MOHD ISLAMUDDIN ALIAS ISLAM Vs. ZAMEER ALAM

JUDGEMENT

(1.) PRAKASH Krishna, J. Heard Shri Siddhartha Verma, the learned Counsel for the petitioner and Smt. Swati Agrawal, the learned Counsel for the respondents. This is really an unfortunate case. This is third round of litigation in this Court as pointed out by the learned Counsel for the respondents.

(2.) IT appears that a suit for recovery of arrears of rent and ejectment in respect of house No. 152/1, Mohalla Quaji Tola, District Ghazipur was instituted by the respondent No. 1 against the petitioner. The said suit after contest was decreed and the matter travelled up to the Apex Court. The Apex Court decided the matter against the present petitioner. An application for execution of the decree was filed as execution case No. 5 of 1988 was registered. The execution case No. 5 of 1988 is pending and since then about 20 years are going to pass. IT appears that in the Courts of execution proceedings the present petitioner who is judgment-debtor filed certain objection under Section 47 of C. P. C. alleging that the decree has become null and void and cannot be executed in view of the certain amendments carried out in the U. P. Act No. 13 of 1972 whereby the property owned by a Wakf has been exempted from the operation of the provisions of the U. P. Act No. 13 of 1972. The said objection having been rejected by both the Courts below, the present writ petition was filed.

(3.) THE Apex Court in M/s. Ambalal Sarabhai Enterprises Ltd. v. M/s. Amrit Lal and Co. & Anr. , JT 2001 (7) SC 477, has examined restriction placed on the eviction of a tenant of a controlled building and the effect of the subsequent amendment withdrawing that restriction. It has been held that the Rent Control Act merely provides a protection to a tenant as against unbridled power of landlord under the general law of the land. THE right of a tenant under the Rent Act at the best could be said to be a protective right which cannot be construed to be a vested right and the moment when the protection is withdrawn the landlord's normal vested rights reappear which could be enforced by him. THE relevant para-17 of the report is reproduced below : "the right of a tenant under the Rent Act at the best could be said to be a protective right which cannot be construed to be a vested right. In effect, in view of this special enactment of the Rent Act, the right and remedies available to a landlord under the general law remains suspended. In other words the landlord's vested right under the general law continue so long it is not abridged by such protective legislation, but the moment when this protection is withdrawn the landlord's normal vested right reappears which could be enforced by him".