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2004 DIGILAW 964 (ALL)

Union of India (UOI) v. Judge, Small Cause Court

2004-04-30

TARUN AGARWALA

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JUDGMENT : Tarun Agarwala, J. The landlord filed a suit for ejectment of the defendant from the accommodation in question and for delivery of vacant possession. The landlord also prayed that a decree for arrears of rent and mesne profit be also granted. It was alleged that the Defendant is the Union of India and is running a Post Office on a monthly rent in the premises in question and that a composite notice u/s 106 of the Transfer of Property Act and u/s 80, CPC was served upon the Defendant terminating the tenancy. It was alleged that inspite of the service of the notice and after the expiry of the period contemplated in the notice, the Defendant failed to vacate the premises in question nor deposited the arrears of land. It transpires that the Defendant appeared but did not file the written statement and the Judge Small Cause Court passed a decree for eviction of the Defendant from the premises in question. The Defendants came to know of the ex-parte order, when the police entered the Post Office for evicting the Defendant in pursuance of the application moved by the Plaintiff for the execution of the decree. 2. The Petitioner approached this Court and filed the present writ petition praying for the following reliefs: to issue a writ, order or direction including a writ in the nature of certiorari calling for the records of the case and quashing the judgment and decree passed by the Respondent Nos. 1 and 2, dated 22.1.1987 and 10.2.1986, respectively; to issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case; 3. Heard Sri Shishir Kumar, learned Counsel appearing for the Petitioner and Sri N.K. Srivastava, learned Counsel appearing for the landlord. 4. The learned Counsel for the Petitioner has made two submissions, namely, that the suit filed by the landlord for recovery of possession was not maintainable before the Court of Judge Small Cause. Even otherwise, in view of Ordinance 28 of 1983, the premises in question being a public building was covered under U.P. Act No. 13 of 1972 and therefore, the Petitioner cannot be evicted except on the ground mentioned u/s 20 of the said Act. Even otherwise, in view of Ordinance 28 of 1983, the premises in question being a public building was covered under U.P. Act No. 13 of 1972 and therefore, the Petitioner cannot be evicted except on the ground mentioned u/s 20 of the said Act. In support of his submission, the learned Counsel for the Petitioner has relied upon the decision of the Supreme Court in Vineet Kumar Vs. Mangal Sain Wadhera, (1984) 3 SCC 352 , in which it was held that if the Act becomes applicable to the premises in question during the pendency of the litigation, in that case the benefit of the applicability of the Act should be given. 5. The submission of the learned Counsel for the Petitioner is devoid of any merit and is liable to be rejected. The suit was filed in the year 1982. On that date, Section 2(1) as amended by U.P. Act No. 28 of 1976 reads as under: Section 2(1).-Nothing in this Act shall apply to the following, namely: (a) any public building ; or 6. By U.P. Act No. 28 of 1976, Section 3(o) was inserted which reads as under: Section 3(o).-"Public building", means any building belonging to or taken on 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 local authority or any public sector corporation. 7. By U.P. Ordinance No. 28 of 1983 promulgated on 18.5.1983, Section 2(1) was again amended, which reads as under: Section 2(1).-Nothing in this Act shall apply to the following: (a) any building of which the Government or a local authority or a public sector corporation is the landlord ; or 8. This amendment was kept alive by a series of Ordinances, namely Ordinance No. 43 of 1983, 6 of 1984, 8 of 1984, 20 of 1984 and 9 of 1985. Eventually, U.P. Act No. 17 of 1985 was enacted on 20.8.1985, regularising the aforesaid Ordinances and this Act No. 17 of 1985 was made effective from 18.5.1983. 9. The result of this amendment was that w.e.f. 18.5.1983, the Act was not applicable to a building of which the Central Government, State Government, local authority or a public sector corporation was the landlord. 10. 9. The result of this amendment was that w.e.f. 18.5.1983, the Act was not applicable to a building of which the Central Government, State Government, local authority or a public sector corporation was the landlord. 10. In the light of the promulgation of U.P. Ordinance 28 of 1983, the learned Counsel for the Petitioner submitted that the said Ordinance 28 of 1983 became applicable during the pendency of the suit, which was applicable and in view of Ordinance 28 of 1983 the premises in question was not excluded from the operation of the U.P. Act No. 13 of 1972. The learned Counsel for the Petitioner further submitted that since U.P. Act No. 13 of 1972 became applicable, the Petitioners could not be evicted from the premises in question except in accordance with the provisions of Section 20 of the said Act, and therefore, the entire proceedings before the Judge, Small Cause Court was without jurisdiction and the proceedings initiated were liable to be quashed. 11. In support of this submission the learned Counsel for the Defendants have relied upon a decision of the Supreme Court in Vineet Kumar Vs. Mangal Sain Wadhera, (1984) 3 SCC 352 . 12. In Vineet Kumar's case (supra) the Supreme Court held that since the building completed 10 years of its existence during the pendency of the suit, the Act became applicable and therefore, the tenant was entitled to seek the protection of the Act. The Supreme Court held that the tenant could not be evicted from the premises in question except on the grounds mentioned in Section 20. Since the tenant had deposited the arrears of rent, damages and interest, the benefit of Section 39 was available to the tenant. 13. In Nand Kishore Marwah and Others Vs. Samundri Devi, (1987) 4 SCC 382 , the Supreme Court dissented with its earlier judgment in Vineet Kumar's case (supra) and held that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit. The Supreme Court further held that Section 39 of the Act would be applicable to those suits, which were pending on the date of the commencement of the Act, i.e., 15.7.1972. If the suit was pending on 15.7.1972, only then the benefit of Section 39 of the Act was available to the tenant. 14. The Supreme Court further held that Section 39 of the Act would be applicable to those suits, which were pending on the date of the commencement of the Act, i.e., 15.7.1972. If the suit was pending on 15.7.1972, only then the benefit of Section 39 of the Act was available to the tenant. 14. Similar view was again expressed by the Supreme Court Atma Ram Mittal Vs. Ishwar Singh Punia, (1988) 4 SCC 284 , impliedly overruling Vineet Kumar's case, and in Suresh Chand v. Gulam Chisti 1990 (1) ARC 233 and in Ramesh Chandra v.II Ird A.D.J. and Ors. (1992) 1 SCC 751 , and again by the Supreme Court in Bhola Nath Varshney, (since dead) through his LRs. Vs. Mulk Raj Madan, (1994) 2 SCC 127 . The Supreme Court in Kishan alias Krishan Kumar v. Manoj Kumar AIR 1988 SC 999, overruled Vineet Kumar's case and held that a suit instituted during the period of exemption could be continued and a decree passed therein could be executed even though the period of exemption came to an end during the pendency of the suit. 15. In State of U.P. and Another Vs. Malik Zarid Khalid, (1988) 1 SCC 145 , the Supreme Court held that the amendment in Section 2(1) of the Act by U.P. Ordinance No. 28 of 1976, was intended to be effective between 5.7.1976 and 18.5.1983 and that the amendment made by Ordinance No. 28 of 1983 was not intended to be read back. The Supreme Court held that the Government who are tenants will be in position to claim all the immunities available to other tenants under the Act after 18.5.1983, when Ordinance No. 28 of 1983, came into force. 16. In view of the decisions given by the Supreme Court, the position that emerges is that the benefit available u/s 39 of the Act is only applicable to those suits, which were pending on the date of commencement of the Act, i.e., 15.7.1972. If the suit was pending on 15.7.1972, only then, the benefit of Section 39 of the Act was available to the tenant. It is also clear that the amendment made in Section 2(1) by U.P. Act No. 28 of 1976 was effective between the period 5.7.1976 and 18.5.1983. If the suit was pending on 15.7.1972, only then, the benefit of Section 39 of the Act was available to the tenant. It is also clear that the amendment made in Section 2(1) by U.P. Act No. 28 of 1976 was effective between the period 5.7.1976 and 18.5.1983. The Ordinance 28 of 1983, was effective only from 18.5.1983 onwards and reliance on Ordinance 28 of 1983, could not be made available to a suit filed prior to 18.5.1983. 17. Admittedly, the suit was filed in the year 1982 and therefore, the provisions of Section 2(1) of the Act, as amended by U.P. Act No. 28 of 1976 would be applicable. U.P. Act No. 28 of 1983, was effective from 18.5.1983 and therefore, this Ordinance will not be applicable in the present case. Thus, the contention of the learned Counsel for the Petitioner that the proceedings before the Judge Small Cause Court was not maintainable is devoid of any merit. 18. Learned Counsel for the Petitioner further submitted that the suit for possession could not be filed before the Judge Small Cause Court under the Provincial Small Cause Courts Act. 19. This contention of the learned Counsel for the Petitioner is devoid of any merit. No such ground has been taken in the writ petition and, therefore, the Petitioner cannot be permitted to raise this point. Even otherwise, Article 4 as amended by Uttar Pradesh Civil Laws Amendment Act, 1972 (by U.P. Act No. 13 of 1972) in the Provincial Small Cause Courts Act reads as under: A suit for possession of movable property or for recovery of an interest in such property, but not including a suit by a lesser for the eviction of a licensee from the building after the determination of his lease, and for recovery from him of compensation for use and occupation of that building after such determination of lease. 20. In view of the aforesaid amendment, a suit for eviction of a tenant whose tenancy has been determined is also a suit for possession of movable property and such a suit is cognizable by a Judge Small Cause Court exercising power under the provisions of Small Cause Court Act. Thus, the suit filed by the landlord Respondent was clearly maintainable. 21. Thus, the suit filed by the landlord Respondent was clearly maintainable. 21. It may be stated here that against the order passed by the Judge Small Cause Court decreeing the suit, the Petitioner had an alternative remedy by filing a revision u/s 25 of the Provincial Small Cause Court Act, which in the present case was not done and a writ petition was filed directly before this Court. In my view, the writ petition was not maintainable on the ground of alternative remedy. 22. In view of the aforesaid, the writ petition is devoid of any merit and is dismissed with costs, which is assessed at Rs. 5,000.