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PETITIONER: CHETAR SEN JAIN

       Vs.

RESPONDENT: ADDL. DISTRICT JUDGE III, DEHRADUN AND ORS.

DATE OF JUDGMENT07/08/1992

BENCH: THOMMEN, T.K. (J) BENCH: THOMMEN, T.K. (J) BHARUCHA S.P. (J)

CITATION:  1992 AIR 1991            1992 SCR  (3) 769  1992 SCC  (3) 760        JT 1992 (4)   450  1992 SCALE  (2)151

ACT:       U.P. Urban Buildings (Regulation of Letting, Rent  and Eviction) Act, 1972:      Section-14-Regularisation    of    Tenancy-Tenant    in occupation  of  premises with the consent  of  the  landlord before the Act came into force-No suit or other  proceedings for  eviction  pending at the time of coming into  force  of Amending  Act of 1976-Whether tenant entitled to benefit  of regularisation.

HEADNOTE:      The   appellant-tenant  took  on  lease  the   premises belonging   to  the  respondent  in  1958  for   residential purposes.   He shifted his residence in 1968, but  continued to  be  in possession of the same till 1982  under  a  fresh lease  agreed  upon  between him and the  landlord  for  the purpose of storing goods.      In  1982 one ‘D’ filed an application for allotment  of the  premises  in terms of Section 12(3) of the  U.P.  Urban Buildings  (Regulation of Letting, Rent and  Eviction)  Act, 1972  alleging that a "deemed vacancy" had arisen by  reason of the tenant constructing a residential building of his own and shifting therein.  The Rent Court declared the  premises to  be vacant, but the litigation went upto the High  Court, which held that the question of vacancy could be decided  at the time of allotment of the premises or the release of  the same to the landlord.      Thereafter,  in 1984 the premises were released to  the landlord by the order of the Rent Court but in revision  the District  Court remanded the case to the Rent  Court,  which held that the tenant was in occupation of the premises  with the  consent of the landlord and no vacancy had,  therefore, occurred.   In revision, the Additional District Judge  also held that the premises having been at all material times  in the  possession  of  the tenant, no  vacancy  had  occurred. However, on a Writ Petition filed by the landlord, the  High Court reversed the concurrent findings and remanded the case to the District Court for fresh findings.  Hence, the appeal by special leave                                                   770 by the tenant.

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    On behalf of the tenant/appellant it was contended that High  Court  was  wrong  in remanding  the  case  for  fresh findings and that section 14 of the Act as amended by Act 28 of  1976, dealing with the regularisation of  occupation  of existing  tenants was attracted and all defects, if any,  in the occupation of the premises by the appellant were  cured, and  the landlord was not entitled to seek recovery  of  the premises.      Allowing the appeal, this Court,      HELD:  1.1  Section  14 of  the  U.P.  Urban  Buildings (Regulation of Letting, Rent and Eviction) Act, 1972  begins with  a  non obstante clause.  This clause leaves  no  doubt that  a  tenant who has been in occupation of  the  premises with  the  consent of the landlord  immediately  before  the Amending  Act  of 1976 came into force and against  whom  no case  for eviction was pending on that day, is deemed to  be an  authorised  tenant of the premises.  His  occupation  is thus statutorily regularised.  Such a tenant has security of tenure, subject, of course, to the provisions of Chapter  IV of  the  Act dealing with eviction of tenants  on  specified grounds. [773G-H, 774 A-F]      1.2.  In  the  instant case, the  tenant  has  been  in occupation  of the premises in question since long prior  to the  coming into force of the Act of 1972.  At any  rate  in 1971  there  was  a fresh oral  lease  between  the  parties pursuant  to which the tenant has been ever since using  the parties  as a godown.  Besides, the proceedings against  the tenant on the ground of deemed vacancy did not commence till the  filing of the application of allotment of the  premises in  1982 on the allegation that a deemed vacancy had  arisen in terms of section 12(3) of the Act.  Thus, the tenant  had been put into possession of the premises by the landlord and he had been treated as a tenant long before the coming  into force of the 1972 Act and no proceedings against the  tenant for recovery of the premises had been initiated at any  time prior  to  1982.  The tenant had been in occupation  of  the premises  at  all  material times with the  consent  of  the landlord,  and no suit or other proceeding for  eviction  of the  tenant was pending before any court or  authority  when the Amending Act of 1976 came into force. [772E-G, 773F]      1.3.  In these circumstances, the High Court was  wrong in  setting aside the concurrent findings of  the  statutory authorities  and  remanding the case for  further  evidence. [774B]                                              771

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2862 of 1992      From  the  Judgment and Order dated  19.3.1991  of  the Allahabad High Court in C.M.W.P. 15504 of 1988.      C.S. Vaidyanathan, P.K. Jain, Manoj Goyal and Ms.  Abha R. Sharma for the Appellant.      Satish Chandra and D.K. Garg for the Respondents.      The Judgment of the Court was delivered by      THOMMEN, J. Leave granted.      This  appeal arises from the judgment of the  Allahabad High Court in Civil Miscellaneous Writ Petition No. 15504 of 1988.    The  appellant  is  the  tenant.    The   landlord, respondent herein, filed the Writ Petition in the High Court challenging the concurrent findings of the Rent Control  and Eviction Officer, Rishikesh, Dehradun (hereinafter  referred to  as the ‘Rent Controller’ or ‘Rent Court’) and the  Court of   the  Additional  District  Judge  III,  Dehradun   (the

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"Revisional  Court"), to the effect that the tenant  was  in occupation  of  the  premises in  question  since  prior  to 15.6.1976 for non-residential purposes. Setting aside  these findings  of  the Rent Court and the  Revisional  Court  and allowing  the respondent-landlord’s Writ Petition, the  High Court remanded the case to the District Court, Dehradun  for fresh findings on the points in issue.      This  order  of  remand  by  the  High  Court  is   now challenged by the tenant in this appeal.  It is not disputed that  the  premises in question were taken on lease  by  the tenant  in 1958.  He was residing in the premises.  In  1968 he  shifted  his residence, but retained possession  of  the premises.  In 1971 a fresh lease was agreed upon between the landlord and the tenant whereunder the tenant continued  his possession of the premises for the purpose of storing goods. The  premises have ever since been used by the tenant  as  a godown.   On 4.3.1982 one Y.P. Dhuliya filed an  application for  allotment of the premises in terms of section 12(3)  of the  U.P. Urban Buildings (Regulation of Letting,  Rent  and Eviction)  Act,  1972 (Act No. 13 of 1972) alleging  that  a "deemed vacancy" had arisen by reason of the tenant building a residential building of his own and shifting his residence to  that building.  The Rent Court declared the premises  to be vacant on                                                   772 27.8.1982  A review petition was filed by the tenant against that  order.  That petition was allowed by the  Rent  Court. The  landlord then filed a revision in the  District  Court. His  revision  was allowed on 23.9.1983.   The  tenant  then approached  the  High Court by Writ Petition  No.  11781  of 1983.   Dismissing the Writ Petition on 17.4.1983, the  High Court held that the question of vacancy could be decided  at the time of allotment of the premises or the release of  the same to the landlord.      On 25.4.1984 the premises were released to the landlord by  order  of  the Rent Court.  The  tenant  approached  the District Court in revision.  That Court remanded the case to the  Rent Court.  The Rent Court on 2.5.1986 held  that  the tenant  was  in  occupation of  the  premises  since  before 15.7.1978  with the consent of the landlord and  no  vacancy had  therefore  occurred.   The landlord  filed  a  revision petition   before  the  Additional  District  Judge.    That petition  was,  by Order dated  11.7.1988,  dismissed.   The learned  Judge  held that the premises having  been  at  all material  times in the possession of the tenant, no  vacancy had occurred.  Against these concurrent findings of the Rent Court dated 2.5.1986 and the District Court dated 11.7.1988, the landlord filed the Writ Petition in the High Court.  The High Court by the impugned order, as aforesaid, reversed the findings and remanded the case to the District Court.      Having heard counsel on both sides, it does not seem to be  any  longer  in  doubt  that  the  tenant  has  been  in occupation  of the premises in question since long prior  to the  coming  into force of Act 13 of 1972.  At any  rate  in 1971  there  was  a fresh oral  lease  between  the  parties pursuant  to which the tenant has been ever since using  the premises  as  a godown.  It is also not in  doubt  that  the proceedings  against  the  tenant on the  ground  of  deemed vacancy  did  not  commence until 4.3.1982,  when  one  Y.P. Dhuliya  filed an application for allotment of the  premises on the allegation that a deemed vacancy had arisen in  terms of  section  12(3) of the Act.  These facts  show  that  the tenant had been put into possession of the  premises by  the landlord and he had been treated as a tenant long before the coming into force of Act 13 of 1972.  It is also clear  that

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no  proceedings  against  the tenant  for  recovery  of  the premises had been initiated at any time prior to 1982.   The tenant  had  been  in  occupation of  the  premises  at  all material times with the consent of the landlord.      Various  questions are agitated before us on behalf  of the tenant.  Mr.                                                   773 Vaidyanathan appearing for the tenant contends that the High Court  was wrong in remanding the case.  The view  expressed by the High Court as to the test to decide the character and nature of the building or as to the applicability of section 12(3),  counsel says, was incorrect.  He, however, raises  a very significant contention on the basis of which we propose to  dispose of this case.  Mr. Vaidyanathan says that  facts which are not in dispute clearly show that section 14 of Act 13  of 1972 (as amended by Act 28 of 1976) dealing with  the regularisation   of  occupation  of  existing   tenants   is attracted and all defects, if any, in the occupation of  the premises by the appellant are cured, and the landlord is not entitled to seek recovery of the premises.          Section 14 reads :          "14   Regularisation  of  occupation  of   existing          tenants  -  Notwithstanding anything  contained  in          this   Act or any other law for the time  being  in          force, any licensee (within the meaning of  section          2-A)  or a tenant in occupation of a building  with          the consent of the landlord immediately before  the          commencement  of the Uttar Pradesh Urban  Buildings          (Regulation   of   Letting,  Rent   and   Eviction)          (Amendment)  Act, 1976, not being a person  against          whom any suit or proceeding for eviction is pending          before  any court or authority on the date of  such          commencement  shall be deemed to be  an  authorised          licensee or tenant of such building."      It  is  not  in dispute that the  tenant  has  been  in uninterrupted occupation of the building with the consent of the  landlord  at any rate during the period  from  1971  to 1982.   It  is  also  not disputed that  no  suit  or  other proceeding for eviction of the tenant was pending before any court or authority at the relevant time, i.e., on  5.7.1976, when U.P. Act 28 of 1976, amending U.P. Act 13 of 1972, came into force.      Section 14 begins with a non obstante clause.  It  says "Notwithstanding anything contained in this Act or any other law for the time being in force...... ."  This clause leaves no  doubt that a tenant, who has been in occupation  of  the premises with the consent of the landlord immediately before 5.7.1976  and against whom no case for eviction was  pending on  that  day, is deemed to be an authorised tenant  of  the premises.   His occupation is thus statutorily  regularised. Such a tenant has security of tenure, subject,                                                   774 of  course,  to  the provisions of Chapter  IV  of  the  Act dealing with eviction of tenants on specified grounds.      In  the  circumstances,  the High Court  was  wrong  in setting  aside  the  concurrent findings  of  the  statutory authorities  and  remanding the case for  further  evidence. The  judgment of the High Court is set aside.  The order  of the  learned  Additional District Judge dated  11.7.1988  is restored.      The appeal shall, accordingly, stand allowed with costs. N.P.V.                                      Appeal allowed.                                                   775

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