LALA DATA RAM GUPTA Vs. HARI KRISHAN

JUDGEMENT

(1.) Respondents-landlords, filed Suit No. 56/63 against the appellant tenant for recovering possession of the building more particularly described at the foot of the plaint. This suit was contested by the appellant on diverse grounds. The trial Court held that the suit would be governed by the U. P. (Temporary) Control of Rent and Eviction Act, 1947 ('1947 Act' for short), and the appellant-defendant was not liable to be evicted. In accordance with this finding the suit filed by the respondents was dismissed with costs.

(2.) Respondents preferred First Appeal No. 172/64 to the High Court of Judicature at Allahabad. A Division Bench of the High Court held that the lease was a lease of the land that is open site only and that once the original lease determined by efflux of time the appellant-tenant had to vacate and handover possession of the land to the lessor or his successors along with the new construction without any right, to claim compensation therefor. In reaching this conclusion the High Court was of the opinion that the 1947 Act extended protection to a tenant of an "accommodation" from ejectment and the definition of the expression 'accommodation' does not include an open site only. The High Court also fixed Rs. 300 p. m. as damages for use and occupation from March 11, 1963, till possession was restored to the plaintiffs-respondents. In accordance with this finding the High Court allowed the appeal, set aside the judgment and decree of the trial Court, and decreed the suit for eviction directing the appellant to pay mesne profits as herein indicated. Appellant filed this appeal by certificate granted by the High Court under Article 133 (1) (a) of the Constitution as it stood in 1969.

(3.) At the hearing of this appeal Dr. Chitaley urged that during the pendency of this appeal, appellant filed Civil Miscellaneous Petition No. 7986/76 requesting this Court to take notice of the introduction of S. 29A by U. P. Act 28/76 in the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 ('1972 Act' for short), which had repealed and replaced the 1947 Act. Section 29A extended protection against eviction to tenants of open sites or lessees of open land. As pointed out earlier, 1947 Act did not apply to the open land and this conclusion was reached by the Courts in view of the definition of the expression 'accommodation' in 1947 Act. Thus, the lessees of open land even in areas where the relevant Rent Act of U. P. was in force, were denied any protection. The legislature took note of this omission and by U. P. Act 28/76, introduced S. 29A in 1972 Act so as to extend the protection against eviction to tenants of open sites on which tenants have put up construction. The word 'building' in S. 3 of the 1972 Act was substituted by the word 'land'. Sub-sec. (2) of S. 29A provides that S. 29A would apply only to land let out, either before or after the commencement of the section, where the tenant, with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof. In order to avail of the protection, sub-see. (6) (a) provides that in any suit or appeal or other proceeding pending immediately before the commencement of the section no decree for eviction of a tenant from any land to which the section applies shall be passed or executed except on one or more of the grounds mentioned in sub-sec. (2) of Section 20. There is a proviso to this sub-section. The proviso being material, may be reproduced.