Hussaini Begum v. State of U. P — 1983 DIGILAW 571 (ALL)

JUDGMENT S.C. Mathur, J. - Instant petition under Article 226 of the Constitution arises from proceeding under Section 21(8) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (U.P. Act No. 13 of 1972), for short Act initiated against the Director of Harijan and Social Welfare, opposite party No. 2 by Smt. Husaini Begum, petitioner, through the application under the said provision the petitioner claimed enhancement of rent payable to her by the opposite party No. 2. Facts necessary for the disposal of the petition may be briefly stated : - The petitioner filed application under Section 21(8) of the Act on the basis that she was the owner and landlady of Kothi No. 295/3 situate at Asharfabad, Deen Dayal Road, Lucknow and that opposite party No. 2 was tenant in the said Kothi at the monthly rent of Rs. 200/-. The total area of the land was 21,859 sq ft. and land in the area where the disputed property was situated was selling at the rate of Rs. 10/- per sq ft. In this manner the valuation of the land alone came to Rs. 2,18,590. Constructed area on the first floor was alleged to 8200 sq. ft. and valuation of this constructed area at the rate of Rs. 25/- per sq. ft. came to Rs. 3,64,000/-. The constructed area on the first floor was alleged to be 504 sq. ft. and the valuation of this area calculated at the rate of Rs. 15 per sq. ft. came to Rs. 76,560. According to the petitioner the total valuation of this building together with this land came to Rs. 5,85,150/-. The petitioner's case was that under the first Proviso to sub-section (8) of Section 21 of the Act, she was entitled to rent at the rate of Rs. 4,876/- while the opposite party No. 2 was paying rent at the rate of Rs. 200/- only. She accordingly claimed enhancement of rent of Rs. 4,876/-. 2. The above application was opposed on behalf of opposite party No. 2. He admitted that he was tenant of the accommodation in dispute at the rent of Rs. 200 per month, but he denied the market value of the building and the rent claimed by the petitioner. It was pressed that the application made by the petitioner was misconceived and was liable to be dismissed. 3. He admitted that he was tenant of the accommodation in dispute at the rent of Rs. 200 per month, but he denied the market value of the building and the rent claimed by the petitioner. It was pressed that the application made by the petitioner was misconceived and was liable to be dismissed. 3. The Prescribed Authority before whom the above application for enhancement had been made rejected the application by its order dated March 24, 1979 (Annexure-3). The Prescribed Authority held that the building in question was public building within the meaning of the Act and therefore, in view of Section 2(1)(a) of the Act, the Act was not applicable to the building and, therefore, the application was not maintainable. The learned District Judge to whom appeal was preferred by the petitioner endorsed the view taken by the Prescribed Authority ad as a consequence thereof the appeal was also dismissed. The petitioner has accordingly approached this Court under Article 226 of the Constitution. 4. Sri S.M. Nasir, Advocate, appeared on behalf of the petitioner. Notice of the petitioner was given to the learned Chief Standing Counsel on August 27, 1982, but till this date no counter-affidavit has been filed either by the State of Uttar Pradesh, opposite party No. 1, or by the Director of Harijan and Social Welfare, opposite party No. 2. Opposite party No. 3 is District Judge, Lucknow who decided the appeal while opposite party No. 4 is the District Supply Officer (Rent Control and Eviction Officer), Lucknow who decided the application originally as Prescribed Authority. I have heard Sri S.M. Nasir, learned counsel for the petitioner. 5. Learned counsel for petitioner argued that the two authorities below have committed manifest error in considering the applicability of the proviso to sub-section (8) of Section 21 of the Act with reference to Section 2(1)(a) read with Section 3(o) of the Act. According to the learned counsel in order to ascertain the maintainability of the application only proviso of sub-section (8) of Section 21 of the Act were required to be considered. Before proceeding to consider the argument of the learned counsel, a few provisions of the Act may be referred to. 6. Section 1(2) of the Act prescribes that the Act shall extend to the whole of the Uttar Pradesh. Further specification about the applicability of the Act has been given through sub-section (3) of Section 1. Before proceeding to consider the argument of the learned counsel, a few provisions of the Act may be referred to. 6. Section 1(2) of the Act prescribes that the Act shall extend to the whole of the Uttar Pradesh. Further specification about the applicability of the Act has been given through sub-section (3) of Section 1. Section 2 prescribes the exemptions from the operation of the Act. It has bee provided by Section 2(1)(a) that "nothing in this Act shall apply to any public building". The term 'public building' has been defined in Section 3(o) as follows :- "Public building' means any building belonging to or taken on the lease or requisitioned by or on behalf of the Central Government or a State Government (including the Government of any other State) and includes any building belonging to or taken on lease by or on behalf of any authority or any public sector corporation". 7. sub-section (1) of Section 21 lays down that Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the grounds specified in Clauses (a) and (b) exists. Under Clause (a) the order of eviction may be passed if the landlord bonafide requires the building in its existing form or after demolition and new construction for occupation by himself or any member of his family. Under Clause (b) the order of eviction may be passed if the building is in a dilapidated condition and it required by the landlord for the purpose of demolition and new Construction. Thereafter there are certain provisos and then explanations. Originally there were four Explanations, but later on two of the Explanations were deleted. Under Clause (b) the order of eviction may be passed if the building is in a dilapidated condition and it required by the landlord for the purpose of demolition and new Construction. Thereafter there are certain provisos and then explanations. Originally there were four Explanations, but later on two of the Explanations were deleted. These Explanations were as follows :- "(ii) where the landlord was engaged in any profession trade, calling or employment, away from the city, municipality, notified area or town area within which the building is situated and by reason of the cessation of such engagement he needs the building for occupation by himself for residential purposes, such need shall be deemed sufficient purpose of Clause (a) ; "(iv) the fact that the building under tenancy is a part of a building the remaining part whereof is in the occupation of the landlord for residential purposes, shall be conclusive to prove that the building is bonafide required by the landlord." 8. By U.P. Act No. 28 of 1976 above Explanations were committed. By very amending Act sub-section (8) of Section 21 was introduced. This sub-section provides 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 :- "Provided that in the case of such building the District Magistrate may, on the application of the landlord, enhance the monthly rent payable therefor to a sum equivalent to one twelfth of ten per cent of the market value of the building under the tenancy and the rent so enhanced shall be payable from the commencement of the month of tenancy of following the date of the application: "Provided further that a similar application for further enhancement may be made after the expiration of a period of five years from the date of the last order of enhancement." 9. Under Section 3(o) of the Act, the term "public building" includes not only buildings belonging to or taken on lease or requisitioned by or on behalf of the State Government, but also building belonging to or taken on lease or requisitioned by or on behalf of the Central Government or Government of any other State besides any local authority or any public sector corporation. sub-sections (8) of Section 21 of the Act does not use the word "public building" but uses the word "building let out to the State Government or to a local authority or to a public sector corporation or to a recognised educational institution." Thus, while excluding the Central Government from the purview of Section 21(8) there is addition of an institution, namely, recognised educational institution. In view of the omission of Central Government from Section 21(8), and application under these provisions cannot be maintained against the Central Government although under Section 3(o) a building belonging to or taken on lease or requisitioned by or on behalf of Central Government is a public building. Similarly, a building belonging to or taken on lease or requisitioned by a recognised educational institution would not be a public building under Section 3(o) of the Act, still in view of the inclusion of the term "recognised educational institution" in Section 21(8), an application under the provision would be maintainable against a recognised educational institution. From these provisions it is apparent that sub-section (8) of Section 21 of the Act deals with a specific situation. Being a specific provision it would override the general provisions of Section 2 and Section 3(o) of the Act. In the circumstances even though a building may be a public building within the meaning of Section 3(o), for purpose of Section 21(8) it would not be exempt from the operation of the Act in spite of the fact that a public building is exempted from the operation of the Act in view of the provision contained in Section 2(1)(a) of the Act. I am therefore, of the opinion that the two authorities below were incorrect in holding that application under sub-section (8) of Section 21 of the Act was not maintainable against opposite party No. 2 on the ground that he was occupying a public building. 10. I am therefore, of the opinion that the two authorities below were incorrect in holding that application under sub-section (8) of Section 21 of the Act was not maintainable against opposite party No. 2 on the ground that he was occupying a public building. 10. Similar question came up for consideration at Allahabad before a Full Bench comprising of M.N. Shukla, K.N. Singh and V.K. Mehrotra, JJ. in Sheo Narain Chaudhary and another v. District Judge, Allahabad and others, 1982 Allahabad L.J. 873 . In that case also an application under Section 21(8) of the Act filed in respect of a building occupied by the Chief Medical Officer, Allahabad was rejected on the ground that the Act was not applicable. The Full Bench took the view that the application was maintainable. The dictum laid down by the Full Bench is fully applicable to the present case. The petition, therefore, deserves to be allowed. 11. Neither the Prescribed Authority nor the learned District Judge considered the case of the petitioner on merits and, therefore, it would be desirable to send back the case to the first authority so that the questions of fact may be examined and thereafter finding recorded. 12. In view of above, the petition is allowed that the order dated March 24, 1979 (Annexure-3) and order dated January 3, 1980 (Annexure-4) passed respectively by the District Supply Officer (Rent Control and Eviction Officer) Lucknow and the learned District Judge, Lucknow, are hereby quashed. The District Supply Officer or whoever may now be dealing with such applications shall admit the application of the petitioner under Section 21(8) of the Act to its original number and decide the same in accordance with law taken into account the observations made herein above. Since no one appeared to oppose the petition on behalf of the opposite parties, no order is made as to costs.