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PETITIONER: VINAYA KUMAR SHUKAL

       Vs.

RESPONDENT: LAKHPAT RAM AND ANOTHER

DATE OF JUDGMENT22/08/1990

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) SAIKIA, K.N. (J)

CITATION:  1990 AIR 2171            1990 SCR  (3) 965  1990 SCC  (4) 246        JT 1990 (3)   563  1990 SCALE  (2)343

ACT:     U.P.  Urban Buildings (Regulation of Letting,  Rent  and Eviction) Act, 1972: Section 29-A, sub-sections (4), (5) and (7)--’Such  rent as may be mutually agreed upon between  the parties’--Interpretation  of-- Rent agreement  entered  into prior to commencement of s. 29-A-Whether bars  determination of  rent after the incorporation of s. 29-A-Expression  ’may be’--Scope of.

HEADNOTE:     In  1957,  the appellant let out a plot of land  to  Re- spondent No. 1 at an annual rent of Rs. 170. Respondent  No. 1  constructed a building on the plot of land in 1968,  with the consent of the appellant. After the insertion in 1976 of Section  29-A  in the U.P. Urban  Buildings  (Regulation  of Letting,  Rent and Eviction) Act, 1972, appellant  filed  an application before the delegated authority under the Act for fixation of appropriate rent for the said land under Section 29-A(5)  of  the Act. The application was dismissed  by  the authority on the ground that Section 29-A(5) was  applicable only  to those cases in which there was no agreed  rent  and since  the parties, by mutual agreement, have  accepted  the annual  rent at Rs. 170 there was no question of  refixation of the rent.     Aggrieved,  the appellant filed a Writ Petition  in  the High Court, which was dismissed.     The  appellant  has preferred this  appeal,  by  special leave, against the said order of the High Court. Allowing the appeal,     HELD: 1. The words "such rent as may be mutually  agreed upon between the parties" in sub-section (4) of Section 29-A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)  Act,  1972 envisage an agreement with  regard  to rent  entered  by the landlord and tenant after  the  coming into  force of Section 29-A. An agreement prior to the  com- mencement  of Section 29-A would not preclude  determination of  rent under sub-section (5) of Section  29-A.  Generally, the  words ’may be’ are much oftener used with reference  to the future than the 966 past  or  present. In sub-section (4) of  Section  29-A  the

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words ’may be’ are preceded by the word ’as’ and are allowed by the words ’mutually agreed upon’ which indicate that  the words are used with reference to the future. The  provisions of  sub-section  (7)  which give overriding  effect  to  the provisions  of section 29-A over an existing  contract  also lend  support to this construction. The High Court  was  not correct in holding the view that there could be no  enhance- ment  of  the rent under subsection (5) of Section  29-A  in view  of the agreement between the appellant and the  tenant that  the tenant shall pay rent at the rate of Rs.  170  per annum. [970A-D]     Trilok  Chand  v. Rent Control and  Eviction  Officer  & Anr., [1988] 1 R.C.R. 633; approved. Brown v. Batchelor, 25 L.J., Ex. 299; referred to. Stroud’s  Judicial Dictionary,, 5th Edn. p.  1575;  re|erred to.     2. The Judgment and order of the High Court dated Febru- ary  19,  1990  as well as the order dated  April  14,  1978 passed  by  the Delegated Authority are set  aside  and  the matter is remanded to the Delegated Authority for considera- tion  of  the  application submitted by  the  appellant  |or fixation of rent under Section 29-A of the Act in accordance with law. [970E-F]

JUDGMENT:      CIVIL  APPELLATE  JURISDICTION: Civil Appeal  No.  5933 1983.     From  the  Judgment and Order dated 19.2.  1980  of  the Allahabad  High  Court in Civil Misc. Petition No.  5860  of 1978.     R.K.  Jain, Ms. Abha R. Sharma and R.P. Singh,  for  the Appellant. M .C. Dhingra for the Respondents. The Judgment of the Court was delivered by     S.C.  AGRAWAL. J. This appeal by special leave  involves the  question as to the interpretation of the provisions  of Section  29-A  of the U.P. Urban  Buildings  (Regulation  of Letting, Rent and Eviction) Act, 1972 (hereinafter  referred to as ’the Act’). 967     The  Act was enacted by the U .P. State  legislature  to provide,  in  the interest of the general  public,  for  the regulation  of  letting  and rent of, and  the  eviction  of tenants from certain classes of buildings situated in  urban areas,  and  for matters connected therewith.  The  Act,  as originally  enacted,  was  confined in  its  application  to buildings  only. It was amended by U.P. Act XXVIII  of  1976 whereby  Section 29-A was inserted with a view to give  pro- tection  against eviction to certain classes of  tenants  of land  on which building exists. The relevant  provisions  of Section 29-A read as under: "(2)  This  Section  applies only to land  let  out,  either before or after the commencement of this Section, where  the tenant,  with the landlord’s consent has erected any  perma- nent structure and incurred expenses in execution thereof. XXX         XXX        XXX (4)  The  tenant of any land to which this  Section  applies shall  be liable to pay to the landlord such rent as may  be mutually agreed upon between the parties, and in the absence of  agreement, the rent determined in accordance  with  sub- section (5). (5) The District Magistrate shall on the application of  the landlord or the tenant determine the annual rent payable  in

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respect  of such land at the rate of ten per cent per  annum of  the prevailing market value of the land, and  such  rent shall be payable, except as provided in sub-section (6) from the  date of expiration of the term for which the  land  was let  or from the commencement of this Section, whichever  is later. XXX         XXX        XXX (7)  The provisions of this section shall have effect,  not- withstanding  anything  to  the contrary  contained  in  any contract  or  instrument or in any other law  for  the  time being in force."     The  appellant is the owner of a plot of land  measuring 30 x 65 sq. ft. situated at Garhmukteshwar Road (Azad  Road) Meerut.  The said plot of land was let out by the  appellant to the respondent No. 1 on March 20, 1957 at an annual  rent of Rs. 170. After the said plot of 968 land  had  been let out to him, respondent No.  1  with  the consent  of  the appellant constructed a building  over  the said  plot in 1965. After the enactment of Section 29-A  the appellant  submitted an application on September  29,  1976, before  the  District  Supply  Officer/Delegated  Authority, Meerut,  for  fixation of appropriate rent for the  plot  of land under sub-section (5)-of Section 29-A. The said  appli- cation of the appellant was dismissed by the District Supply Officer Delegated Authority by order dated April 14, 1978 on the  view that the provisions of sub-section (5) of  Section 29-A for fixation of rent are applicable to those cases only in which there is no agreed rent and that in this case  both the  parties have accepted that the rent of land is Rs.  170 per  year  has been fixed on the basis of  mutual  agreement and, therefore, the question of re-fixation of rent does not arise.  Feeling aggrieved by the said order of the  District Supply  Officer the appellant filed a writ petition  in  the High  Court of Judicature at Allahabad under Article 226  of the  Constitution of India. The said writ petition was  dis- missed  by a Division Bench of the said High Court by  order dated  February 19, 1980. The learned Judges have held  that under Section 29-A the District Magistrate has  jurisdiction to determine the rent only in those cases where there is  no agreement  relating  to rent and if there  is  an  agreement between the landlord and the tenant then the District Magis- trate has no jurisdiction to determine the rent. The learned Judges have further found that in the instant case admitted- ly an agreement existed between the appellant and the tenant that  the tenant shall pay rent at the rate of Rs.  170  per annum  to  the appellant and as such there could be  no  en- hancement of the rent under sub-section (5) of Section 29-A. Feeling aggrieved by the said decision of the High Court the appellant  has  filed this appeal  after  obtaining  special leave to appeal.     Shri  R.K. Jain, the learned counsel for  the  appellant has  urged that sub-section (4) of Section  29-A  postulates determination of rent in accordance with sub-section (5)  in cases  where  the  rent has not been  mutually  agreed  upon between the parties. The submission of Shri Jain is that the expression "such rent as may be mutually agreed upon between the  parties" in sub-section (4) of Section 29-A means  rent which  has been mutually agreed upon after the enactment  of Section  29-A and any agreement prior to the said  enactment would not preclude determination of rent under Section  29-A of  the  Act. In support of this submission  Shri  Jain  has invited  our attention to the decision of the Full Bench  of the Allahabad High Court in Trilok Chand v. Rent Control and Eviction Officer and Another, [ 1988] 1 R.C.R. 633.

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969     In  Trilok  Chand v. Rent Control and  Eviction  Officer case  (supra) a Full Bench of the High Court has  considered the correctness of the decision of the Division Bench in the present  case  and has construed the provisions  of  Section 29-A  of  the Act. In that case it has been held  that  sub- section (4) of Section 29-A precludes determination of  rent only in those cases where the agreement fixing the rent  was entered into subsequent to the coming into force of  Section 29-A. It has been observed: "The reason is this, sub-section (4) applies to the land  to which  Section  29-A applies. It provides  that  the  tenant shall  be liable to pay to the landlord such rent as may  be agreed  between the parties. In the absence of  such  agreed rent,  the sub-section further provides that the  tenant  is liable to pay the rent determined in accordance with subsec- tion (5). These terms are clear enough and indicate that the agreement envisaged thereunder is not the agreement, existed prior  to  coming into force of Section 29-A. It  refers  to subsequent  agreement only. The words "such rent as  may  be mutually  agreed upon between the parties" refers to  future agreement  and not the past agreement. Subsection (4)  again emphasises "such rent". Such rent, in the context means  the rent to be mutually agreed upon by parties. Sub-section  (4) further  states that in the absence of agreement,  the  rent has to be determined in accordance with sub-section (5)." (p. 636) "Yet another reason to support our view could be found  from sub-section  (7). It provides that notwithstanding  anything to  the contrary contained in any contract or instrument  or in any other law for the time being in force, the provisions of Section 29-A shall have effect. It means clearly that the agreement  if any existing on the date of coming into  force of  Section  29-A is no bar for enforcing the  rights  under sub-section (5). Sub-sections (4) and (5) shall prevail  and not the antecedent agreement, if any." (p. 636)     The learned Judges of the Full Bench have overruled  the decision of the Division Bench in the present case. We are in agreement with the view propounded by the Full 970 Bench  in Trilok Chand’s case (supra). In our  opinion,  the words "such rent as may be mutually agreed upon between  the parties"  in  subsection  (4) of Section  29-A  envisage  an agreement  with regard to rent entered by the  landlord  and tenant  after  the  coming into force of  Section  29-A.  An agreement  prior to the commencement of Section  29-A  would not preclude determination of rent under sub-section (5)  of Section  29-A. In this context it may be mentioned that  the words  "may be" used in sub-section (4) of Section 29-A  are much oftener used with reference to the future than the past or the present (Pollock C.B. in Brown v. Batchelor, 25 L .J. Ex. 299, Stroud’s Judicial Dictionary, 5th Edn. P. 1575). In sub-section  (4)  of  Section 29-A the words  "may  be"  are preceded  by  the word "as" and are followed  by  the  words "mutually  agreed  upon" which indicate that the  words  are used  with reference to the future. The provisions  of  sub- section  (7) which give overriding effect to the  provisions of Section 29-A over an existing contract also lend  support to  this construction. We are, therefore, unable  to  uphold the view of the learned Judges of the Division Bench of  the High  Court in this case that there could be no  enhancement of the rent under sub-section (5) of Section 29-A in view of the agreement between the appellant and the tenant that  the tenant shall pay rent at the rate of Rs. 170 per annum.     The  appeal  is, therefore, allowed.  The  judgment  and

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order  of the High Court dated February 19, 1980 as well  as the  order  dated  April 14, 1978, passed  by  the  District Supply  Officer/Delegated Authority, Meerut, are  set  aside and   the  matter  is  remanded  to  the   District   Supply Officer/Delegated Authority, Meerut for consideration of the application submitted by the appellant for fixation of  rent under  Section  29-A of the Act in accordance with  law.  No order as to costs. G.N.                               Appeal allowed. 971