JUDGMENT Sudhir Narain, J.
1. These two writ petitions arise out of proceedings taken by the landlords under Sections 21 (1) (a) and 21 (8) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). The reference as to the parties in this judgment shall relate to Writ Petition No. 45968 of 1993.
2. Briefly stated the facts arising out of these writ petitions are that the petitioners are landlords of House No. 5, Arjun Road (Nehru Road), Dehra Dun. The disputed house was allotted to the Shalini Memorial Society and School. Dehra Dun, respondent No. 1 on 25.1.1973. The landlords filed an application for release of the building in question in the year 1982 under Section 21 (1) (a) of the Act on the ground that they require it bona fide for their personal need.
3. The application was contested by the tenant-respondent No. 1 on the ground that the need of the landlords was not bona fide. It was further objected that the building was let out to an educational society and in view of the provisions of Sections 2 (b) and 3 (q) of the Act, the provisions of the Act are not applicable. The Prescribed Authority recorded a finding that the need of the landlords was bona fide and they will suffer a greater hardship in case their application is rejected but rejected the application on 20.5.1983 on the ground that the provisions of the Act are not applicable as the building vests in respondent No. 1 as it was an educational institution.
4. The petitioners, in view of the judgment of the Prescribed Authority, filed Suit No. 55 of 1983 for ejectment against the tenant-respondents on the ground that the Act was not applicable. The trial court decreed the suit on 29.5.1987 on the ground that the Act was not applicable. Respondent No. 1 filed a revision alleging that the provisions of the Act were applicable to the building in question. The revisional court allowed the revision on 10.8.1987 taking the view that if a property is taken on rent by a society or an educational society such building does not vest in such society or institution as contemplated under Section 2 (b) of the Act. The suit was accordingly dismissed on 10.8.1987.
5. The petitioners filed application for release registered as P.A. Case No. 109 of 1985 alleging that petitioner No. 1 was in service of Navy but he retired from service. The Prescribed Authority without going into the merits of the case rejected the application on the ground that respondent No. 1 is- running an educational institution and against such institution, the application under Section 21 (1) (a) of the Act is not applicable in view of Section 21 (8) of the Act. The petitioners preferred an appeal against the said order before the District Judge, Respondent No. 4 dismissed the appeal on 3.11.1993 affirming the view taken by the Prescribed Authority. The petitioners have preferred Writ Petition No. 45968 of 1993 against these orders.
6. The petitioners also filed an application under Section 21 (8) of the Act for enhancement of rent on 21.7.1995 as the Appellate Authority in its order dated 3.11.1993 had taken the view that the application filed by the landlords for release of the disputed accommodation is not maintainable in view of Section 21 (8) of the Act and they are entitled only for enhancement of the rent on the basis of market value as contemplated under the said provision. The tenant-respondent Nos. 1 and 2 have filed Writ Petition No. 12228 of 1996 seeking prohibition restraining the Prescribed Authority to proceed with the case on the ground that the provision of Section 21 (8) of the Act is ultra vires to Article 14 of the Constitution.
7. One of the basic questions is as to whether the provision of the Act is applicable in respect of disputed building 'on its allotment to Shalini Memorial Society and School, respondent No. 1. Section 2 of the Act exempts certain building from operation of the Act. Section 2 (1) (b) provides that any building belonging to or vested in a recognised educational institution, the whole of the income from which is utilised for the purposes of such institution, the Act shall not apply, the words "belonging to or vested" was considered by the Supreme Court in Bhatia Co-operative Housing Society v. D.C. Patel, AIR 1953 SC 16, wherein it was held that the property if let out and is reverted back to the owner, it shall not vest in the tenant. It relied upon the observation of Lord Macnaghten.
"The words 'property' and 'belonging to' are not technical words in the law of Scotland. They are to be understood, I think, in their ordinary signification. They are in fact convertible terms ; you can hardly explain the one except by using the other. A man's property is that which is his own, that which belongs to him. What belongs to him is his property."
8. The right of a tenant in a demised premises is limited one. Section 105 of the Transfer of Property Act provides that a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied. It does not create any right in the property itself. In Ganesh Inter College, Etah v. Smt. Surekha Jain, 1985 (2) ARC 24, the Court interpreting Section 2(1) (b) held that if the property is taken on rent by a society or an educational institution, it does not vest in it or belong to it. The building under the tenancy of such tenant shall not be treated as exempted under the said provision.
9. The next question is whether the application filed by the landlords under Section 21 (1) (a) of the Act was barred under Section 21 (8) of the Act which reads as under :
"(8) Nothing in clause (a) of sub-section (1) shall apply to a building let out to the State Government or to a local authority or to a public sector corporation or to a recognised educational institution unless the Prescribed Authority is satisfied that the landlord is a person to whom clause (ii) or clause (iv) of the Explanation to sub-section (1) is applicable :
Provided that in the case of such a building, the District Magistrate may, on the application of the landlord.
enhance the monthly rent payable therefor to a sum equivalent to one-twelfth of ten per cent of the market value of the building under tenancy, and the rent so enhanced shall be payable from the commencement of the month of tenancy following the date of the application :
Provided further that a similar application for further enhancement may be made after the expiration of a period of five years from the date of the last order of enhancement."
10. The tenant-respondent had taken the plea that as the building was let out to a recognised educational institution, the application under Section 21 (1) (a) filed by the landlords was not applicable. It was for the petitioner to establish that it was a recognised educational institution and the building was let out to such institution. The petitioners have annexed the copy of the allotment order as Annexure-1 to the writ petition. It is a direction to the landlords to let out the accommodation to "Shalini Memorial Society and School, Dehradun." The version of the respondents is that Shalini Memorial Society is a society registered under the provisions of Societies Registration Act, 1960.
11. A Society is registered under Section 3 of the Societies Registration Act, 1860. The property vests in the society under Section 5 and the suits by or against the society are to be filed as provided under the said section. Section 21 (8) of U.P. Act No. XIII of 1972 does not contemplate a letting to a society but to a 'recognised educational institution'. There is a difference between a society and a recognised educational institution. A society may have many institutions spreading over various parts of India but each institution is to be recognised in accordance with the provisions of the Act applicable in that State. The recognised educational institution has been defined under Section 3 (q) of the Act which reads as under :
"(q) 'recognised educational institution' means any University established by law in India, or any institution recognised under the Intermediate Education Act, 1921, or the Uttar Pradesh Basic Education Act, 1972 or recognised or affiliated under the Uttar Pradesh State Universities Act, 1973."
12. The tenant was to establish that the institution was recognised either under the provisions of Intermediate Education Act, 1921 or the Uttar Pradesh Basic Education Act, 1972, or recognised or affiliated under the Uttar Pradesh Universities Act, 1973. A society may run an unrecognised institution at one place and a recognised institution on other place or on the same place two different institutions, one recognised and another unrecognised. The tenant must prove that the letting was to a recognised educational institution. The difference between an educational institution and a society was considered in Avadh Behari Lal Saxena v. Janki Prasad Anglo Sanskrit Educational Association. Khurja and others, 1982 ARC 538, wherein an educational society was owner of the property. It had let out certain premises situate in a recognised institution and claimed exemption under clause (b) of sub-section (1) of Section 2 of the Act. The Court repelled the submission on the following observation :
"It is, therefore, apparent that the recognised educational institution can only be one which is recognised under the Intermediate Education Act or U.P. Basic Education Act or U.P. State Universities Act. It is not disputed by the learned counsel for the respondent that Janki Prasad Anglo Sanskrit Educational Association. Khurja is not recognised under any of the aforesaid enactments. The institutions that are being run by it may be so recognised but they are neither the plaintiffs nor the owners of the building. Under the circumstances. I am not prepared to hold that the plaintiff was a recognised educational institution under the U. P. Act No. XIII of 1972."
13. Similar view was taken in Atar Singh v. IIIrd Additional District Judge, Aligarh and others, 1982 ARC 624, and it was observed the societies themselves cannot be treated to be recognised educational institutions. It should be seen that the recognition or affiliation in the case of a degree college is granted to the college as such and not to the society running the college.
14. The letting was admittedly not in favour of the recognised educational institution and, therefore, the provision of Section 21 (8) of the Act is not applicable.
15. There is yet another aspect. The averment of the tenant-respondent is that it was running a school in the name of 'Silver Oak School' at the time of allotment but it was not recognised. It is, however. running Primary School of Shalini Memorial Schools. It was recognised by the U. P. Basic Education Officer after the year 1982. A copy of the letter of the Basic Education Officer dated 25.10.1989 has been annexed in the supplementary affidavit filed in Writ Petition No. 12228 of 1996 which states that District Recognition Committee in its meeting dated 25.10.1989 decided to grant recognition for the classes I to V (primary section). The contention of the petitioners is that temporary recognition was granted in the year 1982 but permanent recognition was granted in the year 1989. It is, however, clear that at the time of allotment, the society was not running any recognised educational institution. Sub-section (8) of Section 21 of the Act contemplates letting to a recognised educational institution. There cannot be letting to a recognised educational institution unless the recognition has been granted prior to the date of allotment.
16. Sri Rajesh Tandon, learned counsel for the respondent, vehemently urged that the Prescribed Authority will examine the applicability of the provisions of subsection (8) of Section 21 of the Act while deciding an application filed by the landlord under Section 21 (1) (a) of the Act on the date of its presentation and if by that date, the institution is recognised, the application filed by the landlord will be barred under Section 21 (8) of the Act. He has placed reliance upon the decision Matin and Harris Ltd. v. VIth Additional District Judge and others, 1998 (1) ARC 109, wherein the Supreme Court interpreting the first proviso to Section 21 (1) of the Act held that even if the landlord had filed application prior to the expiry of three years of the purchase of the building, his application cannot be "entertained" by the authority before expiry of that period, meaning thereby, the landlord can file an application even before the expiry of three years from the date of purchase of the property but it shall not be treated as entertained by the Prescribed Authority unless decided before the period.
17. This decision was in respect of interpretation of first proviso to Section 21 (1) of the Act interpreting the meaning of the word "entertain". There is no such provision under sub-section (8) of Section 21 of the Act. On the other hand, the emphasis is on the word "let out to a recognised educational institution". It must relate to the date of letting and not to the date of filing the application by the landlord under Section 21 (1) (a) of the Act. It the interpretation as suggested by the learned counsel for the respondent is accepted, any building which was let out to a society, such society can get any institution recognised later on and thereby deprive the landlord of filing application under Section 21(1) (a) of the Act. This cannot be the intention of the Legislature.
18. Learned counsel for the respondents raised another argument that the Prescribed Authority having earlier rejected the application filed by the landlords under Section 21 (1) (a) of the Act on 20.5.1983, the subsequent application filed by them in the year 1985 was barred on the principle of res judicata. It is admitted to the respondents that the petitioners after the said decision filed suit for ejectment on the ground that the building is exempted under Section 2 (1) (b) of the Act but there the respondents took a contrary stand that the Act was applicable and ultimately it was found by the revisional authority that the Act was applicable and the view which was taken by the Prescribed Authority for rejecting the application that the Act was not applicable was held erroneous. It is the subsequent decision that operates as res judicata as held in Raghunath v. Ram Khelawan, AIR 1970 All 26.
19. Learned counsel for the petitioners has taken one additional ground in support of his contention that the application filed by the landlord on the ground of bona fide need is to be released under Section 21 (1A) of the Act which provides that notwithstanding anything contained in Section 2, the Prescribed Authority shall, on the application of a landlord in that behalf, order the 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. An application filed under Section 21 (1A) is not barred under sub-section (8) of Section 21 of the Act as that section prohibits the filing of application under Section 21 (1) (a) of the Act. The version of the petitioners is that petitioner No. 1 was in the service of Navy. He was occupying a Government accommodation, C-2/18, Moti Bagh, New Delhi, from which he was evicted by notice under sub-section (2) of Section 4 of the Public Eviction of Unauthorised Occupants Act, 1971.
It appears this plea was not raised before the Prescribed Authority and it requires a finding on question of fact.
20. The tenant-respondents filed Writ Petition No. 12228 of 1996 challenging the vires of sub-section (8) of Section 21 of the Act on the ground that it is violative of Article 14 of the Constitution. It is contended that there is no legal justification to enhance the rent on the basis of market value when in respect of similarly situated houses, the rent cannot be enhanced. On the other hand, the landlords contend that there is no justification to insert this provision depriving the landlord to use his own property in case he needs it and it is in violation of Articles 19 and 21 of the Constitution when he wants to use his own property for personal need. It is, however, not necessary to decide this controversy as I have held above that the application filed by the landlords was not barred by the provisions of sub-section (8) of Section 21 of the Act.
21. In view of the above the Writ Petition No. 45968 of 1993 is allowed. The order dated 27.3.1990 passed by the Prescribed Authority and the order dated 3.11.1993 passed by the appellate authority are quashed. The Pescribed Authority shall decide the application afresh keeping in view the observation made above and in accordance with law. As the matter is very old and the first application was filed by the petitioners in the year 1982, the Prescribed Authority is directed to decide the application of the landlords within a period of three months from the date of production of a certified copy of this order.
22. The Writ Petition No. 12228 of 1996 is dismissed as infructuous in view of the decision in the above-mentioned writ petition.
23. Considering the facts and circumstances of the case the parties shall bear their own costs.