Full Judgment Text
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PETITIONER:
VINAYA KUMAR SHUKAL
Vs.
RESPONDENT:
LAKHPAT RAM AND ANOTHER
DATE OF JUDGMENT22/08/1990
BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
SAIKIA, K.N. (J)
CITATION:
1990 AIR 2171 1990 SCR (3) 965
1990 SCC (4) 246 JT 1990 (3) 563
1990 SCALE (2)343
ACT:
U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972: Section 29-A, sub-sections (4), (5) and
(7)--’Such rent as may be mutually agreed upon between the
parties’--Interpretation of-- Rent agreement entered into
prior to commencement of s. 29-A-Whether bars determination
of rent after the incorporation of s. 29-A-Expression ’may
be’--Scope of.
HEADNOTE:
In 1957, the appellant let out a plot of land to Re-
spondent No. 1 at an annual rent of Rs. 170. Respondent No.
1 constructed a building on the plot of land in 1968, with
the consent of the appellant. After the insertion in 1976 of
Section 29-A in the U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972, appellant filed an
application before the delegated authority under the Act for
fixation of appropriate rent for the said land under Section
29-A(5) of the Act. The application was dismissed by the
authority on the ground that Section 29-A(5) was applicable
only to those cases in which there was no agreed rent and
since the parties, by mutual agreement, have accepted the
annual rent at Rs. 170 there was no question of refixation
of the rent.
Aggrieved, the appellant filed a Writ Petition in the
High Court, which was dismissed.
The appellant has preferred this appeal, by special
leave, against the said order of the High Court.
Allowing the appeal,
HELD: 1. The words "such rent as may be mutually agreed
upon between the parties" in sub-section (4) of Section 29-A
of the U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 envisage an agreement with regard to
rent entered by the landlord and tenant after the coming
into force of Section 29-A. An agreement prior to the com-
mencement of Section 29-A would not preclude determination
of rent under sub-section (5) of Section 29-A. Generally,
the words ’may be’ are much oftener used with reference to
the future than the
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past or present. In sub-section (4) of Section 29-A the
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words ’may be’ are preceded by the word ’as’ and are allowed
by the words ’mutually agreed upon’ which indicate that the
words are used with reference to the future. The provisions
of sub-section (7) which give overriding effect to the
provisions of section 29-A over an existing contract also
lend support to this construction. The High Court was not
correct in holding the view that there could be no enhance-
ment of the rent under subsection (5) of Section 29-A in
view of the agreement between the appellant and the tenant
that the tenant shall pay rent at the rate of Rs. 170 per
annum. [970A-D]
Trilok Chand v. Rent Control and Eviction Officer &
Anr., [1988] 1 R.C.R. 633; approved.
Brown v. Batchelor, 25 L.J., Ex. 299; referred to.
Stroud’s Judicial Dictionary,, 5th Edn. p. 1575; re|erred
to.
2. The Judgment and order of the High Court dated Febru-
ary 19, 1990 as well as the order dated April 14, 1978
passed by the Delegated Authority are set aside and the
matter is remanded to the Delegated Authority for considera-
tion of the application submitted by the appellant |or
fixation of rent under Section 29-A of the Act in accordance
with law. [970E-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5933
1983.
From the Judgment and Order dated 19.2. 1980 of the
Allahabad High Court in Civil Misc. Petition No. 5860 of
1978.
R.K. Jain, Ms. Abha R. Sharma and R.P. Singh, for the
Appellant.
M .C. Dhingra for the Respondents.
The Judgment of the Court was delivered by
S.C. AGRAWAL. J. This appeal by special leave involves
the question as to the interpretation of the provisions of
Section 29-A of the U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 (hereinafter referred
to as ’the Act’).
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The Act was enacted by the U .P. State legislature to
provide, in the interest of the general public, for the
regulation of letting and rent of, and the eviction of
tenants from certain classes of buildings situated in urban
areas, and for matters connected therewith. The Act, as
originally enacted, was confined in its application to
buildings only. It was amended by U.P. Act XXVIII of 1976
whereby Section 29-A was inserted with a view to give pro-
tection against eviction to certain classes of tenants of
land on which building exists. The relevant provisions of
Section 29-A read as under:
"(2) This Section applies only to land let out, either
before or after the commencement of this Section, where the
tenant, with the landlord’s consent has erected any perma-
nent structure and incurred expenses in execution thereof.
XXX XXX XXX
(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
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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 term for which the land was
let or from the commencement of this Section, whichever is
later.
XXX XXX XXX
(7) The provisions of this section shall have effect, not-
withstanding anything to the contrary contained in any
contract or instrument or in any other law for the time
being in force."
The appellant is the owner of a plot of land measuring
30 x 65 sq. ft. situated at Garhmukteshwar Road (Azad Road)
Meerut. The said plot of land was let out by the appellant
to the respondent No. 1 on March 20, 1957 at an annual rent
of Rs. 170. After the said plot of
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land had been let out to him, respondent No. 1 with the
consent of the appellant constructed a building over the
said plot in 1965. After the enactment of Section 29-A the
appellant submitted an application on September 29, 1976,
before the District Supply Officer/Delegated Authority,
Meerut, for fixation of appropriate rent for the plot of
land under sub-section (5)-of Section 29-A. The said appli-
cation of the appellant was dismissed by the District Supply
Officer Delegated Authority by order dated April 14, 1978 on
the view that the provisions of sub-section (5) of Section
29-A for fixation of rent are applicable to those cases only
in which there is no agreed rent and that in this case both
the parties have accepted that the rent of land is Rs. 170
per year has been fixed on the basis of mutual agreement
and, therefore, the question of re-fixation of rent does not
arise. Feeling aggrieved by the said order of the District
Supply Officer the appellant filed a writ petition in the
High Court of Judicature at Allahabad under Article 226 of
the Constitution of India. The said writ petition was dis-
missed by a Division Bench of the said High Court by order
dated February 19, 1980. The learned Judges have held that
under Section 29-A the District Magistrate has jurisdiction
to determine the rent only in those cases where there is no
agreement relating to rent and if there is an agreement
between the landlord and the tenant then the District Magis-
trate has no jurisdiction to determine the rent. The learned
Judges have further found that in the instant case admitted-
ly an agreement existed between the appellant and the tenant
that the tenant shall pay rent at the rate of Rs. 170 per
annum to the appellant and as such there could be no en-
hancement of the rent under sub-section (5) of Section 29-A.
Feeling aggrieved by the said decision of the High Court the
appellant has filed this appeal after obtaining special
leave to appeal.
Shri R.K. Jain, the learned counsel for the appellant
has urged that sub-section (4) of Section 29-A postulates
determination of rent in accordance with sub-section (5) in
cases where the rent has not been mutually agreed upon
between the parties. The submission of Shri Jain is that the
expression "such rent as may be mutually agreed upon between
the parties" in sub-section (4) of Section 29-A means rent
which has been mutually agreed upon after the enactment of
Section 29-A and any agreement prior to the said enactment
would not preclude determination of rent under Section 29-A
of the Act. In support of this submission Shri Jain has
invited our attention to the decision of the Full Bench of
the Allahabad High Court in Trilok Chand v. Rent Control and
Eviction Officer and Another, [ 1988] 1 R.C.R. 633.
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969
In Trilok Chand v. Rent Control and Eviction Officer
case (supra) a Full Bench of the High Court has considered
the correctness of the decision of the Division Bench in the
present case and has construed the provisions of Section
29-A of the Act. In that case it has been held that sub-
section (4) of Section 29-A precludes determination of rent
only in those cases where the agreement fixing the rent was
entered into subsequent to the coming into force of Section
29-A. It has been observed:
"The reason is this, sub-section (4) applies to the land to
which Section 29-A applies. It provides that the tenant
shall be liable to pay to the landlord such rent as may be
agreed between the parties. In the absence of such agreed
rent, the sub-section further provides that the tenant is
liable to pay the rent determined in accordance with subsec-
tion (5). These terms are clear enough and indicate that the
agreement envisaged thereunder is not the agreement, existed
prior to coming into force of Section 29-A. It refers to
subsequent agreement only. The words "such rent as may be
mutually agreed upon between the parties" refers to future
agreement and not the past agreement. Subsection (4) again
emphasises "such rent". Such rent, in the context means the
rent to be mutually agreed upon by parties. Sub-section (4)
further states that in the absence of agreement, the rent
has to be determined in accordance with sub-section (5)."
(p. 636)
"Yet another reason to support our view could be found from
sub-section (7). It provides that notwithstanding anything
to the contrary contained in any contract or instrument or
in any other law for the time being in force, the provisions
of Section 29-A shall have effect. It means clearly that the
agreement if any existing on the date of coming into force
of Section 29-A is no bar for enforcing the rights under
sub-section (5). Sub-sections (4) and (5) shall prevail and
not the antecedent agreement, if any." (p. 636)
The learned Judges of the Full Bench have overruled the
decision of the Division Bench in the present case.
We are in agreement with the view propounded by the Full
970
Bench in Trilok Chand’s case (supra). In our opinion, the
words "such rent as may be mutually agreed upon between the
parties" in subsection (4) of Section 29-A envisage an
agreement with regard to rent entered by the landlord and
tenant after the coming into force of Section 29-A. An
agreement prior to the commencement of Section 29-A would
not preclude determination of rent under sub-section (5) of
Section 29-A. In this context it may be mentioned that the
words "may be" used in sub-section (4) of Section 29-A are
much oftener used with reference to the future than the past
or the present (Pollock C.B. in Brown v. Batchelor, 25 L .J.
Ex. 299, Stroud’s Judicial Dictionary, 5th Edn. P. 1575). In
sub-section (4) of Section 29-A the words "may be" are
preceded by the word "as" and are followed by the words
"mutually agreed upon" which indicate that the words are
used with reference to the future. The provisions of sub-
section (7) which give overriding effect to the provisions
of Section 29-A over an existing contract also lend support
to this construction. We are, therefore, unable to uphold
the view of the learned Judges of the Division Bench of the
High Court in this case that there could be no enhancement
of the rent under sub-section (5) of Section 29-A in view of
the agreement between the appellant and the tenant that the
tenant shall pay rent at the rate of Rs. 170 per annum.
The appeal is, therefore, allowed. The judgment and
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order of the High Court dated February 19, 1980 as well as
the order dated April 14, 1978, passed by the District
Supply Officer/Delegated Authority, Meerut, are set aside
and the matter is remanded to the District Supply
Officer/Delegated Authority, Meerut for consideration of the
application submitted by the appellant for fixation of rent
under Section 29-A of the Act in accordance with law. No
order as to costs.
G.N. Appeal allowed.
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