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PETITIONER: STATE OF UTTAR PRADESH & ANR.

       Vs.

RESPONDENT: ANAND SWARUP

DATE OF JUDGMENT06/11/1973

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. REDDY, P. JAGANMOHAN DWIVEDI, S.N.

CITATION:  1974 AIR  125            1974 SCR  (2) 188  1974 SCC  421  CITATOR INFO :  R          1979 SC1165  (15)

ACT: U.P.  Government  Premises (Rent Recovery &  Eviction)  Act, 1952  Ss. 4, 6 and 12-Whether the Act applicable to a  case where letting had been done prior to the passing of the Act- Practice  and  Procedure-Whether grounds raised  before  the High  Court hut rejected or even not considered by it  could be recanvassed in the Supreme Court.

HEADNOTE: The  District Magistrate.   Ghaziabad  (defendant-appellant) issued a notice to the plaintiff (respondent) under s. 3  of the  U.P. Government Premises (Rent Recovery  and  Eviction) Act,    1952    calling    upon   him    to    vacate    the Government   .premises   which  he  said  were   under   the plaintiff’s  unauthorised  occupation.   By  another  notice issued  under s. 12 of the Act he assessed the plaintiff  to damages  The plaintiff filed a suit praying for a  permanent injunction  against  the  defendant  restraining  him   from recovering the amount and from threatening to evict him from the  premises.   The defendants contested the  suit  on  the ground,   among   others,  that  the   premises   had   been requisitioned  under the Defers of India Rules in  1946  and derequisitioned  in  1955  and during the  above  period  of requisition  the  plaintiff remained in possessior.  of  the suit  premises without any valid allotment order  under  the Act.   The plaintiff was, therefore. assessed on account  of his  unauthorised  use and occupation during the  period  of requisition.  The trial court decreed the suit, and  granted the relief of permanent injunction against the defendant. Before the High Court the defendants submitted that the suit premises  being "Government premises" within the meaning  of the Act, the suit was barred under s. 15 of the Act.   There was dispute between the parties with regard to the factum of requisition  of  the premises.  Without  dealing  with  this point  the High Court dismissed the appeal relying upon  its earlier decision in Shri Sripat Rai v. District  Magistrate, Banaras  and held that the Act could not be made  applicable to  a  case  where the letting had been done  prior  to  the passing  of the Act, and that since the plaintiff came  into

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possession of the premises before the date of passing of the Act, State action under the Act was invalid and s. 15 was no bar  to  the  suit.  The correctness of  this  decision  was questioned before this Court. Dismissing the appeal. HELD : (i) The conclusion of the High Court that the Act was not  applicable  to a case where letting had  been  done  or requisition  had  been made or unauthorised  occupation  had commenced  prior  to  the passing of the  Act  clearly  runs counter to the scheme and purpose of the Act.  A time barred claim for arrears of rent might not be recoverable under ss. 4  & 6 but an arrears of rent for the recovery of which  the period  of  limitation had not expired would be  arrear  and could be recovered by the procedure provided for under ss. 4 and  6. The second condition is that the rent due should  be on   account  of  I  occupation  of  Government   premises’. Whenever  these  two conditions are satisfied  it  would  be permissible  under Ss. 4 & 6 to recover the arrears of  rent even though in particular cases the premises might have been let  before  the  commencement  of  the  Act.   Before   the commencement  of  the  Act  suit was  the  only  remedy  for recovering  the arrears of rent.  But the Act  gave  another remedy for recovering the arrears of rent to the Government. There is neither vested right nor a vested liability in  any procedure.   The  tenant or a trespasser of  the  Government premises  had  no vested right in the suit  procedure.   The words  "is  in  unauthorised occupation  of  any  Government premises"  in s. 12 show that the procedure provided for  in that section might be pursued for recovering damages for  un -authorised occupwion where a trespasser was in  occupation, of any Government premises.  So, even though the  plaintiff had occupied the premises before the 189 commencement  of the Act it would be open to the  Government to  pursue  the remedy provided for in s.  12  provided  the premises were "government premises". [192A-H] View  contra in Shri Sripat Rai v. The District  Magistrate, Banaras [1955] A.L.J. 681, held incorrect. (ii)No  valid  order of requisition under r.  81(2)(bb)  of Defence  of  India  Rules  could  be  passed  by  the  Dist. Magistrate nor was any notification containing the order  of requisition  under r. 75A produced before the High Court  or this Court.  Besides, the power of requisition under r.  75A was   conferred  upon  the  Government  and  there  was   no delegation of this power by the Government under s. 2(5)  of the  Defence  of  India  Act  in  favour  of  the   District Magistrate.   On the material on record it was not  possible to say that the premises in suit were requisitioned property and "Government premises" within the meaning of s. 2 (c)  of the A ct. [193D-F] (iii)it  is well settled that a party could  support  a decree  on grounds raised by him ant decided against him  by the  courts below on the analogy of the Provisions of  0.41. r.  22.  C.P.C. and recanvass the point here to support  the decree  of the High Court on grounds rejected by it or  even not  considered by it.  The only limitation in  this  behalf was  that, the party, by relying upon such a  ground,  could not  be  allowed to mutilate or destroy the  decree.  [193H; 194A]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1389  of 1967.

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Appeal  by special leave from the judgment and  order  dated the 28th October, 1066 of the Allahabad High Court in Second Appeal No. 993 of 1960. G.   N. Dikshit and 0. P. Rana, for the appellants. P.   D.  Bhargava, Pramod Swarup, S. S. Khanduja and  Sheila Sethi, for the respondent. The Judgment of the Court was delivered by GoswAmi, J. This appeal by special leave at the instance  of the  State  of  Uttar Pradesh and  the  District  Magistrate Meerut  (briefly  the defendants)  is  directed  against.the judgment  of the Allahabad High Court in Second  Appeal  No. 993 of 1960 whereby the High Court dismissed the same.   The material facts are briefly as follows: The sole respondent (hereinafter described as the plaintiff) instituted  suit No. 678 of 1956 on July 16,  1956,  praying for   a   permanent  injunction   against   the   defendants restraining  them  from recovering certain amount  and  from threatening  to  evict  him from the 3/8th  portion  of  the premises in suit in his occupation situated in Wright  Gunj, Ghaziabad.   The  plaintiff  describes  himself  as  a  duly allotted  tenant  of the portion of the house on  a  monthly rental  of Rs. 4/4 for some time.  He had offered  the  said rent,  but  neither  the Government nor  the  owner  of  the premises accepted the same.  When subsequently the  District Magistrate   wanted  to  eject  him  from  the  house,   the plaintiff, by some arrangement, became the direct tenant  of the  landlord.   The District Magistrate by a  notice  dated April  21, 1955, as stated therein, cancelled the  allotment order  "under  which  the plaintiff was  holding  the  3/8th portion  of  the house No. 36" and notified  the  plaintiff- that be ’shall be deemed to be in unauthorised occupation of the  Government  premises  under  section  3  of  the   U.P. Government Premises (Rent Recovery and Eviction) Act  1952", (briefly the Act).  Another notice  190 ,was  also sent to the plaintiff by the District  Magistrate on  October  14, 1955, calling upon him to vacate  the  said premises  within  thirty  days of  service  of  the  notice failing  which  he would be liable to be  forcibly evicted therefrom.   A  notice  was  also  sent  by  the,   District Magistrate  to the plaintiff under section 12 of the Act  on April  24,  1957,  supersession of  his  earlier  notice  of November  24,  1956, assessing this time  Rs.  1522/10/9  as damages  at  the  rate  of Rs.  21/6/6  per  month  for  the unauthorised  occupation of the premises from  December  15, 1949  to  November  21, 1955, inclusive of  notice  fee  and interest to be realisable, as arrears of Land Revenue  under the  Act.   After serving a notice under section 80  of  the Civil Procedure Code on April 13, 1956, the present suit was instituted  by  the plaintiff in the Court  of  the  Munsif, Ghazibad.    The   defendants   contested   the   suit    on various  .grounds.  inter  alia,  according  to  them,   the premises had been requisitioned under the Defence of-  India Rules on July 26, 1946 and were derequisitioned on  November 21,  1955.   During  the above  period  of  requisition  the plaintiff  remained in possession of the suit premises  from December  15,  1949 to November 21, 1955 without  any  valid allotment  order under the Act.  The amount was,  therefore, assessed by the District.  Magistrate, who is the  competent authority  under  the  Action  account  of  the  plaintiff’s unauthorised  use and occupation during the period  and  the same  could  be recovered as arrears of Land  Revenue  under section 12(1) of the Act.  It is not necessary to advert to the  other pleas of the defendants for the purpose  of  this appeal.   The  trial  court decreed the  suit  allowing  the

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relief  of permanent injunction against the defendants  from proceeding against the plaintiff under the Act for recovery of the amount as arrears of Land Revenue.  The other reliefs claimed  by  the  plaintiff  were,  however,  refused.   The defendants  appeal  to the Second Civil Judge,  Meerut,  was dismissed.  That led to the Second Appeal to the High  Court which met with the same fate.  Hence this appeal by  special leave. Before  the  High Court the appellants  submitted  that  the premises  in  suit being "Government  Premises"  within  the meaning  of  section 2(c) of the Act, the  suit  was  barred under section 15 of the Act.  There was dispute between  the parties  in  the  High Court with regard to  the  factum  of requisition  of  the  premises under the  Defence  of  India Rules.,  1939.  The High Court, however, did not  deal  with this point as it contented itself by relying upon a decision of  the  same  court  reported in Shri  Sripat  Rai  v.  The District  Magistrate,  Banaras(1)  and held  that  "the  Act cannot  be made applicable to a case where the  letting  had been  done  prior  to the passing 1  of  this  Act."  Since, according  to  the  High  Court-  the  plaintiff  came  into possession by virtue of an allotment order before the  date of  the passing of the Act, the State action under  the  Act was  invalid  and section 15 was no bar to the  suit.   This decision in our view cannot be sustained. Section 2(r) of the original Act defines Government premises as follows :’-               "Government   premises  means   any   premises               belonging to, taken on lease or  requisitioned               by the State Goverrunent"               (1)   (1955) A.L.J. 681.               191 It  is  not necessary for this case to note  the  definition substituted in 1956. The  learned counsel for the appellants points out that  the U.P.  Government Premises (Rent Recovery and Eviction)  Act, 1952, came into force on December 19, 1952 and the claim  of the defendants for compensation involved in this suit is for a  period between December 15, 1949, and November 21,  1955. It may be appropriate here to quote the High Court’s view in its own words:               "This Act cannot be made applicable to a  case               where  the letting had been done prior to  the               passing of this Act.  Admittedly the plaintiff               came  into possession by virtue of an  allot-               ment order before the date of the passing  of               this  Act.  So this Act cannot be held  to  be               applicable to this case". The preamble of the Act shows that it is enacted "to provide for  collection  of  rents from  persons  in  occupation  of Government  premises and for eviction from such premises  of persons  continuing to occupy the same  without  authority". From the statement of and reasons, it appears "the bill  has been  drafted  with  the  object  of  making,  available  to Government, in place of the existing lengthy procedure of  a law suit, a summary procedure to enable them (1) to  realise arrears  of  rent as arrears of Land  Revenue  from  persons occupying  buildings owned, rented or requisitioned  by  the State  Government and (2) to evict from  such  accommodation unauthorised persons or those who refuse to pay or hold back rent therefor".  Section 2(f) defines that "rent shall  have the meaning assigned to it in the Transfer of Property  Act, 1882  and includes the amounts payable by any  allottee  for use and occupation of premises".  Under section 2(h), "words and expressions used but not defined in this Act shall  have

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the  meanings assigned to them in the Transfer  of  Property Act, 1882". As already noted Government premises means, inter alia,  any premises requisitioned by the State Government. If the High Court is right, it will not be possible for  the Government  to  recover arrears of rent or  compensation  in respect   of  buildings  requisitioned  by  it  before   the enforcement, of the Act.  It is obvious that throughout  the country  a very large number of premises were  requisitioned by  the Government under the Defence of India  Rules,  1939. The  definition  of Government premises  Will  include  such requisitioned  property.   Yet, if the High Court  is  right this Act will not be available to the Government to  recover arrears  of rent for the premises or to recover damages  for unauthorised occupation of such premises respectively  under sections  6  and  12 of the Act.  The  Act  provides  for  a summary procedure of recovery of rent and of damages.  Under section 14 of the Act "except as otherwise provided in  this Act  or in any other law, no order made in exercise of  ’any conferred  by or under this Act shall be called in  question in  any Court".  By section 16 "the provisions of  this  Act shall have effect notwithstanding anything contained in  any other  law or in any instrument having effect by  virtue  of any  other law." The conclusion of the High court  that  the Act is 192 not  applicable  to a case where letting had been  done  or requisition  had  been made or unauthorised  occupation  had commenced  prior  to the passing of the  Act,  clearly  runs counter  to  the scheme and purpose of the Act.   Rent  will include  arrears of rent.  Rent is payable by  agreement  in advance as well as when due.  Again, rent not paid when  due is  said  to  be in arrears.  Sections 4 and 6  of  the  Act provide  for  the procedure for recovering  the  arrears  of rent.  Section 4 provides that where an arrears of rent  "is payable"  by  any  person  "for  occupation  of   government premises",  the competent authority may, "at any time  after 30 days from the date on which rent accrued due, serve  upon the  persons liable a notice of demand for the amount  due". Section  6 provides that if the said amount is not  paid  to the  competent  authority within 30 days from  the  date  of service  of the notice of demand or such extended period  as the  competent  authority may allow, the  arrears  shall  be recoverable  as  arrears  of land revenue.   The  words  "is payable"  indicate that the liability to pay the arrears  of rent  should  be  outstanding on the date of  the  issue  of demand.  So a time-barred claim for arrears of rent may  not be  recoverable  under sections 4 and 6. But an  arrears  of rent, for the recovery of which the period of limitation has not expired, will be an arrears which "is payable".  Accord- ingly  it  can be recovered by the  procedure  provided  for under  sections 4 and 6. This is the first  condition.   The second condition for the application of sections 4 and 6  is that  the  rent due should be on account of  "occupation  of government  premises".   Whenever these two  conditions  are satisfied, it will be permissible under sections 4 and 6  to recover the arrears of rent even though in a particular case the premises might have been let before the commencement  of the  Act.  Before the commencement of the Act, suit was  the only remedy for recovering the arrears of rent.  But the Act gives  another remedy for recovering arrears of rent to  the Government.   There is neither a vested right nor  a  vested liability. in any procedure.  The tenant or a trespasser  of the  government  premises has no vested right  in  the  suit procedure.  Section 12 provides for a similar procedure  for

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recovering  damages  from an unauthorised  occupier  of  the government   premises,   The  words  "is   in   unauthorised occupation  of  any government premises" in section  12  are important.   They  show that the procedure provided  for  in that  section  may  be pursued for  recovering  damages  for unauthorised occupation where a trespasser is, in occupation of  any  government premises.  In the present  case  we  are concerned  with section 12.  The considerations  which  have persuaded  us  to hold that the Government can  recover  the arrears  of  rent under sections 4 and 6,  even  though  the letting  has been done before the commencement of  the  Act, equally  govern section 12.  So even though  the  respondent has  occupied  the premises before the commencement  of  the Act, it will be open to the Government to pursue the  remedy provided  for  in  section  12  provided  the  premises  are "Government  premises".   The  object of  the  Act  will  be considerably defeated if the Government is unable to recover arrears  of  rent  or damages on the sole  ground  that  the defaulter  or the trespasser is in occupation of a  building which  has been let out or occupied prior to the passing  of the  Act.  We are, therefore, unable to hold that  the  High Court’s conclusion that the Act is not applicable to cases 193 where letting had been done prior to the passing of the Act, is  correct.. To that extent the view of the Allahabad  High Court in Sripat Rai’s case (supra) is also not correct. We  should observe that we are not called upon in this  case to, consider whether the.  Act is ultra vires or invalid  on any  score  and also note in passing that the Act  has  been amended in 1970 by insertion of a new section 15A (U.P.  Act No. 30 of 1970) introducing a barring provision of a  normal procedure  of  recovery of rent or of damages  and  also  of eviction through civil court. Now in this case what has to be considered is whether  these premises were requestioned by the Government and, if by the, District Magistrate, whether they were requisitioned by  him in  exercise  of  powers validly delegated  to  him  by  the Government.   The  learned  counsel for  the  appellant  was conscious  of his difficulty in facing a question  from  the court with regard to the existence of the requisition  order in  this case under Rule 75A of the Defence of India  Rules. No notification containing the order of requisition of  the’ premises  under Rule 75A had been produced before  the  High Court nor before us, notwithstanding opportunity offered  by the  Court here, With regard to the order of the  so  called requisition passed by the District Magistrate under rule  81 (2)  (bb), it is sufficient to state that no valid order  of requisition  of the premises could be passed under the  sub- rule.   Besides the power of requisition under Rule  75A  is conferred upon the Government and there is no delegation  of this  power  by  the Government under section  2(5)  of  the Defence of India Act in this case in favour of the  District Magistrate.  The only order of delegation that was  produced was that of. power under rule 81 (a) (bb).  On the materials on  record  it is not possible to say that the  premises  in suit  were requisitioned property and ’Government  premises’ within the meaning of section 2(c) of the Act.   Accordingly the  Act does not apply and the defendants are not  entitled to  recover  the amount claimed as arrears of  Land  Revenue under the Act. The  learned counsel for the appellant faintly  argues  that the  respondent cannot agitate the matter as to whether  the premises  in suit are Government premises as that point  bad not  been  taken  before  the courts  below.   This  is  not correct.  The ’Point was raised in the High Court.  But  the

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High Court did not decide the point.  It is well settled  by several  decisions  of this Court that  the  respondent  can support  the  decree on grounds raised by  him  and  decided against  him  by  the courts below on  the  analogy  of  the provisions of order 41, rule 14-L447SC174 194 22,  Civil  Procedure Code.  The respondent,  therefore,  is entitled  to recanvass the point here to support the  decree of  the  High  Court on ground rejected by it  or  even  not considered  by  it.  The only limitation in that  behalf  is that the respondent by relying upon such a ground cannot  be allowed to, mutilate or destroy the decree.  Short of  that, within  the ambit of the law, he can support the  decree  on any  ground available to him.  The objection of the  learned counsel for the appellants is,. therefore, of no avail. In  the  result  the appeal fails  and  is  dismissed.   The parties will bear their own costs in this Court. P.B.R.                Appeal dismissed. 195