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PETITIONER:

RAMESH CHANDRA

Vs.

RESPONDENT:

IIIRD ADDITIONAL DISTRICT JUDGE AND OTHERS

DATE OF JUDGMENT22/01/1992

BENCH:

JEEVAN REDDY, B.P. (J)

BENCH:

JEEVAN REDDY, B.P. (J)

SHARMA, L.M. (J)

RAMASWAMI, V. (J) II

CITATION:

1992 AIR 1106 1992 SCR (1) 349

1992 SCC (1) 751 JT 1992 (1) 356

1992 SCALE (1)122

ACT:

U.P. Urban Buildings (Regulation of Letting, Rent and

Eviction) Act, 1972:

Section 2 (2), 20 (2) and 39-Application of Act

excluded to any building during ten years from date of

completion of construction-Building constructed in 1968-Suit

for eviction constituted in 1977-Whether Act applicable to

the suit building-Expiry of statutory period of ten years

during pendency of suit/appeal/revision-Whether makes the

Act applicable.

Transfer of Property Act, 1882 : Section 106.

HEADNOTE:

The appellant-landlord instituted a suit in the year

1977 for eviction of the respondent-tenant from the suit

premises, after giving a notice under Section 106 of the

Transfer of Property Act, 1882, terminating the tenancy.

The landlord claimed that since the house in question was

constructed in 1968, the U.P. Urban Building (Regulation of

Letting, Rent and Eviction) Act, 1972 did not apply to it.

The respondent-tenant contended that the building was

an old construction and hence the Act was applicable, and

since none of the grounds mentioned in Sub-section (2) of

Section 20 of the Act was made out, a decree for ejectment

could not be passed.

The Trial Court held that the Act applied to the house

and accordingly, proceeded to decide the case on merits and

dismissed the suit.

The appellant-landlord's revision under Section 25 of

the Provincial Small Causes Courts Act was allowed by the

IIIrd Additional District Judge, holding that since the

house was constructed in the year 1968, the Act did not

apply till 1.9.78, and though benefit of Section 39 of the

Act was available to the tenant, since he did

350

not comply with the requirements of the said section, it did

not come to his rescue.

However, on appeal by the tenant, the High Court held

that the Act applied even to the buildings constructed prior

to the commencement of the Act and since none of the grounds

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mentioned in the said Sub-section (2) of Section 20 was

satisfied, the suit was liable to fail.

In the appeal before this Court, on behalf of the

landlord-appellant it was contended that since the suit was

instituted prior to 1.9.78 it was saved and had to be

decided without reference to the Act.

On behalf of the respondent-tenant it was contended

that the house was an old one, and it was merely repaired in

the year 1968, and that the tenant was entitled to the

benefit of Section 39, and that since the statutory period

of ten years expired during the pendency of the suit, the

Act became applicable and the suit must be disposed of only

in accordance with the provisions of the Act and

imparticular, Sub-section (2) of Section 20.

Allowing the appeal, this Court,

HELD : 1.1 The U.P. Urban Building (Regulations of

Letting, Rent and Eviction) Act, 1972 came into force on and

with effect from 15th July, 1972. Sub-section (2) of Section

2 of the 1972 Act declares that the Act would not apply to a

building during a period of 10 years from the date on which

its construction was completed. Explanation (1) to Sub-

section (2) explains when the construction of building

should be deemed to have been completed. [353 B, C, D]

1.2. In the instant case, the District Judge has

recorded a finding based on relevant and proper evidence

that the building in question was constructed in the year

1968, as claimed by the appellant landlord. Thus, it is

clear that it was constructed prior to the commencement of

the Act. The United Provinces (Temporary) Control of Rent

and Eviction Act, 1947, which was repealed by the 1972 Act

did not apply to it, because it was constructed subsequent

to 1951. The suit was instituted on 1.6.1977 i.e., prior to

the completion of 10 years period from the date of its

construction. The Act would not apply to a building for a

period of ten years after the completion of its

construction. Therefore, the construction of the building

351

in question have been completed in August 1968, the 10 years

period extends upto August, 1978, whereas the present suit

for eviction was filed long prior thereto. Therefore, the

suit as instituted had to be disposed of without reference

to the Act. The mere fact that the statutory period of ten

years expires during the pendency of the

suit/appeal/revision, does not make the Act applicable. [353

B; 355 A-F]

Om Prakash Gupta & Ors. v. Vijendrapal Gupta & Ors.,

[1982] 2 SCC 61 and Nand Kishor Marwah & ors. v. Samundri

Devi [1987] 4 SCC 382 relied on.

Ratan Lal Shinghal v. Smt. Murti Devi [1980] 4 SCC 258

and Vineet Kumar v. Mangal Sain Wadhera. [1984] 3 SCC 352

referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil appeal No. 1670 of

1982

From the Judgment and Order dated 4.7.1980 of the

Allahabad High Court in Civil Misc. Writ No 6510 of 1980.

Hari Swarup, Manoj Swarup and Ms. Lalita Kohli for the

Appellant.

J.P. Goyal, C.P. Lal and M.R. Bidsar for the

Respondents.

The Judgment of the Court was delivered by

B.P. JEEVAN REDDY, J. This appeal is preferred by the

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landlord against the judgment and order of Allahabad High

Court allowing Civil Miscellaneous Writ No 6510 of 1979

filed by the respondent-tenant.

The petitioner instituted a suit for eviction of the

respondent-tenant in the year 1977. According to him, the

house was constructed in 1968 and, that the U.P. Urban

Building (Regulation of Letting, Rent and Eviction) Act,

1972 (hereinafter referred to as `the Act') did not apply to

it. The suit was preceded by a notice under section 106 of

the Transfer of Property Act terminating the respondent's

tenancy. The respondent-tenant resisted the suit contending

that the building was an old construction to which the Act

terminating the respondent's tenancy. The respondent-tenant

resisted the suit contending that the building was an old

construction to which the Act was applicable. He submitted

that since none of the grounds mentioned in Sub-section (2)

of Section 20 were made out, decree for ejectment cannot be

passed.

The Trial Court dismissed the suit holding that the Act

applied to

352

the house and because none of the grounds contemplated by

Section 20(2) was made out, the suit must fail. It was held

that the tenant was entitled to the benefit of Section 39 of

the said Act. A further finding recorded was to the effect

that the defendant was not in arrears of rent for a period

of four months as alleged by the petitioner-landlord and,

therefore, the notice issued under Section 106 of the

Transfer of Property Act was invalid.

Aggrieved by the judgment of the Trial Court, the

petitioner preferred a revision under Section 25 of the

Provincial Small Causes Courts Act which was heard and

allowed by the learned IIIrd Additional District Judge,

Nainital. The learned District Judge found that the house

was constructed in the year 1968 and, there fore, the Act

did not apply thereto till 1.9.1978. In as much as the suit

was instituted on 1.6.1977 i.e. prior to the Act becoming

applicable to the building, the suit was properly

instituted. Since the Act did not apply, he held, Section

20(4) was not available to the tenant. He, however, held

that benefit of Section 39 of the Act was available to the

tenant but since he did not comply with the requirements of

the said Section, it did not come to his rescue.

Accordingly he decreed the suit for eviction and also for

rent.

Aggrieved by the judgment and order of the learned III

rd Additional District Judge, Nainital, the tenant

approached the Allahabad High Court by way of Civil

Miscellaneous Writ No. 6510 of 1979. The learned Judge who

heard and deposed of the Writ Petition allowed the same

purporting to rely upon the decision in Ratan Lal Shinghal

v. Smt, Murti Devi. [1980] 4 S.C.C. 258 and another decision

of the Allahabad High Court. According to the said

decisions, the learned Judge held, the Act applied even to

the building constructed prior to the commencement of the

said Act, which means that eviction can be decreed only if

one or the other ground mentioned in Sub-section (2) of

Section 20 is satisfied. Since none of the grounds

mentioned in the said sub-section were satisfied in this

case, the learned Judge held the suit is liable to fail. It

is the correctness of the said view that is questioned in

this appeal.

The learned counsel for the landlord-petitioner Sri

Hari Swarup submitted that the decision in Ratan Lal

Shinghal has been overruled in a later decision of this

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court in Om Prakash Gupta & Ors. v. Dig Vijdendrapal Gupta &

Ors., [1982] 2 S.C.C. 61. According to the later decision,

he submitted, the Act became applicable to the said building

only on 1.9.1978 and since the suit was instituted prior to

the said date, it is saved and has to be decided without

reference to the Act. The respondent's counsel, on the

other hand, submitted that the burden of proving the date of

construction

353

of the building lay upon the plaintiffs and that he has

singularly failed to establish that it was constructed in

1968. Indeed the house was an old one and it was merely

repaired in the year 1968. He further submitted that the

tenant is entitled to the benefit of Section 39 and once it

is so, the suit must fail in view of the provision contained

therein.

U.P. Urban Buildings (Regulation of Letting, Rent and

Eviction) Act, 1972 came into force on and with effect from

15th July, 1972. Section 43 of the Act repealed the United

Provinces (Temporary) Control of Rent and Eviction Act,

1947. Sub-section (2) of Section 43 contains several saving

provisions which it is not necessary to mention here. By

virtue of Section 1 (A) of the 1947 Act, the said Act did

not apply to any building which was under erection or was

constructed on or after 1st January, 1951. So far as the

Act (1972 Act) is concerned, Sub-section (2) of Section 2

declares that the Act (barring certain provisions specified

therein) shall not apply to a building during a period of 10

years from the date on which its construction is completed.

Explanation (1) to Sub-section 2 explains when shall the

construction of building be deemed to have been completed.

Insofar as its relevant explanation (1) reads as follows :

"(a) the construction of a building shall be deemed

to have been completed on the date on which the

completion thereof is reported to or otherwise

recorded by the local authority having

jurisdiction, and in the case of a building subject

to assessment, the date on which the first

assessment thereof comes into effect, and when the

said dates are different, the earliest of the said

dates, and in the absence of any such report,

record or assessment, the date on which it is

actually occupied (not including occupation merely

for the purpose of supervising the construction or

guarding the building under construction) for the

first time."

Sub-section (1) of Section 20 provides that save as

provided in Sub-section (2), no suit shall be instituted for

the eviction of a tenant from a building except on the

grounds mentioned in Sub-section (2), save in the limited

situations contemplated by the proviso appended to the Sub-

section. Sub-section (2) enumerates the grounds on which

the tenant can be evicted. Sub-section (4) of Section 20

provides that if in any suit for eviction based on the

ground of default in payment of rent, the tenant

unconditionally pays or tenders, at the first hearing of the

suit,. the entire amount of rent damages for use and

occupation due from him together with interest, the court

may, in lieu of passing a decree for eviction, pass an order

relieving the tenant against his liability for eviction on

the said

354

ground. Section 39 applies to suits pending on the date of

commencement of the Act. It provides that in pending suits

for eviction, if the tenant deposits, within the time

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specified therein, the entire amount and damages due in the

court alongwith the interest, no decree shall be passed

against him on the ground of default in payment of rent.

In this case, the learned District Judge has recorded a

finding that the building in question was constructed in the

year 1968 as submitted by the petitioner-landlord. Though

this finding was sought to be challenged before us by the

learned counsel for the tenant,, we are not prepared to

disturb the same, based as it is on relevant and proper

evidence. In other words, it was constructed prior to the

commencement of the Act. (The 1947 Act did not apply to it

because it was constructed subsequent to 1951). The suit

was instituted on 1.6.1977 i.e., prior to the completion of

10 years' period from the date of its construction. The

question that arises in the above circumstances is whether

the Act was applicable to the said building on the date of

the institution of the suit. If the Act applies, there can

be no doubt that the suit is liable to fail because none of

the grounds mentioned in Sub-section (2) of section 20 are

made out by the petitioner-landlord.

According to the learned Single Judge of the Allahbad

High Court the decision of this court in Ratan Lal Shinghal

holds that even though constructed in the year 1968, the

building comes within the purview of the 1972 Act. The

decision of this court relied upon by the learned Single

Judge merely says "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." It

was held that the Act had no retrospective operation. The

opinion expressed in the said decision may best be set out

by quoting the relevant portion of the order".....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 came into force", we are

unable to see how does this judgment lead to the conclusion

that the 1972 Act applied to all the buildings constructed

prior to the commencement of the said Act irrespective of

their date of construction. Be that as it may, the said

judgment was explained in Om Prakash Gupta, rendered by a

Bench of three Judges. In this decision, it is held that

there is no ambiguity in the language of Sub-section (2) of

Section 2, which says that the Act shall not apply to a

building during a period of 10 years from the date on which

its construction is completed. It was pointed out that the

Act nowhere says that the building should have been

constructed after the commencement of the 1972 Act. In

other words, according to this decision,

355

it is immaterial when the building is constructed-whether

subsequent to the commencement of the Act or prior thereto.

The Act would not apply to a building for a period of ten

years after the completion of its construction. (Insofar as

pending proceedings are concerned, the provisions contained

in Section 43 have to be kept in mind and observed). Once

this is so, construction of the building concerned herein

having been completed in August 1968, the 10 years' period

extends upto August, 1978, whereas the present suit for

eviction was filed long prior thereto. We are, therefore,

of the opinion that the suit as instituted had to be

disposed of without reference to the Act.

So far as the applicability of Section 39 of the 1972

Act to the present suit is concerned, the contention of the

learned counsel for the respondent-tenant is that even

though the Act did not apply to the building concerned

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herein, the said provision does apply all the same. We need

not express any opinion on this aspect inasmuch as it has

been found as a fact by the learned District Judge that the

tenant has not complied with the requirements of the said

Section. If so, its applicability to these proceedings is

merely academic.

Yet another contention urged by the learned counsel for

the tenant on the strength of Vineet Kumar v. Mangal Sain

Wadhera, [1984] 3 S.C.C. 352 is that inasmuch as the

statutory period of ten years expired during the pendency of

the suit, the Act became applicable and the suit must be

disposed of only in accordance with the provisions of the

Act and in particular Sub-section (2) of Section 20. This

decision has, however, been explained in a subsequent

decision in Nand Kishore Marwah & Ors. v. Samundri Devi,

[1987] 4 S.C.C.382 wherein it has been held that the law

appliable on the date of the institution of the suit alone

governs the suit and the mere fact that the statutory period

of 10 years expires during the pendency of the

suit/appeal/revision, the Act does not become applicable.

It was held that the suit has to be tried and decided

without reference to the Act. We are in respectful

agreement with the view expressed in Nand Kishore Marwah.

For the above reasons, the appeal is allowed. The

judgment of the High Court is set aside and that of the

learned IIIrd Additional District Judge, Nainital is

restored. Having regard to the facts of the case, we make

no orders as to costs in this appeal.

N.P.V. Appeal allowed.

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