- (1.) WE have heard Shri Ravi Kiran Jain, Senior Advocate assisted by Ms. Deeba Siddiqui. Learned Advocate General assisted by Shri Ravi Shanker Prasad had appeared for State respondents. Shri Ashok Nath Tripathi appeared for the respondent -landlord.
(2.) SMT . Neena Jain wife of Shri Avnish Jain, her two sons Archit Jain and Nishith Jain and Shri Rajnish Jain -the brother of petitioner's husband are owners and landlord of a commercial property on the Court Road, Saharanpur. The complex of shops on the ground floor and the rooms on the first floor of the property are situate on the main road of the commercial centre of the district. One of the shops on the front side adjoining the road was given on rent to Gandhi Ashram -the respondent no.2 (the tenant). A part of the front portion given to Dr. Mohan Pandey and the other, in which an ice cream parlour was running on rent, were sold to them by the petitioners.
(3.) IT is stated that Smt. Neena Jain and her children are in dire need of money. They want to dispose of the shop occupied by Gandhi Ashram. The tenancy of the shop let out to Gandhi Ashram is regulated by the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short the UP Act of 1972) of which the agreement of tenancy was entered into prior to April, 1985 @ Rs.100/ - per month. At present the shop can be let out at the rent for at least Rs.10,000/ - per month. The court road is the main commercial area where the value of the property and the rental value have risen considerably. The petitioner no.1 as a widow, getting a nominal rent from the shop is in need of money and is extremely hard pressed with the present rental of the shop of only Rs. 900/ - per month. She cannot increase the rent as there is no provision under the UP Act of 1972 for increasing the rent beyond the agreed rent. She also cannot evict the tenant and obtain possession of the shop from Gandhi Ashram on account of the bar created under Section 20 of the UP Act of 1972 against eviction except on the grounds set out, which do not include eviction on the ground of increase of rent. She gave a notice dated 23.12.2004 to respondent no.2 determining the tenancy. A reply was given by the tenant on 7.1.2005 to the notice, after which the tenant is depositing the rent under Section 30 of UP Act of 1972. The petitioners have thereafter filed a SCC Suit No.16 of 2005 (Rajnish Jain and ors vs. Kshetriya Sri Gandhi Ashram, Meerut) for eviction which is pending in the Court of Judge, Small Cause Court, Saharanpur. The Transfer Petition No.301 of 2005 has been filed by the petitioner under Article 228 of Constitution of India to transfer the Suit to the High Court as it involves a substantial question of law as to the interpretation of the Constitution, the determination of which according to the petitioner is necessary for disposal of the case. It is alleged that since the entire UP Act of 1972 has after the decision of this Court in Milap Chandra Jain vs. State of UP and ors 2001 (2) ARC 488, decided on 12.9.2001 declaring the 'standard rent' under Section 3 (k) and corresponding provisions under Section , 5, 6, 8 and 9 to be ultra vires the provisions of the UP Act of 1972, has become unworkable and thus the entire U.P. Act of 1972 is liable to be declared as ultra vires of the Constitution of India. 4. In Writ Petition No.50870 of 2004 the petitioners have prayed for a direction to declare UP Act No.13 of 1972 as ultra vires the Constitution of India on the grounds quoted as below: - "(A) Because the definition of "Standard Rent" under Sections 2 (k) of the Act and the corresponding provisions under Section 4 , (5), (6), (8) and (9) of the Act having been declared ultra vires of the Constitution of India in Milap Chand Jain's case, these provisions are no more in the Statute Book and may be deemed to be deleted. (B) Because after the aforesaid provisions having been struck down the entire U.P. Act No.13 of 1972 becomes unworkable and is liable to be declared ultra vires the Constitution of India. (C) Because with the passage of time U.P. Act No.13 of 1972 has become counter productive. (D) Because with the passage of time, it is not possible to see that U.P. Act No.13 of 1972 is serving the purpose for which it was enacted, it is causing hardship to landlords. (E) Because after haphazard growth of buildings in urban areas, during last two decades of the 20th Century there cannot be said to be any paucity of accommodation in urban areas and as such the Act becomes redundant and unnecessary. (F) Because it is not only the rent of the buildings to which the Act applies which has freezed, but also the market value of buildings in which the tenants are in occupation which has freezed. (G) Because the petitioners require the building in dispute under a vacant state for being sold in the open market at the prevalent market value. Under the Act it is not possible to get it vacated on this ground." ;