Allahabad High Court

Ram Kumar Garg & Anr. vs Additional Distt. Judge Court No. ... on 23 October, 2018

Bench: Attau Rahman Masoodi




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Court No. - 13
 
Case :- RENT CONTROL No. - 62 of 2012
 
Petitioner :- Ram Kumar Garg & Anr.
 
Respondent :- Additional Distt. Judge Court No. 12 Lucknow & Ors.
 
Counsel for Petitioner :- Ram Karan Agrawal,Maneesh Kumar Singh
 
Counsel for Respondent :- Manish Kumar,Ravi Shanker Tewari
 

 
Hon'ble Attau Rahman Masoodi,J.

Heard Sri Ram Karan Agrawal, learned counsel for the petitioners and Sri Ravi Shanker Tewari learned counsel assisted by Sri Shivpal Singh, learned counsel for opposite party no. 3.

Both the parties have argued at length.

Two questions were mainly argued by learned counsel for the petitioners. The first issue relates to the applicability of U.P. Act No. 13 of 1972 to the areas notified under the Cantonment(House Accommodation) Act, 1923 and the competence of proceedings under the State Rent Control Act. The second aspect of the matter relates to the bonafide need of the landlord.

Adverting to the principal submissions which the learned counsel for the petitioners advanced on the first question, it may be relevant to note that insofar as the location of the premises in question is concerned, it is not in dispute that the same is situated within the cantonment area as defined under Section 3 of the Cantonment Act, 1924 superseded by Cantonment Act, 2006.

The parliament by virtue of entry-3 in the union list is conferred with the legislative powers to promulgate laws with respect to a subject which reads under :

"3. Delimitation of cantonment areas, local self-government in such areas, the constitution and powers within such areas of cantonment authorities and the regulation of house accommodation (including the control of rents) in such areas".

The Parliament within the scope of entry as extracted above has promulgated an Act i.e. Cantonment Act, 2006 of which Section 3 reads as under :

" Section-3: The Central Government may, by notification in the Official Gazette, declare any place or places in which any part of the forces is quartered or which, being in the vicinity of any such place or places, is or are required for the service of such forces to be a cantonment for the purposes of this Act and of all other enactments for the time being in force, and may, by a like notification, declare that any cantonment shall cease to be a cantonment.

The Central Government may, by a like notification, define the limits of any cantonment for the aforesaid purposes

When any place is declared a cantonment for the first time, the Central Government may, until a Board is constituted in accordance with the provisions of this Act, by order make any provision which appears necessary to it either for the administration of the cantonment or for the constitution of the Board.]

The Central Government may, by notification in the Official Gazette, direct that in any place declared a cantonment under subsection (1) the provisions of any enactment relating to local self- government other than this Act shall have effect only to such extent or subject to such modifications, or that any authority constituted under any such enactment shall exercise authority only to such extent, as may be specified in the notification".

This Court may note that it is within the area notified under Section 3 extracted above, that laws with respect to the buildings can be made by the parliament. This provision is almost para materia with the corresponding provision of earlier Act, 1924.

The regulation of buildings and control of rent within the cantonment area all over the country being the subject matter of legislation by the Parliament, therefore, laws were accordingly made by the Parliament and are in place. Reference may be made to the Cantonments(House Accommodation) Act, 1923 preceded by an Act of 1902, the Cantonments(Extension of Rent Control Laws) Act, 1957. Uttar Pradesh Urban Buildings(Regulation of Letting, Rent and Eviction) Act, 1972 has been made applicable to the U.P. cantonment areas notified under Cantonment Act, 1924 by virtue of notification S.R.O. 47 dated 17.2.1982 issued under Section 3 of the Cantonment(Extension of Rent Control Laws) Act, 1957.

The submission putforth by learned counsel for the petitioners is on the strength of Section 5 of the Cantonments(House Accommodation) Act, 1923, which reads as under :-

5. Liability of houses to appropriation-Every house situate in a cantonment or part of a cantonment in respect of which a notification under sub-section(1) of Section 3 is for the time being in force shall be liable to appropriation by Government on a lease in the manner and subject to the conditions hereinafter provided.

It is not in dispute as already stated above that the building in question is situated in a cantonment area notified under the Principal Act i.e. the Cantonment Act, 1924/2006 and for the purpose of Section 5 of the Cantonment(House Accommodation) Act, 1923, it is equally true that it is located within the notified area by virtue of notification no. 2565-XII/204F dated 14.10.1903 issued under Section 3(1) of the Cantonment(House Accommodation) Act of 1902 as superseded by the Act of 1923, meaning thereby, that the building in question is liable to appropriation within the scope of Section 5 extracted above. The Court may hasten to observe that mere notification under the above enactments i.e. Act of 1924/2006 or Act of 1923 would not preclude the applicability of State Rent Control laws which the Parliament may make applicable by extension under the Cantonments(Extension of Rent Control Laws) Act, 1957, inasmuch as, the extent of areas to which the two Acts viz. Act of 1924/2006 or Act of 1923 apply are co-extensive. The areas notified under the Act, 1923 would always stand circumscribed within the cantonment areas defined under the Act of 1924 as superseded by the Act of 2006. The Presidency towns is however an exception to which a notification issued under Section 3 of the Act, 1923 for the purposes of appropiration would not apply but it does not suggest that the Presidency towns are outside the cantonment area once notified under the Act of 1924. It is for this reason that the applicability of U.P. Act No. 13 of 1972 by virtue of the notification issued on 17.2.1982 under Section 3 of the Act of 1957 incorporates Section 1(3)(e), which reads as under :

"1. Short title, extent, application and commencement--(1) This Act may be called the Uttar Pradesh Urban Buildings(Regulation of Letting, Rent and Eviction) Act, 1972.

(2) It extends to the whole of Uttar Pradesh

(3) it shall apply to-

(a) ............

(b) ...........

(d) .............

(e) every cantonment in Uttar Pradesh declared to be a cantonment under Section 3 of the Cantonments Act, 1924".

The dispute hinges on the interpretation of Section 3 of the Cantonments(Extension of Rent Control Laws) Act, 1957 and the same being relevant is extracted hereunder :-

"3. Power to extend to cantonments laws relating to control of rents and regulation of house accommodation

The Central Government may, by notification in the Official Gazette, extend to any cantonment with such restrictions and modifications as it thinks fit, any enactment relating to the control of rent and regulation of house accommodation which is in force 2 in the State in which the cantonment is situated: Provided that nothing contained in any enactment so extended shall apply to--

(a) any premises within the cantonment belonging to the Government;

(b) any tenancy or other like relationship created by a grant from the Government in respect of premises within the cantonment taken on lease or requisitioned by the Government; or

(c) any house within the cantonment which is, or may be, appropriated by the Central Government on lease under the Cantonment (House Accommodation) Act, 1923 (6 of 1923 )

(2) The extension of any enactment under sub- section (1) may be made from such earlier or future date as the Central Government may think fit: Provided that no such extension shall be made from a date earlier than--

(a) the commencement of such enactment, or

(b) the establishment of the cantonment, or

(3) Where any enactment in force in any State relating to the control of rent and regulation of house accommodation is extended to a cantonment from a date earlier than the date on which such extension is made (hereafter referred to as the" earlier date"), such enactment, as in force on such earlier date, shall apply to such cantonment, and, where any such enactment has been amended at any time after the earlier date but before the commencement of the Cantonments (Extension of Rent Control Laws) Amendment Act, 1972 (22 of 1972 ), such enactment, as amended, shall apply to the cantonment on and from the date on which the enactment by which such amendment was made came into force

(4) Where, before the extension to a cantonment of any enactment relating to the control of rent and regulation of house accommodation therein (hereafter referred to as the" Rent Control Act")--

(I) any decree or order for the regulation of, or for eviction from, any house accommodation in that cantonment, or

(ii) any order in the proceedings for the execution of such decree or order, or

(iii) any order relating to the control of rent or other incident of such house accommodation, was made by any court, tribunal or other authority in accordance with any law for the control of rent and regulation of house accommodation for the time being in force in the State in which such cantonment is situated, such decree or order shall, on and from the date on which the Rent Control Act is extended to that cantonment, be deemed to have been made under the corresponding provisions of the Rent Control Act, as extended to that cantonment, as if the said Rent Control Act, as so extended were in force in that cantonment, on the date on which such decree or order was made."

In the light of legislative scheme mentioned above, it is clear that the Principal Act, 1924 as superseded by the Cantonment Act, 2006 is broadly to regulate the territory of cantonment areas and its local governance. The Act of 1923 by virtue of Section 5 makes the buildings situated within the notified cantonment area liable to appropiration only upon issuance of notification under Section 3 of the same very Act by the Central government and not beyond. For the purposes of Regulation of Rent etc., the buildings situated in the cantonment areas even if they are liable to be appropriated or not are subject to the Central laws made applicable by extention under Section 3(1) of the Act, 1957.

The submissions putforth that once a building is liable to be appropriated under Section 5 of the Act of 1923, it ceases to be governed under the Regulation of State Rent Control laws made applicable by extention under the Act, 1957, in my humble opinion, is misconceived and liable to be rejected.

It is undisputed that U.P. Act No. 13 of 1972 has been made applicable by virtue of a notification issued on 17.2.1982. Now what is exempted from the purview of the U.P. Act No. 13 of 1972 is by itself incorporated in the proviso appended to Section 3(1) of the Act of 1957 extracted above. Reference may also be made to Section 2(1)(cc) of U.P. Act No. 13 of 1972 which in the similar language exempts the building as under :

"2. Exemption from operation of Act--(1) Nothing in this Act shall apply to the following, namely :-

[(a) ...................

(b) .....................

[(bb) .................

(bbb) .................

(cc) any building within the cantonment which is, or may be appropriated by the Central Government on lease under the Cantonment(House Accommodation) Act, 1923(VI of 1923)"

The scheme of legislation postulated in the statute leaves no manner of doubt that the only building exempted from the purview of U.P. Act No. 13 of 1972 situated in cantonment area is the one which "is" or "may be" appropriated by the Central government. It is quite possible that some part of cantonment areas notified under the Act, 2006/1924 may be left outside the scope of Section 5 of the Act of 1923 but such is not the case at hand. Even if that be a case, the application of U.P. Act No. 13 of 1972 would nevertheless govern the buildings in terms of Section 1(3)(e) being situated in cantonment area. The exemption of buildings has very succinctly been dealt with by this Court in a judgment rendered in the case of Smt. Ruchira Vinayak and others versus IInd ADJ and others decided on 21.10.2003(C.M.W.P. No. 11450 of 1995) and the said judgment in my respectful opinion being in line with the apex court judgment rendered in the case of Brij Sunder Kapoor etc versus 1st Additional District Judge and others reported in 1989 1 SCC 561 would hold the filed. The judgments referred to by learned counsel for the petitioner in the case of K.C. sharma versus Kashi Nath Gupta(Civil Revision No. 72 of 1998 decided on 24.5.2007) and Smt. Sheela Agarwal versus Smt. Malti and others(W.P. No. 114(R/C) of 1996 decided on 27.4.2004) though being rendered at a later point of time but in ignorance of the earlier judgments are thus per incuriam and would not hold the field. To take such a view, this Court is fortified by the apex court judgments rendered in the case of Narmada Bachao Andolan versus State of Madhya Pradesh and another reported in AIR 2011 Supreme Court 1989 and Rattiram and others versus State of M.P. through Inspector of Police reported in AIR 2012 Supreme Court 1485. Both the submissions on the aspect of jurisdiction in the light of statute and case laws cited by learned counsel for the petitioner thus fail and are accordingly repelled.

The further submissions putforth by learned counsel for the petitioners on the aspect of bonafide need also do not merit for more reasons than one. The judgment rendered by the prescribed authority on being challenged before the appellate court below, insofar as the landlord's ground of bonafide need is concerned was found faulty only to the extent of denial of compensation which the tenant was entitled to receive under the statutory clause. The compensation was allowed in favour of the tenant accordingly.

The tenant(petitioner) as per the mandate of statute has been compensated with the award of a sum equal to two years rent and the security amount has also been directed to be refunded, hence the error stands rectified at the appellate stage. The appellate judgment according to the landlord i.e. opposite party no. 3 has been complied with by having deposited the compensatory rent and security before the prescribed authority viz. the Second Additional Judge Small Causes Court, court no. 19, Lucknow.

The other findings of fact recorded on the aspect of bonafide need cannot be gone into in exercise of the powers vested by virtue of Article 227 of the Constitution of India and no perversity writ large on the face of it is made out, hence the Court would decline to enter into such an exercise. No case for interference before this Court is made out.

The petition is accordingly dismissed with no order as to cost.

Order Date :- 23.10.2018

kanhaiya