Allahabad High Court
Smt. Bilqeesh Begum And 2 Others vs M/S Brij & Company Pvt. Ltd. on 7 January, 2019
Equivalent citations: AIR 2019 (NOC) 347 (ALL), 2019 (2) ALJ 671, (2019) 1 RENCR 436, (2019) 133 ALL LR 123, (2019) 1 ALL RENTCAS 893, (2019) 2 ADJ 375 (ALL)
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 19 Case :- MATTERS UNDER ARTICLE 227 No. - 6562 of 2017 Petitioner :- Smt. Bilqeesh Begum And 2 Others Respondent :- M/S Brij & Company Pvt. Ltd. Counsel for Petitioner :- Siddhartha Srivastava Counsel for Respondent :- Shailendra Singh Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against the judgement and order dated 7.9.2017 passed by Additional District Judge, Court No.2, Bareilly in SCC Revision No.19 of 2015, whereby the revision filed by the plaintiff-respondent has been allowed and the judgement and decree dated 19.9.2015 passed by the Court of Small Causes dismissing SCC Suit No.30 of 2013 has been set aside, after returning a finding that provisions of U.P. Act No.13 of 1972 (for short 'the Act') were not applicable to the building in dispute. The matter has been remitted back to the trial court for deciding the case afresh, in the light of the findings recorded in the said judgement.
The brief facts of the case are that the suit in question of the nature of small causes was instituted by the plaintiff-respondent for recovery of arrears of rent and for eviction of the petitioners on the ground that provisions of the Act were not applicable; that the tenancy of the petitioners had been terminated by a notice dated 30.6.2013 under Section 106 of the Transfer of Property Act; that the petitioners had failed to vacate the premises even after expiry of the statutory period. The suit was contested by the petitioners by filing a written statement taking a specific plea that provisions of the Act were applicable to the building under their tenancy; that the petitioners had deposited rent under Section 30 of the Act in Misc. Case No.49 of 2013; that they had sent a money order to the plaintiff-respondent for a sum of Rs.3850/- which was refused; that they had also deposited the entire amount contemplated by Section 20 (4) and thus, should be relieved from the liability of eviction.
Before proceeding further, it is pertinent to note certain more facts which are not in dispute between the parties. The petitioners were tenant of an old building, which was earlier in existence at the same site, but was in dilapidated condition. A release application under Section 21 (1) (b) was filed in respect of the same by the plaintiff-respondent against the petitioners, which was registered as P.A. Case No.48 of 1993. The case of the plaintiff-respondent was that the building being in dilapidated condition, it was required for demolition and new construction. The said case was allowed on 25.3.1994 in terms of a compromise Paper No.15/Ka-3 - 15 Ka-5 and 16/Ka-3 to 16/Ka-5. The compromise was entered into between the parties on 23.3.1994 i.e. during pendency of the release application and wherein, the parties admitted that the building was in a dilapidated condition and required demolition and reconstruction. The petitioners agreed to vacate the same to enable the plaintiff-respondent to demolish the building and to construct a new one in its place. During this period, the plaintiff-respondent also provided an alternative place to the petitioners to carry on their business. It was also agreed between the parties that as soon as new building is constructed, it will be let out to the petitioners for initial period of five years on a rent of Rs.200/- per month plus taxes, which would be enhanced by 5% every year after five years and 7.5% every year thereafter. Clause (xi) of the said agreement, which is anchor-sheet of the case of the petitioners, reads thus:-
Þ11- ;g fd uofufEkZr nqdku ij foi{kh dh fdjk;snkjh iqjkuh ekuh tk;sxh vkSj ml ij jsUV dUVªksy ,DV 1972 ds izkfo/kku ykxw jgsssaxsAß It is also admitted to the parties that in pursuance of the said compromise and the consequent release order dated 25.3.1994, the petitioners vacated the tenement in their tenancy and thereafter, the building was demolished. The plaintiff-respondent constructed a new building and the same was let out to the petitioners in terms of the compromise dated 23.3.1994. The petitioners had been paying rent as stipulated in the said agreement.
The trial court, having regard to the above agreement and the release order, returned a specific finding that the provisions of the Act were applicable to the building in the tenancy of the petitioners and consequently, they would be entitled to claim benefit of Section 20 (4) of the Act. The trial court also held that the petitioners had duly deposited the amount envisaged under sub-section (4) of Section 20 and accordingly, relieved them from liability of eviction and dismissed the suit.
Aggrieved by the dismissal of the suit, the plaintiff-respondent filed a revision, which has been allowed by the impugned order and judgement. The revisional court has held, relying upon a Division Bench judgement of this Court in Gopal Dass Vs. Bal Kishan Dass 2012 (93) ALR 301, that the petitioners would not be entitled to benefit of Section 24 (2) of the Act, as they had failed to file application for allotment of the new building before the District Magistrate as envisaged under Section 24(2). In other words, the view taken by the revisional court is that the stipulation under sub-section (2) of Section 24 that the provisions of the Act would continue to apply to the newly constructed building when it is occupied by the erstwhile tenant would not be applicable to the petitioners, as for availing benefit of the said provision, the tenant was required to file application for allotment of newly constructed building before the District Magistrate and whereupon only, the building so allotted, would remain exempt from the provisions of the Act and not otherwise.
Learned counsel for the petitioners submitted that the view taken by the revisional court regarding non-applicability of the Act is manifestly illegal. It is urged that there was no necessity to file application before the District Magistrate for allotment and fixation of rent of the newly constructed building as the landlord, in compliance of the terms of the agreement, peacefully handed over possession of the newly constructed building and also started accepting the rent, as mutually agreed.
Per contra, learned counsel for the plaintiff-respondent submitted that benefit of exemption under Section 24 (2) could not be claimed by the petitioners as they did not comply with the requirements of the said provision, having failed to file application for allotment before the District Magistrate. He also placed reliance upon Section 2 (2) of the Act and the judgement in Gopal Dass to buttress his submission.
Under Section 21 (1) (b), the Prescribed Authority is invested with the power to order eviction of a tenant from a building under his tenancy, if the building is in a dilapidated condition and is required for purposes of demolition and new construction. Section 24 (2) confers a right of re-entry in favour of the tenant against whom a release order is passed under clause (b) of sub-section (1) of Section 21 and in pursuance whereof, he is evicted. The tenant of such a building can move an application before District Magistrate within such time as may be prescribed for allotment of the new building or such one of them, as the District Magistrate, after considering his requirements, thinks fit. In that event, the tenant becomes liable to pay as rent an amount equivalent to 1% per month of the cost of construction of the building and the building shall, subject to the tenants' liability to pay rent as aforesaid, be subject to the provisions of the Act. However, where the tenant makes no such application or refuses or fails to take the building on lease within the time allowed by the District Magistrate or subsequently, ceases to occupy it or otherwise vacates it, the building shall again be exempt from the operation of the Act for the remaining period. Sub-section (2) of Section 24 is extracted below:-
"(2) Where the landlord after obtaining a release order under clause (b) of sub-section (1) of section 21 demolishes a building and constructs a new building or buildings on its site, then the District Magistrate may, on an application being made in that behalf by the original tenant within such time as may be prescribed, allot to him the new building or such one of them as the District Magistrate after considering his requirements thinks fit, and thereupon that tenant shall be liable to pay as rent for such building an amount equivalent to one per cent per month of the cost of construction thereof (including the cost of demolition of the old building but not including the value of the land) and the building shall, subject to the tenant's liability to pay rent as aforesaid, be subject to the provisions of this Act, and where the tenant makes no such application or refuses or fails to take that building on lease within the time allowed by the District Magistrate, or subsequently ceases to occupy it or otherwise vacates it, that building shall also be exempt from the operation of this Act for the period or the remaining period, as the case may be, specified in sub-section (2) of section 2."
The Division Bench in Gopal Dass was considering a reference made to it on the following question:-
"Whether the U.P. Urban Buildings (Regulation of Letting, rent and Eviction) Act, 1972 applies to a case where under the agreement, tenant voluntarily vacates the tenanted accommodation for demolition and new construction and after demolition and new construction, new constructed premises is let out to the tenant."
The accepted position in that case was that Gopal Dass, the revisionist was a tenant of an old shop belonging to the respondent Bal Kishan Dass. They entered into a compromise outside the court. The tenant agreed to vacate the existing shop which was under his possession and the landlord agreed to let out to him a shop on the front side in the market that was under construction. In pursuance of the said compromise, the tenant vacated the building under his tenancy and whereafter new building was constructed and a newly constructed shop therein came to be occupied by the revisionist as a tenant in pursuance of the compromise between the parties. After some time, a suit for recovery of arrears of rent and for eviction was filed by the landlord against the tenant and one of the issue was whether the provisions of Section 24 (2) of the Act would apply so as to take the building outside the purview of the Act. The plea was negatived by the court below holding that the old tenancy had come to an end and since the building in tenancy of the revisionist was a newly constructed building, it was exempt from the provisions of the Act.
In the aforesaid background facts, the Division Bench, while answering the reference, considered the scheme of the Act, particularly sub-section (2) of Section 2 and Section 24 (2) and thereafter held as under:-
"26. A plain reading of sub-section (2) of Section 2 would show that except in the following cases, the Act shall not apply to a building during the period of ten years from the date on which which its construction has completed. They are -- (1) as provided in sub-section (5) of Section 12, (2) sub-section (1-A) of Section 21, (3) sub-section (2) of Section 24, (4) Section 24-A, (5) Section 24-B, (6) Section 24-C and (7) sub-section (3) of Section 29.
27. It is not the case of the tenant that his case falls in any of the aforesaid exceptions except sub-section (2) of Section 24. Section 24 provides the operation of re-entry by tenant under the circumstances specified therein.
28. The Scheme of the sub-section (2) of Section 24 is crystal clear. It extends the benefit of the old tenancy to such tenancy which is subject to a release order obtained by a landlord on the ground that the building is in a dilapidated condition and requires demolition and reconstruction. Legislators were conscious about the fact that as soon as a building is demolished, the tenancy of a building comes to an end. They have taken conscious decision to protect a specified class of tenants who has to vacate the building on the ground that it is in a dilapidated condition and requires demolition and reconstruction. The said benefit has been provided to a limited class of tenants and it cannot be extended, on the plain language of Section 2(2) of the Act, to such tenants who fall outside the specified class. Any other interpretation given to Section 2(2) and Section 24(2) of the Act would be violative of the principles relating to interpretation which provides that where the language is plain and simple, the Court should not venture under the guise of interpretation to give a different colour and meaning to the plain language. When the words of Statute are clear, plain, unambiguous i.e. they are reasonably suggestible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences, as laid down by catena of decisions such as Nelson Motis Vs. Union of India and others, AIR 1992 SC 1981 at page 1984, GURUDEVDATTA VKSSS MARYADIT & ORS. Vs. STATE OF MAHARASHTRA & ORS., AIR 2001 SC 1980 at Page 1991, State of Jharkhand Vs. Govind Singh, AIR 2005 SC 294, page 296, Nathi Devi Vs. Radha Devi Gupta, AIR 2005 SC 648 etc..
29. The language of sub-section (2) of Section 2 makes it crystal clear that only such buildings which are specified in the various provisions referred therein would not be covered by the operation of the Act. This being not the case of the tenant that a release order was obtained against him under Section 21(1) (b) or the demolition or reconstruction took place in pursuance of such release order, we see no reason to hold the applicability of sub-section (2) of Section 24 in the facts of the case. If the tenant's contention is accepted, it would be doing violence to the plain language of Section 2(2) and Section 24 of the Act. The main thrust of the tenant's argument is that the principles underlying Section 24 (2) would be applicable cannot be accepted. The tenant vacated the earlier shop voluntarily under a compromise. At the best the rights of the parties shall flow from the said compromise. There is no indication in the said compromise that the new shop would still be governed by the provisions of the U.P. Act No.13 of 1972 notwithstanding the fact that the shop in question is a new construction exempt from the operation of the Act under Section 2(2) thereof."
(emphasis supplied) The Division Bench, while answering the reference, held that in view of Section 2 (2), the provisions of the Act would not apply to a building during period of 10 years from the date on which its construction has been completed. Sub-section (2) of Section 24 is mentioned as one of the exceptions to the above provision. For availing the benefit of Section 24 (2) of the Act, it was held that the eviction of the tenant should have been in pursuance of a release order obtained against him under Section 21 (1) (b) and the consequent demolition or reconstruction also in pursuance of the same order. If there is no release order under Section 21 (1) (b) but the parties on basis of a private arrangement made outside the court agreed to surrender the tenancy and a new building is constructed in its place and then let out to the tenant, the provision of Section 24 (2) of the Act would not apply.
In the instant case, concededly, a release order under Section 21 (1) (b) was passed against the petitioners on 25.3.1994. Although the release order was passed on basis of a compromise but the compromise was made part of the release order. The petitioners handed over possession to the plaintiff-respondent in pursuance of the said release order and it is also not in dispute that the plaintiff-respondent demolished the building and constructed a new building in its place in pursuance of the compromise as well as the release order passed on its basis. It is also not in dispute that the petitioners were let out the newly constructed building in recognition of their right of re-entry contemplated under Section 24 (2) of the Act, as also specifically recognised under the compromise and the order of Prescribed Authority, while allowing the release application by order dated 25.3.1994.
The right conferred upon a tenant to secure re-entry in the newly constructed building is enforceable by filing an application before the District Magistrate within such time as is prescribed in that regard. The District Magistrate in that event, is obliged to allot to such a tenant the new building or such one of them as the District Magistrate, after considering his requirements, thinks fit. In such an eventuality, the tenant is also under obligation to pay rent determined by the District Magistrate in accordance with the provision contained in this regard under the said provision. The provision for filing an application before the District Magistrate for obtaining an allotment order and getting the rent of the newly constructed building determined is only an enabling provision, providing for the machinery to enforce the right of re-entry. It in no manner impedes an amicable re-entry into newly constructed building without recourse to the machinery provisions stipulated under the Act for enforcement of the right of re-entry. In the instant case, since there was already an agreement between the parties that newly constructed building would be let out to the petitioners and there was also an agreed rent between the parties payable therefor, consequently, the petitioner was not required to file application before the District Magistrate for allotment of the new building and for fixation of rent. It cannot be treated to be a case falling under the latter part of Section 24 where on account of default on part of the tenant in making application for allotment or refusing to take the building on lease, the newly constructed building stands exempted from the provisions of the Act. In the considered opinion of the Court, in the facts of the instant case, the provisions of Section 24 (2) were fully attracted and the provisions of U.P. Act No.13 of 1972 would therefore apply to the building now in tenancy of the petitioners.
The issue in question can be considered from another angle which also leads to the same conclusion. Assuming for argument sake that section 24(2) of the Act was not applicable as the petitioners have not obtained possession of the newly constructed building in pursuance of allotment order passed in their favour under the said provision, still it could not be disputed that it was open to the landlord to enter into an agreement of tenancy subjecting itself to the rigour of the Act. There is no prohibition under the statute enabling the parties to restrict, by agreement, the grounds of eviction to those provided under the Act. An agreement in identical terms between a landlord and a tenant was subject matter of consideration by this Court in L.I.C. Vs. Advani and Company and others 2000 AWC 2054 and this Court after placing reliance upon judgement of Apex Court in Lachoo Mal Vs. Radhey Shyam AIR 1971 SC 2213 held as under:-
"8. It is urged that when the parties had entered into agreement on 6th March, 1965 whereby it was agreed that the respondent which was occupying another portion of the premises in question will vacate the same and thereafter it will be provided with a newly constructed shop. The respondent vacated the premises and thereafter it was given the disputed shop No. 2 on the rent as agreed between the parties. There was a clause in the agreement which provided that the tenancy of the second party shall be deemed to continue without any break and the second party shall be entitled to all the rights that are available to a tenant of pre-1951 construction under U. P. Act No. III of 1947 except and in so far as it was inconsistent with the terms contained in the agreement. Para 1 of the agreement reads as under:
"I. That in lieu of the entire premises in the occupation of the second party at present, one shop consisting of one bay of the building at present under construction, having a floor area of about 1135 sq. ft. (excluding 10 ft. area) shown bounded by red lines in the map annexed hereto will be given by the first party to the second party for running their present business on a month to month tenancy as has been the case in the premises presently occupied by the second party and the tenancy of the second party shall be deemed to continue without any break and the second party shall be entitled to all rights that are available to a tenant of any pre-1951 construction under U. P. Act III of 1947 except and in so far as Inconsistent with the terms contained hereafter."
10. The matter was considered by the Apex Court in Lachoo Mal v. Radhey Shyam, AIR 1971 SC 2213, where the tenant had taken accommodation governed by Act No. III of 1947, the landlord in 1962 entered into an agreement by which the tenant was to vacate the said accommodation for reconstruction and the landlord was to redeliver the same after reconstruction with the stipulation that the provisions of Act III of 1947 will be applicable to such building, it was held that the landlord can waive the exemption benefit available for construction made after 1st January, 1951. The agreement is neither illegal nor unlawful nor defeating provisions of law within meaning of Section 23 of the Contract Act. The Court observed:
"We are unable to hold that the performance of the agreement which was entered into between the parties in the present case would involve an illegal or unlawful act. In our judgment Section 1A was meant for the benefit of owners of buildings which were under erection or were constructed after January 1, 1951. If a particular owner did not wish to avail of the benefit of that Section there was no bar created by it in the way of his waiving or giving up or abandoning the advantage or the benefit contemplated by the Section. No question of policy, much less public policy, was involved and such a benefit or advantage could always be waived."
11. The respondent was entitled to the benefit of provisions of U. P. Act No. III of 1947 and could not have been evicted unless the bar contained under the provisions of the said Act as against eviction of a tenant was removed."
It appears that the Division Bench in Gopal Dass, while deciding the reference being conscious of the said legal position while ruling that benefit of Section 24 (2) would not be available where the demolition and reconstruction took place under a private arrangement and not in pursuance of a release order, added a caveat to the effect:-
"At the best the rights of the parties shall flow from the said compromise. There is no indication in the said compromise that the new shop would still be governed by the provisions of the U.P. Act No.13 of 1972 notwithstanding the fact that the shop in question is a new construction exempt from the operation of the Act under Section 2(2) thereof."
Having regard to the above legal position, this Court concurs with the finding recorded by the trial court that the petitioners would be entitled to invoke the benefit of Section 20 (4) of the Act. It not being in dispute that the petitioners have complied with the provisions of Section 20 (4) of the Act, they stood relieved from the liability of eviction. Consequently, this Court finds no illegality in the judgement of the trial court declining to pass a decree of eviction against the petitioners.
In view of the above discussion, this Court is of the considered opinion that the remand made by the revisional court to the trial court was wholly unwarranted. As the finding returned on merit regarding applicability of the Act itself is not sustainable in law, resultantly, the impugned judgement and order of the revisional court dated 7.9.2017 cannot be sustained and is hereby set aside. The judgment of the trial court is restored.
The petition is allowed. However, there shall be no order as to costs.
(Manoj Kumar Gupta, J) Order Date :- 7.1.2019 SL