SHEO NARAIN CHAUDHARY Vs. DISTRICT JUDGE ALLAHABAD

JUDGEMENT

(1.) This case has come up before us on a reference made by a learned Single Judge of this Court, as he doubted the correctness of a Division Bench decision of this Court in the case Om Kumar v. District Judge (1980 (2) R. C. C. 9.) which throws doubt on the conectness of two decisions of Single Judges in Life Insurance Corporation of India v. Additional District Judge (1981 (1) U. P. R. C. C. 74) and Radha Krishna v. State (1981 (1) U. P. R. C. C. 78. ). As the entire writ petition has been referred to us, the facts of the case may be shortly stated. The petitioners are the landlords of the premises of which the Chief Medical Officer, Allahabad is a tenant, and a Government Health School under the Director of Medical, Health and Family Welfare is being run. A; application was made by the petitioners under Section 21 (8) of the U. F. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (herein after referred to as the Act) before the Rent Control and Eviction Officer, Allahabad for enhancement of the rent from Rs. 365. 00 to Rs. 3,000. 00 per month. The Rent Control and Eviction Officer enhanced the rent to an amount of Rs. 2910. 00 per month. Aggrieved by this order the respondents filed an appeal before the District Judge. This appeal was allowed by the District Judge relying on the decision of the Division Bench in Om Kumar's case, wherein it had been held that on account of deletion of clauses (ii) and (iv) to the explanation to Section 21 (1) of the Act by the U. P. Act No. 28 of 1976 Section 21 (8) had become meaningless. The appellate authority held that in view of this pronouncement no relief under Section 21 (8) for enhance ment could be given. The petitioners have challenged this order. It will be worth-while extracting -clauses (ii) and (iv) to the first explana tion to Section 21 as it stood before the amendment effected by Act 28 of 1976: " (ii) where the landlord was engaged in any profession, trade, calling or employment, away from the city, municipality, notified area or town area within which the building is situated and by reason of the cessation of such engagement, he needs the building for occupation by himself for residential purposes, such need shall be deemed sufficient for purposes of clause (a); (iv) the fact that the building under tenancy is a part of a building the remaining part whereof is in the occupation of the landlord for residential purposes, shall be conclusive to prove that the building is bona fide required by the landlord. By Act 28 of 1976 clauses (ii) and (iv) were omitted. This very amending Act introduced Section 21 (8) in the Act, which runs as under: " (8) Nothing in clause (a) of sub-section (I) shall apply to a building let out to the State Government or to a local authority or to a public sector corporation or to a recognised educational institution unless the Prescribed Authority is satisfied that the landlord is a person to whom clause (ii) or clause (iv) of the Explanation to sub-section (1) is appli cable. Provided that in the case of such a building the District Magistrate may, on the application of the landlord, enhance the monthly rent payable thereof to a sum equivalent to one-twelfth of ten per cent of the market value of the building under tenancy, and the rent so enhanced shall be payable from the commencement of the month of tenancy following the date of the application; Provided further that a similar application for further enhancement may be made after the expiration of five years from the date of the last order of enhancement. Counsel for the respondents contended that with the deletion of clauses (ii) and (iv) of the Explanation to Section 21 (1), Section 21 (8) has become meaningless, and as such no relief under the proviso to Section 21 (8) can be given. As expected he relied strongly in Om Kumar's case. In Om Kumar's case an application under Section 21 (1) (a) of the Act had been moved by the landlord for release of the accommodation, which was in occupation of the Punjab National Bank as a tenant on the ground that it was bona fide required by the landlord for residential purposes as well as for maintenance of an office of an industry to be set up by him. The Prescribed Authority rejected the application holding that the need was not bona fide. On appeal the District Judge held that the requirement was bona fide but dismissed the appeal on the ground that as the premises were a public building, as defined in the Act, eviction could not be ordered in view of Section 21 (8) of the Act, which had been inserted by Act 28 of 1976. Two contentions were raised before the Division Bench. One was that the premises in dispute was not a public building, and that Section 21 (1) (a) inserted by Act 28 of 1976 was not retrospective in operation, and did not apply to proceedings initiated before the enforcement of the amending Act. We may mention here that by the amending Act public buildings were exempted from the purview of the Act. By Section 4 of the very same Act public building was defined in Section 2 (0), which amongst other included buildings belonging or taken on lease by public sector corporation. The Division Bench held that the building in question was a public building. It also held that the amendments were retrospective. While considering the scope of the exemption granted under Section 2 (1) it held that Section 21 (8) was a proviso or an explanation to Section 2 (1) (a) of the Act. Although it was not necessary for the purposes of that case to dwell upon the efficacy of Section 21 (8) of the Act after the deletion of clauses (ii) and (iv)of the Explanation, the Division Bench held that after the deletion of these clauses Section 21 (8) is rendered meaningless. It may be noticed that in Om Kumar's case the question as to whether an application for the enhancement of rent under the first proviso of Section 21 (8) was not in issue. We may now refer to the two decisions of the learned Single Judge relying on which the present reference has been made. In Life Insurance Corporation of India v. Additional District Judge, (supra) A. N. Verma J. held that notwithstanding the deletion of clauses (ii) and (iv) of the Explanation to Section 21 (8) can be made. In Radha Krishna v. State of U. P. (supra) an application was made for enhancement of the rent under Section 21 (8) for a building which had been let out to the State Government. The application had been dismissed both by the Prescribed Authority and the Appellate Authority in view of the exemption granted under Section 2 (1) (a) of the Act as introduced by U. P. Act 28 of 1976 to public buildings. The question considered by K. M. Dayal, J. was a s to whether on account of the exemption granted under Section 2 (1) (a) to public buildings Section 21 (8) had become redundant. It was held that it was not so, as there was no conflict between Section 2 (1) (a) and Section 21 (8 ). Thus the question as to whether an appli cation under Section 21 (8) for enhancement of the rent can be made after dele tion of clauses (ii) and (iv) of the explanation to Section 21, was considered squarely in the Life Insurance Corporation of India and Radha Krishna's case. In A. P. Mathur v. District Judge ( (1980) (1) R. C. C. 221 ). S. D. Agarwal, J. observed that clause (8) was added by U. P. Act 28 of 1976 and by that very Act clauses (ii) and (iv) to the explanation to Section 21 (1) were deleted, although clause (8) refers to explanation clauses (ii) and (iv ). The learned Judge observed that this is just an erroneous drafting without caring to look to the provisions of the Act and the said portion of the clause has no meaning whatsoever. The effect of clause (8) that was no application under Section 21 (1) (a) of the Act could lie in respect of a building which was occupied by the authorities mentioned therein. The learned Judge did not consider the effect of the proviso to clause (8) of Section 21 as the question of enhancement of rent was not involved in that case. The observations made by the learned Judge do not affect the scope of the proviso to clause (8) of Section 21. We may now examine the matter for ourselves. We have already extracted Section 21 (8) of the Act. It will be noticed that while the first part of Section 21 (8) relates to an application for release under Section 21 (a), the proviso deals with a different topic altogether. It is concerned with enhancement of rent of buildings which are particularised in the first part of Section 21 (8), these buildings being buildings let out to the State Government or to local authority or to public sector corporation or to a recognised educational institution. Thus, the subject matter of the proviso is entirely different from that covered by the enacting part of Section 21 (8 ). In the first part of Section 21 (8), buildings let out to the authorities mentioned therein cannot be the subject matter of a release application under Section 21 (a) unless the landlord is a person to whom clauses (ii) or (iv) of the explanation to that sub-section was applicable. Now Act 28 of 1976 deleted clauses (ii) and (iv) of the explanation. The result of that deletion was that an application under Section 21 (a) could not be made in respect of buildings described in the first part of Section 21 (8 ). In our view the deletion of clauses (ii) and (iv) of the explanation will have no impact on the proviso to Section 21 (8) for the efficacy of these provisos do not rest on these clauses that is required for the provisos to be effective is that the building must be one as particularised in the first part of Section 21 (8 ). It is undisputed that the first part of Section 21 (8) is still on the statute book. This being so we are unable to hold that with the deletion of explanation of clauses (ii) and (iv) of the explanation, the provisos become meaningless, and ineffective. It is a well settled principle that in construing a statutory provision effect must be given to the legislative intent. In construing a statutory provision the first and foremost rule of construction is literal construction All that the Court has to see at the very outset is what does that provision say If the provision is unambiguous and it" from that provision legislative intent is clear the Court need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intent is not clear. In the instant case, the first part of Section 21 (8) lays down that no application under Section 21 shall He if the building is let out to the State or to the local authority or public sector cor poration or to a recognised educational institution, unless the Prescribed Authority is satisfied that the landlord falls within the category of clause (ii) or clause (iv) of the explanation to sub-section (1 ). Since clauses (ii) and (iv) of the explanation have been deleted by U. P. Act 28 of 1976 the landlord of a building as particularised in the enacting part of clause (8) is entitled to make application for eviction of the tenant, namely, the State Government local authority etc. The proviso docs not deal with the question of eviction i tenant, instead it deals with the topic of enhancement of rent. Under the proviso the landlord of a building as described in the enacting clause is entitled to mai an application for enhancement of rent. The two provisos op-rate in different fields. By deleting explanations (i) and (iv) the legislature took away the landlords right to make an application under Section 21 of the Act for the eviction of the tenant of public buildings let out to the State Govern men local authority or to a public sector corporation or to a recognised educati institution, but at the same time the legislature was conscious that the and of the property and the municipal taxes were being increased This being the position the legislature considered it proper to grant relief to the landlords and for that purpose it enacted the two provisions conferring right on the landlord to make an application for enhancement of the rent of a building i described in the enacting part of clause (8 ). The legislative intention is clear Learned counsel for the respondents' contended that the two provisos to clause (8)0 Section 21 should be interpreted as provisos to the enacting part of clause (8) and since the enacting part of clause (8) is rendered meaning less the provisos must also fall. In this connection learned counsel submitted that the normal function of a proviso is to carve out an exception from the man part of the section and once the main part of the section becomes in effective the proviso should also fall with it. Generally speaking it is true that a proviso is an exception to the main part of the section, but this rule is not inflexible. A proviso depending on the subject matter be treated as an independent substantive provision. It is well recognised that in exceptional cases a proviso may be substantive provision itself. In State of Rajasthan v. Mrs. Leela Jain, ( A. I. R. 1965 S. C. 1296) a question arose whether the proviso to Section 4 of the Rajasthan City Municipal Appeals (Regulation) Act conferring power on the State Government to interfere with the orders of a municipal authority was a substantive provision. The Supreme Court held that the proviso was really not a proviso in the accepted sense but was an independent legislative provision by which an alternative remedy was provided although the main part prohibited appeal. The Court observed that so far as the general principle of construction of a proviso is concerned it has been broadly stated that the function of a proviso is to limit the main part of the section and carve out something which but for the proviso would have been within the operative part. It was further observed that the proviso in that particular case was really not a proviso in the accepted sense but an independent legislative pro vision by which to a remedy which was prohibited by the main part of the section, an alternative was provided. In Board of Revenue v. R. S. Jhaver (A. I. R. 1968 S. C. 59) the Supreme Court held that in exceptional circumstances a proviso may not be really a proviso in the accepted sense but may be a sub stantive provision itself. In Hira Lal Ratanlal v. S. T. O. Kanpur (A. I. R, 1973 S. C. 1034) the Court again emphasized that ordinarily a proviso to a section is intended to take out a part of the main section for special treatment and it is not expected to enlarge the scope of the main section but cases have arisen in which the Supreme Court has held that despite the fact that a provision is called proviso, it is really a separate provision and the so called proviso has substantially altered the main section. There is thus good authority for the proposition that in exceptional cases the proviso may operate independently by making substantive provision. In the present case the statute clearly indicates that the proviso to Section 21 (8) deals with the matter of enhancement of rent while the first part of Section 21 (8) deals with an application for release under Section 21 (I) (a ). Thus the scope of the proviso is different from that of the first part of Section 21 (8 ). It is settled that a rule of construction cannot override the clear language of statute. We cannot as such by adopting the normal rule of construction of a proviso obliterate the effect and the efficacy of the proviso to Section 21 (8) for, the topic of proviso is different. It must be read as a substantive provision. With respect we do not agree with the view taken in Om Kumar's case that Section 21 (8) has been rendered meaningless by the deletion of clauses (ii) and (iv) of the explanation to Section 21. We are of the view that the result of the deletion of clauses (ii) and (iv) of the explanation to Section 21 is that an application under Section 21 (1) (a) cannot be moved in respect of buildings let out to the authorities specified in the first part of Section 21 (8 ). The petition is accordingly allowed, and the order of the learned District Judge is quashed. As the District Judge allowed the appeal following Om Kumar's case without going into the merits of the controversy regarding the claim of enhancement, we direct the appellate authority to decide the appeal afresh in the light of the observations made in the judgment and in accordance with law. Under the circumstances, there shall be no order as to costs. .