- (1.) SANJAY Misra, J. Heard Sri K. M. Asthana, learned Counsel for the petitioner and Sri Arvind Srivastava, learned Counsel appearing on behalf of the respondent landlord.
(2.) THIS writ petition arises out of proceedings under Section 21 (8) of U. P. Act 13 of 1972 wherein the rent of the building under tenancy of the petitioner has been enhanced from Rs. 8,000 per month to Rs. 15000. The petitioner seeks to challenge the said orders passed by the Rent Control and Eviction Officer, Gorakhpur as also the appellate Courts order whereby the petitioners appeal has been rejected. With consent of learned Counsel for the parties this petition having been heard at length is being disposed of at this stage itself. The question raised by the petitioner is as to whether with the enforcement of Section 2 (1) (g) in U. P. Act No. 13 of 1972, U. P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972, by the Amending Act being U. P. Act No. 5 of 1995 w. e. f. 29-9-1994, the provision of Section 21 (8) of the Act would cease to apply to buildings whose rent was in excess of Rs. 2,000 per month. Learned Counsel for the petitioner has placed reliance on a decision of the Hon'ble Supreme Court in the case of P. Chandrashekhar Rao and sons v. Alapati Jalaiah, reported in (1995)3 SCC 709, and submits that the law is settled that the landlords normal rights vested in him by the general law continue to exist till and so long as they are not abridged by a special legislation and in the case of a tenant the protective shield extended to him survives only so long as and to the extent the special legislation operates. The Hon'ble Supreme Court while considering the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act 1960 held that with the issue of a notification granting exemption from the provisions of the Act to buildings whose monthly rent exceeded Rs. 1,000 the tenant lost the protection of the Act the moment the protection was taken away. Therefore even though the application of the tenant for fixation of fair rent had been made prior to the notification of exemption and its date of enforcement he lost his rights and remedies under the Act the moment such protection was taken away since the rights and remedies were not vested ones.
(3.) IN the case of Vishwant Kumar v. Madan Lal Sharma, reported in AIR 2004 SC 1887, the Hon'ble Supreme Court held the right of a tenant to get the standard rent fixed under the Act are protective rights and not vested rights. It was held that although the application made-by the tenant was prior to the coming in force of the amended provision exempting buildings having a monthly rent exceeding Rs. 3500/- the same was lost since the protection was taken away. Learned Counsel for the respondent landlord has relied on a Full Bench decision of this Court in the case of Sheo Narain Chaudhary v. District Judge, reported in 1982 ARC 441. By the amending U. P. Act No. 28 of 1976 clauses (ii) and (iv) of Section 21 (1) of U. P. Act No. 13 of 1972 were omitted and Section 21 (8) was introduced in the Act. The Full Bench held that the first part of Section 21 (8) prohibits an application for release being filed against buildings let out to the State Government or to a local authority or to a public sector corporation or to a recognized educational institution, whereas the proviso is different from the first part in as much as it deals with enhancement of rent of such buildings on the application of the landlord. The Full Bench was considering the effect of deletion of clause (ii) and (iv) from Section 21 (1) of the Act in relation to Section 21 (8) of the Act. The issue that a building is exempted from operation of the Act was not before the Full Bench nor it considered such an issue. The decision has, therefore, to be read as relating to buildings upon which the Act is applicable.;