ORDER
1. These are four connected petitions directed against judgment and order dated 8-9-1983, whereby eviction of the tenant from the premises known as Minerva Castle previously known as Jura House situate at Kulri, Mussoorie and release thereof in favour of the respondent-landlord under S.21 of the U.P. Urban Buildings (Regulation of Lettings Rent and Eviction) Act, 1972 (in short the 'Act'), was directed by the Prescribed Authority and also against the appellate order dated 10-2-1989, dismissing the tenant's appeal and affirming the judgment and order contemplating eviction and release passed by the Prescribed Authority, The petition filed by Sri Mahendra Pal Singh, being writ petition No. 2791 of 1989, shall be treated as the leading case in the set of the present petitions.
2. The matrix of the facts, in so far as it may be found relevant for the purposes of discussion of the submissions made by the learned counsel appearing for the parties, is set out as below.
Late Sri K.R. Bahuguna, father of the respondent No. 3 was, admittedly, the owner and landlord of the building in question, Hesold the building to one M/s. Nahar Singh, Kishan Chand by means of a registered sale deed dated 27-10-1958 but at the same time, an agreement of reconveyance was entered into between the Vendor and the Vendee, according to which the right to get the property reconveyed on payment of Rs. 20,000/- at any time in a span of six years, was reserved with the Vendor, Sri K.R. Bahuguna. It appears that Sri K.R. Bahuguna was not in a position to get the property reconveyed in terms of the agreement of reconveyance dated 27-10-1958 within the stipulated period. However, before expiry of the period of six years specified in the agreement for reconveyance dated 27-10-1958, a fresh agreement for sale was entered into between M/s. Nahar Singh Kishan Chand and Sri K.R. Bahuguna on 24-10-1964. The sale consideration, according to this agreement, was Rs. 30,000/- out of which, a sum of Rs. 500/- was paid by way of earnest money to M/s. Nahar Singh and Kishan Chand and the balance amounting to Rs. 29,500/- was decidedly agreed to be paid by Sri K.R. Bahuguna to M/s. Nahar Singh Kishan Chand at the time of registration. According to the said agreement, Sri K.R. Bahuguna was bestowed the right to get the sale deed executed in his favour in terms of the agreement at any time within a span of eight years, failing which, the agreement stipulates, he was to forfeit the earnest money of Rs. 500/-and in addition thereto, he was to pay a sum of Rs. 10,000/- to M/s. Nahar Singh Kishan Chand.
3. It transpires from the record that M/s. Nahar Singh Kishan Chand were not willing to execute the sale-deed despite notice, whereupon a suit, it being suit No. 122 of 1971 was instituted by Sri K.R. Bahuguna against M/s. Nahar Singh Kishan Chand impleading therein its proprietors for specific performance of contract for sale. The suit was decreed vide judgment and decree dated 9-2-1978 in terms of a compromise according to which the sale consideration was raised to Rs. 40,000/-from Rs. 30,000 / - as agreed upon between the parties. Entire sale consideration was paid to the defendants M/s. Nahar Singh Kishan Chand and others at the time of the, veryexecution of the compromise on 9-2-1978 but they failed to execute the sale deed in terms of the decree, whereupon the sale-deed was executed by the court on 12th Day of June 1979. According to the sale deed, Sri K.R. Bahuguna became entitled to receive rent from 1-4-1978.
4. The other development that took place in between period is that M/s. Nahar Singh Kishan Chand, the erstwhile owner of the building in question, filed a suit, it being suit No. 6 of 1965 for ejectment and recovery of arrears of rent against the then tenant Sri Ravindra Nath Malhotra. The suit was decreed on 22-6-1965 and decree was maintained by the High Court, vide judgment and decree dated 2-3-1967; dismissing the appeal preferred against the judgment and decree dated 22-6-1965. M/s. Nahar Singh Kishan Chand obtained possession of main part of the building in question on 4-8-1967. The next development of vital significance is that Sardar Labh Singh, the father of the petitioner, Sri Mahendra Pal Singh applied for allotment of the building under the provisions of U.P. Temporary Control of Rent, Letting and Eviction Act, 1947 (in short the Rent Control Act of 1947) and vide allotment order dated 16-10-1967, the main portion of the building was allotted to Sardar Labh Singh while three cottages attached to the main building were allotted to Ram Kishan, Jyoti Prasad, Mohd. Ishaq respectively, who were in possession thereof from before, through the previous tenant namely, Sri R.N. Malhotra. The eviction proceeding in execution of the decree passed in suit No. 6 of 1965 was pending at the time of allotment. Sardar Labh Singh and M/s. Nahar Singh Kishan Chand both went up in revision against the order of allotment before the Commissioner, who by his order dated 8-12-1967, modified the allotment order dated 16-10-1967 and allotted the entire premises including the aforesaid three cottages in favour of Sardar Labh Singh.
5. It would appear from the record thatthe erstwhile owner M/s. Nahar Singh Kishan Chand were reluctant to deliver possession to the allottee Sardar Labh Singhand they even filed a suit for injunction against him in the Court of Civil Judge, Dehradun. However, as stated during the course of argument by Sri K.M. Dayal, learned Senior Advocate appearing for the petitioner, the possession of the main portion of the building was delivered to Sardar Labh Singh on 1-1-1968. The delivery of possession was followed by Execution of a lease-deed dated 25-1-1968 according to which the premises in question was let out to Sardar Labh Singh for a period of one year from 1st January 1968 to 31st Dec. 1968, on a rent of Rs. 7300/- payable in two instalments of Rs. 3650/- each on 30th June 1968 and 31st Dec. 1968. The tenancy was described as monthly tenancy according to the English Calendar month. The lease transaction was, however, held to be unfair by the 1st Addl. Civil Judge, Dehradun in Civil Suit No. 190 of 1970 Sardar Labh Singh v. M/s. Nahar Singh Kishan Chand instituted for fixation of rent which was decreed with costs and Rs. 3020/- per month was the rent fixed by the court by means of the said decree. This was, however, followed by another lease deed executed on 28-11-1970, according to which the lessor M/s. Nahar Singh Kishan Chand agreed to let out the entire property known as Minerva Hotel, Kulri, Mussoorie to the lessee for a fixed period of 20 years in the first instance on his agreeing to pay a rent for the main building at the rate of Rs. 5000/- per month and giving assurance that he would not challenge the said agreement of rent of Rs. 5000/- per annum in future. The fixed period of 20 years according to the lease was to commence w.e.f. 1-12-1970 and end on 30th Nov. 1990. The tenancy was described as yearly and lessee was to pay a rent of Rs. 5000/- in two instalments of Rs. 2500/-each on 30th June and 30th Dec. every year. The lessee was given two options to renew the lease.
6. The tenant namely Sardar Labh Singh died in Dec. 1972. The tenancy devolved upon his sons, namely, Mahendra Pal Singh Jasminder Singh and Jaspal Singh and widow Smt. Joginder Kaur.
7. The respondent No. 3 moved a petition under S. 21 of the Act before the PrescribedAuthority/Civil Judge, Dehradun (Mussoorie) praying for an order of eviction of the petitioner Mahendra Pal Singh from the building in question. The eviction was sought on the ground that the respondent-landlord was due to retire from service of the Indian Army from the post of Colonel on 31-7-1982 and he had to vacate his official residence by Sept 30, 1982. He wanted the accommodation in question to run a Lodging house business therein to augment his income necessary to meet the ever-rising prices and to maintain the status and living standard of the family which he enjoyed during the course of his service and also to meet the education expenses of his growing children and later on to settle them in life. The other ground on which the release was sought by the respondent-landlord was that he bona fide required the premises in question for occupation by himself for residential purposes inasmuch as Mussoorie being his home-town, he wanted to settle there permanently. In Paragraph 3 of the application, it was stated by the respondent-landlord that he had to vacate his official residence situate at 27, Mall Road, Delhi Cantt. by 30th Sept. 1982 on account of cessation of his service due to retirement on superannuation w.e.f. 31-7-82. In paragraph 12 of the release application, it was stated that the tenant had three well established restaurant business being run under the name of Neelam and had recently constructed a Hotel building, where he was carrying on the lodging and boarding house business in the name and style of 'Hotel Neelam International' situate in the vicinity of the building in question. It was also alleged that the tenant had big hotel establishment in Bombay also and would not suffer any hardship in the event of his eviction from the premises in question. On the other hand, it was alleged, the landlord would encounter greater hardship in the event of release application being rejected. The application was filed on 13-9-1982.
8. The application for release was contested by the petitioner namely, Mahendra Pal Singh inter alia on the grounds that the alleged need of landlord was born of his mala fide and was a specious one; that thepetitioner would be divested of his vital source of livelihood and would thereby suffer irreparable loss in case the order of eviction was passed against him; that the premises in dispute was given for a fixed period of 60 years vide registered lease deed dated 28-11-1970 and the lease period having not expired, the release application was not maintainable; and, that Sardar Labh Singh died in Dec. 1972 leaving behind his widow Smt. Joginder Kaur sons Jaswinder Singh and Jaspal Singh besides himself i.e. Mahendra Pal Singh, who are carrying on the hotel business in partnership and the tenancy devolved upon all of them and therefore, the application was legally not maintainable in the absence of joint tenants.
9. The Prescribed Authority held that after his retirement from the Indian Army, the respondent-landlord required the building in question for occupation by himself and members of his family and also for business purposes in order to augment his income. The Prescribed Authority placed reliance upon the provisions contained in clause (iii) of the Explanation to S. 21(1) of the Act as it stands substituted by U.P. Act No. 31 of 1985 with effect from 18th May 1983 and held that the representation made by the landlord in his release application that he needs the building for residential purposes for him and members of his family shall be deemed sufficient and no proof was required. On merits also, the Prescribed Authority gave credence to the case of landlord and held that his need for building in question was genuine and born of his bona fide requirements. On the question of comparative hardship, the Prescribed Authority held that in view of the provisions contained in clause (iii) of the Explanation to S. 21(1) of the Act, there was no warrant to compare the likely hardship of the parties. Nevertheless, the Prescribed Authority proceeded to weigh the likely hardship of the parties on the basis of material on record and held that the respondent-landlord would be exposed to greater hardship in the event of the release application being rejected than the hardship, if any, likely to visit on the tenant in the event of the release application being allowed. In this connection, the Prescribed Authorityrecorded a categorical finding that the tenant-petitioner had got two well established restaurants under the name and style of Neelam Restaurant and one restaurant attached to hotel Neelam International besides a hotel business in Bombay. It was held by the Prescribed Authority that though the hotel Neelam International was owned by a Private Limited Company but the company was formed by none else than the tenant Petitioner Mahendra Pal Singh, his mother and brothers. On the other hand, held the Prescribed Authority, the respondent-landlord had no immoveable property other than the one in question and had no other source of income than what he gets by way of pension plus rent from the building in question. On the question of non-joinder of necessary parties, the Prescribed Authority held that the petitioner Mahendra Pal Singh could not file any evidence worth reliance to vouch for the fact that after the death of his father, his brothers and mother had ever claimed the tenancy rights in the building in dispute and alternatively, the Prescribed Authority held that brothers and mother of the petitioner Mahendra Pal Singh would be deemed to have surrendered their tenancy rights and accordingly, the Prescribed Authority held, that Mahendra Pal Singh was the only tenant of the building in question and that the release application was not bad as a result of nonjoinder of the alleged co-tenants. On the tenant's plea that the application was not maintainable before expiration of the period fixed in lease deed dated 28-11-1970, the Prescribed Authority held that the lease-deed dated 28-11-70 was an outcome of fraud against the real owner and could not therefore, be binding upon the respondent-landlord. The Prescribed Authority in this connection placed reliance upon a decision of this Court in Hub Chand v. Hazara Begum, 1982 AWC 127 wherein it has been held that a lessor cannot execute a lease for a period subsequent to his ceasing to be the lessor. The Prescribed Authority was of the view that the lease deed dated 28-11-1970 being an outcome of fraud the transferee of the right of reversion was not bound by the lease deed.
10. The Prescribed Authority also heldthat the lease-deed was never acted upon between the parties. While recording the aforesaid conclusion as to the legality of the lease-deed dated 28-11-1970 the Prescribed Authority repelled the contention raised on behalf of the tenant that the authorities under the Act would not be competent to traverse on the validity of the lease-deed. The reason dished out by the Prescribed Authority in repelling the contention is that the question regarding validity of the lease-deed having been raised incidentally, the authorities under the Act, were competent to go into it. It is in view of these findings that the Prescribed Authority held that the release application was maintainable by the landlord.
11. Aggrieved by the order of the Prescribed Authority the tenant-petitioner Mahendra Pal Singh went up in appeal. The appellate authority by its judgment and order dated 22-12-1983 set aside the order of the Prescribed Authority and remanded the case to it with a direction to register the case to its original number and thereafter, to dispose it of in accordance with law and in the light of the observations made in the body of the judgment. The appellate Authority in its judgment dated 22-12-1983 held that all the heirs of Sardar Labh Singh had to be impleaded and given opportunity of hearing before passing any order of eviction under S. 21 of the Act. The appellate authority in its judgment dated 22-12-1983 also took the view that since the respondent-landlord was claiming the accommodation in question for commercial purposes, he would not be entitled to get the benefit of Explanation (iii) to S. 11(1) of the Act and in order to get an order of eviction against the tenant, the respondent-landlord had to prove his bona fide requirements for himself. In that event, the question of comparative hardship was also to be looked into as contemplated by the 4th proviso to S. 21(1) of the Act. However, the appellate authority, in the context of the argument made on behalf of the respondent-landlord that he claimed the disputed accommodation bona fide for residential purposes and for the purposes of running hotel business with a view to augment his income, had left the issue to be decided by thePrescribed Authority. As to the validity of the lease deed dated 28-11-1970 and its implication in view of the proviso to S. 21(4) of the Act, the appellate authority did not return any finding in its judgment dated 22-12-1983 and relegated it to the Prescribed Authority to be delved into after opportunity to the parties to make proper pleading with regard to these questions and to have their say in the matter.
12. The aforesaid appellate order dated 22-12-1983 was, however, quashed by the High Court vide judgment and order dated 12-2-1987 passed in Misc. Writ petition No. 4104 of 1984 and the matter was remitted back to the appellate authority to adjudicate upon the controversy between the parties on the basis of the evidence on record,
13. Pursuant to the High Court's order dated 12-2-1987, the appellate authority by its order dated 1-5-1987 gave an opportunity to the landlord-respondent to implead the other legal heirs of the deceased tenant Sardar Labh Singh. Accordingly, an application for amendment was moved for impleadment of Smt. Joginder Kaur widow of Sardar Labh Singh, Sri Jaspal Singh and Sri Jaswinder Singh, sons of Sardar Labh Singh, Smt. Narinder Kaur and Smt. Harbanch Kaur and Smt. Trilochan Kaur, daughters of Labh Singh and they were impleaded vide order dated 11-5-1987 as opposite parties 2 to 7 in the release application. The validity of the order dated 1-5-1987 was challenged by the petitioner by means of a writ petition in the High Court. The writ petition was dismissed by means of judgment and order dated 20-11-1987.
14. Smt. Joginder Kaur and Sri Jaspal Singh filed a joint written statement and denied the allegations of the landlord. The pleas taken by them in their joint written statements were identical to the pleas taken by petitioner Mahendra Pal Singh. Sri Jaswinder Singh filed a separate written statement and the plea taken by him in opposition of the release application were also identical to the pleas taken by Mahendra Pal Singh. The daughters of applicant Sardar Labh Singh, however, did not file any written statement despite notice.
15. For reasons assigned in its judgment, the appellate authority held that the release application was not barred by proviso to sub-sec. (4) of S. 21; that the case of the landlord respondent was covered by sub-sec. (1-A) of S. 21 and Explanation (iii) to S. 21(1) of the Act; that the need of the landlord was bona fide and genuine, that the landlord would suffer greater hardship in the event of the release application being rejected and that the plea as to release application being not maintainable due to the reason of the fact that notice period of six months had not expired before the institution of the application as contemplated by the First Proviso to S. 21(1) of the Act shall be deemed to have been waived by the tenant in view of the fact that no such plea was taken before the Prescribed Authority and further that the plea was of little significance in view of the fact that the landlord's case was covered by sub-sec. (1-A) of S.21 of the Act under which no such inhibition is visualised. It was on the above findings that the appeal failed and was dismissed by the appellate authority maintaining the order passed by the Prescribed Authority as a result thereof.
16. I have heard Sri L.P. Nathani and Sri K.M. Dayal, learned Senior Advocates appearing for the tenant petitioner and Sri Sudhir Chandra, learned Senior Advocate appearing for the respondent-landlord.
17. The first question that crops up for consideration is as to whether the application for eviction of the tenant moved under S. 21 of the Act was not maintainable in view of the fact that it was filed within three years of the purchase of the premises by the respondent-landlord from its erstwhile owner M/s. Nahar Singh Kishan Chand and before expiration of six months' notice contemplated by the 1st proviso to S. 21(1) of the Act.
18. Section 21(1)(a) of the Act, provides that the Prescribed Authority may, on an application of the landlord in that behalf, order eviction of a tenant from the building under tenancy or any specified portion there-of if it is satisfied that the building is bona fiderequired either in its existing form or afterdemolition and new construction by the landlord for occupation by himself or for anymember of his family or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the Trust.
19. The first proviso to sub-sec. (1) of S. 21 contemplates that where the building was in occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be 'entertained' on the ground mentioned in clause (a) unless a period of three years has elapsed since the date of such acquisition and the landlord has given a notice in that behalf to the tenant not less than six months' before such application' and that such notice may be given even before expiration of the aforesaid period of three years.
20. The word 'entertain' occurring in the First Proviso, came up for consideration before K.C. Agarwal, J. (as he then was) in Nanda Ballabh Gururani v. 4th Addl. District Judge Nainital and another, ARC, 1979, P 178 and it was held that the word 'entertain' means 'proceed to consider on merits or adjudicate upon'. The learned Judge placed reliance upon decision of the Supreme Court in M/s. Lakshmi Ratan Engineering Works Ltd. v. Asstt. Commissioner (Judicial-I) Sales Tax Kanpur Range Kanpur,. AIR 1968 SC 488, wherein the Supreme Court had an occasion to construe the meaning of the word 'entertain' occurring in proviso to S. 9 of the U. P. Sales, Tax Act, 1948 and their Lordships of the Supreme Court took the view that the word 'entertain' means 'admit to consideration'. Division Bench decisions of this Court in Kundan Lal v. Jagannath Sharma, AIR 1962 All 543, and in Dhoom Chand Jain v. Chaman Lal Gupta AIR 1962 AH. 543, wherein the Court was concerned with the import of the word 'entertain' occurring in Order 21 Rule 90, CPC were also relied upon by the learned Judge in the case of Nanda Ballabh Gururani (supra). It was held by thelearned Judge that the application for release of a premises moved by the landlord under S. 21(1)(a) within three years of its purchase would be maintainable, but it cannot be admitted to hearing within three years of the purchase of the building by the landlord. The same view has been taken by A. Banerji (as he then was) in Ram Kripal Singh v. 5th Addl. District Judge, Moradabad, 1983 (1) ARC 195. It was observed by the learned Judge as under:
'In my opinion, presentation of an application under S. 21 of the Act is not tantamount to its being entertained. The word 'entertain' would embrace in its fold something more than mere filing or issuing mere notice thereof. The intention of the provision appears to be that no application for release of a building under S. 21 of the Act is to be made within a period of three years from the date of the purchase of the building.'
The construction of the word 'entertain' as aforesaid is lent support by a recent decision of the Supreme Court in Sri Shyam Kishore v. Municipal Corporation of Delhi JT 1992 (V) SC 335.
21. Sri L.P. Nathani, learned counsel appearing for the petitioner very fairly conceded that the release application filed by the landlord within three years of the purchase of the building by him was maintainable though it was not liable to be decided finally before expiry of the said period. Sri Nathani, however, urged that the prohibition enacted in the First proviso to S. 21 (1) of the Act in so far as, it relates to giving of six months' notice, operates against the very institution of the application inasmuch as the word 'entertained' does not qualify the expression 'unless the landlord has given a notice in that behalf to the tenant not less than six months before such application' occurring in the proviso. According to Sri Nathani, the very object of the proviso in so far as it postulates giving of six months' notice to the tenant would be frustrated if it were to be held that the inhibition contained in the proviso applies to the entertainment of the application as distinguished from its institution.
22. In reply, Sri Sudhir Chandra learned counsel appearing for the respondent-landlord urged that the word 'entertained' has been used for both the conditions of expiration of three years from the date of purchase and six months from the date of notice and also that the proviso has no application to the facts of the present case firstly for the reason that the present is a case of re-purchase and not of purchase and secondly, for the reason that the case falls under sub-sec. (1-A) of S. 21 and not exclusively under S. 21(1)(a) of the Act.
23. Having bestowed my anxious consideration to the submissions advanced by the learned Counsel for the parties, I veer round to the opinion that the requirement of giving six months' notice to the tenant is a condition precedent to the institution of the application for release on grounds mentioned in S. 21 (1)(a) of the Act. The expression before such application occurring after the expression 'landlord has given notice in that behalf to the tenant not less than six months' is significant. It is deducible from the said expression that the Legislature has left some words after the expression 'before such application' to be understood and supplied by the courts. The comprehended words in my judgment are 'is filed' or 'is moved' or 'is instituted'. The complete expression in my opinion should be 'unless a period of three years has elapsed since the date of such application (acquisition) and the landlord has given notice in that behalf to the tenant not less than six months before such application is filed/moved/instituted.' If the words 'is entertained' are read after the expression 'before such application', the sentence would turn out to be grammatically incorrect inasmuch as the word 'entertained' has already been used in the preceding part of the proviso and its repetition after the expression 'before such application' would impart grammatical imperfection to the sentence. That apart, the object of giving six months' notice would be defeated if it is held otherwise. The object of notice is to enlighten the tenant sufficiently in advance that his new landlord needs the building for his personal use and occupation so that he (tenant) may ascertain well in time as to whether therequirements of his new landlord are genuine and bona fide and find out an alternative accommodation for himself if he considers the landlord's need to be bona fide or be ready to contest the release application if the landlord's need is not bona fide one.
24. In 'Nazuk Jahan v. Addl. District Judge, 1981 ARC 530, the Supreme Court has been pleased to hold that 'the notice contemplated by the proviso to S. 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 cannot be a casual or oral request to the tenant, but a formal demand, ordinarily in writing and clearly insisting on vacant possession after the requisite period.' No useful purpose of giving notice insisting on vacant possession would be served if the notice were to be given after the institution or filing of the release application inasmuch as such purpose can be achieved by serving the notice of the release application itself.
25. In Bhusan v. District Judge, Ghaziabad, 1983 (2) ARC 79, it was observed as under by A.N. Varma, J. though the question did not arise on the facts of that case:
'In my view what is required is that the application under S. 21(1)(a) should not be filed before the expiry of six months from the giving of notice to the tenant.'
26. The notice in the present case, was given to the tenant on 24-6-1982 and the application for release was filed on Sept. 13, 1982. The application for release was thus admittedly filed before expiration of six months' notice period. It was, therefore, liable to be rejected but for the reasons to be dilated upon hereafter.
27. The tenant-petitioner had admittedly not raised before the Prescribed Authority the plea that the application having been filed before expiration of notice period was not maintainable. It may be pertinent to mention that even the petitioners in the connected writ petitions who were impleaded for the first time before the appellate Court too did not raise the plea in their written statements. The plea was raised at the appellate stage during the course of argument and, in my opinion,the appellate, authority has rightly turned down the plea as to non-compliance with the second condition stipulated in the first proviso to S. 21(1) of the Act on the ground that the tenant-petitioner would be deemed to have waived the plea. Waiver apart the notice contemplated by the first proviso to S. 21(1) cannot be treated at par with a notice for determination of tenancy contemplated by S. 106 of the Transfer of Property Act. Determination of tenancy is not a condition precedent for seeking eviction of a tenant under S. 21 while it is an essential requirement for instituting a suit under the general law of landlord and tenant governed by S. 106 of Transfer of Property Act. It is in this backdrop that want of notice determining the tenancy under S. 106 is fatal to a suit for eviction of a tenant while it cannot be considered fatal for eviction of a tenant under S. 21 of the Act for the reason that tenancy as provided under sub-sec. (8) of S. 21, stands determined by operation of law on expiration of a period of one month from the date of the order of eviction.
28. The institution of application for release before expiration of notice period of six months does not, in my opinion, affect the jurisdiction of the Prescribed Authority and cannot, therefore, be assailed on the ground that the application for release was filed before expiration of notice-period of six months. In this background of the matter, I am of the opinion that substantial compliance of the proviso to S. 21(1) of the Act with regard to requirements of giving six months' notice would be sufficient. It is not a case where no notice at all was given. The tenant-petitioner has not shown any prejudice to him because of the institution of the release application during the operation of the notice period.
29. In Abdul Jabbar v. VII Addl. District Judge, Gorakhpur, 1989 (1) ARC 277, relied upon by Sri Naithani, no notice at all was given and the observation that the notice is a mandatory condition precedent to the enter-tainability of the application was per incuriam.
30. The fact that the application forrelease was instituted before the expiry of notice period of six months cannot be regarded as fatal for yet another reason. Sri Sudhir Chandra learned counsel appearing for the respondent-landlord urged that the first priviso to S. 21(1) has no application to the facts of the present case for the reason that the eviction of the tenant was not based solely on grounds mentioned in clause (a) of sub-sec. (1). Rather the case as pleaded in the release application was covered by sub-sec. (1-A) of S. 21. The question, therefore, that comes to the fore for consideration is whether the application for release was covered by the provisions of sub-sec. (1-A) of S. 21 of the Act.
31. The authorities under the Act have no doubt recorded a finding of fact on bona fide nature of the landlord's requirement in terms of clause (a) of S. 21(1) of the Act, but they have also recorded a categorical finding that the provisions of sub-sec. (1-A) were attracted to the facts of the present case. Sub-sec. (1-A) provides that notwithstanding anything contained in S. 2, the Prescribed Authority, shall on the application of a landlord in that behalf, order eviction of a tenant from any building under tenancy, if it is satisfied that the landlord of such building was in occupation of a public building for residential purposes which he had to vacate on account of the cessation of his employment. It is also provided that an application under this sub-section may also be given by a landlord in occupation of such public building at any time within a period of one year before the expected date of cessation of his employment but the order of eviction on such application shall take effect only on the date of his actual cessation.
32. It has been found as a fact by the authorities under the Act and the same has not been questioned by the learned Counsel appearing for the petitioners that the respondent No. 3 was occupying a public building at 27, Mall Road, Delhi Cantt. in his capacity as Colonel in the Indian Army from which post he stood superannuated with effect from 3Ist July 1982, and vacated his official residence on 30th Sept. 1982. The application for release as stated hereinbefore was filed on13th Sept. 1982. The sub-section is couched in a mandatory language as would be evident from the fact that the Legislature has employed the expression 'Prescribed Authority shall order the eviction of a tenant from any building under tenancy' in sub-section (1-A) as distinguished from the expression 'the Prescribed Authority may order the eviction of a tenant from the building under tenancy' in sub-section (1) and a similar expression in sub-sec. (2) of S. 21 of the Act. The Prescribed Authority has not been given any option with regard to making an order of eviction in a case covered by sub-sec. (1-A) whereas under sub-sec. (1) the Prescribed Authority has a wide discretion depending upon the proof or otherwise of bona fide requirements of landlord and likely hardship. The Prescribed Authority under sub-section (1-A) is left with no discretion but to order eviction of a tenant from any building under tenancy if it is satisfied that the landlord of such building was in occupation of a public building for residential purposes which he had to vacate on account of cessation of his employment. The mandate of Legislature is further amplified and lent strength to by reason of the fact that sub-sec. (1-A) has overriding effect as would be evident from the nonobstante clause 'notwithstanding' used therein. The sub-section overrides the provisions of S. 2 which exempts from the purview of the Act certain categories of buildings including a building within the period of 10 years from the date on which its construction is completed. It is evident that even in respect of a building not covered by the Act the specified landlord may seek eviction of the tenant under sub-sec. (1-A) of the Act instead of filing a regular suit and the Prescribed Authority on being satisfied that the landlord of such building was in occupation of a public building for residential purposes which he had to vacate on account of cessation of his employment, would direct eviction of the tenant notwithstanding the fact that the building does not come within the purview of the Act and is covered by Exemption Clauses of S. 2 of the Act.
33. The expression 'any building under tenancy' occurring in sub-sec. (1-A) carriessignificance. From the tenor of the section, it is evident that the expression 'any building under tenancy' would embrace within its sweep any building whether falling within the purview of the Act or not, and any building whether residential or non-residential. I do not find any substance in the submission made by Sri L.P. Naithani that sub-sec. (1-A) may be attracted only in a case where the building sought to be released is a residential building.
34. The view that I am taking finds support from the view taken in Purushottam Saran v. III Addl. District Judge, 1981 ARC 524 and in Col. Brown Cambridge School, Dehradun v. Addl. District Judge, Dehradun, 1988 (2) RC 183.
35. In the conspectus of the facts and circumstances of the present case, I am of the opinion that the release application filed by the respondent-landlord was fully covered by sub-sec. (1-A) of the Act notwithstanding the fact that the building in question is being used by the tenant for hotel and lodging house purposes. Even otherwise, according to New Lexicon Webster Dictionary, the word 'hotel' means 'a large building with a resident staff, providing accommodation and even meals'. In this view of the matter, the fact that the building in question is being used by the tenant as hotel and lodging, would not change its character of a residential building. The respondent-landlord requires the building in question both for residential purposes and for purposes of carrying and running a lodging house business. In Ramrik Lal Pitamber Das Mehta v. Indradamn Amrat Lal Sheth, AIR 1964 SC 1776, followed in K.A. Anthappai v. C. Ahmmaed, 1992 (2) ARC 372, it has been held by the Supreme Court that even if the landlord intends to make certain alteration in the building for his occupation it would not affect the bona fide nature of his requirement. Sub-sec. (1-A) of S. 21, in my opinion, is fully attracted in the facts and circumstances of the case and the authorities under the Act have committed no error in taking that view. In this view of the matter, the fact that the release application was instituted before expiration of the period of six months as contemplatedby the First Proviso to section 21(1), would not be deemed to be fatal inasmuch as the proviso is not attracted with its application in a case of eviction of tenant sought on the ground mentioned in sub-sec. (1-A).
36. The landlord is required to prove his bona fide need under clause (a) of sub-sec. (1) whereas the fact that the landlord was in occupation of a public building for residential purposes which he had to vacate on account of cessation of his employment is a clinching proof of his bona fide need for purposes of sub-sec. (1-A).
37. The authorities under the Act have held that the case on hand is also covered by Explanation (iii) to sub-sec. (1) of S. 21. The explanation in so far as it is relevant, is quoted below.
'Explanation : In the case of a residential building; (i) to (ii) .....
(iii) where the landlord of any building is:--
(i) a serving or retired Indian Soldier as defined in the Indian Soldiers (Litigation) Act, 1925 (IV-1925) and such building was let out at any time before his retirement, or
(ii) a widow of such a Soldier and such building was let out at any time before the retirement or death of her husband whichever occurred earlier; and such landlord needs such building for occupation by himself or the members of his family for residential purposes then his representation that he needs the building for residential purposes for himself or the members of his family shall be deemed sufficient for purposes of clause (a) and where such a landlord owns more than one building, this provision shall apply in respect of one building only.'
38. The relevant explanation as it stood at the time of institution of the application i.e. before its amendment by U.P. Act 31 of 1985 with effect from 18-5-1983 reads as under:
'Explanation : In the case of a residential building -- (i) to (ii) .....
(iii) where the landlord is a member of the Armed Forces of the Union and the Prescribed Authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV/1925) has issued a certificate in his favour that he is serving under special condition within the meaning of S. 3 of that Act, then his representation that he needs the building for residential purposes for members of his family, whose particulars are specified in the application, shall be deemed sufficient for the purposes of clause (a).'
39. The learned counsel appearing for the petitioner assailed the view taken by the Authorities under the Act as to the applicability of Explanation (iii) to sub-sec. (1) of S. 21 on the ground that clause (iii) of the Explanation as it stands at present, was substituted by U.P. Act 31 of 1985 with effect from 18th May, 1983 and, therefore, proceeds the argument, the provisions so substituted, would have no application to pending proceedings. It was urged by the learned counsel that Explanation aforesaid applies to a residential building and not to a non-residential building and that the expression 'any building' occurring in Explanation (iii) is held to be of wide amplitude to cover a non-residential building, it would not apply to present case in view of the fact that it would affect a vested right and, therefore, it cannot be given greater retroactivity than the one given by the Legislature itself and the proceedings pending from before 18th May 1983 would be governed by unamended clause (iii) of Explanation as it stood before its substitution by U.P. Act 31 of 1985.
40. It is true that having regard to the object and purpose of the Act, it would not be a non-sequitur to hold that landlord's claim for eviction against a tenant must be a bona fide one whether the eviction is sought under sub-sec. (1) or sub-sec. (1-A) or sub-sec. (2) of S. 21 of the Act. But it holds equally true that in the case of eviction sought under sub-sec. (1) or sub-sec. (2) the landlord has to prove his bona fide requirement and the tenant in that event is not precluded from showing, except in cases provided for in the Explanation to sub-sec. (1), that the land-lord's claim for eviction is not bona fide one, while in the case of eviction sought under clause (iii) of the Explanation to sub-sec. (1) or under sub-sec. (1-A) the landlord is absolved from adducing evidence to prove the bona fide nature of his requirement and likely hardship being in his favour. Both these things i.e. the bona fide nature of requirement and the likely hardship are statutorily taken to be established and proved on mere proof of basic facts mentioned in these provisions. The scope and area of defence to eviction under cl. (iii) of the Explanation to S. 21(1) is limited to a defence that the landlord is neither a serving nor a retired Indian Soldier as defined in the Indian Soldiers (Litigation) Act, 1925 nor a widow of such soldier and that the building sought to be released was not let out at any time before his retirement or in the case of widow, before the retirement or death of the soldier-husband, whichever, occurred earlier. Similarly the scope of defence open to a tenant against an eviction sought under sub-sec. (1-A) is confined to a plea that the landlord was not in occupation of a public building for residential purposes which he had to vacate on cessation of his employment as alleged by him. These provisions have been enacted for the benefit of a specified class of landlord i.e. the Indian Soldiers including their widows and a landlord in occupation of a public building for residential purposes who had to vacate the public building on cessation of his employment. The classification is just and reasonable. The object sought to be achieved is that an Indian Solider and, in the case of his death, his widow and a public servant in occupation of a public building which he had to vacate on cessation of his employment should not be dragged into time consuming and unavoidably uncertain litigation after retirement, death or cessation of employment as the case may be.
41. The argument of Sri Naithani that the Explanation as it stood before its amendment by Amending Act 31 of 1985 was confined to the needs of the members of the family of an Indian Soldier serving under special condition within the meaning of S. 3 of Act No. IV of 1925 and it was applicable to a residential building, whereas clause (iii) of the Explanation as it stands amended by Amending Act 31 of 1985 with effect from 18th May 1983 has been made applicable to any building and extended to retired Soldiers and the widow of Indian Soldier and thus, proceeds the argument, a vested right of defence would be taken away if the Amending Act is held applicable retrospectively i.e. to pending proceedings, does not appeal to me. The fact that the Explanation as originally enacted, was confined to a residential building and to the members of the family of an Indian Soldier serving under special conditions whereas after its amendment by U.P. Act 31 of 1985, clause (iii) of the Explanation has been, made applicable to 'any building' and to any Soldier whether serving or retired and his widow, does not in my opinion, affect any of the vested rights of the tenants of such building. Accordingly the amended provision would apply to a pending proceeding and, therefore, the representation made by the respondent landlord that he requires the premises for residential purposes has to be taken to be true and it is also not required to be proved by him that the likely hardship would be on his side.
42. The provision contained in the Explanation is, in fact, for the benefit of a specified category of landlord and the Amending Act has simply enlarged the benefit contemplated by the Explanation to any building and extended it to retired Indian Soldiers and their widows, without in any way taking away any vested right of the tenants of any such building. In my judgment if an additional benefit is conferred to a landlord during the pendency of litigation, the landlord would be entitled to avail of such benefits. It is evident that by the Amending Act, the scope of the Explanation has been enlarged and it has been made applicable to 'any building' whether residential or non-residential extended to retired Indian Soldiers and widows of serving or retired Indian Soldiers. It would be ridiculous to suggest that in order to get the benefit of the amended provision the landlord should withdraw his application and file it afresh.
43. Before I part with this point, I would like to observe that an Explanation added to astatutory provision, as held by Supreme Court in S. Sunderan v. V.R. Pattabhiraman, AIR 1985 SC 582, is although not a substantive provision in any sense of the term and it is merely meant to explain and clarify certain ambiguities which may have crept in the statutory provision, but the Explanation in question appears to be substantive provision in the sense that it specifies a category of landlord for the purposes of giving it a special treatment and from the language used in the Fourth Proviso to S. 21(1) of the Act, it appears that the Explanation is an integral part of the said proviso and that being so, it acquires tenor and colour of the substantive enactment itself which is, as held by Supreme Court in paragraph 42 of its decisions in the case of S. Sunderan (supra), one of the purposes sought to be served by a proviso. That being so on the finding recorded by the authorities under the Act and also on the basis of unrebuttable presumption contained in the Explanation, the respondent-landlord was entitled.' to release of the premises under clause (iii) of the Explanation to sub-sec. (1) of S. 21 of the Act as well.
44. The next question of vital and decisive importance is as to whether the petitioner was protected by the proviso to sub-sec. (4) of S. 21 of the Act. According to sub-sec. (4) of S. 21 of the Act, an order under sub-sec. (1) or sub-sec. (1-A) or sub-sec. (2) may be made irrespective of the fact that the tenancy has not been determined; 'Provided that no such order shall be made in the case of a tenancy created for a fixed term by a registered lease before the expiry of such term.
45. The argument of the learned counsel appearing for the petitioner is that direction to let' issued by the District Magistrate under S. 7 of the Rent Control Act, 1947 did not result into the creation of tenancy which came into being for the first time as a result of lease deed dated 25-1-1968, followed by lease-deed dated 28-1-1970, creating a fixed term tenancy for a period of 20 years in the first instance with two options reserved to the lessee. The sheet-anchor of this submission of Sri Naithani is the Full Bench decision of this Court in 'Udhao Das v. Prem Prakash'. AIR1964 All 1 (FB). The rival submissions made by Sri Sudhir Chandra is that the tenancy came into existence by virtue of allotment order dated 16-10-1967 as modified by revisional order dated 8-12-1967 followed by delivery of possession of the major portion of the demised premises with effect from 1-4-1968 and, therefore, proceeds the argument, the proviso to sub-sec. (4) is not attracted. There are other allied and related submissions of the learned counsel for the parties which I propose to deal with and dilate upon at a later and appropriate stage in this judgment.
46. In order to appraise the question raised at the bar in the correct perspective, it would be necessary to focus on the concept of tenancy as understood under the general law of the land and the one under the Rent Acts. According to the Halsbury's Laws of England:
'The relationship of landlord and tenant arises as a rule when one person, the landlord with intent to create a tenancy, confers on another, the tenant, the right to the exclusive possession of land, mines or buildings. The grant or demise must be either for a time which is subject to a definite limit originally, as in the case of a lease for the term of years certain, or for a time which, although originally indefinite, can be made subject to a definite limit by either party as of right by that party giving appropriate notice to the other, for example a tenancy from year to year. The interest in the property which remains in the landlord is called reversion, and as a rule, there is incident to it the right to receive from the tenant payment of rent for the use of the property.' Halsbury's Laws of England Fourth Edition, Volume 27, Para (1).
Section 105 of the Transfer of Property Act 1882, the general Law applicable in India, defines lease and the concept of tenancy visualised by the section is more or less the same as aforesaid. A lease according to the section is a transfer of a right to enjoy the property of the lessor, made for a certain time or in perpetuity, under which the lessee is put in possession of the property in consideration of a price called the premium paid or promised or of money or other thing of valuecalled the rent. Obviously, the relationship of landlord and tenant visualised as aforesaid comes into being as a result of contract and it is, accordingly, called a contractual tenancy.
47. But it is now too well settled that a tenancy may arise under or by reason of a statute. The relationship of landlord and tenant under Rent Acts may be thrust upon parties by virtue of the provisions contained in such Acts even though, no contractual relationship had existed between them at all. In certain cases where the contractual tenancy is determined by efflux of time or forfeiture or notice etc., the relationship of landlord and tenant is allowed to continue under the Rent Acts even after determination of contractual tenancy. Such a tenancy is loosely called as a 'statutory tenancy' and a statutory tenant continues in possession by reason of protection afforded by the appropriate Rent Act.
48. The Rent Control Act, 1947 did not expressly exclude the provision of the General Law on the subject contained in the Transfer of Property Act and Contract Act but S. 10 of the Rent Control Act, 1947 provided that any order made or deemed to have been made under this Act, shall have effect notwithstanding anything inconsistent therewith contained in enactment other than this Act orany instrument having effect by virtue of any enactment other than this Act. The general law of tenancy contained in the Transfer of Property Act could not, therefore, prevail over the special law contained in the Rent Control Act, 1947. Now under U.P. Act 13 of 1972, S.38 expressly excludes the applicability of the Transfer of Property Act.
49. Under the general law, the rights and liabilities of the landlord and tenant depend to a large extent upon contract between them as would be evident from the opening sentence 'In the absence of a contract or local usage to the contrary' occurring in S. 108 of the Transfer of Property Act. A landlord has unbridled power under the Transfer of Property Act to eject his tenant but by virtue of S. 3 of the Rent Control Act, 1947 and S. 20 of the U.P. Act 13 of 1972 the grounds of eviction are well defined and the eviction of atenant on any other ground is expressly barred. Under the general law, a lessee can transfer or assign his interest in the lease thereunder, but S. 25 of U.P. Act 13 of 1972 prohibits a tenant from sub-letting the whole of the building under his tenancy. He may, however, sub-let a part of the building under his tenancy with the permission in writing of the landlord and of the District Magistrate, otherwise the sub-letting would give rise to a deemed vacancy u/S. 12 and provide a ground for eviction under S. 20 of the Act. Under the Rent Control Act, 1947 also subletting was prohibited except with the permission of the landlord.
50. As noticed hereinbefore, the premises in dispute was allotted to the petitioners' father Sardar Labh Singh by the District Magistrate vide allotment order dated 16-10-67 as modified by the revisional order dated 8-12-1967 and the allottee was admittedly put in possession of the major portion of the building on 1-4-1968. The question for consideration is as to whether the allotment order issued in favour of Sardar Labh Singh under S. 7 of the Rent Control Act, 1947 followed by delivery of possession, was sufficient to testify to a relationship of landlord and tenant creating tenancy vis-a-vis the demised premises independently of any lease-deed or whether the tenancy came into being only upon the execution of the lease-deed dated 25-1-1968 and again on execution of lease-deed 28-11-1970?
51. In Udhao Das v. Prem Prakash, AIR 1964 All I, a three-Judge Full Bench of this Court held that a contract of tenancy between the landlord and the third party not being an allottee under S. 7 of the Rent Control Act, 1947 is not void and that the order issued by the District Magistrate directing the landlord 'to let' does not confer any tenancy rights upon the allottee and that he cannot become a tenant unless a contract of tenancy has been entered into between him and the landlord. The landlord tenant relationship, according to the Full Bench, is governed by the provisions of the Transfer of Property Act and the Contract Act.
52. It may be noticed that the disputebefore the Full Bench was between a tenant inducted into the premises as a result of agreement of tenancy between him and the landlord of such premises. The question was whether such a tenant was entitled to protection of the Rent Control Act, 1947 and to plead, in defence to a suit for eviction brought against him, that he was not liable to eviction except on one or more grounds mentioned in S. 3 of the said Act. No allottee was in picture.
53. Udhao Das v. Prem Prakash (supra) was overruled by a larger Bench of five-Judges in 'Abdul Hamid v. Mohd. Ishaq, 1974 ALJ 667, and it was held as under:
'18. A special order under S. 7(2) is passed often without the consent of the landlord and at occasions against his wishes. Once an allottee is not to the liking of the landlord, the latter would never enter into contract of tenancy with the allottee. Even though the landlord may not enter into a contract of tenancy with the allottee, he can occupy the accommodation and pay rent as contemplated by the law. Consequently, in spite of there being no contract between the landlord and the tenant the possession of the allottee shall be as a tenant and there shall exist a relationship of landlord and tenant. As defined in the Act landlord is one who is entitled to recover rent while the allottee is a tenant being liable to pay rent to the landlord. The relationship between the two will thus be based not on contract, but under the statutory provisions. The relationship can thus be regarded as one of statutory tenancy. It is true that a statutory tenant does not enjoy all the benefits and privileges of a lessee as detailed in the Transfer of Property Act, but for so long as he is in occupation of the accommodation he enjoys the status of a tenant and he can easily be called a statutory tenant; See Anand Nivas Pvt. Ltd. v. Anandji Kalyanji's Pedhi.
'19. Thus the District Magistrate has no power to dictate the term of tenancy or to direct the landlord to enter into a contract of tenancy with the allottee, but once the order of allotment is passed and the allottee takes possession of the accommodation, the relationship between the landlord and the allottee acquires the status of landlord and tenantthough the relationship is, to a large extent, to be governed by the special law namely, the present Act.'
54. The learned counsel for the petitioner, however, placed reliance upon Supreme Court decisions in Murlidhar v. State of U.P., AIR 1974 SC 1924 and in Nanakram v. Kundalrai, AIR 1986 SC 1195 and urged that the view taken in Udho Das v. Prem Prakash (supra) having been approved by the Supreme Court, still holds good and is quotable as a binding precedent. The submission is misconceived. It is clear from paragraph 16 of the report in Murlidhar's case (supra) that the Supreme Court has approved the Full Bench in Udhao Das v. Prem Prakash only in so far as it has been held therein that a lease made in violation of the provisions of S. 7(2) of the Rent Control Act, 1947 would be valid between the parties and would create the relationship of landlord and tenant between them although it may not bind the authorities. The view taken by the five-Judge Full Bench in Abdul Hameed s case that ''once the order, of allotment is passed and the allottee takes possession of the accommodation, the relationship between the landlord and the allottee acquires the status of landlord and tenant 'with which i am in respectful agreement, is not affected by the Supreme Court's decision in Murlidhar's case (supra). Position in Nanakram (supra) was similar.
55. The question can be examined from another angle. S. 2(g) of the Rent Control Act, 1947 defines, tenant to mean a person by whom the rent is or but for a contract, express or implied, would be payable for any accommodation. Landlord has been defined by S. 2(c) to mean a person to whom rent is payable by a tenant in respect of any accommodation and includes the agent, attorney, heir or assignee of such person. Rule 5 of the Control of Rent and Eviction Rules, 1949 visualises that the allottee shall, unless he intimates in writing to the District Magistrate, his refusal to accept the accommodation, within seven days of the receipt of the order, be liable for rent from the date of allotment. It is evident from the rule that the liability to pay rent may be fastened upon theallottee with effect from the date of allotment order, unless the allottee intimates in writing to the District Magistrate, his refusal to accept the accommodation within seven days of the receipt of the order. However, the rule has to be read along with S. 5(5) of the Act and it appears that the date of commencement of the rental liability may be fixed by the Court under S. 5(5) of the Act read with rule 5 of the Rules in the light of ,the facts and circumstances of a given case. For example, in the present case where the erstwhile landlords themselves obstructed the delivery of possession to the allottee and in fact, they filed a Civil suit for injunction, what should be the date of commencement of tenancy? In my opinion, in a situation like this, Rule 5 of the rules has to be read reasonably and it is to be construed in such manner as to fasten rental liability upon the tenant with effect from the date of delivery of possession pursuant to allotment order. In other cases where there is no obstruction on the part of the landlord to the delivery of possession and the tenant does not intimate in writing to the District Magistrate his refusal to accept the accommodation within seven days, he would become liable to pay rent from the date of allotment order. Thus Ss. 2(g) and 5(5) of the Rent Control Act, 1947 read with Rule 5 of the rules made under the said Act lead to a logical conclusion that if an allotment order issued under S. 7 of the said Act is followed by delivery of possession, the tenancy would come into being from the date of possession. It is true that an allotment order by itself may not result in creation of tenancy being only an order or direction 'to let' but when such order or direction 'to let' is followed by delivery of possession, the relationship of landlord and tenant would certainly come into being resulting in creation of tenancy. In this view of the matter, I am of the opinion that allotment order issued in favour of Sardar Labh Singh followed by delivery of possession with effect from 1-4-1968, resulted in creation of tenancy vis-a-vis the premises in question. The submission made by Sri L.P. Naithani, that relationship of landlord and tenant between the erstwhile owners of the property and Sardar Labh Singh came into being for the first time on execution of the lease-deed dated 25-1-1968 and again on execution of the subsequent lease-deed dated 28-11-70 is not acceptable to me. The Full Bench decision in the case of Udhao Das v. Prem Prakash (supra) holding that the order issued by the District Magistrate does not confer any tenancy right in favour of the allottee unless a contract of tenancy has been entered into between the allottee and the landlord, has been overruled by a larger Full Bench of five Judges in Abdul Hamid v. Mohd. Ishaq, 1974 ALJ 676 as noticed hereinbefore and the Supreme court in Murlidhar's case (Supra) was not concerned with the question whether the allotment order issued under S. 7 of the said Act followed by delivery of possession, results in creation of tenancy independently of any contractual lease within the meaning of S. 105 of the Transfer of Property Act. No allottee was in picture before the Supreme Court.
56. Having held that the tenancy in the instant case was created in favour of Sardar Labh Singh not on the basis of any contract between the then landlords and Sardar Labh Singh but by order of allotment followed by delivery of possession, I now venture upon the question: whether the tenancy so created under the Rent Control Act, 1947 could be converted into a fixed term tenancy?
57. In paragraph 563 of the Halsbury's Laws of England, Fourth Edition, Volume 27 at page 451, it has no doubt been observed that 'by agreement a statutory tenant can validly turn his statutory tenancy into a contractual tenancy 'but in my opinion, a tenancy created either under the Rent Control Act, 1947 or under U.P. Act 13 of 1972, cannot be converted into a fixed term tenancy. The reason is that a fixed term tenancy implies that on its determination by efflux of time, the tenant will have no legal right to remain in possession of the tenanted premises and the landlord can get a decree of eviction against the tenant but then this would abort the very object of the aforesaid Acts. Section 3 of Rent Control Act, 1947 and S. 20 of the U.P. Act 13 of 1972 prohibit eviction of a tenant occupying a premises under atenancy created by or under these Acts except on grounds enumerated in these sections. Accordingly, any agreement or lease-deed converting a tenancy created by or under the aforesaid Acts into a fixed term tenancy would be of no legal moment. A tenant can successfully repudiate the clause in the lease-deed or agreement converting the tenancy created by or under the Act into a fixed term and put a defence on the basis of the provisions postulating prohibition against eviction except on statutorily specified grounds against the relief of eviction sought for by the landlord. Conversion of a tenancy created by or under the Acts aforesaid into a fixed term tenancy would be repugnant to the very scheme of these Acts and if it is set afoot, it would rebound on the legislative object sought to be achieved by these Acts. Therefore, any contract or agreement converting the tenancy created under the Acts aforesaid into a fixed term tenancy would be void as to be militating against the provisions of Section 23 of the aforesaid Contract Act and would, in my opinion, be hit by the doctrine of 'contracting out of the Rent Acts.'
58. Expounding the doctrine of 'contracting out of the Rent Acts', it has been observed in paragraph 563 of the Hulsbury's Laws of England, Fourth Edition, Volume 27, p. 450 as under -
'A tenant cannot contract out of his rights under the Rent Acts, and therefore cannot bind himself to pay more than proper rent. Similarly, so long as a statutory tenant remained in occupation, he cannot by any contractual arrangement forfeit his rights to be protected; nor is it possible to incorporate into a tenancy a term which in effect provides a ground for dispossession. IF IT IS UNCONNECTED WITH THE USER OF THE premises.'
It has been further observed in the same very paragraph of the Halsbury's Laws of England that 'the parties cannot be prevented by any estoppel from relying on their rights under the Acts, whether the estoppel results from agreement or conduct, or, it seems, from a decision of the Court.'
At this juncture, I may refer to an authority of the Supreme Court relevant on the point under consideration. In Lacho Mal v. Radhey Shyam, AIR 1971 SC 2213, the Supreme Court has laid down the following exposition of law -
'6. The general principle is that every one has a right to waive and to agree to waive for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. Thus the maxim which sanctions the non observance of the statutory provision is cuilibet licet renuntiare juri pro se introducto. (See Maxwell on Interpretation of Statutes, Eleventh Edition, Pages 375 & 376). If there is any express prohibition against contracting out of a statute in it then no question can arise of any one entering into a contract which is so prohibited but where there is no such prohibition it will have to be seen whether an Act is intended to have a more extensive operation, as a matter of public policy. In Halsbury's Laws of England, Volume 8, Third Edition, it is stated in Paragraph 248 at page 143: 'As a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said, can contract himself out of the Act, unless it can be shown that such an agreement is in the circumstances of the particular case contrary to public policy. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and in certain circumstances, the legislature has expressly provided that any such agreement shall be void.'
In the footnote it is pointed out that there are many statutory provisions expressed to apply 'notwithstanding any agreement to the contract', and also a stipulation by which a lessee is deprived of his right to apply for relief against forfeiture for breach of covenant (Law of Property Act, 1925). Section 28 of the Indian Contract Act Provides:
'The consideration or object of an agreement is lawful, unless -- it is forbidden by law; or is of such a nature that, if permitted, itwould defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.'
xxx xxx xxx xxx 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 of unlawful act. In our judgment S. 1 -A was meant for the benefit of owner 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. That is what was done in the present case and we are unable to agree with the High Court that the consideration or object of the agreement entered into between the parties in June 1962 was unlawful in view of S. 23 of the Contract Act.'
In my opinion, a tenancy created by or under the Rent Acts is a matter of status. It has acquired, more or less, a statutory character and is governed by the provisions of the Rent Acts. Rights and liabilities of lessor and lessee under Section 108 of the Transfer of Property Act are subject to a contract or legal usage to the contrary whereas a tenancy created by or under the Act, is no subject to any contract or legal usage except in so far as it is expressly provided in certain matters as for example matters covered by Section 5 of the Rent Control Act, 1947 and Sections 4(2) and 7 of the U.P. Act No. 13 of 1972. Terms and conditions of tenancy governed by provisions of the Rent Acts cannot, in my opinion, be altered to the prejudice of either party by an agreement.
59. In Lachoo Mal's case (supra) an agreement during the tenancy by U.P. Act 3of 1947 was entered into to the effect that the tenant would vacate premises for reconstruction and landlord would re-deliver same after reconstruction. The Supreme Court held that no question of policy much less public policy was involved and further that if a particular owner did not wish to avail of the benefit of Section 1-A of U.P. Act 13 of 1972, he would be taken to have waived the advantage or the benefit inasmuch as Section 1-A was not based on public policy. Reliance was also placed on Raj Narain Jain v. III Addl. District Judge, 1979 ARC 485. In that case the tenancy was created by a registered lease-deed dated 20-3-1948. One of the terms of registered deed was that the tenants shall not be liable to eviction at the instance of the landlords except on the ground that they were in arrears of rent for a full year. Landlords filed application under Section 21 of U.P. Act 13 of 1979. The tenants took the plea that the application was barred by Section 21(4) of the Act. The Division Bench held that Section 21 does not prohibit a landlord from entering into a covenant of the nature referred to above which was not against Section 23 of the Contract Act inasmuch as it was not a covenant surrendering any protection under the Act. It was also held that there is nothing in the Act to prevent a landlord from waiving his rights under the Act and that there is no public policy involved in Section 21 of the Act as far as it restricts the rights of the landlord to obtain an order for the eviction of his tenant on certain limited grounds. In my opinion, the decision has no application to the facts of the present case which is not a case of restricting the right to certain grounds but of waiving the right altogether for a fixed term. Further the covenant converting the statutory tenancy into a contractural tenancy is not permissible in law as it would, if enforced, expose the tenant to eviction on grounds other than those mentioned in Sections 20 and 21 and thus it amounts to surrendering the protection under the Act. The Division Bench was concerned with a covenant which had no adverse impact upon tenants interest and the lease in the case was not created by or under U.P. Act 3 of 1947.
60. Taking into Consideration the com-bine impact of the aforesaid authorities, I am of the opinion that the lease-deed dated 28-11-1970 converting the tenancy created under the Rent Control Act, 1947 in favour of Sardar Labh Singh into a fixed-term tenancy, in substance, provided a ground for eviction of the tenant on determination of tenancy by efflux of time which as discussed above is not permissible under the law. The clause fixing terms of tenancy in the lease-deed dated 28-11-70 was, in my opinion, void against the tenant and on the same principle it can be said that it was void against the landlord as well inasmuch as the landlord cannot be prevented by any estoppel from relying upon his rights under the Act. If the law permits the landlord to seek eviction of his tenant occupying the premises under a tenancy created as a result of an order of allotment, he cannot in law be estopped from relying upon such rights. Public policy involved in Section 21 is that extra and surplus accommodation with a landlord would be easily available for allotment inasmuch as a landlord having the advantage and benefit of getting the accommodation released in this favour when bona fide required by him would not unnecessarily withhold extra surplus accommodation with him. This object of the Legislature would suffer a set-back if a statutory tenancy is allowed to be converted into a fixed-term tenancy as the one in question. As held by the Supreme Court in Delhi Transport Corporation v. Delhi Transport Corporation Mazdoor Congress, AIR 1991 SC 101, a contract which has a tendency to injure public welfare or public interest is one against public policy. It depends upon the times and climes as also the social milieu in which the contract is sought to be enforced.
61. Section 3 of the Rent Control Act, 1947 and Sections 20 and 21 particularly clause (iii) of the Explanation to sub-section (1) and sub-section (1-A) of Section 21 of the Act are intended to subserve a larger public interest as well and are based on public policy. In this view of the matter, I am of the opinion that clause (1) of the lease-deed dated 28-11-70 is void both against the tenant as well as against the landlord and it entails no binding efficacy inasmuch as it amounts to contracting out of the Rent Acts.
62. Sri L.P. Naithani, learned counsel appearing for the petitioner, however, urged that the proviso to Section 21(4) of the Act suggests that the concept of fixed-term tenancy is not repugnant to the scheme of the Act. The submission of the learned Counsel carries no substance. The proviso, in my opinion, does not apply to a case where tenancy is created by or under the Rent Control Act, 1947 or under the U.P. Act 13of 1972 for, as held above, fixation of term of tenancy is repugnant to the scheme of the Acts aforesaid. The proviso, in my opinion, applies to a case of contractual tenancy created for fixed term by registered lease deed in the case of a building which is not within the purview of the Act at the time of creation of tenancy, but which comes within the purview of the Act subsequently during the currency of the term of tenancy. The proviso may also apply to a tenancy referred to in the proviso to sub-section (1) of Section 20 of the U.P. Act 13 of 1972 which visualises that the institution of a suit for eviction of a tenant on the determination of his tenancy by a efflux of time where a tenancy for fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding which is either recorded in court or otherwise reduced to writing or signed by the tenant, shall not be barred.
63. I do not find any illegality in the conclusion arrived at by the appellate authority that the order of allotment was the basis of tenancy in favour of Sardar Labh Singh and that the tenancy was not created for the first time on 28-11 -1970 by a registered lease within the meaning of the proviso to sub-section (4) of Section 21 of the Act inasmuch as Sardar Labh Singh became entitled to get the possession of the building in question and to enjoy the same by virtue of the allotment order and as soon as he obtained possession w.e.f. 1-4-78, he acquired the status of tenant. The question of creation of a tenancy by the lease deed dated 28-11-70 does not arise. The lease-deed was ineffective in so far as creation of tenancy is concernedwhich was a fact already accomplished on1-4-1978.
64. The learned counsel for the petitioner also assailed the finding that a fresh lease started with effect from 1-4-1978 and the earlier lease dated 28-11-1970 was not acted upon. The conclusion of the appellate authority that a fresh lease started with effect from 1-4-1978 and that the earlier lease dated 28-11-1970 was not acted upon is based primarily on evidence showing that the petitioner had been paying the rent at the rate of Rs. 6000/-per annum with effect from 1-4-1978 as against the rent at the rate of Rs. 5000/- per annum agreed upon between the erstwhile owners and Sardar Labh Singh vide lease-deed dated 28-11-1970 coupled with the fact that the rebate clause of the lease-deed dated 28-11-1970 was not acted upon, at least, by or against the purchaser-landlord-respondent No. 3.
65. The learned Counsel for the petitionercited before me 'N.M. Ponniah v. Kamalakshmi Animal, AIR 1989 SC 467 and Krishna Kumar Khemka v. Grindlays Bank plc., AIR 1991 SC 899, in support of his contention that some variations -- increase or reduction -- in rent does not result in the creation of a new tenancy.
66. It is true that the appellate Court was not right in holding that a fresh lease started with effect from 1-4-1978, but having regard Jo my conclusions in the fore-gone paragraphs that the tenancy in favour of Sardar Labh Singh was created pursuant to an order of allotment issued under Section 7 of U.P. Act No. 3 of 1947 which conferred upon him the right to enjoy the building and not by virtue of the lease-deed dated 28-11-70, I am of the opinion that the above conclusion arrived at by the Appellate Authority would not vitiate the ultimate order of eviction. I also do not consider it imperative to traverse upon other allied submissions advanced by the learned Counsel for the parties concerning the binding character of the lease-deed dated 28-11-70 nor do I consider it necessary to express any opinion on the question as to whether in view of prior agreement for sale the erstwhile owner M/s. Nahar SinghKishan Chand could have lawfully executed the lease-deed in favour of Sardar Labh Singh for a period of 20 years in the first instance with two options to the tenant.
67. Certain authorities including Hukum Chand v. Smt. Hazara Begum, AIR 1982 All. 215 referred to in the impugned judgment and Hanumant Kumar Talisara v. Mohan Lal, 1988 (1) All Rent Cases 330 (SC) were cited at the bar for and against the proposition that M/s. Nahar Singh Kishan Chand having already entered into an agreement for sale with K.R. Bahuguna was not competent to grant a lease in favour of Sardar Labh Singh, operating beyond the period of cessation of their interest in the property by reason of a sale-deed being executed in favour of K.R. Bahuguna pursuant to the decree passed for the specific performance of prior agreement. It was argued by the learned counsel for the respondent that Sardar Labh Singh had notice of the registered agreement for sale executed by erstwhile owner in favour of K.R. Bahuguna and that the transaction of lease was not in good faith and as such various covenants and terms specified in the lease dated 28-11-70 were not binding on the vendee-respondent-landlord. The learned Counsel for the respondent on the other hand urged that M/s. Nahar Singh Kishan Chand were the absolute owners and had every right to create a lease binding on a purchaser as K.P. Bahuguna was. All these and other allied questions do not survive to be answered in the back-ground of my view that tenancy in favour of Sardar Labh Singh was not created by registered lease 28-11-70 so as to attract the provisions of the proviso to sub-section (4) of Section 21 of the Act and that clause (iii) of the Expl. to sub-section (1) as also sub-section (1-A) of Section 21 being based on public policy, the contract converting the tenancy created under the Act into a fixed-term tenancy is void being hit by Section 23 of the Contract Act and the principle of 'contracting out of statute.'
68. So far as the question regarding competence and jurisdiction of the authorities under the Act to go into the validity or otherwise of the lease deed is concerned, I amof the opinion that they have the competence and jurisdiction, as held by Appellate Authority, to go into the question which in the present case arose incidentally in the context of sub-section (4) of Section 21 of the Act. Relationship of landlord and tenant was not disputed. The lease-deed was up for con-sideration only in the context of the nature and binding efficacy of the lease brought about by conversion of a statutory tenancy into a contractual one. In Babu Lal v. Nand Ram, AIR 1958 SC 677 the Supreme Court has held that a question of title to premises which does not arise out of the Act -- Bombay Rent, Hotel and Lodging House Control Act, 1947 -- or any of its provisions may be determined incidentally. It has been explained by the Supreme Court that a title which could not be established outside the Act but which arose under the provisions of the Act by virtue of a claim made thereunder must be determined by the authorities under the Act and a title de hors the Act may be determined in any other court of competent jurisdiction. The same principle is applicable to the facts of the present case.
69. Lastly, it may be pointed out that the term of tenancy expired during the pendency of this writ petition and the renewal of lease as contemplated by the lease-deed has not been obtained although a suit for specific performance is said to be pending. Right to enjoy the property on the basis of the lease transaction dated 25-11-70, does not subsist at the moment. In the facts and circumstances of the case, I do not consider it necessary to examine the implications of the said suit.
70. So far as the connected writ petitions are concerned, the only additional point canvassed in support of these petitions was that the petitioners therein were impleaded for the first time before the appellate court which resulted in deprivation of their rights to appeal and also their rights to contest the case effectively. This controversy, in my opinion, is no longer res integra in view of the fact that the order pursuant to which the petitioners in the connected writ petitions were impleaded as opposite parties to the release applicationat the appellate stage was challenged in this Court by means of a writ petition which was dismissed by this Court vide judgment reported in 1988 (1) ARC 173. It is now not open to them to say that they have been deprived of any right to appeal.
71. No other point remains to be considered. The petitions lack merits and are liable to be dismissed.
72. In the result, the petition fails and is dismissed. Interim order stands discharged. Parties to bear their own cost. This order will govern the fate of the connected writ petitions.
73. After I delivered the judgment learned counsel for the petitioner prayed for five months' time to vacate the premises. In the facts and circumstances of the case the time up to January 31, 1993 is allowed provided the petitioner deposits entire amount of rent up to 31st January, 1993 including arrears by December 4, 1992.
74. Order accordingly.