Bhuneshwar Sahi v. State Of U. P. — 1987 DIGILAW 1157 (ALL)

JUDGMENT A. P. Misra, J. 1. The applicant has challenged the order dated 5th April, 1984 by means of the present revision by virtue of which the suit of the plaintiff-applicants for ejectment of the defendants and for recovery of Rs. 3360/- as damages for use and occupation was dismissed. However, the suit for the recovery of arrears of rent and water tax was decreed. 2. It has been urged by the learned counsel for the applicants that all issues though were decided in their favour but the court committed an error in holding that the premises in question is covered under the U. P. Urban Buildings (Reg. of Letting, Rent and Eviction) Act, 1972 (Act No. 13 of 1973), and also in holding that the notice given to the defendants determining the tenancy was invalid. It was contended by the applicants that since the premises in question is public building within the meaning of section 3 (o) of Act no. 13 of 1972 the said building is exempt from the operation of the Act under section 2 (1) of the Act no. 13 of 1972 and thus the finding to the contrary recorded by the courts below is illegal. It was also urged benefit of U. P. Ordinance no. 28 of 1983 and U. P. Ordinance no. 8 of 1984 were not retrospective in operation and they could not be applied to the present case since the Ordinance came into force much after the present suit was filed. In support of this he relied upon two decisions of this Court, viz., State of U. P. v. G. C. Gupta, 1983 AWC 458 and Rang Nath v. State of U. P., 1984 AWC 415 (DB). 3. The question is no more open to the applicants as the matter stands concluded by a Full Bench decision of this court in Punjab National Bank v. Sugan Chandra, 1985 AWC 130. It has been held in that case that Ordinance 28 of 1983 in effect only clears the doubts, which arose on account of various decisions by the courts and makes explicit the legislative intention behind the enactment which was latent. It also holds that the law which is declaratory in nature takes the retrospective effect. It has been held in that case that Ordinance 28 of 1983 in effect only clears the doubts, which arose on account of various decisions by the courts and makes explicit the legislative intention behind the enactment which was latent. It also holds that the law which is declaratory in nature takes the retrospective effect. Apart from this, this Full Bench very explicitly makes the legal position clear about the position of the State Government, the local authority as tenant vis-a-vis the old U. P. Control of Rent and Eviction Act, 1947 and the present Act No. 13 of 1972. The relevant portion of the said judgment is quoted below : ".........This is to say, a landlord who sought to evict Government had necessarily to proceed upon any of the grounds enumerated in section 20 or in accordance with procedure laid in section 21 of this Act......" 4. It is also relevant that the aforesaid decision State of U. P. v. G. C. Gupta (supra) relied by the applicant was specifically overruled by Punjab National Bank (supra). In view of this, finding recorded by the trial court that the building would not be except from the operation of U. P. Act No. 13 of 1972 wherein the defendants v. State of U. P. and the Regional Food Controller of Gorakhpur region Gorakhpur are tenants of the applicants-landlords are held to be correct and valid. It was next urged that inspite of the finding that the defendants have not paid rent for a period of more than four months, yet the suit was dismissed by holding notice dated 10th May, 1982 to be invalid. It has been urged that this notice is not only a notice under section 100, Transfer of Property Act but is in effect a composite notice also demanding arrears of rent, water tax etc. and such a notice cannot be held to be invalid. It has been urged that this notice is not only a notice under section 100, Transfer of Property Act but is in effect a composite notice also demanding arrears of rent, water tax etc. and such a notice cannot be held to be invalid. On the other hand learned counsel for the State raised three grounds regarding invalidity of the notice ; Firstly it is not a notice under section 20 (2) (a) of the Act and in any case there cannot be a composite notice, secondly there was no pleading it to be under section 20 (2) of the Act and thirdly under Order 6 Rule 7 CPC no pleading by way of an amendment could be raised nor any new ground of any claim of fact which is inconsistent with the previous pleading could be raised. Therefore, the findings recorded by the trial court should not be set aside. I have perused the notice in the present case. In paragraph 6 of the notice the rent which was due to the plaintiff for a period from 1st May, 1979 to 31st December, 1982, was specifically mentioned in paragraph 7 termination of tenancy was made after expiry of thirty days from the date of receipt of the notice and demand was also made for paying the arrears of the aforesaid rent and water tax. The argument on behalf of the State is that this is merely a notice of termination of tenancy and merely making demand in the notice of termination of tenancy cannot be treated to be a notice for demand as contemplated under section 20 (2) of the Act No. 13 of 1972. It was also urged there cannot be a composite notice. 5. Learned counsel for the applicants relied on a decision given in Ahmad Ali v. Mohd. Jamil Uddin, 1963 AWR 490. In this case, the contention was raised that notice terminating tenancy could have been given after the notice demanding the arrears of rent. This case concerns section 3 (1) of the Old Act of 1947. The provisions there are similar to the provisions of section 20 (2) of Act no. 13 of 1972. Jamil Uddin, 1963 AWR 490. In this case, the contention was raised that notice terminating tenancy could have been given after the notice demanding the arrears of rent. This case concerns section 3 (1) of the Old Act of 1947. The provisions there are similar to the provisions of section 20 (2) of Act no. 13 of 1972. The relevant provisions of the old Act is quoted below :- "No suit shall without permission of the District Magistrate be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds :- (a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of notice of demand. It is also relevant to mention here the relevant portion of the notice as referred to in the said decision : " Rent from 1-9-57 to 31-7-58 at a rate of Rs. 15/- per month amounting to Rs. 165/-; are due which please pay. Since my client does not wish to keep you a tenant your tenancy is terminated and you are hereby asked to vacate the premises in your occupation on the 30th day after the receipt of this notice failing which legal action shall be taken against you for the costs of which you shall be held responsible." This aforesaid notice is also a composite notice containing termination of tenancy and demand of rent simultaneously. After considering the aforesaid the Court observed as follows : ".........This notice of demand might have been given at any time, there is nothing whatsoever in section 3 (1) to suggest that it should have been given at a particular time or should not have been given at a particular time. It is not required to have any relation with the notice terminating the tenancy the two notices may be given is one document or they may be absolutely independent of each other. There is, therefore, no force in the contention that no notice to quit can be given unless the notice of demand has expired without the demand being satisfied. It was open to the appellant to give the notice of demand simultaneously with the notice terminating the tenancy. There is, therefore, no force in the contention that no notice to quit can be given unless the notice of demand has expired without the demand being satisfied. It was open to the appellant to give the notice of demand simultaneously with the notice terminating the tenancy. In view of the aforesaid contention on behalf of the State, to the contrary cannot be accepted. To the same effect is also decision in cases of Bhayia Pujalal Bhagwandin v. Dane Bhagwat Prasad Prabhu Prasad, AIR 1963 SC 120 at 127 and Ganga Ram v. Smt. Phulwati, 1970 AWR 198. Regarding second ground of absence of pleading I have perused the plaint and paragraphs 10 and 14 which clearly make out that pleading was there. 6. I have perused the judgment given in this case. The trial court held that the notice as contemplated under section 20 (2) (a) of Act no. 13 of 1972 had not been given, it is invalid and thus no default by the defendant has been committed. As aforesaid, the similar situation arose in the case of Ahmad Ali v. Mohd. Jamal Uddin (supra) which considered the provisions of notice under section 3 (1) of the Old Rent Control and Eviction Act and held that the notice to terminate tenancy containing demand of the arrears of rent to be valid a notice. On the same principle even in the present case it is not disputed that the present notice contained the arrears which has been demanded which fell due for a period of more than four months but inspite of the said notice, the payment was not made within the period stipulated therein. Thus the finding that the said notice to be invalid and is not a composite notice of demand and quit, cannot be accepted. Finally the third argument that such plea should not be permitted to be raised in view of the Order 6 Rule 7 CPC is not sustainable. It is not a plea of inconsistency but a plea in the alternative. Even on admitted fact the notice complied with all the conditions required under the 1972 Act. 7. It is significant that section 20 (2) of the said Act speaks about when a suit could be filed for eviction of a tenant. It only states that it can be done after determination of his tenancy. Even on admitted fact the notice complied with all the conditions required under the 1972 Act. 7. It is significant that section 20 (2) of the said Act speaks about when a suit could be filed for eviction of a tenant. It only states that it can be done after determination of his tenancy. Thus the notice required is only for determination of tenancy and nothing further. However, there is restriction in filing such suit only on the grounds, mentioned under the said section which is as under : " (a) that the tenant is in arrears of rent for not less than four months and has failed to pay the same within one month from the date of service upon him of notice of demand ''. In the present case also the said notice of termination of tenancy was given when the State was in arrears for more than four months and further before filing the suit one month expired, and yet no payment was made. Thus all the prerequisite conditions before filing the present suit existed. There is no dispute that within the period of one month arrears has not been paid. Thus I find the notice to be valid and defendants having committed the default in payment of rent, therefore, the present suit for eviction was properly instituted in terms of section 20 (2) (a) of Act No. 13 of 1972. In the present case the court also recorded a finding that the defendant is not entitled of protection under section 20 (4) of the aforesaid Act, 1972 having not deposited the arrears of rent within the stipulated period under the said section. 8. In view of the aforesaid finding I find merit in the present revision which is allowed. The order dated 5th April. 1974 passed by IIIrd Additional District Judge, Gorakhpur dismissing the suit of the plaintiff for ejectment of the defendants from the accommodation in suit is set aside. The suit of the plaintiff stands decreed for eviction as against the defendants. However, since the State is in occupation of the accommodation in question for a long period of time and in the interest of justice to give some time for its vacation, the defendants are granted time to vacate the premises in question to the plaintiff-applicants immediately after expiry of three months from today. Revision allowed.