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Case Number

Civil Revision No. 364 of 1997

Advocates

V.K.Upadhyay
V.D.Ojha
Shyam Kumar
Ravi Kant
Rakesh Pande
Pranav Ojha
P.K.Pathak
Ajit Kumar

Judges

Umeshwar Pandey, J.

Acts

section 29-A of U.P Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter
SECTION 106 TRANSFER OF PROPERTY ACT
sub-section (5) of section 29-A.
sub-section (4) of section 29-A
provisions of sub-section (7)
Amending Act No. 28 of 1976
U.P Act No. 28 of 1976

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Smart Summary

Judgment Summary — Umeshwar Pandey, J.

Factual and Procedural Background

This revision challenges the order dated 17.11.1997 of the Court below rejecting an application moved by the petitioner (the revisionist) under section 29-A of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (the Act).

Relevant facts as stated in the opinion:

On 1.11.1956 the opposite party-landlord leased a piece of land to the revisionist (M/s. Bharat Petroleum Corporation Ltd.) for twenty years, which lasted till 30.10.1976.
The lease was renewed for a further period of twenty years; the renewed term had expiry dated as 30.10.1996. The renewal document is dated 18.9.1976 (a date subsequent to 5.7.1976, when the amended section 29-A came into force).
The landlord instituted Suit No. 162 of 1996 in the Court of Civil Judge (Senior Division), Mirzapur on 28.10.1996 seeking eviction of the revisionist; the lease was not renewed after expiry.
The revisionist contested the eviction suit, arguing that it had raised permanent constructions on the land and that eviction simplicitor after a notice under section 106 of the Transfer of Property Act was not possible, rendering the suit not maintainable.
While the suit was pending, the revisionist moved an application under section 29-A of the Act seeking the protection available under that provision (asserting that the parties had mutually agreed rent under sub‑section (4) at the time of renewal after the amended provision came into effect).
The Trial Court heard both parties and refused the application under section 29-A on 17.11.1997, concluding that the benefit under section 29-A was not available to the petitioner; the present revision challenges that refusal.

Legal Issues Presented

Whether the protection under section 29-A of the Act is available to the defendant (revisionist) on the basis of a rent agreement executed at the time of renewal of lease that occurred after the amended section 29-A came into force (i.e., whether the renewal of lease dated 18.9.1976 qualifies as a "mutually agreed" rent under sub‑section (4) of section 29-A).
If the renewed agreement is treated as such, whether the expiry of that renewed lease (on 30.10.1996) before the application under section 29-A was moved affects entitlement to protection under section 29-A — specifically whether, in absence of a subsisting mutually agreed rent, the tenant must invoke sub‑section (5) (application to the District Magistrate for determination of rent) to obtain protection.
Whether the fact that the eviction suit was filed two days before the expiry of the renewed lease affects the applicability of the obligations under sub‑section (5) of section 29-A or entitlement to protection under section 29-A.

Arguments of the Parties

Revisionist's Arguments

The revisionist (defendant) contended that it was entitled to protection under the amended section 29-A because at the time of renewal of the lease (renewal dated 18.9.1976) the parties had mutually agreed a rent as contemplated by sub‑section (4) of section 29-A.
It was submitted that since the renewal took place after the amended provision came into effect on 5.7.1976, the rent agreed at renewal should be treated as the mutually agreed rent under sub‑section (4) for all practical purposes.
The revisionist relied on the Full Bench decision in Trilok Chand (Full Bench of this Court) and the Supreme Court authority in Vinaya Kumar Shukal v. Lakhpat Ram to support this construction.

Opposite Party-Landlord's Arguments

The landlord contended that although an agreement as to rent existed, it was limited in duration and expired on 31.10.1996 (the opinion also records expiry as 30.10.1996); therefore, by the time the section 29-A application was moved the mutually agreed rent no longer subsisted.
The landlord argued that where there is no subsisting mutually agreed rent the tenant cannot claim protection under section 29-A unless the rent has been enhanced in accordance with sub‑section (5) (i.e., by application to the District Magistrate to determine annual rent at ten per cent per annum of prevailing market value); reliance was placed on Sardar Gurcharan Singh v. Ist Additional District Judge, Kanpur.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Trilok Chand v. Rent Control and Eviction Officer, S.D.M., Naku, District Saharanpur (Full Bench)	The Full Bench held that the "agreement" referred to in sub‑section (4) of section 29‑A means an agreement entered into between the parties after the coming into force of section 29‑A.	The Court accepted the import of this Full Bench decision and treated the renewal dated 18.9.1976 (a date subsequent to the 5.7.1976 commencement) as, for practical purposes, an agreement within the meaning of sub‑section (4). The decision was used to interpret the timing requirement for a "mutually agreed" rent.
Vinaya Kumar Shukal v. Lakhpat Ram (Supreme Court)	The Supreme Court approved the Full Bench in Trilok Chand and held that the words "such rent as may be mutually agreed upon between the parties" in sub‑section (4) envisage an agreement entered into after the coming into force of section 29‑A; a prior agreement would not preclude determination under sub‑section (5).	The Court relied on the Supreme Court's reasoning (including textual points about the futurity of "may be" and the supporting effect of sub‑section (7)) to accept that the renewal dated 18.9.1976 could be treated as an agreement under sub‑section (4). The opinion records that this is the import of both the Supreme Court and Full Bench decisions.
Brown v. Bachelor (Pollock C.B.), cited via Stroud's Judicial Dictionary	Cited for the linguistic point that the words "may be" are often used with reference to the future rather than the past or present.	The Court quoted this authority in support of the textual construction that sub‑section (4)'s language contemplates future agreements (i.e., agreements after commencement of the provision).
Sardar Gurcharan Singh v. Ist Additional District Judge, Kanpur	The case holds that a tenant cannot claim benefit under section 29‑A unless (a) the rent is enhanced on the basis of a mutual agreement made after the enforcement of the Amending Act (No. 28 of 1976), or (b) the tenant or landlord applies to the District Magistrate for determination of annual rent under sub‑section (5). It explains that sub‑sections (4) and (5) read together mean that an earlier agreed rent for land cannot be treated as the rent for the purpose of protection under section 29‑A.	The Court relied on paras 14 and 15 of this judgment to conclude that, because the renewed agreement had expired before the revisionist moved its section 29‑A application and the revisionist had not approached the District Magistrate under sub‑section (5), the revisionist could not claim protection under section 29‑A; hence the Trial Court's refusal of the application was justified.

Court's Reasoning and Analysis

The Court's analysis proceeded in several linked steps, closely following the authorities and the statutory text as set out in the opinion:

Textual and authoritative foundation: The Court noted the Supreme Court's approval of the Full Bench in Trilok Chand (as set out in Vinaya Kumar Shukal), which holds that the phrase "such rent as may be mutually agreed upon between the parties" in sub‑section (4) of section 29‑A contemplates an agreement entered into after section 29‑A came into force. The Court also drew on the linguistic observation (Brown v. Bachelor via Stroud's) that "may be" is generally used with reference to the future.
Application to the facts as to timing of renewal: Because the renewed lease was executed on 18.9.1976 (after the amendment came into effect on 5.7.1976), the Court accepted that, in principle and "for all practical purposes," that renewal could be treated as an agreement under sub‑section (4).
Consideration of subsequent expiry: The Court then confronted the landlord's contention that the renewed agreement was limited in duration and expired on 30.10.1996 (the opinion records that the suit was instituted on 28.10.1996, two days before expiry). The Court emphasized that the application under section 29‑A was moved at a time when the renewed lease had, in fact, become extinct (i.e., after expiry).
Reliance on Sardar Gurcharan Singh: The Court relied on Sardar Gurcharan Singh which holds that where there is no subsisting mutually agreed rent after the enforcement of the amending Act, the tenant must apply to the District Magistrate under sub‑section (5) for determination of rent; otherwise the landlord may treat the premises as land and the tenant cannot claim protection. The Court quoted paras 14 and 15 of that judgment and applied their principles to the present facts.
Conclusion on maintainability: From the sequence above the Court concluded that, although the renewal was dated after the commencement of the amended section and could prima facie be treated as a sub‑section (4) agreement, by the time the section 29‑A application was moved the mutually agreed rent had ceased to subsist. Because the revisionist did not invoke sub‑section (5) to have rent determined by the District Magistrate, the benefit of section 29‑A was not legally available to it. The Court therefore found the section 29‑A application to be not maintainable.
On the point that the suit was filed two days before expiry (argument of revisionist that sub‑section (5) obligation was not applicable), the Court rejected the submission: the crucial fact was the state of affairs when the section 29‑A application was moved — at that time the mutual agreement had become extinct.
Standard of interference: The Court observed that even if the Trial Court's order refusing the application was laconic, it would not be inclined to interfere in revision jurisdiction because the application was legally not maintainable; accordingly, the Trial Court's refusal was not disturbed on merits.

Holding and Implications

Holding:

DISMISSED. The revision is dismissed. The Court upheld the Trial Court's refusal of the application under section 29‑A of the Act on the ground that the renewed agreement as to rent had expired before the application was moved and the revisionist had not availed itself of sub‑section (5) to seek determination of rent.

Implications (direct effect on the parties and procedural direction):

The revisionist's application under section 29‑A was held not maintainable and the revision was dismissed; the Trial Court order refusing the section 29‑A application is sustained.
The suit before the Trial Court remains pending; the Court directed that the Trial Court take up the matter and, after hearing, dispose of the suit finally within six months.
The opinion does not purport to lay down a new precedent beyond applying the principles of the cited authorities (Trilok Chand, Vinaya Kumar Shukal, Sardar Gurcharan Singh) to the facts; the decision's practical effect is limited to the parties and the question whether the tenant had an extant mutually agreed rent or had followed sub‑section (5) procedures when seeking protection under section 29‑A.

Revision Dismissed.

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M/S. Bharat Petrolium Corporation Ltd. v. Smt. Ramavati Devi (Dead) And Others

Umeshwar Pandey, J.:— This revision challenges the order dated 17.11.1997 passed by the Court below rejecting petitioner's application moved under section 29-A of U.P Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter called as the ‘Act’).

2. A piece of land, which is in dispute, was leased out by the opposite party-landlord to the revisionist-M/s. Bharat Petroleum Corporation Ltd. on 1.11.1956 for twenty years, which lasted till 30.10.1976 It was renewed for a further period of twenty years with expiry dated as 30.10.1996 The present Suit No. 162 of 1996 was instituted in the Court of Civil Judge (Senior Division), Mirzapur on 28.10.1996 for petitioner-revisionist's eviction and the lease was not further renewed after its expiry. The suit was contested by the revisionist stating that since it had raised constructions of permanent nature over the land, its eviction after a notice under section 106 of Transfer of Property Act simplicitor is not possible and the suit was not maintainable. While the suit was pending disposal, the present application under section 29-A of the Act has been moved stating that such a suit for eviction from the land over which constructions of permanent nature have been raised with consent of the lessor, a regular suit is not possible and the benefit of this provision of the Act should be accorded to it. This application was objected to in the Trial Court by the opposite party plaintiff and after hearing both the parties the Court was of the view that the benefit, as is made permissible under section 29-A of the Act, was not possibly available to the petitioner defendant under law and as such, its prayer was refused by the impugned order.

3. Learned Counsel for the revisionist while placing his submissions has contended that the protection, as is made available in this amended provision of the Act under section 29-A, is very much available to the defendant revisionist because the parties had already arrived at a mutually agreed rent of the leased property under sub-section (4) of section 29-A of the Act at the time of renewal of the lease under the new agreement which was executed between them after this amended provision had come into effect from 5.7.1976 Since this renewal is of a subsequent date (18.9.1976), the rent, as was agreed between the parties at that particular point of time would be treated for all practical purposes as mutually agreed rent between the parties as contemplated under sub-section (4) of section 29-A of the Act. In this context learned Counsel has cited a Full Bench case law of this Court in Trilok Chand v. Rent Control and Eviction Officer, S.D.M Naku, District Saharanpur,1 and also a case law of Apex Court Vinaya Kuamr Shukal v. Lakhpat Ram.2

4. While approving the law laid down in the Full Bench decision of Trilok Chand (supra), the Hon'ble Supreme Court in para 7 of its judgment has propounded as below:—

“We are in agreement with the view @ page SC 2174 propounded by the Full Bench in Trilok Chand's case . 1987 13 ALR 280. (supra). In our opinion, the words “such rent as may be mutually agreed upon between the parties” in sub-section (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. Bachelor,4 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.

5. No doubt in the present case renewal of the lease had taken place on 18.9.1976, which is a subsequent dated (5.7.1976) to the date on which the amended provision of section 29-A of the Act came into its application. It is, thus, clear that when section 29-A of the Act envisages agreement with regard to a mutually agreed rent between the landlord and tenant after coming into force of section 29-A the present agreement for all practical purposes has to be treated as an agreement having taken place between the parities under sub-section (4) of section 29-A of the Act. This is the import of both the cases of Vijaya Kumar Shukal (supra) as well as Trilok Chand (supra). But in reply to this matter of fact and the argument placed by the learned Counsel for the revisionist, a submission has come from the side of the opposite party-landlord that though there was an agreement with regard to the rent between the parties which was preceded by the date of enforcement of amended provision of section 29-A of the Act yet the said agreement for no practical purposes is now to be treated for according the benefit to the tenant revisionist under section 29-A of the Act. That agreement, which was enforced between the parties only for a limited period came to expire on 31.10.1996 after completion of twenty years period for which the lease was renewed under that agreement. Therefore, if a suit was filed and is pending when there is no mutually agreed rent between the parties in respect of disputed premises, the benefit of the aforesaid provision of section 29-A could not be accorded to the tenant. In this context the learned Counsel for the opposite party-landlord placed reliance upon the case of Sardar Gurcharan Singh v. Ist Additional District Judge, Kanpur.5

6. There is no doubt that after two days of institution of the suit the period of lease had expired. The agreement in respect thereto had become inoperative and was having no effect as between the parties for the purposes of sub-section (4) of section 29-A of the Act. if the revisionist-tenant intended to take benefit of section 29-A of the Act it had to comply to the entire obligations placed upon it under the aforesaid provision of the Act. One of the obligations as envisaged is given under sub-section (5) of section 29-A of the Act. In case, there is no mutually agreed rent between the landlord and tenant in respect of the premises in question, either of the parties is supposed to approach the District Magistrate and get the rent determined in accordance with sub-section (5) itself. If this formality has not been gone into, it is quite obvious that the benefit of section 29-A of the Act, as is permissible under law, cannot be granted to such party seeking for the same. Paras 14 and 15 of the judgment of Sardar Gurcharan Singh (supra) are actually relevant in this context and are extracted as below:—

14. “The tenant cannot claim the benefit of section 29-A of the Act unless he enhances the rent on the basis of the mutual agreement between him and the landlord after enforcement of Amending Act No. 28 of 1976 or applies to the District Magistrate for determination of 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 as provided under sub-section (5) of section 29-A of the Act. The landlord let out the land and the rent was fixed for such open piece of land. The rent has to be enhanced under the provisions of sub-section (5) of section 29-A of the Act. Till the rent is enhanced and the tenant agrees to pay such amount in accordance with the said provision, the landlord will be justified in treating the property let out to him as a land. A Full Bench of this Court in Trilok Chand v. Rent Control and Eviction Officer S.D.M, Naku, district Saharanpur,6 has held that an agreement referred to in section 29-A (4) of the Act refers to agreement entered into between the parties after coming into force of section 29-A of the Act and if there is no such agreement, 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) of section 29-A of the Act from the date of expiration of the term for which the land as let out or from the commencement of the section which ever is later.

15. Sub-sections (4) and (5) of section 29-A of the Act read together contemplate that the rent which was agreed between the landlord and tenant in respect of land shall not be treated as the rent for getting protection of section 29-A of the Act. Till such time, there is no agreement to pay the enhanced rent after 5th July, 1976, or any order of the District Magistrate determining the rent as provided in sub-section (5), the landlord can treat the premises let out to the tenant as land. In case the suit is pending on the date of U.P Act No. 28 of 1976 came into fore and the tenant wants protection of section 29-A of the Act, he has to make an application under section 29-A (6) of the Act, but where the suit is filed after the enforcement of the Amending Act and, if the tenant wants the protection of this section, he has to apply to the District Magistrate for determining the annual rent under section 29-A (5) of the Act except in case of mutual agreement. The intention of the legislature seems to clear that the rent which was agreed upon between the landlord and tenant was in respect of the land and the same rent cannot be taken as rent for the purpose of granting protection under section 29-A of the Act to a tenant of land.”

7. Learned Counsel for the revisionist has also contended that the suit was filed two days before expiry of the subsequently renewed period of lease and therefore, the obligation as placed upon the revisionist defendant under sub-section (5) is not applicable in the present matter. I do not agree with the submission of the learned Counsel. It is only after two days of filing of the suit the period of subsequently renewed lease had expired. Therefore, the mutually agreed rent upon which the revisionist places its reliance for the purpose of sub-section (4) of section 29-A had in fact, become extinct much before the present application under section 29-A of the Act was moved before the Trial Court for according its benefit to the tenant revisionist. Therefore, to say that the suit for eviction of the revisionist-tenant in the present form as has been instituted and is pending disposal is not maintainable in the face of sub-section (3) of section 29-A of the Act, is definitely not a correct contention. In any case the benefit of section 29-A at that point of time when this application had been moved before the Trial Court was legally not available and if such application has been rejected by the Court below even by a laconic order, this Court would not be inclined to interfere in the same in its revision jurisdiction. The application moved under section 29-A of the Act was actually not maintainable and if it has been rejected, the order can be said to be just and proper.

8. This revision does not have any strength and as such it is hereby dismissed.

9. The suit is pending disposal before the Court below for the last about ten years and its disposal has to be expedited. It is, therefore, directed that the Trial Court would take up the matter and after hearing it finally dispose of the suit within next six months latest.

Revision Dismissed.

M/S. Bharat Petrolium Corporation Ltd. v. Smt. Ramavati Devi (Dead) And Others

Judgment Summary — Umeshwar Pandey, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Revisionist's Arguments

Opposite Party-Landlord's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

M/S. Bharat Petrolium Corporation Ltd. v. Smt. Ramavati Devi (Dead) And Others

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