KUSHAN DAS J VITHALANI Vs. BHAMIDI KAMESWARA RAO

JUDGEMENT

(1.) This Second Appeal involved an interesting question of law though not free from difficulty It arises out of a suit for ejectment and mesne profits.

(2.) The premises bearing No. 16-7-808/5, situated in Hyderabad as under the occupation of the appellant as a tenant. The respondent landlord filed a suit OS No. 1565 of 1980 in the Court of V Assistant Judge, City Civil Court, Hyderabad, for ejectment after issuing a notice under Section 106 of the Transfer of Property Act, terminating the tenancy with effect from 3-4-1980. According to the landlords the building in question was constructed in the year 1971 and as such the provisions of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 for short "Rent Act" do not apply. The suit was resisted by the tenant, mainly on two grounds that (1) the building was constructed, prior to August, 1957 and as such covered by the Rent Act and the civil Court has no jurisdiction (2) the notice of termination is invalid. The Court found that the building was constructed in the year 1971 and so it was exempt from the provisions of the Rent Act, as per Section 32 (b) of the Act. which says that the provisions of Rent Act shall not apply to any building, constructed on or after August, 1957." On the second point, the Court held that the notice under Section 106 of the Transfer of Property Act was legal and proper. On these findings, the suit was decreed on 4-11-1982. The tenant carried the matter in appeal. By judgment dated 11th April 1983, the findings of the trial Court were confirmed and the appeal was dismissed Hence, this Second Appeal by the tenant.

(3.) The validity of Section 32 (b) was challenged in a number of cases and ultimately the Supreme Court in Motor Genaral Traders Vs Srate of Andhra Pradesh (1) AIR 1984 S C 121 struck down clause (b) of Section 32 as discriminatory and violative of Article 14 of the Constitution of India. The result was that the Rent Act became inapplicable to all buildings, irrespective of the date of construction. The Supreme Court, however, observed that the State Government can consider enacting of a Iegislation to exempt newly constructed builidigs for a limited period of time or to exempt the buildings for a given number of years from the provisions of the Act by issuing a notification under Section 26 of the Act. Pursuant to these observations, the State Government issued G O Ms. No. 636, General Administration (Accom.A) Department, dated 29-12-83, exempting all buildings for a period of 10 years from the date of their construction. Again a controversy arose whether the G.O. is prospective or retrospective A learned single Judge of this Court in CRP No. 3500 of 1983 held that the G 0 is prospectiveand applies only to buildings, constructed subsequent to the date of the G 0. This decision was reversed in W A No. 92 of 1 982 holding that all buildings, irrespective of the date of construction are exempt from the purview of the Rent Act. This judgment was rendered on 21-8-1984.