JUDGMENT J.C. Gupta, J.
1. Heard Sri R. K. Misra holding brief of Sri N. C. Rajvansi counsel for the petitioner and Sri Vivek Chaudhary counsel appearing for the respondents.
2. This is tenant's writ petition challenging the order dated 8.9.1980 and 7.9.1978 passed by respondent . Nos. 1 and 2 respectively.
3. It appears that the landlord-respondents brought a suit for ejectment of the petitioner from disputed land and for recovery of arrears of rent and mesne profits. Similar suits were brought against other tenants also. It further appears that the petitioner and other tenants moved applications under sub-section (6) of Section 29A of the U. P. Act No. XIII of 1972 by giving an unconditional offer to pay to the landlord the enhanced rent of land for the entire period in suit and onwards at the rate of 10% per annum of the prevailing market value of the land together with costs of the suit. The Court where the suits were pending accepted the said offer of the tenants and determined the market value of the land accordingly. In respect of the land covered by the lease of the petitioner, the market value was determined at Rs. 39.652.50 P. Aggrieved by the said order the petitioner and other tenants filed revisions which have been dismissed by the respondent No. 1 by the impugned order. Aggrieved by the said order, the present writ petition has been filed.
4. Learned counsel for the petitioner at the outset has stated that the application moved by the tenant under sub-section (6) of Section 29A of the Act has been rightly moved and is pressed even at the stage of this writ petition. However, according to his argument, the Courts below have committed an error in determining the market value of the land and in interpreting the words "prevailing market value of the land."
5. Before coming to the matter in controversy, it would be useful to have a look to the provision of Section 29A which runs as follows :
"29A. Protection against eviction to certain classes of tenants of land on which building exists.--(1) For the purposes of this section, the expressions "tenant" and "landlord" shall have the meanings respectively assigned to them in clauses (a) and (j) of Section 3 with the substitution of the word "land" for the word "building".
(2) This section applies only to land let out, cither before or after the commencement of this section, where the tenant, with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof.
(3) Subject to the provisions hereinafter contained in this section, the provisions of Section 20 shall apply in relation to any land referred to in sub-section (2) as they apply in relation to any building.
(4) The tenant of any land to which this section applies shall be liable to pay to the landlord such rent as may be mutually agreed upon between the parties, and in the absence of agreement, the rent determined in accordance with sub-section (5).
(5) The District Magistrate shall on the application of the landlord or the tenant determine the annual rent payable in respect of such land at the rate of ten per cent, per annum of the prevailing market value of the land, and such rent shall be payable, except as provided in sub-section (6) from the date of expiration of the terrn for which the land was let or from the commencement of this section, whichever is later.
(6) (a) in any suit or appeal or other proceeding pending immediately before the dale of commencement of this section, no decree for eviction of a tenant from any land to which this section applies, shall be passed or executed except on one or more of the grounds mentioned in sub-section (2) of Section 20, provided the tenant, within a period of three months from the commencement of this section by an application to the Court, unconditionally offers to pay to the landlord the enhanced rent of the land for the entire period in suit and onwards at the rate of ten per cent, per annum of the prevailing market value of the land together with costs of the suit (including costs of any appeal or of any execution of other proceedings).
(b) in every such case, the enhanced rent shall, notwithstanding anything contained in sub-section (5), be determined by the Court seized of the case at any stage.
(c) Upon payment against a receipt duly signed by the plaintiff or decree-holder or his counsel or deposit in Court of such enhanced rent with costs as aforesaid being made by the tenant within such time as the Court may fix in this behalf, the Court shall dismiss the suit, or, as the case may be, discharge the decree for eviction, and the tenancy thereafter shall continue annually on the basis of the rent so enhanced,
(d) if the tenant fails to pay the said amount within the time so fixed (including any extended time, if any, that the Court may fix or for sufficient cause allow) the Court shall proceed further in the case as if the foregoing provisions of this section were not in force.
(7) The provisions of this section shall have effect notwithstanding anything to the contrary contained in any contract or instrument or in any other law for the time being in force.
Explanation. -- For the purposes of sub-section (6) where a case has been decided against a tenant by one Court and the limitation for an appeal therefrom has not expired on the date immediately before the commencement of this section, this section shall apply as it applies to pending proceedings and the tenant may apply to that Court for a review of the Judgment in accordance with the provisions of this section."
6. There is no dispute that Section 29A was brought on the statute by U. P. Act No. XXVIII of 1976 which came into force with effect from 5.7.1976. Admittedly the suit in question was pending in the trial court on the date of commencement of the above amended section. It is also not disputed that the petitioner made an application within the prescribed period of three months under sub-section (6) unconditionally offering to pay to the landlord, the enhanced rent of the land for the entire period in suit and onwards at the rate of ten per cent per annum of the prevailing market value of the land together with costs of the suit.
7. A plain reading of the above provisions will Indicate that Section 29A has been enacted to extend protection against eviction to tenants of open sites or leases of open land, as the old Act of 1947 did not apply to the open land. Sub-section (2) of the above provision provides that Section 29A would apply only to land let-out either before or after the commencement of the Section, where the tenant with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof. This provision thus extended a protection to those tenants also to whom only land or open site was let out but with the permission of the landlord they also erected permanent structure on the leased land. The protection could be availed of by the tenant himself by making an unconditional offer as provided in sub-section (6). In order to avail of the benefit it is provided therein that in any suit or appeal or other proceeding pending immediately before the commencement of the section, no decree for eviction of a tenant from any land (the leased land on which tenants have erected any permanent structure with the consent of the landlord) shall be passed or executed except on one or more of the grounds mentioned in sub-section (2) of Section 20, provided that tenant, within a period of three months from the date of commencement of the provision makes an unconditional offer by making an application to the Court where the suit or other proceedings is pending that he is ready to pay to the landlord the enhanced rent of the land for the entire period in suit and onwards at the rate of ten per cent per annum of the prevailing market value of the land, together with costs of the suit (Including costs of any appeal or of any execution of other proceedings).
8. Sub-clause (b) of sub-section (6) then provides that the enhanced rent shall be determined by the Court seized of the case at any stage of the proceedings. Sub-clause (c) provides that on payment of enhanced rent with costs, the suit for eviction shall stand dismissed. Sub-clause (d) lays down that in the event of default on the part of the tenant to pay the enhanced rent and costs, the Court shall proceed further in the case as if Section 29A were not in force. Subsection (7) gives an over-riding effect to the provisions of Section 29A by providing that the provisions of the section shall have effect notwithstanding anything to the contrary contained in any contract or Instrument or any other law for the time being in force.
9. From the perusal of the above provisions it is evident that once an application under sub-section (6) is made by the tenant, it is obligatory on the part of the Court which is seized of the proceedings, first to determine the enhanced rent according to the formula prescribed therein and when the rent is so determined, the same shall be payable by the tenant for the entire period of suit and onwards. Where the tenant fulfils these conditions, he is entitled to be relieved from the decree of eviction.
10. In the present case, suit for eviction of the land under tenancy of the petitioner was pending before respondent No. 2. The petitioner made application under sub-section (6) stating therein that he was prepared unconditionally to pay to the landlord the enhanced rent as might be determined by the Court. The respondent No. 2 therefore, was duty bound to decide the said application of the petitioner for determination of rent as per the statutory provisions. The trial court as well as the revisional court have held that the market value of the land has to be determined as was prevailing on the date when the offer was made by the petitioner. This view of the Courts betow seems to be correct as the expression 'at the prevailing market value' will lose its significance, if any other interpretation is put to these provisions. The application was moved in the year 1976 and both the Courts below on the basis of oral as well as documentary evidence have determined the market value of the land in question as was prevailing at that time at Rs. 39752.50 P., and the monthly rent of which comes to Rs. 331.45 P. at the rate of 1/12th of ten per cent of the market value. This calculation has been made on appraisal of evidence and this Court does not find any good ground to differ. The petitioner, therefore, could be relieved of the decree of eviction only on his depositing the enhanced rent for the entire period in suit together with costs of the suit within the time fixed by the Court in that behalf. In the present case, the trial court allowed petitioner three months time to make the required deposit which in the present case has not been complied with so far. By virtue of clause (d) of sub-section (6) of Section 29A, where the tenant failed to pay the said amount within the time so fixed including any extended time if any. the Court has to proceed with the case of eviction as if the provisions of Section 29A of the Act were not in force.
11. The learned counsel appearing for petitioner then made a request for extension of time for making payment of enhanced rent for the entire period in suit as the same could not be deposited for the reason that the petitioner under a bona fide legal advice has been disputing the rate of rent determined by the trial court by first filing revision before respondent No. 1 and thereafter writ petition in this Court. On the consideration of facts and circumstances of the case, this Court feels it appropriate and expedient in the interest of justice to extend the period fixed by the trial court by its order dated 7.9.78 upto 30.11.1998 for making the requisite deposit. However, if the said amount is not deposited within the extended time as aforesaid, the trial court shall proceed with the suit for eviction as if provisions of Section 29A were not in force.
12. For the reasons stated above, this writ petition is dismissed with the above concession given to the petitioner for depositing the amount as per the order of the trial court by 30.11.1998, No order as to costs is made. Stay order granted earlier shall stand vacated.