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PETITIONER: NAND KISHORE MARWAH & OTHERS

       Vs.

RESPONDENT: SMT. SAMUNDRI DEVI

DATE OF JUDGMENT17/09/1987

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) MUKHARJI, SABYASACHI (J)

CITATION:  1987 AIR 2284            1988 SCR  (1) 158  1987 SCC  (4) 382        JT 1987 (3)   590  1987 SCALE  (2)555  CITATOR INFO :  R          1988 SC2021  (6)  D          1988 SC2164  (7)  D          1989 SC1247  (25)  RF         1990 SC 897  (10)  R          1992 SC1106  (12)

ACT:      Landlord-tenant   matter-Provisions   of   U.P.   Urban Buildings (Regulation  of Letting,  Rent and  Eviction) Act, 1972-Sections 2,  39, 40-Applicability  thereof to the case- Protection granted  to the  tenants  under  the  Act-Whether available to the tenants in the case.

HEADNOTE:      The  appellants   are  the   tenants  of  the  disputed property. Respondent-plaintiff’s  suit for  eviction of  the appellants was  dismissed by the trial court. The High Court in revision  set aside  the judgment  and order of the trial court and  decreed the  suit for  ejectment of  the tenants- appellants. The tenants appealed to this Court.      Dismissing the appeal, the Court,      HELD:  Under  the  provisions  of  sub-section  (2)  of Section  2  of  the  U.P.  Urban  Buildings  (Regulation  of Letting, Rent  and Eviction)  Act,  1972,  newly-constructed buildings stand exempted from the operation of the Act for a period of ten years, which has to be computed from a date to be determined  in the  manner indicated  in Explanation I to section 2(2),  which in this case is the date on which first assessment of the premises in dispute was made for house-tax by the  Nagar Palika,  i.e. October  1, 1976.  Provisions of Sections 39  and 40 are of no avail to the appellants as the suit for  their eviction  was not  pending on July 15, 1972, when the  Act came  into force;  the suit  being filed  much later after  coming into force of the Act. Provisions of the Act are  not applicable  to the  appellants’  case  and  the protection  thereunder   granted  to   the  tenants  is  not available to them. [166G-H; 164C, F]      In view  of the  fact  that  the  appellants  had  been carrying on  business in the premises in question for a long time, the  decree for  eviction directed  not to be executed till March 31, 1988, subject to the appellants’ filing usual

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undertaking (within four weeks). [167C-D]      Om Prakash  Gupta, etc. v. Dig Vijendrapal Gupta, etc., [19821 3 S.C.R. 491 and Vineet Kumar v. Mangal Sain Wadhera, [1985] A.l.R. S.C. 817, relied upon by the appellants. 159      Firm Amar  Nath Basheshar  Das v.  Tek Chand,  [19721 3 S.C.R. 922, relied upon by the respondent.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3909 of 1986.      From the  Judgment and  order dated  29.9.1986  of  the Allahabad High Court in C.R. No. 83 of 1986.      Shanker Ghosh and P K. Jain for the Appellants.      Y.S.  Chitale.  Madan  Lokur,  Prashant  Bhushan,  Beni Parshad,  Rajinder   Dhawan  and  Jitendra  Sharma  for  the Respondents.      The Judgment of the Court was delivered by      OZA. J.  This appeal arises out of a judgment passed by the High Court of Allahabad in Civil Revision No. 83 of 1986 wherein the  learned Judge  of the  High Court  allowed  the revision petition  set aside  the judgment and decree of the Trial Judge  and decreed the plaintiff suit for ejectment of the appellant. The disputed property was let out on June 25, 1976. The  accommodation was for the first time assessed for house-tax by  the Nagar  Palika Ghaziabad  with effect  from October 1,  1976. The  suit was  filed  for  eviction  after termination of  tenancy before the trial court and objection was raised that as the shop and the basement were separately let out  the tenancy  could not  be terminated  by a  single notice that  would be  invalid. The  trial  court  therefore dismissed the suit. The High Court set aside this conclusion of the trial court.      The main  ground which was before the High Court was as to  whether   the  provisions   of  U.P.   Urban   Buildings (Regulation of  Letting, Rent and Eviction) Act, 1972 (’Act’ for short)  will be  applicable to these proceedings in view of the  fact that although the premises were let out in June 1976 but  as the  assessment was made on October 1, 1976 the provisions of  the Act  referred to above will not apply for 10 years  from October  1, 1976 and therefore the suit could be decreed  as the  protection available under this Act will not be available to the tenant.      High Court  after discussing  various decisions came to the conclusion  that in  view of  the language  of Section 2 sub-clause 2  Explanation 1,  it could  not be  doubted that period of 10 years will commence from 160 the date  of assessment  i.e. October  1, 1976 that it is in that view  of the  matter that the learned Judge of the High Court decreed the suit and hence the present appeal.      Learned counsel  for the appellant contended that apart from the  controversy about  the date  which should  be  the starting point  for computing the period of 10 years in view of the language of Sections 39 and 40 of the Act, provisions of this  Act will  be applicable  to the  present  case  and therefore a  decree for eviction could only be passed. If it could be  passed on  anyone  of  the  grounds  mentioned  in Section  20  clause  2  of  this  Act  in  support  of  this contention the  learned counsel placed reliance on decisions in Om  Prakash Gupta  etc. v.  Dig Vijendrapal  Gupta  etc., 11982] 3  SCR 491 and Vineet Kumar v. Mangal Sain Wadhera, [ 1985] A.I.R. SC 817.

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    On the  other hand  learned counsel  for the respondent contended that the rights of parties will be governed on the basis of  the date  on which  the suit  was filed and it was contended that if on the date on which the suit was filed by the  respondent   the  provisions   of  this  Act  were  not applicable then  merely because  the proceedings  have  been pending for  all these  years it could not be contended that as now  10 years  elapsed the  decree could  not be  passed. Learned counsel  placed reliance on a decision in Firms Amar Nath Basheshar  Dass v.  Tek Chand,  11972] 3  SCR  922  and contended that  this is  a decision  of three  Judges  Bench which clearly  hold that  if the  suit was  filed  within  a period of  exemption then  the suit could be decreed and the provisions of  the  Act  will  not  be  applicable.  Learned counsel further  contended that  in the  decision in  Vineet Kumar’s case  (supra) on  which reliance  has been placed by learned counsel  for the  appellant  the  Firms  Amar  Naath Basheshar Dass’s  case (supra)  has not been referred to and decision in  Vineet Kumar’s  case (supra) is a judgment by a Bench of two Judges.      It was  also contended  by learned counsel that as till the matter  was pending  in the High Court 10 years have not been completed  and therefore  the  High  Court  passed  the decree Now  it could  not be  contended that  as during  the pendency of  the proceedings  in this  Court 10  years  have elapsed and  therefore the appellant-tenant will be entitled to protection  of  the  provisions  of  Section  20  It  was contended that  it is well-settled that if the right to file a suit  accrues on  the date  of tiling of the suit then the rights will  have to  be determined  on the basis of the law applicable on the date of the suit and not subsequently.      Learned counsel  for the  appellant contended  that the decision in 161 Firms Amar  Nath Basheshar  Dass’s case  (supra) will not be applicable to  the present  case as  in that case this Court was considering  the language of a notification issued under the East  Punjab Act  exempting buildings from the operation of the  Act for  five years and the view taken by this Court in  that   decision  is   based  on   the  language  of  the notification issued  whereas in  view  of  the  language  of Sections 39  and 40  of the  Act which  is applicable to the present case  that view is not possible and it is because of this that in Vineet Kumar’s case (supra) this Court took the view that if during the pendency of the proceedings 10 years have elapsed  the tenant  will be entitled to the benefit of the provisions  of the  Act. It  was contended  that in this decision the  Court was  concerned with  the  provisions  of Section 2 of the Act itself.      Before this  Court also  the  only  question  that  was raised on  behalf of  the parties  was  as  to  whether  the provisions of  the Act  will be  applicable or not and as to whether the protection granted to the tenants under this Act will be  available to  the present appellant Learned counsel for the  appellant contended  that as during the pendency of this matter  in this Court 10 years have elapsed even if the date of completion is taken to be 1. 10.76 which is the date on which  the first assessment of this property was made and during the pendency of this matter 1. 10.86 has been crossed now the period of exemption has come to an end and therefore the appellant  is entitled  to the  benefits thereof. In the alternative it  was contended  that even  if it is held that the rights  of parties  have to  be determined in respect of the date  on which  the suit  was filed still because of the language of  Sections 39  and 40  of this Act the appellant-

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tenant will  be entitled  to protection  under this Act Sub- clause (2) Sec. 2 of the Act reads as under:           "(2) Except  as provided  in  sub-section  (5)  of           Section 12,  sub-section (1-A) of Section 21, sub-           section (2)  of Section  84, 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           construction is completed:                Provided   that   where   any   building   is           constructed substantially out of funds obtained by           way of  loan or  advance from the State Government           or the  Life Insurance  Corporation of  India or a           bank  or  a  co-operative  society  or  the  Uttar           Pradesh Avas  Evam Vikas  Parishad, and the period           of repayment  of such  loan or advance exceeds the           aforesaid 162           period of  ten years  then the  reference in  this           sub-section to  the period  of ten  years shall be           deemed to  be a reference to the period of fifteen           years or the period ending with the date of actual           repayment  of  such  loan  or  advance  (including           interest), whichever is shorter:           Explanation  I-For   the  purposes  of  this  sub-           section,           (a) the construction of a building shall be deemed           to have  been completed  on the  date on which the           completion thereof  is reported  to  or  otherwise           recorded   by    the   local    authority   having           jurisdiction,  and  in  the  case  of  a  building           subject to assessment, the date on which the first           assessment thereof  comes into  effect, and  where           the said  dates are different, the earliest of the           said dates  and in the absence of any such report,           record or  assessment, the  date on  which  it  is           actually occupied (not including occupation merely           for the  purposes of  supervising the construction           or guarding  the building  under construction) for           the first time:           Provided that  there may  be  different  dates  of           completion of construction in respect of different           parts of  a building  which are either designed as           separate units  or are  occupied separately by the           landlord and  one or  more tenants or by different           tenants:           (b)"construction" includes any new construction in           place of  an  existing  building  which  has  been           wholly or substantially demolished;           (c) where  such substantial addition is made to an           existing  building   that  the  existing  building           becomes only a minor part thereof the whole of the           building including  the existing building shall be           deemed to be constructed on the date of completion           of the said addition." A perusal  of this  provision will clearly indicate that the new  buildings  constructed  have  been  exempted  from  the operation of  this Act for a period of 10 years. This period of 10  years have to be computed in the manner from the date as indicated  in Explanation  1  and  it  was  contended  by learned counsel for the respondents that it will be the date on which  the first  assessment was  made and so far as this question is concerned, it is also concluded by a decision of this Court in Om 163

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Prakash Gupta’s  case (supra) where it has been clearly held while interpreting  Sec. 2 Explanation I of this Act that if there is  an assessment  made then the date of completion of the building,  the date  from  which  10  years  are  to  be computed will  be the date on which the first assessment was made. In  this view of the matter therefore it is clear that 10 years  have to  be computed  from 1.  10.76,  and  it  is because of  this that  even  the  learned  counsel  for  the appellant did  not  seriously  contend  that  the  10  years commence from 1.10.76.      It is  true that  the decision  reported in  Firms Amar Nath Basheshar  Dass’s case  (supra) is  a decision  on  the Punjab Act  where the  question before  this Court was about the language  of the notification which was issued under the Act exempting  the buildings from operation of the Act for a period of  S years  and it  is true that the language of the notification was  not identical  with the language of Sec. 2 sub-clause 2 quoted above.      But apart  from  it  the  contention  advanced  by  the learned counsel  for the  appellant was  that because of the language of  Section 39 and 40 even if the matter is pending in this  Court and  10 years have elapsed, appellant will be entitled to  the benefit  of  the  provisions  of  this  Act because according  to him  the appeal will be a continuation of the  suit and  therefore the advantage will be available. It is  no doubt  true that the appeal is the continuation of the suit  and if  within the  language  of  Section  39  the appellant is  entitled to  the advantage of the Section even if the  matter is  pending in this Court the protection will be available to the appellant but looking to the language of Section 39  it appears  that the  contention of  the learned counsel could not-be accepted.           "39.  Pending   suits  for  eviction  relating  to           buildings brought  under regulation  for the first           time-In any suit for eviction of a tenant from any           building to  which the  old  Act  did  not  apply,           pending on  the date  of commencement of this Act,           where the  tenant within  one month from such date           of commencement  or from the date of his knowledge           of the  pendency of  the suit, whichever be later,           deposits in  the court  before which  the suit  is           pending, the entire amount of rent and damages for           use and  occupation  (such  damages  for  use  and           occupation being  calculated at  the same  rate as           rent) together  with interest  thereon at the rate           of nine  cent per  annum and  the landlord’s  full           cost of  the suit, no decree for eviction shall be           passed except on any of the grounds 164           mentioned in  the proviso to sub-section (1) or in           clauses (b) A to (g) of sub-section (2) of Section           20, and  the parties  shall be  entitled  to  make           necessary amendment  in  their  pleadings  and  to           adduce additional evidence where necessary:           Provided that  a tenant  the rent  payable by whom           does not  exceed twenty-five rupees per month need           not deposit any interest as aforesaid:"      It is  pertinent to  note that  this Section applies to those  suits   which  were   pending  on  the  date  of  the commencement of  this Act.  Admittedly this  Act  came  into force on  15th July,  1972 and  therefore if  the  suit  was pending on  that date it is only then that the provisions of Section 39  will come  to  the  assistance  of  the  tenant- appellant. Admittedly  this suit was not pending on the date on which  this Act  came into  force. An attempt was made to

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contend that so far as the present property is concerned the Act will  be deemed to have come into force on the expiry of 10 years  i.e. 1.10.86  but this  contention  could  not  be accepted as  it is  very clear from the language of this Act that it  applied I only to a suit pending on the date of the commencement of  this Act  and this is the view taken in the Om Prakash Gupta’s case wherein it was observed:           "Further, in  order to attract section 39 the suit           must be pending on the date of commencement of the           Act which  is 15th  of July,  1972  but  the  suit           giving rise  to the  present appeal  was filed  on           23rd of March, 1974 long after the commencement of           the Act.  There is  yet another reason why section           39 will have no application to the present case.      It is therefore clear that so far as the present appeal is concerned,  the provisions  of Section  39 will  be of no avail. Section 40 of the Act reads as under:           "40. Pending  appeals or  revisions in  suits  for           eviction  relating   to  buildings  brought  under           regulation for  the first  time-Where an appeal or           revision arising  out of  a suit for eviction of a           tenant from  any building to which the old Act did           not apply  is pending  on the date of commencement           of this Act, it shall be disposed of in accordance           with the  provisions of  Section 39,  which  shall           mutatis mutandis apply." 165 This Section  talks of  the pendency  of a  revision  or  an appeal arising  out of  a suit  pending on  the day on which this Act  came into  force. It  is clear  that provisions of Section 40  will come  to the rescue of the appellant-tenant only if  the suit  from which  revision or  appeal arose was pending on  the  date  of  commencement  of  this  Act  i.e. 15.7.1972 and  therefore it  could not be contended that the present revision  petition or  the appeal either to the High Court or the appellate authority arose out of suit which was pending on  the date  on which  this Act  came  into  force. Admittedly the  suit itself  was filed much after the coming into  force  of  this  Act.  In  this  view  of  the  matter therefore, in  our opinion,  even this contention of learned counsel for the appellant could not be accepted.      It is  well-settled that the rights of the parties will be determined  on the  basis of the rights available to them on the  date of the suit, but in Vineet Kumar’s case (supra) this Court  took the view that if during the pendency of the proceedings 10  years have elapsed the tenant is entitled to the  protection   under  the  Act  and  in  coming  to  this conclusion the Court also considered the language of Section 39 of the Act and it observed:           "The appellant  in the present case only seeks the           protection  of  the  new  Rent  Act  which  became           applicable to  the premises in question during the           pendency c.f  the litigation. We see no reason why           the benefit  of the  new Rent  Act be not given to           the appellant.  Section 20  of the  new  Rent  Act           provides a  bar to a suit for eviction of a tenant           except on the specified grounds as provided in the           section. Subsection  (4) of  S. 20 stipulated that           in any  suit for eviction on the grounds mentioned           in Cl. (a) to sub-s. (2) viz. the arrears of rent,           if at  the first hearing of the suit the tenant in           default pays  all arrears  of rent to the landlord           or deposits in court the entire amount of rent and           damages for the use and occupation of the building           due from  him, such damages for use and occupation

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         being calculated at the same rate as rent together           with interest thereon at the rate of nine per cent           per annum  and the  landlord’s cost of the suit in           respect  thereof  after  deducting  therefrom  any           amount already  deposited by the tenant under sub-           s. (1) of S. 30, the court may, in lieu of passing           a decree  for eviction  on that  ground,  pass  an           order relieving  the tenant  against his liability           for eviction  on that ground. Section 39 and 40 of           the new Rent Act also indicate that the benefit of           new Act will be given 166           to the  tenant if  the conditions  contemplated in           those sections  are  satisfied.  Section  39  also           indicates that  the parties  are entitled  to make           necessary amendment  in  their  pleadings  and  to           adduce additional evidence where necessary. " But unfortunately  attention of  the Court  was not drawn to the Om  Prakash  Gupta’s  case  (supra)  which  specifically considered this  Act and  the  language  of  Section  39  in particular and  is a  decision of  a Bench  of three  Judges which is binding on us.      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  sub-           section (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 sub-section  shall           bar a  suit for  the eviction  of a  tenant on the           determination of  his tenancy  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  Chapter 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 grounds"  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 Section  20 is  to the  institution of the suit itself and therefore it is clear that if the provisions of this Act applies then  no suit  for eviction can be instituted except on  the  grounds  specified  in  the  sub-sections  of  this Section. Keeping  in view the language of this Section if we examine the  provisions  contained  in  sub-section  (2)  of Section 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 Section 20 is  concerned they  will not  apply and  therefore it  is clear that  within 10 years as provided for in clause (2) of Section 2 restriction of the 167 institution of suit as provided for in Section 20 clause (1) quoted above  will not  be applicable  and it  is thus clear that during  the pendency of the litigation even of 10 years expired the  restriction will  not be  attracted as the suit has  been   instituted  within   10  years   and   therefore

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restriction as  provided  for  in  Section  20  can  not  be attracted.      In the light of the discussions above therefore, in our opinion, the  contention advanced by learned counsel for the appellant can  not be  accepted. The  appellant-tenant could not be  given the  advantage of the provisions contained’ in this Act. In this view of the matter therefore the appeal is without any substance and is dismissed.      It is  true that  we maintained the decree for eviction passed by the High Court but in view of the fact that as the appellant has been carrying out the business in the premises for a  long time  for it  would  be  proper  to  permit  the appellant time  to make  their arrangements for shifting. We therefore direct  that the  decree for eviction shall not be executed upto  3 1st  March, 1988  on the appellant filing a usual  undertaking   within  four   weeks.  In  default  the respondent  shall   be  entitled   to  execute   the  decree forthwith. In  the circumstances  of the  case  parties  are directed to bear their own costs. S.L.                                       Appeal dismissed. 168