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L.I.C.OF INIDA & ANOTHER versus P.A./CITY MAGISTRATE, & ANOTHER

High Court of Judicature at Allahabad

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L.I.C.Of Inida & Another v. P.A./City Magistrate, & Another - WRIT - A No. 74 of 2003 [2007] RD-AH 5599 (29 March 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

"Reserved"

Civil Misc. Writ Petition No. 74 of 2003.

Life Insurance Corporation of India and another

Versus

Prescribed Authority/City Magistrate, Firozabad and another.

.....................

Hon'ble Anjani Kumar, J.

By means of present writ petition under Article 226 of the Constitution of India, the petitioners-Life Insurance Corporation, who are tenant challenge the order dated 28th September, 2002, passed by the prescribed authority under the provisions of U.P. Act No. XIII of 1972.

The brief facts of the present case are that respondent-landlord Jitendra Kumar Poddar let out the premises in question to petitioners-LIC on an agreed rent of Rs.2,400/- per month in the year 1978.  The respondent-landlord filed an application under Section 21 (8) of the U.P. Act No. XIII of 1972 (in short 'the Act') for the enhancement of the rent in accordance with the procedure prescribed under the aforesaid section of 'the Act'.  Section 21 (8) of 'the Act' is reproduced below :

"21.  Proceedings for release of building under occupation of tenant.

(8) Nothing in clause (a) of sub-section (1) shall apply to a building let-out  to the State Government or to a local authority or to a public sector corporation or to a recognised educational institution unless the Prescribed Authority is satisfied that the landlord is a person to whom clause (ii) or clause (iv) of the Explanation to sub-section (1) is applicable :

Provided that in the case of such a building the District Magistrate may, on the application of the landlord, enhance the monthly rent payable therefor to a sum equivalent to one-twelfth of ten per cent of the market value of the building under tenancy, and the rent so enhanced shall be payable from the commencement of the month of tenancy following the date of the application :

Provided further that a similar application for further enhancement may be made after the expiration

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of a period of five years from the date of the last order of enhancement.

The prescribed authority vide its order dated 19th April, 1993 enhanced the rent as Rs.7,296.40 per month, though the enhancement was not as prayed for by the respondent-landlord.  Aggrieved by the order dated 19th April, 1993 passed by the prescribed authority, the tenant-LIC filed appeal under Section 22 of 'the Act' being misc. rent appeal no. 18 of 1993 and the landlord also filed appeal being misc. rent appeal no. 23 of 1993 before the appellate authority.  The appellate authority vide order dated 21st October, 1994 dismissed both the appeals filed by the tenant and the landlord and directed that the rent enhanced by the prescribed authority is to be paid with effect from 1st August, 1988 instead of date of filing the application under Section 21 (8) of 'the Act'.  Aggrieved by the order dated 21st October, 1994, the landlord preferred writ petition being civil misc. writ petition no. 36529 of 1994 before this Curt.  This Court vide its order dated 3rd April, 1997 allowed the writ petition set aside the order dated 21st October, 1994 passed by the appellate authority and remanded the matter to the appellate authority with the direction to decide the same afresh in the light of the observations made in the judgment of this Court dated 3rd April, 1997. The tenant has not challenged the order dated 21st October, 1994 before any Court.  The appellate authority after remand heard both the parties and after going through the materials on record vide its order dated 12th August, 1998 decided the matter and enhanced the rent to Rs.13,787/- per month with effect from 1st August, 1988 to be paid by the tenant to the landlord and in case of default in paying the arrears within two months, the landlord shall be entitled to get interest on the amount at the rate of 9 per cent per annum till the date of realisation of the arrears of rent.  It is the order dated 12th August, 1998, which is challenged by both tenant as well as landlord.

Against the order dated 12th August, 1998, the tenant-LIC filed writ petition being writ petition no. 36762 of 1998 and respondent-landlord filed writ petition being writ petition no. 39157 of 1998 before this Court.  Both these writ petitions were heard together by this Court and this Court vide its judgment and order dated 19th February, 2007 dismissed both the writ petitions.

During the pendency of the aforesaid application under Section 21 (8) of 'the Act', the respondent-landlord filed another application for further

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enhancement of the rent of the premises in question on 12th July, 1993 before the prescribed authority under 'the Act'.  The tenant-LIC filed objection in reply to the aforesaid application.  The said application was rejected by the prescribed authority vide order dated 3rd September, 1993.  Against the order dated 3rd September, 1993, an appeal was filed before the appellate authority and the appellate authority vide order dated 18th October, 1994 dismissed the appeal filed by the respondent-landlord.  Thereafter respondent-landlord filed fresh application on 14th January, 1997 before the prescribed authority for further enhancement of the rent under 'the Act'.  The tenant-LIC filed objection with regard to the maintainability of the aforesaid application before the prescribed authority.  The prescribed authority vide its order dated 28th September, 2002, which is impugned in the present writ petition, dismissed the objection filed by the tenant-LIC and held that the application filed by the respondent-landlord for enhancement of the rent is maintainable even though the first application was not finally adjudicated upon.  The prescribed authority also rejected the objection raised by the tenant-LIC that since during the period of pendency of the litigation between the petitioner-LIC and the respondent-landlord, the provisions of the U.P. Act No. XIII of 1972 has been amended and the provision of Section 2 (1)(g) of 'the Act' has been brought on the Statute, which provides that such buildings shall be out of the ambit of the provisions  of U.P. act No. XIII of 1972 and the rent whereof  is Rs.2,000/- or more per month.  The respondent-landlord denied the objection raised by the petitioner-LIC by filing reply before the prescribed authority.  The prescribed authority on the pleadings of the parties has formulated questions for decision of the controversy in dispute, which read thus :

1.Whether in view of the fact that earlier application under Section 21 (8) of 'the Act' filed in the year 1988 having not been adjudicated upon, whether it is open to the respondent-landlord to file application for further enhancement of the rent after expiry of five years period as provided under Section 21 (8) of 'the Act'.?

2.Whether the application under Section 21 (8) of 'the Act' is maintainable during the pendency of the proceedings of the earlier application?

3.What is the effect of the amendment of U.P. Act No. XIII of 1972 when Section 2 (1)(g) of 'the Act' has been brought on the Statute

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book, particularly on the pending application under Section 21 (8) of 'the Act'.?

The prescribed authority relying upon the decision reported in ARC 2000 (2), 230 in the case of Punjab National Bank and another Vs. R.C. And E.O./IVth ACM, Kanpur Nagar and another, has held that the effect to the amendment of Section 2 (1)(g) of 'the Act' will not have impact on the pending proceedings on the date when the Act was amended and the provisions of Section 2 (1)(g) of 'the Act' was brought on the Statute book.  For arriving at the aforesaid conclusion, the prescribed authority has relied upon a decision reported in 1997 (29) ALR , 703 - Central Bank of India Vs. VI Additional District and Sessions Judge, Kanpur Nagar and others.  Thus, the prescribed authority has held that the application moved by respondent-landlord dated 14th January, 1997 under Section 21 (8) of 'the Act' is maintainable and shall be decided on merits.

Learned counsel for the tenant-LIC repeated the same arguments before this Court.  It is further argued by counsel for the tenant that the application dated 14th January, 1997 filed by the respondent-landlord is not maintainable in view of the amendment of the Act by which section 2 (1)(g) of  'the Act' has been brought on the Statute w.e.f. 29th September, 1994.  For the purposes, counsel for the tenant-LIC has relied upon the decisions reported in 2002 (2) A.R.C., 680 (Uttaranchal) - United Indian Insurance Co. Ltd. Vs. Mukesh Kumar Mehrotra and 2001 (7) JT, 477 - Amba Lal Sarabhai Vs. Amrit Lal & Co.

In reply, learned counsel for the respondent-landlord submitted that the instant controversy has been settled by the decision in the case of Central Bank of India Vs. VI Additional District Judge, Kanpur Nagar, reported in ALR 1997, 703.  On the question of maintainability of the present application under Section 21 (8) of  'the Act', learned counsel for the respondent-landlord submitted that first application under Section 21 (8) of 'the Act' was filed and thereafter another application was filed on 12th July, 1993, which was rejected by the prescribed authority.  Thereafter another fresh application for enhancement was filed by respondent-landlord on 14th January, 1997.  On the first application filed by respondent-landlord , the prescribed authority enhanced the rent as Rs.7,296.40 against which both the parties, namely the tenant-LIC and the landlord filed appeals before the appellate authority.  Against the decision of the appellate authority, the respondent-landlord filed writ petition before

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this Court and the matter was remanded back by this Court to the appellate authority.  After remand, the appellate authority vide its order dated 12th August, 1998 enhanced the rent as Rs. 13,787/- per month.  Against the enhancement of rent, the tenant-LIC filed writ petition before this Court being writ petition no. 36762 of 1998 and the landlord filed another writ petition being writ petition no. 39157 of 1998.  As already discussed above,  both the writ petitions have been dismissed by this Court vide order dated 19th February, 2007.  The respondent-landlord after the expiry of period of five years filed application for enhancement of rent as contemplated under Section 21 (8) of 'the Act'.  Learned counsel for the respondent-landlord submitted that the case of Central Bank of India (supra) is squarely covers the case of the respondent-landlord.  So far as the applicability of the amended provision, namely Section 2 (1)(g) of 'the Act' is concern, learned counsel for the tenant-LIC submitted that in view of the provision of Section 6 of U.P. General Clauses Act, the amended provision will not apply to the pending proceedings under Section 21 (8) of 'the Act'.  This Court in the case of Central Bank of India (supra) has held that 'the right to seek enhancement of rent under the proviso crosses the domain of a "mere right to take advantage" of the provisions of the Act and enters the realm of a "right accrued" or "right acquired" under the Act immediately upon the law being set into motion and once the law is set in motion by moving an application before appropriate authority, the right to enhanced rent becomes a "vested right" or right acquired" or "right accrued" under the existing statute and it cannot be taken away by a subsequent amendment in the existing statute unless the amendment is, expressly or implied, given retrospective effect.  Keeping in view the provisions of Section 6 of the U.P. General Clauses Act it may be stated as a rule of law, that if once a statutory right comes in the realm of a "right acquired" or right accrued", normally it carries with if the remedy for its enhancement unless the right itself is taken away by the Amending/Repealing Act by giving it retrospective operation."  Thus, it is clear that the amending Act by Section 2 (1)(g) of 'the Act' was brought on the Statute book has not been given effect to retrospective effect.

Thus, in my opinion, the view taken by the prescribed authority in rejecting the objection filed by the tenant-LIC regarding maintainability of the application for enhancement of the rent deserves to be upheld.

In view of what has been stated above, this writ petition fails and is

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hereby dismissed.  The matter will now go back to prescribed authority, who will decide the same within a period of six months' from the date of presentation of a certified copy of this order before it.  However, there shall be no order as to costs.

Dated:

Rks.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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