RADHA DEVI Vs. PRESCRIBED AUTHORITY

JUDGEMENT

(1.) ONE Gopal Das was the tenant of shop No. 31/36, Mohalla Rawatpara, Agra. He died leaving the petitioner as his widow and respondents 3 to 14 as his sons and daughters. According to the petitioner, Gopal Das had been occupying the shop in dispute as a tenant for the last over 60 years. Thus there is no dispute that the said shop has been in existence from long before the coming into force not only of the U. P. Urban Buildings (Regulation of letting. Rent and Evic tion) Act, 1972 (U. P. Act No. 13 of 1972) but also of U. P. (Temporary) Control of Rent and Eviction Act, 1947. An application was made by respon dent No. 2, the landlord of the aforesaid shop, under Section 21 of U. P. Act No. 13 of 1972 for ejectment of the tenants. This application was ultimately allowed by the appellants Authority. A writ petition was instituted challeng ing the afoiesaid order which was dismissed. The matter was thereafter taken in appeal to the Supreme Court. That appeal too was dismissed and an undertaking was given on behalf of the tenants by Ram Babu respondents No. 3, one of the sons of the deceased Gopal Das, before the Supreme Court that the shop will be vacated by 31st July, 1979. Notwithstanding the said undertaking the shop was, however, not vacated and proceedings for delivery of possession to the landlord by ejectment of the tenants in pursuance of the order passed under Section 21 were initiated. An objection was filed by the petitioner in these proceedings too but the same has been repelled. Aggrieved the petitioner has instituted this writ petition. The only point which has been urged by counsel for the petitioner is that since the shop in dispute had been constructed long before the commence ment of U. P. Act 13 of 1972 and not after its commencement, the said Act 13 of 1972 was not applicable and the application under Section 21 of this Act was not maintainable. Reliance in support of this submission has been placed by counsel for the petitioner on the decision of the Supreme Court. Raton Lal Slnghal v. Smt. Marti Devi (1979(5) ALR 595=1979 U.P. Rent Control Cases 623.). Considerable emphasis has been placed by counsel for the petitioner on the following observations made in the said case:- "Sri G. L. Sanghi, Oounsel for the petitioner, has raised neat point of law, as he described it, that Act 13 of 1972, by which new buildings constructed during the period of 10 years would be given exemption from the operation of the Act, does not apply to buildings constructed prior to the amendment. His contention is that ordinarily a statute like this is prospective in operation unless there is clear legislative intent to the contra ry. We are inclined to agree with him that this legislation is not retrospec tive and would have gone further to give him relief on that basis...." "The point of law is of frequent occurrence and may affect judicially a number of tenants in these days of accommodation scarcity. That is why we have indicated clearly that the contention is sound. That Act 13 of 1972 is prospective and applies only to buildings brought into being de novo after the Act come into force......." Having given our anxious consideration to the matter we find ourselves unable to agree with the submission that U. P. Act 13 of 1972 did not apply to the shop in dispute inasmuch as it had been constructed about 60 years back, i. e. long before the commencement of U. P. Act 13 of 1972. What came up for consideration before the Supreme Court in Ratan Lal Singhal's ease (supra) was as to whether the provision contained in Act 13 of 1972 "by which now buildings constructed during the period of 10 years would be given exemption from the operation of the Act" Apply to buildings cons tructed prior to the amendment." The question as to whether U. P. Act 13 of 1972 does apply to such buildings or not was not the point which v, as up for consideration before the Supreme Court in the aforesaid case. The writ petition came up before us on 30th November, 1979, and on that date in order to ascertain the real controversy before the Supreme Court we required the counsel for the petitioner to produce a copy of the special leave petition of Ratan Lal Singhal's case (supra). The said copy has been produced before us and its perusal indicates that the building which was in dispute in that case had been constructed on or before 1-10-1969, i. e. prior to the commencement of U. P. Act 13 of 1972. A suit had been instituted by the landlord for the ejectment of the tenant from the said building after termina ting the tenancy by giving a notice under Section 106 of the Transfer of Property Act. The tenant claimed the protection of U. P. Act 13 of 1972 on the ground that the suit was not maintainable in the absence of any of the grounds contemplated by Section 20 of the said Act. The case of the land lord on the other hand was that since ten years had not expired from the date of the completion of the building, U. P. Act 13 of 1972 was not appli cable and the tenant was not entitled to its protection. Reliance on behalf of the landlord seems to have been placed on sub-section (2) of Section 2 of U. P. Act 13 of 1972. The said sub-section (2) was substituted by U. P. Act 28 of 1976. The opening sentence of the said sub-section (2) prior to its amendment by U. P. Act 28 of 1976 read as follows:- "(2) Except as provided in sub-section (2) of Section 24 of sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its constructions is com pleted". The said sentence after its amendment by U. P. Act 28 of 1976 read thus:- "Except as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21, sub-section (2) of Section 24, Sections 24-A, 24-B, 24-C, or sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed," It is thus apparent that the controversy before the Supreme Court was only as to whether the exception contained in sub-section (2) of Section 2, viz. nothing in this Act shall apply to a building during a period of ten years from the date of which its construction is completed was applicable retrospectively, viz. also to be building which were in existence prior to the commencement of U. P. Act 13 of 1972 or prospectively viz. the exception was to apply only to such building which were cons tructed after the commencement of U. P. Act 13 of 1972. And it is in regard to this clause in Section 2 (2) of Act 13 of 1972 that the Supreme Court has held in Ratan Lal Singhal-s case (Supra) that it was prospective applied only to buildings brought into being de novo after the Act came into force. Similar seems to be the view taken by K. C. Agarwala J. in Civil Revision No. 2882 of 1977 (Sardara Mai v. Nanhey Khan) decided on 28-1M 979. For the foregoing reasons we are unable to accept the submission made by counsel for the petitioner that U. P. Act 13 of 1972 was not applicable to the shop in question, In the result the writ petition fails and is dismissed.