JUDGMENT D.C. Srivastava, J.
1. This revision under Section 25 of Provincial Small Causes Courts Act has been filed by the defendant challenging a decree for eviction and arrears of rent amounting to Rs. 3,333 together with pendente lite and future mesne profits at the rate of Rs. 300 per day passed against him.
2. The plaintiffs opposite parties filed a suit for eviction of the defendant-revisionist alleging that the revisionist was a tenant in the disputed Ahata No. 195, Delhi Road. Meerut Cantt on a monthly rent of Rs. 2,500. The house is not covered by U. P. Act 13 of 1972, inasmuch as rent exceeds Rs. 2,000 per month. A notice of eviction under Section 106, Transfer of Property Act, was given on 10.4.1996, which was received by the revisionist on 11.4.1996. The notice was replied with wrong facts. The arrears of rent was also demanded but neither the rent was paid nor premises was vacated.
3. The suit was contested on the ground that the provisions of U. P. Act 13 of 1972, are applicable to the premises in dispute. The notice is invalid. Tenancy has not been determined. Mesne profits have been claimed at excessive rate. It was also pleaded that Amending Act No. 5 of 1995 is not retrospective and, hence, the premises is covered by U. P. Act 13 of 1972. The Amending Act is said to be discriminatory.
4. The lower court repelling the pleas of the revisionist decreed the suit, hence, this revision.
5. At the time of admission of the revision, Sri K.M. Dayal, learned counsel, appeared for the opposite parties. A supplementary affidavit was filed on behalf of the revisionist. Sri K.M. Dayal did not propose to file any counter-affidavit to the supplementary affidavit. Hence, with the consent of the learned counsel for the parties, this revision is being disposed of finally at the admission stage.
6. The first contention of the learned counsel for the revisionist has been that when the revisionist became tenant in the disputed accommodation, U. P. Act 13 of 1972 was already in force and Amending Act No. 5 of 1995 cannot be made applicable to the buildings which were let out before its commencement even though the rent of the same was more than Rs. 2,000 per month. Another contention has been that the provisions of U. P. Act No. 5 of 1995 are violative of Article 14 of the Constitution of India.
7. The second contention cannot be accepted because in a revision under Section 25 of the Provincial Small Causes Courts Act, vires of Amending Act No. 5 of 1995 cannot be challenged and decided.
8. Coming to the first contention, it has been held by this Court in several cases including Punjab National Bank. Ghaziabad v. Dr. Rajendra Nath Azad, 1996 (1) ARC 348 ; Smt. Shashi Singh v. Brigadier Sukh Swarup Kapoor, 1996(1) ARC 97 ; Food Corporation of India and another a. M/S. Durga Shakti Enterprises, 1996 (1) ARC 153 and Jonson and Nicholson (India) Ltd., Ghaziabad v. 1st Additional District Judge, Ghaziabad and others, 1996 (2) ARC 38, that the provisions of Amending Act No. 5 of 1995 have retrospective effect. The learned counsel for the revisionist, however, contended that reconsideration to these cases has to be made. However, this contention cannot be accepted in view of the consistent decisions of this Court on this point which has not been upset by any Division Bench decision of this Court or by the Apex Court. It has to be held that the Amending Act No. 5 of 1995 has retrospective operation.
9. The learned counsel for the revisionist further contended that this point, namely, whether Amending Act No. 5 of 1995 has retrospective effect or not has been referred in Writ Petition No. 33653 of 1996 on 29.8.1997 by another single Judge of this Court to a larger Bench for decision. Hence, also the matter requires reconsideration. Copy of the said order referring the matter to larger Bench was not placed before this Court, hence, this contention also cannot be accepted.
10. It may be further mentioned that Amending Act No. 5 of 1995 came into force with effect from 26.9.1994 whereas the suit of the respondents in this case was filed on 15.5.1996, i.e., on the date when Amending Act was already in force, hence, the question of considering retrospective effect of the Amending Act loses its practical utility.
11. The learned counsel for the revisionist has further contended that the addition of Section 2 (g) in the Act by the Amending Act will apply only to those cases where tenancy was settled after enforcement of the Amending Act. This contention also cannot be accepted inasmuch as if it is accepted it would amount to reenacting Section 2 (g) and not interpreting it.
12. Section 2 (g) of the Act reads as under :
"Any building, whose monthly rent exceeds two thousand rupees."
13. The intention of Legislature by introducing this provision has never been that it shall apply only to those tenancies which are created after 26.9.1994. If Section 2 (g) has been held to have retrospective operation, again this contention cannot be accepted. Consequently, on this ground the decree passed by the trial court cannot be set aside.
14. The next contention has been that notice under Section 106 of the Transfer of Property Act is invalid because it does not give clear 30 days' time to the tenant to vacate the accommodation. Annexure 3 is the copy of the notice. Para 5 of this notice has, no doubt, a little confusion but the settled view is that notice is to be interpreted liberally and not with a view to find out unnecessary faults in it. There can be no dispute that the landlord is required to terminate the tenancy by giving clear thirty days' notice. The first part of the notice runs as under:
"Your tenancy is terminated on the expiry of 30 days from the receipt of this notice by you."
15. The second part of the notice which has created a slight confusion reads as under :
"and you are requested to kindly vacate the said premises and to deliver physical and vacant possession thereof to my clients within 30 days from the receipt of this notice by you."
16. Relying upon the words, "within 30 days from the date of receipt of notice", the learned counsel for the revisionist contended that clear thirty days' time was not given to the tenant for vacating the accommodation. However, if this contention is accepted, it would amount to finding unnecessary fault with the notice in question. Intention of the landlord has to be gathered from the plaint allegation as well. In para 4 of the plaint, Annexure 1, it was mentioned that tenancy was terminated after the expiry of 30 days from the receipt of the notice. This is mentioned in part I of para 5 of the notice. In para 5 of the plaint, it is mentioned that notice was received on 11.4.1996. In para 6 of the plaint, it is mentioned that tenancy of the defendant stood terminated on the expiry of 30 days from the receipt of the said notice, i.e., 11.5.96. This also shows that clear 30 days' time was given to the tenant. The requirement of law is that the tenancy should be terminated after expiry of 30 days from the date of receipt of the notice. It is not a case where tenancy was terminated on the date of notice. In the first para of the notice, it is clear that clear 30 days' time was given to the tenant.
17. Further the controversy as to whether inclusion of the words, "within 30 days of service of notice" invalidates the notice was settled by a Full Bench of this Court in Gorakh Lal v. Maha Prasad Narain Singh and others, AIR 1964 All 260. It was held that the words used in the notice asking the tenant to vacate the premises within 30 days from the date of service of notice only fixed outer limit by which the tenant must vacate. The limit fixed was the last moment of 30th day of the notice and the notice so construed was strictly according to the letter and spirit of the law and was valid. In view of this Full Bench pronouncement of this Court, I am unable to accept the contention that Division Bench pronouncement in Abdul Jalil v. Haji Abdul Jalil, AIR 1974 All 402, lays down a different law. Several typical examples of the notice were considered in this case. Rather in this case also, the notice was of similar nature. It was held that the notice in that case fell in category 'E'. Category 'E' was of the following nature : "Your tenancy is terminated by this notice. So after the receipt of this notice, you can remain in possession for thirty days upto the midnight and then deliver possession to the notice-giver."
Such notice was held to be valid.
18. In view of the above decisions. I do not find any force in the contention that the notice is invalid.
19. Additional ground was taken in supplementary affidavit that since the property is situate in Meerut Cantonment, it was governed by the provisions of Cantonment's (Extension of Rent Control Laws) Act, 1957, the provisions of U. P. Act III of 1947 were not applicable. This is not a writ petition. It is a revision and new facts can be permitted to be raised only when the written statement is amended, issue is framed and parties are given opportunity of hearing. However, from the plaint as well as the notice given by the plaintiffs-respondents, it appears that the property is situate in Meerut Cantt, Delhi Road. The short question is whether U. P. Act No. 13 of 1972 is applicable to such building or not.
20. The Central Government by S.R.O. 259, dated 1.9.1973 published in the Gazette of India Part II, dated 29.9.1973 made application of U. P. Act 13 of 1972 to all the cantonments in Uttar Pradesh with immediate effect, i.e., with effect from 1.9.1973, The said S.R.O. 259, reads as under:
"In exercise of the powers conferred by Section 3 of the Cantonment's (Extension of Rent Control Laws) Act, 1957 (4 of 1957) and in supersession of the notification of the Government of India in the Ministry of Defence, No. S.R.O. 8, dated the 3rd April, 1972, the Central Government hereby extends to all the Cantonments in the State of Uttar Pradesh, the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. 1972 (U. P. Act No. 13 of 1972), as in force on the date of this notification in the State of Uttar Pradesh with the following modifications, namely :
Consequently, it is clear that Act No. 13 of 1972 became applicable to all the cantonment areas with effect from 1.9.1973 in view of this S.R.O. of the Central Government. Since the disputed building is situated in cantonment area, the court below had jurisdiction to try the same. However, because of the rent exceeding Rs. 2,000 per month, U. P. Act No. 13 of 1972 is not applicable to the disputed building and the eviction under general law could be granted.
22. Not only under Section 1 but under several other sections U. P. Act No. 13 of 1972 was made applicable to the cantonment areas details of which are given in the said S.R.O. No. 259.
23. It was next contended that mesne profits have been enhanced without any evidence. On this point, the learned counsel for the respondents frankly conceded that enhancement of mesne profits is without any evidence and it may be reduced to rental rate. In view of this concession, the revision succeeds in part only.
24. The revision is partly allowed. The judgment and decree for eviction and arrears of rent passed by the court below are confirmed. The decree in respect of mesne profits is reduced from Rs. 300 per day to the rental rate of Rs. 2,500 per month. The revisionist in the circumstances of the case is granted three months' time to vacate the premises and handover vacant possession to the respondents on the condition that they shall pay or deposit in the court below the arrears of rent and mesne profits at the reduced rate within a month from today and shall further pay mesne profits at the reduced rate on 3rd day of each English calendar month.