N.D.OJHA, J. - (1.) 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 ?" 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 Ram D. Nath and Co. v. Girdhari Lal, 1975 ALJ1 : 1975 RCR 54. 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 Act became applicable to the building in respect of which the suit for ejectment was pending. 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 the 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, AIR 1982 SC 1230 : 1982(2) RCR 383 which appeared to take a contrary view, the question deserved to be decided by a larger Bench.
(2.) 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, AIR 1985 (SC) 817 : 1984(1) RCR 302 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 Om Parkash 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 the 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. 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 197, 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, AIR 1963 (SC) 151 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).
(3.) 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-tenant (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.;