SUSHILA GUPTA Vs. XITH A D J

JUDGEMENT

(1.) GROUND floor portion of premises no.108/23, Lenin Park, Gandhi Nagar, Kanpur is the subject matter of dispute in the present writ petition. Shri Mangal Sen, the predecessor in interest of the petitioner, was the tenant and after his death the petitioners have inherited the tenancy. The said premises was purchased by Moti Lal Jain, Wazir Chandra Jain and others in February, 1978, in the name of Sanmati Jain Parishad, respondent no.3 herein, a society registered under the Societies Registration Act. The said Parishad instituted SCC suit No.515 of 1991 against the petitioners on the ground that the said property was acquired solely for charitable purposes and as such is exempted from the operation of the provisions of the Act. During the pendency of the suit, the provisions of the U.P. Act No.13 of 1972 were amended by issuing an ordinance on 26th September, 1994 whereby clause (bb) to section 2 (1) which deals with exemption of buildings from the Act was added. It provided that any building belonging to or vested in a public charitable or public religious institution shall be exempted from the operation of the Act. The said ordinance was later on replaced by the U.P. Act No.5 of 1995. It was argued before the trial court that benefit of the said ordinance will not be available to the plaintiffs as the suit was instituted earlier in point of time by the defendants. The said plea did not find favour with trial court in view of a judgment of this Court in Jenson and Nicholson (India) Ltd., Ghaziabad Vs. Ist Additional District Judge, Ghaziabad and others: 1996 (2) ARC 38. The judgment of the trial court has been approved by the impugned judgment dated 4.12.1997 delivered in SCC Revision No.176 of 1996. Challenging the aforestated two orders, the present writ petition has been filed. Shri S.M. Dayal, the learned counsel for the petitioners submits only one point for consideration in the writ petition. The argument is that the amendment as introduced by the U.P. Act No.5 of 1995 whereby and whereunder clause (bb) to section 2 (1) of the Act has been inserted, will not apply to the pending suits. In other words, the suit shall continue to be governed by the law as it existed on the date of its institution. Any subsequent change in law, will not affect the right of the defendants (petitioners). The learned counsel, Shri Rakes Kumar, on the other hand, submits that the courts below have rightly taken into consideration the subsequent changes in law brought by the Amending Act. He submits that a protection is provided to the tenant by Rent Control Legislation and if that protection is taken away, a landlord is entitled to recover the possession from a tenant by following the procedure as prescribed under section 106 of the Transfer of Property Act. Considered the respective submissions of learned counsel for the parties and perused the record. In Jenson and Nicholson (India) Ltd. (supra), this Court considered the effect of addition clause (g) to section 2 (1) of the Act whereby and whereunder it was provided that any building whose monthly rent exceeds two thousand rupees will be exempt from the operation of the provisions of the Act. It has been held therein that the said provision will apply to the pending suits also. While holding so, it has placed reliance upon a judgment of Apex Court in Parripati Chandrasekhar Rao Vs. Alapati Jalaiah : 1995 SCFBRC 311 (SC) = JT. 1995(4) S.C. 187, a case under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The similar controversy was involved therein. The Hon'ble Supreme Court, while deciding the controversy examined the nature of rights and protection afforded to a tenant under the Rent Act and held as follows:- "According to us there is a material difference between the rights which accrue to a landlord under the common law and the protection which is afforded to the tenant by such legislation as the Act. In the former case the rights and remedies of the landlord and tenant are governed by the law of contract and the law governing the property relations. These rights and remedies continue to govern their relationship unless they are regulated by such protective legislation as the present Act in which case the said rights and remedies remain suspended till the protective legislation continues in operation. Hence while it can legitimately be said that the landlord's normal rights vested in him by the general law continue to exist till and so long as they are not abridged by a special protective legislation in the case of the tenant, the protective shield extended to him survive only so long as and to the extent the special legislation operates. In the case of the tenant, therefore, the protection does not create any vested right which can operate beyond the period of protection or during the period the protection is not in existence. When the protection does not exist, the normal relations of the landlord and tenant come into operation. Hence the theory of the vested right which may validly be pleaded to support the landlord's case is not available to the tenant. It is for this reason that the analogy sought to be drawn by Shri Subbarao between the landlord's and the tenant's rights relying upon the decision of this Court in 1988 SCFBRC 549 (SC), is misplaced. In that case the landlord's normal right to evict the tenant from the premises was not interfered with for the first ten years of the construction of the premises by an exemption specifically incorporated in the protective Rent legislation in question. The normal right was obviously the vested right under the general law and once accrued it continued to operate. The protection given to the tenant by the Rent legislation came into operation after the expiry of the period of 10 years. Hence, notwithstanding the coming into operation of the protection and in the absence of the provisions to the contrary, the proceedings already commenced on the basis of the vested right could not be defeated by mere passage of time consumed by the said proceedings. It is for this reason that the Court there held that the right which had accrued to the landlord being a vested right could not be denied to him by the efflux of time." Again, the Apex Court has discussed the matter in depth that the nature of rights of landlord and tenant under the provisions of the Rent Control Legislation, in M/s. Ambalal Sarabhai Enterprises Ltd. Vs. M/s. Amrit Lal and Co. and another: JT. 2001 (7) SC 477. In this case the Apex Court considered the effect of amendment which was incorporated in section 3(c) of Delhi Rent Control Act. It has been held therein that a tenant under the Rent Act had no vested right. The following propositions of law vide para 37 of the report have been laid down therein:- (1)"A landlord or tenant are relegated to seek their rights and remedies under the common law once the protection given to a tenant under the Rent Act is withdrawn, except in cases where section 6 of the General Clauses Act, 1897 is applicable; (2)A ground of eviction based on illegal subletting under proviso (b) to section 14 of the Rent Act would not constitute to be a vested right of a landlord, but it would be a right and privilege accrued within the meaning of section 6 (c) of the General Clauses Act in a matter if proceeding for eviction is pending; (3)When tenant has no vested right under a Rent Act having only protective right, withdrawal of such protection would not confer on a landlord a vested right to evict a tenant under Rent Act except where sub-clause (c) of section 6 of the General Clauses Act is applicable." The aforementioned cases were considered again by the Apex Court in Vishwant Kumar Vs. Madan Lal Sharma and another: JT 2004 (4) SC 435. In this case, the case of M/s. Ambalal Sarabhai Enterprises Ltd.(supra); Parripati Chandrasekhar Rao (supra) and the case of D.C. Bhatia Vs. Union of India: JT 1994 (7) SC 114 (para 4)were up for consideration. It was pointed out that there is a difference between a mere right or what is right acquired or accrued. Right of a statutory tenant to pay standard rent is a right to be governed by the Act and if the legislature repeals the Act or a part of it, a statutory tenant can do nothing about it. It is a mere right and not a vested right. The right of a tenant is not a right of enduring nature. The mere existing right on the date of repeal to take advantage of the repealed provisions is not a right accrued within section 6 (c) of the General Clauses Act. The following observation is apposite:- "On the other hand, the landlord has rights recognized under the law of Contract and Transfer of Property Act which are vested rights and which are suspended by the provisions of the Rent Act but the day the Rent Act is withdrawn, the suspended rights of the landlord revive.[See Parripati Chandrasekhar Rao and Sons v. Alapati Jalaiah]. Thus, it follows that a statutory tenant has no vested right and as soon as the protection is withdrawn, it is open to a landlord to invoke his right as available under the law of Contract and Transfer of Property Act. The same position holds good with respect to the provisions of the U.P. Act No.13 of 1972. By enacting the said Act, eviction of tenant was protected and the right of landlord to evict a tenant was eclipsed. Only a limited right for eviction as provided under the Act is available so long as the tenant is protected and the building is governed by the provisions of the U.P. Act No.13 of 1972. It is also true that the right of the tenant to avail the protection is not a vested right and as soon as the protection is withdrawn, the relationship between the parties is governed under the law of Contract and the Transfer of Property Act. Now, question of applicability of the above proposition of law to the present set of facts needs consideration. Prior to insertion of clause (bb) in the Act, the petitioners were statutory tenant and they were protected and were liable for eviction only on the statutory grounds available to the landlord under section 20 of the Act. As soon as the said protection has been withdrawn by inserting clause (bb) to section 2 (1) of the Act, such tenants of any building belong to or vested in a public charitable or public religious institution are exempted from the operation of the Act. The object of the said amendment, as stated is to bring the provisions of the U.P. Act No.13 of 1972 in the line of model Rent Control Law of Government of India. There was representation for the last about decade and demand from legislators and religious institutions such as Krishna Janmasthan Sewa Sansthan Mathura and Muslim Waqf Board Lucknow to exempt the buildings belonging to or vested in any recognized educational institution or a public charitable or religious institution or in any Waqf from the operation of the U.P. Act No.13 of 1972. After due consideration, it was decided to amend the said Act to provide exemption accordingly. In my considered view, a parallel controversy was informed before the Supreme Court in the case of Vishwant Kumar Vs. Madan Lal Sharma (supra). To appreciate the ratio laid down therein, it is desirable to notice the facts of that case in brief. A tenant of a controlled building filed an application for fixation of standard rent on the ground that the contracted rent of Rs.5,000/- is higher. The said application was pending before the authority concerned and during its pendency the Delhi Rent Control Act, 1958 was amended and it was provided that it shall not be applicable in respect of the premises whose monthly rent exceeded Rs.3,500/-. Thereafter, an application was filed by the landlord that since the building is now exempted under the amended law as the rent of the building is more than Rs.3,500/-, the authority concerned has no jurisdiction to determine the standard rent and as such the application for fixation of standard rent is liable to be rejected. The said plea was accepted by the authority concerned and the High Court as well. In further appeal, the Apex Court has held that the right of tenant is a protective right and not a vested right. Consequently, it confirmed the judgment of the High Court holding that the pending litigation shall be governed by the amended law. More or less, identical controversy is involved herein. In view of the authoritative pronouncement of the Apex Court, in my considered view, the impugned judgments are perfectly justified, legal and calls for no interference. The learned counsel for the petitioners, however, placed reliance upon the following cases in support of his submission:- 1.Shrimati Suman Bai Nirmala Vs. Ist Additional District Judge, Varanasi and others: 2006 (1) ARC 803; and

(2.) MAHABIR Prasad Vs. XIth Additional District Judge, Allahabad and others: 2006 (1) ARC 821. None of these authorities are relevant to the controversy involved in the present writ petition. In the case of Shrimati Suman Bai Nirmala (supra), the Court was concerned with respect to the amendments made from time to time in section 3 (q) of the Act. Similarly, in the case of MAHABIR Prasad (supra)the controversy was with regard to the section 2(1) (a), which was added through the U.P. Act No.13 of 1972 w.e.f. 5th of July, 1976. The Act was further amended by four more ordinances issued from time to time. In this case, the reference of Ambalal Sarabhai Enterprises (supra) has been noticed, but it has not been discussed in detail. The distinction as pointed out by the Supreme Court with regard to the right of a landlord and tenant was not noticed. The law as has been explained by the Apex Court in the case of Vishwant Kumar Vs. Madan Lal Sharma (supra) is that "There is a vast difference between rights of a tenant under the Rent Act and the rights of the landlord." So far as the rights of landlord is concerned, the said right stands suspended during the operation of the provisions of the Rent Act but the day the Rent Act is withdrawn, the suspended rights of landlord revive. While it is no so in the case of rights of tenant under the Rent Act. A statutory tenant has not right or vested right. His possession is protected due to suspension of the vested rights of the landlord. Under the law of Contract and Transfer of Property Act, the rights of landlord are suspended by the provisions of the Rent Act. The aforestated distinction is further made clear in paragraph 5 of the said report while holding that the principles of law as laid down in the case of Atma Ram Mittal Vs. Ishwar Singh Punia : JT 1988 (3) SC 745 is not applicable as the said matter was concerning the rights of landlord. In any view of the matter, the judgment of the Apex Court in the case of Vishwant Kumar Vs. Madan Lal Sharma (supra) was not brought to the notice of the learned Single Judge in the aforesaid two decisions relied upon by the petitioners and the law laid down should be understood in the light of the judgment of Apex Court, as discussed above. I could lay hand on a division bench judgment of this Court in Champa Devi and another Vs. Rent Control and Eviction Officer: 2002 (1) ARC 192 wherein the following question was referred for consideration:- "Whether clause (g) to Section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (herein after referred to as U.P. Act No.13 of 1972) which has been inserted in the Principal Act by Section 2 of U.P. Act No.5 of 1995 will effect the proceedings pending on the date of enforcement of U.P. Act No.5 of 1995?" The said question has been answered, as the report shows, in negative on the basis of agreement between the learned counsel for the parties in view of the decision of the Apex Court, in case of M/s. Ambalal Sarabhai Enterprises (supra). There is no discussion in the judgment of the Division Bench. The subsequent decision is based on concession of the learned counsel for the parties. Even otherwise also, the Supreme Court explained the import of its earlier judgment namely M/s. Ambalal Sarabhai Enterprises (supra) in Vishwant Kumar Vs. Madan Lal Sharma (supra), which is later in point of time and answers the controversy in no uncertain term. In view of the above discussion, I find no merit in the writ petition. The writ petition is dismissed. At the end, the learned counsel for the petitioners prayed for six months time to vacate the accommodation in dispute to which the learned counsel appearing for the respondent No.3 has no serious objection. He fairly accepts that some reasonable time may be granted to the petitioner. The petitioners are permitted to remain in the disputed accommodation till 30th September, 2009 provided they file an undertaking on affidavit within a period of one month before the trial court that they will vacate the disputed accommodation and will hand over the peaceful vacant possession to the respondent No.3 on or before 30th September, 2009. The petitioners shall also deposit the arrears of rent including future rent up to 30th September, 2009 within a period of one month. In case of default of either of the conditions as stipulated above, the time granted by this Court shall stand vacated automatically and it shall be open to the landlord to apply for execution of the decree. If the petitioners fail to vacate the accommodation in dispute on or before 30th September, 2009, notwithstanding the undertaking given by them, the executing court shall issue a writ for delivery of possession as soon as it is applied for, without issuing any notice to the petitioner and not.