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PETITIONER: RAMESH CHANDRA

       Vs.

RESPONDENT: IIIRD ADDITIONAL DISTRICT JUDGE AND OTHERS

DATE OF JUDGMENT22/01/1992

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) SHARMA, L.M. (J) RAMASWAMI, V. (J) II

CITATION:  1992 AIR 1106            1992 SCR  (1) 349  1992 SCC  (1) 751        JT 1992 (1)   356  1992 SCALE  (1)122

ACT: U.P.  Urban  Buildings  (Regulation  of  Letting,  Rent  and Eviction) Act, 1972:      Section  2  (2),  20  (2)  and  39-Application  of  Act excluded  to  any  building during ten years  from  date  of completion of construction-Building constructed in 1968-Suit for  eviction constituted in 1977-Whether Act applicable  to the  suit building-Expiry of statutory period of  ten  years during  pendency of suit/appeal/revision-Whether  makes  the Act applicable.      Transfer of Property Act, 1882 : Section 106.

HEADNOTE:      The  appellant-landlord instituted a suit in  the  year 1977  for  eviction of the respondent-tenant from  the  suit premises,  after  giving a notice under Section 106  of  the Transfer  of  Property Act, 1882, terminating  the  tenancy. The  landlord claimed that since the house in  question  was constructed in 1968, the U.P. Urban Building (Regulation  of Letting, Rent and Eviction) Act, 1972 did not apply to it.      The  respondent-tenant contended that the building  was an  old construction and hence the Act was  applicable,  and since  none of the grounds mentioned in Sub-section  (2)  of Section  20 of the Act was made out, a decree for  ejectment could not be passed.      The Trial Court held that the Act applied to the  house and accordingly, proceeded to decide the case on merits  and dismissed the suit.      The  appellant-landlord’s revision under Section 25  of the  Provincial Small Causes Courts Act was allowed  by  the IIIrd  Additional  District Judge, holding  that  since  the house  was  constructed in the year 1968, the  Act  did  not apply  till 1.9.78, and though benefit of Section 39 of  the Act was available to the tenant, since he did                                                        350 not comply with the requirements of the said section, it did not come to his rescue.      However,  on appeal by the tenant, the High Court  held that the Act applied even to the buildings constructed prior to the commencement of the Act and since none of the grounds

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mentioned  in  the said Sub-section (2) of Section   20  was satisfied, the suit was liable to fail.      In  the  appeal  before this Court, on  behalf  of  the landlord-appellant it was contended that since the suit  was instituted  prior  to  1.9.78 it was saved  and  had  to  be decided without reference to the Act.      On  behalf  of the respondent-tenant it  was  contended that the house was an old one, and it was merely repaired in the  year  1968,  and that the tenant was  entitled  to  the benefit  of Section 39, and that since the statutory  period of  ten years expired during the pendency of the  suit,  the Act became applicable and the suit must be disposed of  only in   accordance   with  the  provisions  of  the   Act   and imparticular, Sub-section (2) of Section 20.      Allowing the appeal, this Court,      HELD  :  1.1 The U.P. Urban  Building  (Regulations  of Letting, Rent and Eviction) Act, 1972 came into force on and with effect from 15th July, 1972. Sub-section (2) of Section 2 of the 1972 Act declares that the Act would not apply to a building during a period of 10 years from the date on  which its  construction  was completed.  Explanation (1)  to  Sub- section  (2)  explains  when the  construction  of  building should be deemed to have been completed. [353 B, C, D]      1.2.  In  the  instant case,  the  District  Judge  has recorded  a  finding based on relevant and  proper  evidence that  the building in question was constructed in  the  year 1968,  as  claimed by the appellant landlord.  Thus,  it  is clear  that it was constructed prior to the commencement  of the  Act.  The United Provinces (Temporary) Control of  Rent and  Eviction Act, 1947, which was repealed by the 1972  Act did  not apply to it, because it was constructed  subsequent to 1951.  The suit was instituted on 1.6.1977 i.e., prior to the  completion  of  10 years period from the  date  of  its construction.  The  Act would not apply to a building for  a period   of   ten  years  after  the   completion   of   its construction.  Therefore, the construction of the building                                                        351 in question have been completed in August 1968, the 10 years period  extends upto August, 1978, whereas the present  suit for  eviction was filed long prior thereto.  Therefore,  the suit  as instituted had to be disposed of without  reference to the Act.  The mere fact that the statutory period of  ten years     expires    during    the    pendency    of     the suit/appeal/revision, does not make the Act applicable. [353 B; 355 A-F]      Om  Prakash Gupta & Ors. v. Vijendrapal Gupta  &  Ors., [1982]  2 SCC 61 and Nand Kishor Marwah & ors.  v.  Samundri Devi [1987] 4 SCC 382 relied on.      Ratan Lal Shinghal v. Smt. Murti Devi [1980] 4 SCC  258 and  Vineet Kumar v. Mangal Sain Wadhera. [1984] 3  SCC  352 referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil appeal No. 1670 of 1982      From  the  Judgment  and Order dated  4.7.1980  of  the Allahabad High Court in Civil Misc. Writ No 6510 of 1980.      Hari Swarup, Manoj Swarup and Ms. Lalita Kohli for  the Appellant.      J.P.   Goyal,  C.P.  Lal  and  M.R.  Bidsar   for   the Respondents.      The Judgment of the Court was delivered by      B.P.  JEEVAN REDDY, J. This appeal is preferred by  the

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landlord  against the judgment and order of  Allahabad  High Court  allowing  Civil Miscellaneous Writ No  6510  of  1979 filed by the respondent-tenant.      The  petitioner instituted a suit for eviction  of  the respondent-tenant  in the year 1977.  According to him,  the house  was  constructed  in 1968 and, that  the  U.P.  Urban Building  (Regulation  of Letting, Rent and  Eviction)  Act, 1972 (hereinafter referred to as ‘the Act’) did not apply to it.  The suit was preceded by a notice under section 106  of the  Transfer of Property Act terminating  the  respondent’s tenancy.  The respondent-tenant resisted the suit contending that  the building was an old construction to which the  Act terminating the respondent’s tenancy.  The respondent-tenant resisted  the suit contending that the building was  an  old construction to which the Act was applicable.  He  submitted that since none of the grounds mentioned in Sub-section  (2) of Section 20 were made out, decree for ejectment cannot  be passed.      The Trial Court dismissed the suit holding that the Act applied to                                                        352 the  house and because none of the grounds  contemplated  by Section 20(2) was made out, the suit must fail.  It was held that the tenant was entitled to the benefit of Section 39 of the said Act.  A further finding recorded was to the  effect that  the defendant was not in arrears of rent for a  period of  four months as alleged by the  petitioner-landlord  and, therefore, the  notice  issued  under  Section  106  of  the Transfer of Property Act was invalid.      Aggrieved  by  the  judgment of the  Trial  Court,  the petitioner  preferred  a revision under Section  25  of  the Provincial  Small  Causes  Courts Act which  was  heard  and allowed  by  the learned IIIrd  Additional  District  Judge, Nainital.   The learned District Judge found that the  house was  constructed in the year 1968 and, there fore,  the  Act did not apply thereto till 1.9.1978.  In as much as the suit was  instituted on 1.6.1977 i.e. prior to the  Act  becoming applicable   to   the  building,  the  suit   was   properly instituted.   Since the Act did not apply, he held,  Section 20(4)  was not available to the tenant.  He,  however,  held that  benefit of Section 39 of the Act was available to  the tenant but since he did not comply with the requirements  of the   said  Section,  it  did  not  come  to   his   rescue. Accordingly  he decreed the suit for eviction and  also  for rent.      Aggrieved by the judgment and order of the learned  III rd   Additional   District  Judge,  Nainital,   the   tenant approached  the  Allahabad  High  Court  by  way  of   Civil Miscellaneous Writ No. 6510 of 1979.  The learned Judge  who heard  and  deposed of the Writ Petition  allowed  the  same purporting  to rely upon the decision in Ratan Lal  Shinghal v. Smt, Murti Devi. [1980] 4 S.C.C. 258 and another decision of  the  Allahabad  High  Court.   According  to  the   said decisions,  the learned Judge held, the Act applied even  to the  building constructed prior to the commencement  of  the said  Act, which means that eviction can be decreed only  if one  or  the other ground mentioned in  Sub-section  (2)  of Section  20  is  satisfied.   Since  none  of  the   grounds mentioned  in  the said sub-section were satisfied  in  this case, the learned Judge held the suit is liable to fail.  It is  the correctness of the said view that is  questioned  in this appeal.      The  learned  counsel for the  landlord-petitioner  Sri Hari  Swarup  submitted  that  the  decision  in  Ratan  Lal Shinghal  has  been overruled in a later  decision  of  this

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court in Om Prakash Gupta & Ors. v. Dig Vijdendrapal Gupta & Ors.,  [1982] 2 S.C.C. 61. According to the later  decision, he submitted, the Act became applicable to the said building only on 1.9.1978 and since the suit was instituted prior  to the  said  date, it is saved and has to be  decided  without reference  to  the Act.  The respondent’s  counsel,  on  the other hand, submitted that the burden of proving the date of construction                                                        353 of  the  building lay upon the plaintiffs and  that  he  has singularly  failed to establish that it was  constructed  in 1968.   Indeed  the house was an old one and it  was  merely repaired  in the year 1968.  He further submitted  that  the tenant is entitled to the benefit of Section 39 and once  it is so, the suit must fail in view of the provision contained therein.      U.P.  Urban Buildings (Regulation of Letting, Rent  and Eviction) Act, 1972 came into force on and with effect  from 15th July, 1972.  Section 43 of the Act repealed the  United Provinces  (Temporary)  Control of Rent  and  Eviction  Act, 1947.  Sub-section (2) of Section 43 contains several saving provisions  which it is not necessary to mention  here.   By virtue  of Section 1 (A) of the 1947 Act, the said  Act  did not  apply to any building which was under erection  or  was constructed  on or after 1st January, 1951.  So far  as  the Act  (1972 Act) is concerned, Sub-section (2) of  Section  2 declares that the Act (barring certain provisions  specified therein) shall not apply to a building during a period of 10 years from the date on which its construction is  completed. Explanation  (1)  to Sub-section 2 explains when  shall  the construction  of building be deemed to have been  completed. Insofar as its relevant explanation (1) reads as follows :          "(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 when  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 purpose of supervising the construction  or          guarding  the building under construction) for  the          first time."      Sub-section  (1)  of Section 20 provides that  save  as provided in Sub-section (2), no suit shall be instituted for the  eviction  of  a tenant from a building  except  on  the grounds  mentioned in Sub-section (2), save in  the  limited situations contemplated by the proviso appended to the  Sub- section.   Sub-section (2) enumerates the grounds  on  which the  tenant can be evicted.  Sub-section (4) of  Section  20 provides  that  if  in any suit for eviction  based  on  the ground   of   default  in  payment  of  rent,   the   tenant unconditionally pays or tenders, at the first hearing of the suit,.  the  entire  amount  of rent  damages  for  use  and occupation  due from him together with interest,  the  court may, in lieu of passing a decree for eviction, pass an order relieving  the tenant against his liability for eviction  on the said                                                        354 ground.  Section 39 applies to suits pending on the date  of commencement of the Act.  It provides that in pending  suits for  eviction,   if  the tenant deposits,  within  the  time

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specified therein, the entire amount and damages due in  the court  alongwith  the interest, no decree  shall  be  passed against him on the ground of default in payment of rent.      In this case, the learned District Judge has recorded a finding that the building in question was constructed in the year  1968 as submitted by the petitioner-landlord.   Though this  finding was sought to be challenged before us  by  the learned  counsel  for the tenant,, we are  not  prepared  to disturb  the  same, based as it is on  relevant  and  proper evidence.   In other words, it was constructed prior to  the commencement of the Act.  (The 1947 Act did not apply to  it because  it was constructed subsequent to 1951).   The  suit was instituted on 1.6.1977 i.e., prior to the completion  of 10  years’  period from the date of its  construction.   The question  that arises in the above circumstances is  whether the  Act was applicable to the said building on the date  of the  institution of the suit. If the Act applies, there  can be no doubt that the suit is liable to fail because none  of the  grounds mentioned in Sub-section (2) of section 20  are made out by the petitioner-landlord.      According  to the learned Single Judge of the  Allahbad High Court the decision of this court in Ratan Lal  Shinghal holds  that  even though constructed in the year  1968,  the building  comes  within the purview of the  1972  Act.   The decision  of  this court relied upon by the  learned  Single Judge  merely  says  "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."   It was  held that the Act had no retrospective operation.   The opinion  expressed in the said decision may best be set  out by  quoting the relevant portion of the  order".....we  have indicated  clearly that the contention is sound that Act  13 of 1972 is prospective and applies only to buildings brought into  being de novo after the Act came into force",  we  are unable to see how does this judgment lead to the  conclusion that  the 1972 Act applied to all the buildings  constructed prior  to the commencement of the said Act  irrespective  of their  date  of construction.  Be that as it may,  the  said judgment  was explained in Om Prakash Gupta, rendered  by  a Bench  of three Judges.  In this decision, it is  held  that there is no ambiguity in the language of Sub-section (2)  of Section  2,  which says that the Act shall not  apply  to  a building during a period of 10 years from the date on  which its construction is completed.  It was pointed out that  the Act  nowhere  says  that  the  building  should  have   been constructed  after  the commencement of the  1972  Act.   In other words, according to this decision,                                                         355 it  is immaterial when the building  is  constructed-whether subsequent to the commencement of the Act or prior  thereto. The  Act would not apply to a building for a period  of  ten years after the completion of its construction.  (Insofar as pending proceedings are concerned, the provisions  contained in  Section 43 have to be kept in mind and observed).   Once this  is so, construction of the building  concerned  herein having  been completed in August 1968, the 10 years’  period extends  upto  August, 1978, whereas the  present  suit  for eviction was filed long prior thereto.   We are,  therefore, of  the  opinion  that  the suit as  instituted  had  to  be disposed of without reference to the Act.      So  far as the applicability of Section 39 of the  1972 Act to the present suit is concerned, the contention of  the learned  counsel  for  the respondent-tenant  is  that  even though  the  Act  did not apply to  the  building  concerned

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herein, the said provision does apply all the same.  We need not  express any opinion on this aspect inasmuch as  it  has been found as a fact by the learned District Judge that  the tenant   has not complied with the requirements of the  said Section.   If so, its applicability to these proceedings  is merely academic.      Yet another contention urged by the learned counsel for the  tenant on the strength of Vineet Kumar v.  Mangal  Sain Wadhera,  [1984]  3  S.C.C.  352 is  that  inasmuch  as  the statutory period of ten years expired during the pendency of the  suit,  the Act became applicable and the suit  must  be disposed  of only in accordance with the provisions  of  the Act  and in particular Sub-section (2) of Section 20.   This decision  has,  however,  been  explained  in  a  subsequent decision  in  Nand Kishore Marwah & Ors. v.  Samundri  Devi, [1987]  4 S.C.C.382 wherein it has been  held that  the  law appliable  on the date of the institution of the suit  alone governs the suit and the mere fact that the statutory period of   10   years   expires  during  the   pendency   of   the suit/appeal/revision,  the Act does not  become  applicable. It  was  held  that the suit has to  be  tried  and  decided without  reference  to  the  Act.   We  are  in   respectful agreement with the view expressed in Nand Kishore Marwah.      For  the  above reasons, the appeal  is  allowed.   The judgment  of  the High Court is set aside and  that  of  the learned   IIIrd  Additional  District  Judge,  Nainital   is restored.   Having regard to the facts of the case, we  make no orders as to costs in this appeal. N.P.V.                                       Appeal allowed.                                                     356