of frequent occurrence and may affect judicially a number of tenants in these days of accommodation scarcity. That is why we have indicated clearly that the contention is sound. That Act 13 of 1972 is prospective and applies only to buildings brought into being denovo after the Act came into force....

Having given our anxious consideration to the matter we find ourselves unable to agree with the submission that U.P. Act 13 of 1972 did not apply to the shop in dispute inasmuch as it had been constructed about 60 years back, i. e., long, before the commencement of U.P. Act 13 of 1972. What came up for consideration before the Supreme Court in Ratan Lal Shinghal''s case (supra) was as to whether the provision contained in Act 13 of 1972 "by which new buildings constructed during the period of 10 years would be given exemption from the operation of the Act" apply "to buildings constructed prior to the amendment." The question as to whether U.P. Act 13 of 1972 does apply to such buildings or not was not the point which was up for consideration before the Supreme Court in the aforesaid case. The writ petition came up before us on 30-11-1979, and on that date in order to ascertain the real controversy before the Supreme Court we required the counsel for the Petitioner to produce a copy of the SLP of Ratan Lal Shinghal''s case (supra). The said copy has been produced before us and its perusal indicates that the building which was in dispute in that case had been constructed on or before 1-10-1969, i.e. prior to the commencement of U.P. Act 13 of 1972. A suit had been instituted by the landlord for the ejectment of the tenant from the said building after terminating the tenancy by giving a notice u/s 106 of the Transfer of Property Act. The ten ant claimed the protection of U.P. Act 13 of 1972 on the ground that the suit was not maintainable in the absence of any of the grounds contemplated by Section 20 of the said Act. The case of the landlord on the other hand was that since ten years had not expired from the date of the completion of the building, U.P. Act 13 of 1972 was not applicable and the tenant was not entitled to its protection. Reliance on behalf of the landlord seems to have been placed on Sub-section (2) of Section 2 of U.P. Act 13 of 1972 The said Sub-section (2) was substituted by U.P. Act 28 of 1976. The opening sentence of the said Sub-section (2) prior to its amendment by U.P. Act 28 of 1976 reads as follows:

(2) Except as provided in Sub-section (2) of Section 24 or Sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its constructions is completed.

The said sentence after its amendment by U.P. Act 28 of 1976 reads thus:

Except as provided in Sub-section (5) of Section 12, Sub-section (1-A) of Section 21, Sub-section (2) of Section 24, Sections 24-A, 24-B, 24 C, or Sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its consideration is completed.

It is thus apparent that the controversy before the Supreme Court was only as to whether the exception contained in sub Section (2) of Section 2, a viz., "nothing in this Act shall apply to building during a period of ten years from the date on which its construction is completed" was applicable, retrospectively, viz., also to the buildings which were in existence prior to the commencement of U.P. Act 13 of 1972 or prospectively, viz., the exception was to apply only to such buildings which were constructed after the commencement of U.P. Act 13 of 1972, And it is in regard to 1 his clause in Section 2(2) of Act 13 of 1972 that the Supreme Court has field in Ratan Lal Shinghal''s case supra) that it was prospective and applied only to buildings brought into being, denovo after the Act came into force. Singhal seems to be the view taken by K.C. Agarwala, J. in Civil Revision No. 2882 of 1977 Sardara Mal v. Nankey khan decided on 28-11-1979

For the foregoing reasons we arc unable to accept the submission made by Counsel for the Petitioner that U.P. Act 13 of 1972 was not applicable to the shop in question.

In the result the writ petition fails and is dismissed.