In the present revision, the revisionist is challenging the order dated 28.2.2011 passed by the Judge, Small Causes Court / Additional District Judge, Court No. 10, Ghaziabad by which the suit for ejectment, arrears of rent and damages has been decreed and the tenant has been directed to handover the possession of the shop in dispute within two months.
The brief facts of the case are that in the year 1981 a shop has been let out by the opposite party @ Rs. 200/- per month situated at Mohalla Gandhi Ganj, Chhoti Gali, Hapur, District Ghaziabad. A P.A. Case No. 4 of 1998 under the U.P. Act No. 13 of 1972 was filed by the opposite party for the ejectment after serving a notice dated 27.8.1998. The said suit was contested by the revisionist. A compromise has been made between the revisionist and the opposite party and compromise application dated 17.9.1998 was filed in the aforesaid case. However, the case was dismissed for want of prosecution. Under the compromise, one shop no. 10 was provided to the revisionist and it has been agreed that on the construction of commercial complex, the shop would be provided to the revisionist. After the construction of commercial complex, shop no. 14 was provided to the revisionist on an agreed rent of Rs.500/- per month beside the tax @ 90/- per month. The compromise was signed by the parties concerned. According to the revisionist, the rent has been regularly paid. The opposite party has issued a notice dated 12.1.2009 requiring the revisionist to pay rent in respect of shop no. 14 @ Rs.500/- per month beside tax since 1.12.2007. According to the revisionist, the opposite party has refused to take the rent. Therefore the rent was sent by money orders and when the same has been refused, the rent has been deposited under Section 30 (1) of the U.P. Act No. 13 of 1972 before the Court of Civil Judge (Junior Division), Hapur in Misc. Case No. 14 of 2009. The opposite party filed a S.C.C. Suit No. 34 of 2009 for the ejectment of the revisionist from the premises in dispute and for arrears of rent and damages on the ground of default. The revisionist deposited the rent with the bank on 23.9.2009 vide tender dated 17.9.2009. The revisionist contested the suit by filing written statement and the witnesses have been examined. The suit has been decreed by the impugned order dated 28.2.2011 for the ejectement, arrears of rent and damages.
The case of the revisionist was that he was an old tenant since 1981 and under the compromise, the shop has been vacated and after the construction a new shop no. 14 has been provided to the revisionist and, therefore, being an old tenant since 1981, the provision of Act no. 13 of 1972 was applicable. It was submitted that the entire arrears of rent has been paid. The Judge, Small Causes Court held that the revisionist was tenant of the shop, which was newly constructed in the year 1998. The map was sanctioned in the year 1996 and the new construction was made and thereafter shop no. 14 was given on 23.1.1999 therefore, the provision of Act No. 13 of 1972 is not applicable. The Judge, Small Cause Court has also held that there is an arrears of rent for the period 1.12.2007 to 12.2.2009 i.e. Rs.8,500/-. Reliance has been placed on the decisions of this Court in the case of Swaminath Vs. Ajay Kumar, reported in 2010 (3) A.R.C.-261, Manoj Kumar Vs. Xth Additional District Judge, Muzaffarnagar and others, reported in 2004 (2) A.R.C.-322 and in the case of Jugal Kishore Vs. Additional District Judge and others, reported in 2010 (78) A.L.R.-316.
Learned counsel for the revisionist submitted that a shop was let out in the year 1981. The present shop no. 14 after the construction of commercial complex has been provided to the revisionist on rent under the agreement and, therefore, the tenancy of the revisionist is to be considered from 1981. Thus, provision of Act No. 13 of 1972 was applicable. So far as the deposit of arrears of rent is concerned, he submitted that first date fixed was 17.9.2009 and on the said date tender for Rs. 18,815/- was submitted which was passed by the District Judge on 22.9.2009 and the amount has been deposited on 23.9.2009 which has been accepted. Reliance is placed on the decision of the apex Court in the case of Sudershan Devi and another Vs. Sushila Devi and another, reported in 1999 (2) Allahabad Rent Cases-668. It is further submitted that in the case of Smt. Parvatibai Subhanrao Nalawade Vs. Anwarali Hasanali Makani and others etc., reported in AIR 1992 Supreme Court 1780, the apex Court has held that under the consent decree the tenant vacating the premises on express stipulation of landlord that on construction of new building tenant would get identical area. The apex Court has further held that assurance by the landlord to allot identical area to tenant in new building landlord must honour the pledge.
Heard learned counsel for the revisionist.
I have perused the impugned order.
In the present case, no compromise decree was passed by the court. The earlier suit no. 34 of 2009 was dismissed in default in the absence of the parties though the compromise application was filed in the court but no consent decree was passed. On the basis of the compromise after the construction of new commercial complex a shop has been provided to the revisionist. Therefore, the compromise has been honoured by the landlord. Admittedly, the shop, which has been provided to the revisionist, was a newly constructed shop in the year 1999 after getting the map sanctioned in the year 1996. There is no dispute in this regard. The question for consideration is whether in such a situation Act No. 13 of 1972 applies or not.
Section 2 (2) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the "Act") provides that the Act does not apply to the building for a period of ten years in case it is constructed before April, 1985 and for the period of forty years in case if the building is constructed after 1985. Section 2 (2) of the Act reads as follows:
"Section 2 (2) Except as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21, sub-section (2) of Section 24, Sections 24-A, 24-B, 24-C or sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed :
Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a bank or a co-operative society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid period of ten years then the reference in this sub-section to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest), whichever is shorter :
Provided further that where construction of a building is completed on or after April 26, 1985 then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of forty years from the date on which its construction is completed."
It would be relevant to refer Section 24 (2) of the Act :
"Section 24 (2) where the landlord after obtaining a release order under clause (b) of sub-section (1) or Section 21 demolishes a building and constructs a new building or buildings on its site, then the District Magistrate may, on an application being made in that behalf by the original tenant within such time as may be prescribed, allot to him the new building or such one of them as the District Magistrate after considering his requirements thinks fit, and thereupon that tenant shall be liable to pay as rent for such building an amount equivalent to one per cent per month of the cost of construction thereof (including the cost of demolition of the old building but not including the value of the land) and the building shall, subject to the tenant's liability to pay rent as aforesaid, be subject to the provisions of this Act, and where the tenant makes no such application or refuses or fails to take that building on lease within the time allowed by the District Magistrate, or subsequently ceases to occupy it or otherwise vacates it, that building shall also be exempt from the operation of this Act for the period or the remaining period, as the case may be, specified in sub-section (2) of Section 2."
The learned Single Judge of this Court in Writ Petition No.12311 of 1987, Shri Prakash Chand Mehta Vs. III Additional District Judge, Moradabad and others, has held that the same principle as provided under Section 24 (2) of the Act is applicable in a case where, under the agreement, tenant voluntarily vacates the tenanted accommodation for demolition and new construction and after demolition and new construction, newly constructed premises is let out to the tenant, the Act would continue to apply to the building in dispute. There is no dispute that Section 24 (2) of the Act does not apply in the present situation of the case; where under the agreement, tenant voluntarily vacates the tenanted accommodation for demolition and new construction and after demolition and new construction, newly constructed premises is let out to the tenant. The learned Single Judge in the aforesaid case has applied the principle of Section 24 (2) of the Act and held that the Act No. 13 of 1972 is applicable. There is no specific provision under the Act dealing with such a situation. No exception is provided to Section 2 (2) of the Act; in a case where, under the agreement, tenant voluntarily vacates the tenanted accommodation for demolition and new construction and after demolition and new construction, newly constructed premises is let out to the tenant. In my view the question involved is an important question whether on the facts and circumstances, where under the agreement, tenant voluntarily vacates the tenanted accommodation for demolition and new construction and after demolition and new construction, newly constructed premises is let out to the tenant, the Act No. 13 of 1972 applies or not. In my view the question requires consideration by the Larger Bench.
There is no decision of the apex Court or this Court on this issue except the decision of the learned Single Judge, referred hererinabove, which appears to be doubtful.
In view of the above, I refer the following question for consideration to the Full Bench :
"1- Whether the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 applies to a case where under the agreement, tenant voluntarily vacates the tenanted accommodation for demolition and new construction and after demolition and new construction, newly constructed premises is let out to the tenant?
Let the file be placed before Hon'ble the Chief Justice for constitution of Full Bench.
Till the decision of the civil revision, the operation and effect of the order dated 28.2.2011 passed by the Judge, Small Causes Court / Additional District Judge, Court No. 10, Ghaziabad shall remain stayed.
Dated : 31st May, 2011 OP