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1985 DIGILAW 1113 (ALL)

Sadhu Ram Agarwal v. Shanti Sharma

1985-11-19

N.D.OJHA, R.K.SHUKLA

body1985
JUDGMENT 1. In these two cases the following question has been referred to us for answer: Whether the words "the date of commencement of this Act" used in Section 39/40 of U.P. Act 13 of 1972 mean July 15, 1972 or can they be equated with the date on which a particular building becomes subject to the provisions of the Act within the meaning of Section 2(2) thereof ? 2. A similar question with reference to Section 39 of the aforesaid Act, namely, U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (Uttar Pradesh Act XIII of 1972) came up for consideration before a Division Bench of this Court in R.D. Ram Nath and Co. v. Girdhari Lal, 1975 AWC 139. It was held in that case that the words" commencement of this Act" in Section 39 must therefore mean the date on which the provisions of the Act-became applicable to the building in respect of which the suit for ejectment was pending. It was also pointed out in the said decision that by virtue of Section 40 of the Act aforesaid the provisions of Section 39 in regard to a suit would apply mutatis mutandis to pending appeals or revisions. in other words the meaning which was to be given to the words 'commencement of this Act" in Section 39 was to be given to the same words used in Section 40 also. The learned Single Judge who made the reference was of the view that on account of the subsequent decision of the Supreme Court in Bishan Chand Vs. Vth Additional District Judge, Bulandshahr (Uttar Pradesh) and Another, AIR 1982 SC 1230 which appeared to take a contrary view the question deserved to be decided by a larger Bench. 3. Having heard counsel for the parties we are of opinion that in view of a latter decision of the Supreme Court in Vineet Kumar Vs. Mangal Sain Wadhera, AIR 1985 SC 817 the question referred to us stands already decided and the answer to the question referred to us has to be in conformity with the decision of the Supreme Court in the case of Vineet Kumar (Supra). Mangal Sain Wadhera, AIR 1985 SC 817 the question referred to us stands already decided and the answer to the question referred to us has to be in conformity with the decision of the Supreme Court in the case of Vineet Kumar (Supra). In that case, according to the finding of the Additional District Judge the building in question was to be deemed to have been completed on the date of assessment of the house which date was 1st of October, 1971 as stated in paragraph' 12 of the report. The suit was filed on the allegation that the building was constructed in 1971 and the Defendant was inducted as a tenant thereof on 7th February, 1972. It was further stated in the plaint that the tenant had defaulted in the payment of the rent despite notice dated 24th March, 1977 as a result of which his tenancy was terminated and suit for his ejectment was filed. Apparently, therefore, the suit for ejectment was instituted in that case on some date after 24th March, 1977 which was the date of service of notice and was thus not pending on 15th July, 1972 which is the date of commencement of U.P. Act XIII of 1972 according to the notification issued u/s 1(4) of the said Act. During the pendency of either the suit or the revision u/s 25 of the Provincial Small Cause Courts Act ten years from the date on which the building was deemed to have been completed expired and the question arose as to whether the tenant was entitled to the benefit of Sections 39 and 40 of the Act. It was held by the Supreme Court even after noticing its earlier decision in the case of Om Prakash Gupta (supra) in paragraph 17 of the report that the applicant was entitled to the benefit of those sections. Even though it has not been specifically stated in the said decision that the words" the date of commencement of this Act" used in Section 39/40 were not confined to July 15, 1972 but were to be equated to the date on which the particular building becomes subject to the provisions of the Act within the meaning of Section 2(2) thereof, the decision in substance is to that effect. It is precisely this question, as already seen above, which is referred to us. 4. It is precisely this question, as already seen above, which is referred to us. 4. In this connection, however, it was pointed out by counsel for the Respondent that Sub-section (4) of Section 1 of U.P. Act XIII of 1972 provides that the Act shall come into force on such date as the State Government may by notification in the Gazette appoint and that by a notification issued under the said provision 15th July, 1972 was fixed as the date on which the Act was to come into force. On its basis and on the basis of the definition of the term ' commencement ' contained in Section 4(10) of the U.P. General Clauses Act which contemplates that ' commencement ' used with reference to an Act shall mean the date on which the Act comes into force, it was urged by counsel for the Respondent that the words " the date of the commencement of this Act used in Section 39/40 of the Act would refer only to 15th July, 1972 and to no other date. We find no substance in this submission either. It is true as has been urged by counsel for the Respondent that this submission does not appeal? to have been made before the Supreme Court in the case of Vineet Kumar (supra). That, however, in our opinion makes no difference. Firstly, it has been held by the Supreme Court in Smt. Somavanti and Others Vs. The State of Punjab and Others, AIR 1963 SC 151 that the binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided. Secondly, Section 4 of the U.P. General Clauses Act which contains the general definitions starts with the words "In all Uttar Pradesh Acts, unless there is anything repugnant in the subject or context " (emphasis supplied). 5. Secondly, Section 4 of the U.P. General Clauses Act which contains the general definitions starts with the words "In all Uttar Pradesh Acts, unless there is anything repugnant in the subject or context " (emphasis supplied). 5. In the normal course, therefore, on an interpretation of Sub-section (4) of Section 1 of U.P. Act XIII of 1972 together with the notification issued under the said Sub-section and the definition of the term ' commencement ' in Sub-section (10) of Section 4 of the U.P. General Clauses Act, the words" the date of the commencement of this Act" used in Sections 39/40 of Uttar Pradesh - Act XIII of 1972 would have been 15th July. 1972 alone. But in our opinion the case falls within the purview of the term "unless there is anything repugnant in the subject or context" used in the opening part of Section 4 of the U.P. General Clauses Act which contains the general definitions. In this connection it may be pointed out that Sections 39 and 40 inter alia contemplate that the building in respect of which the suit for ejectment was pending on the relevant date should be one to which the old Act, namely, U.P. (Temporary) Control of Rent and Eviction Act, 1947 (Uttar Pradesh Act m of 1947) did not apply. 6. As a consequence of the aforesaid provision, the benefit of Sections 39 and 40 of U.P. Act XIII of 1972 could not be availed of by a tenant in a suit for ejectment if the building occupied by him was such to which the old Act applied. Thus, where an exception was sought to be made it was specifically provided. As a consequence of the aforesaid provision, the benefit of Sections 39 and 40 of U.P. Act XIII of 1972 could not be availed of by a tenant in a suit for ejectment if the building occupied by him was such to which the old Act applied. Thus, where an exception was sought to be made it was specifically provided. If the intention of the Legislature was to make a similar exception in regard to such a tenant against whom no suit for ejectment was pending on 15th July, 1972 which would be the date of commencement of Uttar Pradesh Act XITI of 1972 according to Section 1(4) thereof but was filed thereafter and the suit was in respect of a building to which Uttar Pradesh Act XIII of 1972 did not triply on the date of the institution of the suit in view of Section 2(2) thereof but become applicable to it during the pungency of the suit or during the tendency of the appeal or revision against the decree passed in the suit, it would certainly have made a specific provision in this behalf as it made in regard to a building to which the old Act applied. However, this was apparently not done. Provisions of Sections 39 and 40 of U.P. Act XIII of 1972 are in the nature of a beneficent piece of legislation and were intended to save a tenant from ejectment if he complied with the requirements of these sections. If the words on "the date of commencement of this Act" used in Sections 39 and 40 ate interpreted to mean 15th July, 1972 the protection granted by these sections would not be available to the tenants of the category referred to above. There seems to be no good ground to take the view that the Legislature intended to create such discrimination. The" subject or context " of Sections 39 and 40 therefore, require that the definition of the word " commencement" contained in Section 4(10) of the U.P. General Clauses Act should not be applied for interpreting that word with reference to Sections 39 and 40 aforesaid. 7. The" subject or context " of Sections 39 and 40 therefore, require that the definition of the word " commencement" contained in Section 4(10) of the U.P. General Clauses Act should not be applied for interpreting that word with reference to Sections 39 and 40 aforesaid. 7. In view of the foregoing discussion our answer to the question referred to us therefore is that the words " the date of commencement of this Act" used in Sections 39/40 of Uttar Pradesh Act XIII of 1972 mean the date on which the provisions of the said Act became applicable to the building in respect of which the suit for ejectment was pending. In other words, if the provisions of the Act had already become applicable to the building on 15th July, 1972 it will be that date which will be treated to be "the date of commencement of this Act". In respect of other buildings to which the provisions of the Act became applicable after 15th July, 1972 "the date of commencement of this Act" would be the date on which that building becomes subject to the provisions of the Act within the meaning of Section 2(2) thereof. 8. Before parting with these cases we may point out that a common order or reference was made in these two cases and in Civil Revision No. 250 of 1982 and Civil Revision No. 252 of 1982. These two Civil Revisions were not listed before us. It appears that Sri H.S. Joshi was appearing for the applicant in Civil Revision No. 250 of 1982 and for the Respondent in Civil Revision No. 252 of 1982 and because of his death these revisions could not be listed till a notice was served on the parties represented by Sri H.S. Joshi to engage another counsel, if they so desired. Consequently we direct these two cases, namely, Civil Revision No. 367 of 1982 and Writ Petition No. 9499 of 1983 in which the reference has been answered, may be listed before Hon'ble Mr. Justice Y.K. Mehrotra who had made the reference, for hearing along with our answer to the question referred to us. We further direct that Civil Revision Nos. 250 of 1982 and 252 of 1982 may also be simultaneously listed before him for suitable orders.