JANARDAN SAHAI, J. - (1.) HEARD Sri A.N. Bhargava, learned Counsel for the petitioner and Sri Ved Byas Mishra, learned counsel for the respondents.
(2.) THE petitioner is a landlord of a premises. She filed an application under Section 21(8) of U.P. Act No. 13 of 1972 before the Rent Control and Eviction Officer, Allahabad for enhancement of rent against the defendant Jal Nigam. The application was opposed by the third respondent on the ground that a civil suit for ejectment of the Jal Nigam respondent No. 3 after terminating its tenancy was filed by the petitioner, which was dismissed by the trial Court and a revision against that order is pending in the High Court. The objection found favour by the Rent Control and Eviction Officer, who dismissed the application. The appeal against the order was also dismissed by the impugned order dated 13-2-2002 passed by the Additional District Judge, Allahabad. The stand in the counter affidavit is that there is no relationship of landlord and tenant between the parties as the tenancy is alleged to have been terminated. No doubt by the notice under Section 106 of the Transfer of Property Act given by the landlord/petitioner the tenancy of the opposite party No. 3 would stand terminated but the position in law is that even after the termination of the contractual tenancy the statutory tenancy would still continue. Learned Counsel for the respondent concedes that no objection has been taken by the respondent that the provisions of U.P. Act No. 13 of 1972 are not applicable to the building. The result would be that the opposite party would continue as a statutory tenant. In Dinesh Chandra Misra v. The Second Addl. D.J. Kanpur and others [1980 ARC 116] this Court has held that mere termination of tenancy by a notice under Section 106 of the Transfer of Property Act where the tenant continues to enjoy the protection of the Act against eviction under the provisions of the Act, does not end his status of a tenant except in a formal way and the word 'tenant' in Section 21 must be interpreted as to include a person whose tenancy had been terminated but who was continuing as tenant. It was also held that even though technically only damages for use and occupation may be payable after the termination of the tenancy, the amount so payable can be regarded as rent and the person liable to pay the same is a tenant for the purposes of the definition of 'tenant' in Section 3(a) as well as for the purposes of Section 21(1) of the Act. If the person whose tenancy has been terminated by a notice under Section 106 of the Act can be regarded as a tenant within the meaning of Section 3 (a) of the Act there is no reason why his tenancy should not be treated as subsisting for purposes of proceedings under Section 21 (8) of the Act. On the point that the statutory tenancy continues learned counsel for the petitioner also relied upon a decision in AIR 1980 NOC 147 (Gauhati), Md. Mahmud Hasan Laskar and others v. Montazi Ali Barbhuiya and another, in which it has been held that after the termination of contractual tenancy where the building is governed by the provisions of the Rent Control Act the statutory tenancy under the Rent Control Act would continue. The provisions of Section 21(8) of U.P. Act No. 13 of 1972 would, therefore, be applicable Section 38 of U.P. Act No. 13 of 1972 provides that the Act will have overriding effect over the provisions of the Transfer of Property Act and Civil Procedure Code. As such the view taken by both the authorities that in view of the pendency of the civil revision the application under Section 21(8) of U.P. Act No. 13 of 1972 was not maintainable is erroneous. Accordingly, the writ petition is allowed. The order of the Rent Control and Eviction Officer as well as the order dated 13-2-2002 passed in appeal by the Additional District Judge, Allahabad are set aside and the Rent Control and Eviction Officer is directed to dispose of the application under Section 21(8) of U.P. Act No. 13 of 1972 in accordance with law expeditiously. Petition allowed.;