A. P. Mathur v. Munshi Singh — 1979 DIGILAW 933 (ALL)

JUDGMENT : S.D. AGARWALA, J. 1. This is a petition under Article 226 of the Constitution of India directed against the revisional order dated 6th March, 1979 by which the application for release moved u/s 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U.P. Act XIII of 1972 (hereinafter referred to as the Act) on behalf of Respondent No. 1 has been allowed. 2. Briefly, the facts giving rise to the present petition are as follows: The property in dispute is House No. 3-A/10, Nawab Ganj, Kanpur. Respondent No. 1 admittedly is the owner of the said property. A.P. Mathur, the Petitioner is the tenant. It is further admitted that the Petitioners' wife Smt. Kamla Devi had constructed a house in the same city of Kanpur in 1964 which is numbered as 130/20, Swarup Nagar, Kanpur. This was let out to the U.P. State Electricity Board instead of landlord occupying the said premises immediately after construction. The Respondent No. 1, Munshi Singh the owner of the disputed premises applied for release u/s 16 of the Act on the ground that the property should be deemed vacant u/s 12(3) of the Act. This application was rejected by the prescribed authority on the ground that the property could not be deemed vacant u/s 12 of the Act. A revision was filed against that order. In revision the District Judge, Kanpur by his judgment dated 6th March, 1979 allowed the revision and held the property to be vacant and further found that the need of the Respondent No. 1 was bona-fide, hence released the accommodation in favour of Respondent No. 1. Aggrieved the Petitioner-tenant has filed the present petition in this Hon'ble Court. 3. Shri J.N. Tewari, Learned Counsel for the Petitioner has urged that the legislative intent behind enacting Sub-clause (5) of Section 12 of the Act is that only such property should be deemed vacant under sub Clause (3) of the Act where the tenant has a further right to get his own property vacated u/s 21(1)(a) of the Act. If there is a denial of this right, then the property could not be released u/s 12 of the Act. 4. If there is a denial of this right, then the property could not be released u/s 12 of the Act. 4. Shri K.L. Grover on the other hand submitted that Sub-clause (3) of Section 12 of the Act was in existence prior to the Sub-clause (5) of the Act which came into existence by virtue of the U.P. Act 28 of 1976. This was an additional right given to the tenant but this does not in any manner affect the property being deemed vacant under Sub-clause (3) of the Act. 5. Section 12(3) of the Act clearly provides that in case of a residential building, if the tenant or any member of his family builds in the same-city, municipality, notified area or town area any building, he shall be deemed to have ceased to occupy the building under his tenancy. The proviso to this Sub-clause further lays down that if the building had been constructed prior to 15th July, 1972, then the property shall be deemed to be vacant immediately after the expiry of one year from that date. 6. In view of the proviso to Section 12(3) of the Act, the property has to be deemed as vacant, w.e.f. 15th July, 1973 and as such, the finding of the revisional court to that effect is in accordance with law. 7. Section 21(8) of the Act is as follows: Nothing in Clause (a) of Sub-section (1) shall apply to a building let out to the State Government or to a local authority or to a public sector corporation or to a recognised educational, institution unless the Prescribed Authority is satisfied that the landlord is a person to whom Clause (ii) or Clause (iv) of the Explanation to Sub-section (1) is applicable. 8. It may be noted here that this Clause (8) was also added by U.P. Act 28 of 1976. Clauses (ii) and (iv) of the Explanation had been deleted but still the legislature has not deleted this expression from Clause (8). This is just an erroneous drafting without carefully looking into the provisions of the Act. The said portion of this subclause has no meaning whatsoever. In any way the effect of Sub-clause (8) is that no application u/s 21(1)(a) of the Act would lie in respect of a building which is occupied by the authorities mentioned in Sub-clause (8) of the Act. The said portion of this subclause has no meaning whatsoever. In any way the effect of Sub-clause (8) is that no application u/s 21(1)(a) of the Act would lie in respect of a building which is occupied by the authorities mentioned in Sub-clause (8) of the Act. The Electricity Board is a public sector corporation and as such no application u/s 21(1)(a) of the Act would lie in view of Sub-clause (8) of the Act. 9. Sub-clause (5) to Section 12 of the Act was also added by U.P. Act No. 28 of 1976 which runs as follows: A tenant or, as the case may be, a member of his family, referred to in Sub-section (3) shall have a right, as landlord of any residential building referred to in the said Sub-section which may hare been let out by him before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 to apply under Clause (a) of Sub-section (1) of Section 21 for the eviction of his tenant from such building notwithstanding that such building is one to which the remaining provisions of this Act do not apply. 10. This Sub-clause gives a right to a tenant whose property is deemed to be vacant under Sub-clause (3) to apply for, release u/s 21(1)(a) of the Act. On the face of it Sub-clause (5) appears to be clearly inconsistent to Sub-clause (8) to Section 21 of the Act. It is well settled law that it is the duty of the courts to avoid "a head on clash" between two sections of the same Act and, "whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonise." It appears that Sub-clause (5) was enacted as beneficent provision in order to enable the tenant who is liable to be evicted in view of Section 12(3) of the Act to apply to the prescribed authority to get his own building vacated from his own tenant. In my opinion, Sub-clause (5) to Section 12 of the Act is an exception to Section 21(8) of the Act In a case where Section 12(3) applies a tenant will have a right to apply u/s 21(1)(a) of the Act for release of his own building which otherwise, he may not have u/s 21(8) of the Act. In my opinion, Sub-clause (5) to Section 12 of the Act is an exception to Section 21(8) of the Act In a case where Section 12(3) applies a tenant will have a right to apply u/s 21(1)(a) of the Act for release of his own building which otherwise, he may not have u/s 21(8) of the Act. This is further clear from the non-obstante clause used in Sub-clause (5) of the Act, which reads as follows: ......notwithstanding that such building is one to which the remaining provisions of this Act do not apply. 11. In the circumstances where Sub-clause (5) of Section 12 would apply, Section 21(1)(a) would also apply. In this view of the matter the tenant whose property is deemed to be vacant under Sub-clause (3) will have a right to apply u/s 21(1)(a) of the Act for release. In view of the above there is no denial to the Petitioner of the right to apply u/s 21(1)(a) of the Act. 12. Even otherwise, the effect of Section 12(3) of the Act could not in any manner be taken away as Section 12(5) of the Act gave an additional advantage to the tenant to apply u/s 21(1)(a) of the Act. The right to apply for release u/s 12(5) of the Act is not a condition precedent for the applicability of Section 12(3) of the Act. 13. In the result, the petition fails and is dismissed. In the circumstances of the case, however, the parties are directed to bear their own costs. The Petitioner has been in occupation of the disputed premises for a very long time. In the circumstances, I grant him one year's time to vacate the said premises. He will hand over possession to the landlord immediately after the expiry of one year from today.