Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • N.D Ojha
  • R.K Shukla, JJ.
Acts
  • section 39 of the aforesaid Act, namely, U.P Urban Buildings (Regulation of Letting, Rent and Eviction Act, 1972 (U.P Act XIII of 1972)
  • U.P (Temporary) Control of Rent and Eviction Act, 1947 (U.P Act III of 1947)
  • sub-section 10 of section 4 of the U.P General Clauses Act,
  • Provisions of sections 39 and 40 of U.P Act XIII of 1972
  • SECTION 25 PROVINCIAL SMALL CAUSE COURTS ACT
  • sub-section (4) of Section 1 of U.P Act XIII of 1972
  • Act used in sections 39/40 of U.P Act XIII of 1972
  • Act used in section 39/40 of U.P Act 13 of 1972
  • U.P Act XIII of 1972 according to section 1(4)
  • Section 4(10) of the U.P General Clauses Act
  • sections 39 and 40 of U.P Act XIII of 1972
  • section 4 of the U.P General Clauses Act
  • Act used in Section 39/40
  • U.P Act XIII of 1972
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • N.D Ojha
  • R.K Shukla, JJ.
Acts
  • section 39 of the aforesaid Act, namely, U.P Urban Buildings (Regulation of Letting, Rent and Eviction Act, 1972 (U.P Act XIII of 1972)
  • U.P (Temporary) Control of Rent and Eviction Act, 1947 (U.P Act III of 1947)
  • sub-section 10 of section 4 of the U.P General Clauses Act,
  • Provisions of sections 39 and 40 of U.P Act XIII of 1972
  • SECTION 25 PROVINCIAL SMALL CAUSE COURTS ACT
  • sub-section (4) of Section 1 of U.P Act XIII of 1972
  • Act used in sections 39/40 of U.P Act XIII of 1972
  • Act used in section 39/40 of U.P Act 13 of 1972
  • U.P Act XIII of 1972 according to section 1(4)
  • Section 4(10) of the U.P General Clauses Act
  • sections 39 and 40 of U.P Act XIII of 1972
  • section 4 of the U.P General Clauses Act
  • Act used in Section 39/40
  • U.P Act XIII of 1972
See more information ...
Smart Summary

Judicial Opinion Summary — N.D. Ojha, J.

Factual and Procedural Background

This reference arose in two cases before N.D. Ojha, J., in which the court was asked to decide the meaning of the phrase "the date of the commencement of this Act" as used in Sections 39 and 40 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act XIII of 1972). The specific question referred to the court was whether those words meant the notified commencement date of the Act (15th July, 1972) or whether they should be equated with the date on which a particular building became subject to the provisions of the Act under section 2(2).

The matter involved consideration of an earlier Division Bench decision in R.D. Ram Nath & Co. v. Girdhari Lal, which had interpreted "commencement of this Act" to mean the date on which the Act's provisions became applicable to the building in question. A Single Judge had referred the question for a larger bench because a Supreme Court decision in Om Parkash Gupta v. Dig Vijendrapal Gupta appeared to take a contrary view. After hearing counsel, the court examined a later Supreme Court decision, Vineet Kumar v. Mangal Sain Wadhera, and concluded that the referred question was already effectively decided by that later authority. The court answered the reference and gave directions for re-listing several connected civil revisions for hearing in light of the answer provided.

Legal Issues Presented

  1. Whether the words "the date of the commencement of this Act" used in Sections 39 and 40 of U.P. Act XIII of 1972 mean 15th July, 1972 (the date appointed by notification under Section 1(4)) or whether they should be equated with the date on which a particular building becomes subject to the provisions of the Act within the meaning of Section 2(2).

Arguments of the Parties

Respondent's Arguments

  • Counsel for the respondent argued that subsection (4) of Section 1 of U.P. Act XIII of 1972 provides that the Act comes into force on the date fixed by notification, and that a notification fixed 15th July, 1972 as the commencement date.
  • Relying on the definition of "commencement" in Section 4(10) of the U.P. General Clauses Act (which contemplates that 'commencement' means the date on which the Act comes into force), counsel submitted that the phrase "the date of the commencement of this Act" in Sections 39/40 therefore refers only to 15th July, 1972 and to no other date.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
R.D. Ram Nath & Co. v. Girdhari Lal Held that the words "commencement of this Act" in Section 39 must mean the date on which the provisions of the Act became applicable to the building in respect of which the suit for ejectment was pending. The court referred to and accepted the reasoning in substance as relevant background to the referred question; it treated that interpretation as one authoritative view previously adopted by a Division Bench of the court.
Om Parkash Gupta v. Dig Vijendrapal Gupta (1982 1 SCC 626) Referenced as a Supreme Court decision that appeared to take a contrary view to the Division Bench in R.D. Ram Nath. The Single Judge had considered this decision as potentially contrary and thus warranted a larger bench; the present court noted that Vineet Kumar subsequently addressed the issue and that this later authority controls.
Vineet Kumar v. Mangal Sain Wadhera The Supreme Court held that the appellant was entitled to the benefit of Sections 39 and 40; in substance the decision supports equating "commencement" with the date the Act became applicable to the building. The court held that the referred question must be answered in conformity with Vineet Kumar, treating that later Supreme Court decision as dispositive of the issue; it used Vineet Kumar to justify interpreting "commencement" as the date the Act became applicable to the particular building.
Somawanti v. State of Punjab Established that the binding effect of a decision does not depend on whether a particular argument was considered in that decision, provided the point was actually decided. The court relied on Somawanti to reject the submission that an argument not specifically considered in Vineet Kumar could undermine its binding effect; the court held that the point decided in Vineet Kumar governs even if the specific counter-argument was not raised there.

Court's Reasoning and Analysis

The court's analysis proceeded in the following steps, based strictly on the content of the opinion:

  1. Identification of the referred question: whether "the date of the commencement of this Act" in Sections 39/40 means the notified commencement date (15th July, 1972) or the date on which the Act's provisions became applicable to a particular building under section 2(2).
  2. Consideration of existing authorities: The court recalled a Division Bench decision (R.D. Ram Nath) that adopted the latter construction (i.e., date when the Act became applicable to the building). The Single Judge had referred the question for a larger bench because the Supreme Court in Om Parkash Gupta appeared to have taken a contrary view.
  3. Reliance on a later Supreme Court decision (Vineet Kumar): After hearing counsel, the court concluded that Vineet Kumar v. Mangal Sain Wadhera (a later decision of the Supreme Court) resolves the issue in favour of treating "commencement" as the date the Act became applicable to the particular building. In Vineet Kumar the Supreme Court held the appellant entitled to the benefit of Sections 39 and 40 even though the suit was not pending on 15th July, 1972; the court regarded that outcome as substantively establishing the interpretation sought.
  4. Addressing the formal definition of "commencement": The court acknowledged that subsection (4) of Section 1 of U.P. Act XIII of 1972 and Section 4(10) of the U.P. General Clauses Act would, in a normal textual interpretation, make "commencement" mean 15th July, 1972 (the date fixed by notification). The respondent pressed this literal construction.
  5. Application of contextual exception: The court invoked the opening words of Section 4 of the General Clauses Act—"unless there is anything repugnant in the subject or context"—to justify departing from the general definition where necessary. The court examined Sections 39 and 40 and observed that these provisions are beneficial in nature (intended to save tenants from ejectment) and contain express exceptions (for example, when the old Act applied to the building). The court reasoned that if the Legislature intended a discriminatory treatment against tenants whose suits were instituted after 15th July, 1972 but who became subject to the Act later, it would have made an express provision to that effect, just as it made explicit exceptions elsewhere. The subject and context thus require a construction that equates "commencement" to the date on which the Act became applicable to the particular building.
  6. Precedential and purposive support: The court relied on Somawanti to hold that the binding character of Vineet Kumar is not undermined by the absence of a specific counter-argument in that decision; the essential point was decided and therefore governs the present reference.
  7. Conclusion of analysis: On the combined basis of Vineet Kumar, the beneficial purpose of Sections 39/40, the contextual caveat in the General Clauses Act, and the absence of a clear legislative expression to the contrary, the court concluded that the phrase "the date of the commencement of this Act" in Sections 39/40 must be read as the date the Act became applicable to the building concerned (which will be 15th July, 1972 if the Act was already applicable on that date, or otherwise the later date on which the building became subject under Section 2(2)).

Holding and Implications

HOLDING: The court answered the referred question by holding that the words "the date of commencement of this Act" used in Sections 39 and 40 of U.P. Act XIII of 1972 mean the date on which the provisions of the Act became applicable to the building in respect of which the suit for ejectment was pending. In other words, if the Act's provisions were already applicable to the building on 15th July, 1972, that date will be treated as the "date of commencement"; for other buildings the "date of commencement" will be the date on which the building became subject to the Act within the meaning of Section 2(2).

Implications:

  • The direct effect of the decision is that tenants may be entitled to the protection of Sections 39 and 40 if, though their suit for ejectment was not pending on 15th July, 1972, the Act became applicable to the building they occupy at a later date (i.e., the "commencement" for that building is the date it became subject to the Act).
  • The court framed its answer to conform with the later Supreme Court decision in Vineet Kumar; the opinion does not purport to create a novel or conflicting precedent but applies and follows that higher authority.

Administrative / Procedural Directions in the Opinion

The court noted procedural matters: a common order/reference was made in the two cases and also in Civil Revision Nos. 250 and 252 of 1982. Because certain revisions were not listed (in part due to the death of an advocate who had appeared in those matters), the court directed that the two cases in which the reference has been answered (Civil Revision No. 367 of 1982 and Writ Petition No. 9499 of 1983) be listed before the judge who made the reference for hearing along with the court's answer. The court further directed that Civil Revisions Nos. 250 of 1982 and 252 of 1982 be simultaneously listed for suitable orders.

Show full summary ...

    Sadhu Ram Agarwal v. Smt. Shanti Sharma

    N.D Ojha, J.:— In these two cases the following question has been referred to us for answer:—

    “Whether the words ‘the date of the commencement of this Act’ used in section 39/40 of U.P Act 13 of 1972 meant July 15, 1972 or can they be equated with the date on which a particular building becomes subject to the provisions of the Act within the meaning of section 2(2) thereof?”

    2. A similar question with reference to section 39 of the aforesaid Act, namely, U.P Urban Buildings (Regulation of Letting, Rent and Eviction Act, 1972 (U.P Act XIII of 1972) came up for consideration before a Division Bench of this court in R.D Ram Nath & Co. v. Girdhari Lal 1. It was held in that case that the words “commencement of this Act” in section 39 must therefore mean the date on which the provisions of the Act became applicable to the building in respect of which the suit for ejectment was pending.

    3. It was also pointed out in the said decision that by virtue of section 40 of the Act aforesaid the provisions of section 39 in regard to a suit would apply mutatis mutandis to pending appeals or revisions. In other words the meaning which was to be given to the words “commencement of this Act” in section 39 was to be given to the same Words used in section 40 also. The learned Single Judge who made the reference was of the view that on account to the subsequent decision of the Supreme Court in Om Parkash Gupta v. Dig Vijendrapal Gupta . 1982 1 SCC 626 which appeared to take a contrary view, the question deserved to be decided by a larger Bench.

    4. Having heard counsel for the parties we are of opinion that in view of a later decision of the Supreme Court in Vineet Kumar v. Mangal Sain Wadhera. 3 the question referred to us stands already decided and the answer to the question referred to us has to be in conformity with the decision of the Supreme Court in the case of Vineet Kumar (Supra). In that case, according to the finding of the Additional District Judge the building in question was to be deemed to have been completed on the date of assessment of the house which date was 1st of October, 1971 as stated in paragraph 12 of the report. The suit was filed on the allegation that the building was constructed in 1971 and the defendant was inducted as a tenant thereof on 7th February, 1972. It was further stated in the plaint that the tenant had defaulted in the payment of rent despite notice dated 24th March, 1977 as a result of which his tenancy was terminated and suit for his ejectment was filed. Apparently, therefore, the suit for ejectment was instituted in that case on some date after 24th March, 1977 which was the date of service of notice and was thus not pending on 15th July, 1972 which is the date of commencement of U.P Act XIII of 1972 according to the notification issued under section 1(4) of the said Act. During the pendency of either the suit or the revision under Section 25 of the Provincial Small Cause Courts Act ten years from the date on which the building was deemed to have been completed expired and the question arose as to whether the tenant was entitled to the benefit of Sections 39 and 40 of the Act. It was held by the Supreme Court even after noticing its earlier decision in the case of Omprakash Gupta (supra) in paragraph 17 of the report that the appellant was entitled to the benefit of those sections. Even though it has not been specifically stated in the said decision that the words “the date of commencement of this Act” used in Section 39/40 were not confined to July 15, 1972 but were to be equated to the date on which the particular building becomes subject to the provisions of the Act within the meaning of section 2(2) thereof, the decision in substance is to that effect. It is precisely this question, as already seen above, which is referred to us.

    5. In this connection, however, it was pointed out by counsel for the respondent that sub-section (4) of Section 1 of U.P Act XIII of 1972 provides that the Act shall come into force on such date as the State Government may by notification in the Gazette appoint and that by a notification issued under the said provision 15th July, 1972 was fixed as the date on which the Act was to come into force. On its basis and on the basis of the definition of the term ‘commencement’ contained in Section 4(10) of the U.P General Clauses Act which contemplates that ‘commencement’ used with reference to an Act shall mean the date on which the Act comes into force, it was urged by counsel for the respondent that the words “the date of the commencement of this Act” used in section 39/40 of the Act would refer only to 15th July, 1972 and to no other date. We find no substance in this submission either. It is true as has been urged by counsel for the respondent that this submission does not appear to have been made before the Supreme Court in the case of Vineet Kumar (supra). That, however, in our opinion makes no difference. Firstly, it has been held by the Supreme Court in Somawanti v. State of Punjab 4 that the binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided. Secondly, section 4 of the U.P General Clauses Act which contains the general definitions starts with the words “In all Uttar Pradesh Acts, unless there is anything repugnant in the subject or context.”

    (emphasis supplied).

    6. In the normal course, therefore, on an interpretation of sub-section (4) of Section 1 of U.P Act XIII of 1972 together with the notification issued under the said sub-section and the definition of the term ‘commencement’ in sub-section 10 of section 4 of the U.P General Clauses Act, the words “the date of the commencement of this Act” used in sections 39/40 of U.P Act XIII of 1972 would have been 15th July, 1972 alone. But in our opinion the case falls within the purview of the term “unless there is anything repugnant in the subject or context” used in the opening part of section 4 of the U.P General Clauses Act which contains the general definitions. In this connection it may be pointed out that sections 39 and 40 inter alia contemplate that the building in respect of which the suit for ejectment was pending on the relevant date should be one to which the old Act, namely, U.P (Temporary) Control of Rent and Eviction Act, 1947 (U.P Act III of 1947) did not apply.

    7. As a consequence of the aforesaid provision, the benefit of sections 39 and 40 of U.P Act XIII of 1972 could not be availed of by a tenant in a suit for ejectment if the building occupied by him was such to which the old Act applied. Thus, where an exception was sought to be made it was specifically provided. If the intention of the Legislature was to make a similar exception in regard to such a tenant against whom no suit for ejectment was pending on 15th July, 1972 which would be the date of commencement of U.P Act XIII of 1972 according to section 1(4) thereof but was filed thereafter and the suit was in respect of a building to which U.P Act XIII of 1972 did not apply on the date of the institution of the suit in view of section 2(2) thereof but became applicable to it during the pendency of it suitor during the pendency of the appeal or revision against the decree passed in the suit, it would certainly have made a specific provision in this behalf as it made in regard to a building to which the old Act applied. However, this was apparently not done. Provisions of sections 39 and 40 of U.P Act XIII of 1972 are in the nature of a beneficient piece of legislation and were intended to save a tenant from ejectment if he complied with the requirements of these sections. If the words on “the date of commencement of this Act” used in sections 39 and 40 are interpreted to mean 15th July, 1972 the protection granted by these sections would not be available to the tenants of the category ref erred to above. There seems to be no good ground to take the view that the Legislature intended to create such a discrimination. The “subject or context” of Sections 39 and 40 therefore, require that the definition of the word “commencement” contained in Section 4(10) of the U.P General Clauses Act should not be applied for interpreting that word with reference to sections 39 and 40 aforesaid.

    8. In view of the foregoing discussion our answer to the question referred to us therefore is that the words “the date of commencement of this Act” used in Sections 39/40 of U.P Act XIII of 1972 mean the date on which the provisions of the said Act became applicable to the building in respect of which the suit for ejectment was pending. In other words, if the provisions of the Act had already become applicable to the building on 15th July, 1972 it will be that date which will be treated to be “the date of commencement of this Act”. In respect of other buildings to which the provisions of the Act became applicable after 15th July, 1972 “the date of commencement of this Act” would be the date on which that building becomes subject to the provisions of the Act within the meaning of section 2(2) thereof.

    9. Before parting with these cases we may point out that a common order or reference was made in these two cases and in Civil Revision No. 250 of 1982 and Civil Revision No. 250 of 1982. These two Civil Revisions were not listed before us. It appears that Sri H.S Joshi was appearing for the applicant in Civil Revision No. 253 of 1982 and for the respondent in Civil Revision No. 252 of 1982 and because of his death these revisions could not be listed till a notice was served on the parties represented by Sri H.S Joshi to engage another counsel, if they so desired. Consequently we direct that these two cases, namely, Civil Revision No. 367 of 1982 and Writ Petition No. 9499 of 1983 in which the reference has been answered, may be listed before Hon'ble Ms. Justice V.K Mehrotra who had made the reference, for hearing along with our answer to the question referred to us. We further direct that Civil Revisions. 250 of 1982 and 252 of 1982 may also be simulataneously listed before him for suitable orders.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Sadhu Ram Agarwal v. Smt. Shanti Sharma
    (Nov 19, 1985)