Shobha Dikshit - (1.) THE petitioner is a tenant of a shop owned by the landlady opposite party No. 3 which was let out to him in the year 1975 at a monthly rental of Rs. 175. THE landlady moved an application for release of the said shop in her favour under Section 21 (1) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as U. P. Act No. 13 of 1972) on the ground that her three young sons are unemployed, therefore, she required the tenanted shop to be released in her favour so that she could settle at least her eldest son Satya Prakash in some business. This application was resisted by the tenant on various grounds. Learned Prescribed Authority after hearing the parties allowed the application vide its judgment and order dated 10.2.1994 releasing the building/shop in favour of the landlady finding her need to be greater and bona fide. Aggrieved by the said order, the tenant preferred an appeal before the First Additional District Judge, Faizabad. THE appeal was rejected vide judgment and order dated 19.10.1995 thereby affirming the findings of fact recorded by the Prescribed Authority. THE present writ petition is directed against both these judgments.
(2.) SRI H. S. Sahai, learned counsel for the petitioner conceded that since the findings of fact that the need of the landlady is greater and bona fide and that the application under Section 21 (1) (a) is maintainable under Section 2 (2) of U. P. Act No. 13 of 1972 are concurrent, he does not challenge the same. SRI H. S. Sahai, however, raised a new point contending that the proceedings under Section 21 (1) (a) of the Rent Act were not maintainable right from the inception for the reason that no allotment order allotting the premises in question was ever passed under Section 16 of the said Act. Hence, according to him, both the judgments passed by the Courts below are illegal and a nullity in the eyes of law. In support of his contention, learned counsel placed reliance on a recent decision of a Full Bench of this Court in the matter of Nutan Kumar v. Additional District Judge, 1993 (2) AWC 1090. SRI S. K. Mehrotra, learned counsel appearing for the respondent refuted the aforesaid contention on two grounds ; firstly, that the said question was since not raised before the Courts below, hence petitioner cannot be permitted to raise the same at this stage and secondly, in the facts and circumstances of this case, the Full Bench decision referred by SRI Sahai is not applicable, as the occupation of the disputed premises by the tenant stood regularised under Section 14 of the U. P. Rent Act being that of prior to 5.7.1976 and, therefore, the question of any allotment with respect to the premises in question is wholly irrelevant. SRI S. K. Mehrotra for this purpose placed reliance on a decision of Hon'ble Supreme Court in the case of Jaspal Singh, v. Additional District Judge. Bulandshahr, 1984 (4) SCC 434. Sri H. S. Sahai contended that the law is well-settled now that pure questions of law can be raised for the first time at any stage of the proceedings and, therefore, he is entitled to raise the same. However, before proceeding to consider the contention of the learned counsel for the petitioner, it would be appropriate to examine the facts in which the said law has been laid down by the Full Bench of this Court and then to see as to whether this decision is applicable to the facts and circumstances of this case or not. Jn the aforesaid Full Bench case, the owners of the suit premises let it out to the defendant in the year 1977 on a monthly rent mutually agreed upon between the parties. The premises admittedly fell within the purview of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and the tenancy in favour of the tenant was created otherwise than pursuant to an order of allotment. The tenant fell in arrears of rent for the period exceeding four months, therefore, a combined notice of demand and termination of tenancy was served and on failure to pay the arrears of rent and to vacate the premises, the landlord filed a suit before Judge, Small Causes Court for ejectment as also for recovery of arrears of rent and use and occupation. The tenant defended the suit admitting the plaintiffs to be the owners of the suit premises as also the creation of contractual tenancy in his favour. It was also pleaded by the defendant that U. P. Act No. 13 of 1972 was applicable to the suit premises, therefore, the contract of lease being in contravention of the Act was void and unenforceable by law, meaning thereby that the suit as instituted on the basis of the said contract is not maintainable. The suit was dismissed by the trial Court upholding the contention of the defendant that since the tenancy in favour of the defendant was not created under any order of allotment passed by the Rent Control and Eviction Officer and he was allowed to occupy the suit premises without giving any intimation to the District Magistrate of the vacancy, therefore, he was not entitled to evict the tenant. Reliance was placed by the learned trial Court upon a decision' of a learned Single Judge of this Court in the case of Naveen Chandra v. Sixth Additional District and Sessions Judge, Meerut, AIR 1983 All 116. The revision preferred against the said Judgment by the landlord was also dismissed by the learned District Judge. Against these decisions, a writ petition was preferred which came up before a learned Single Judge and during the course of the argument before him, a conflict of opinion was noticed between two decisions ; Naveen Chandra Sharma (supra) and Smt. Ram Sakhi Dwivedi, ARC 1988 (2) 164 on the question as to whether a contract of tenancy entered into after enforcement of the Act being in contravention of the Act as void or the contract is unenforceable at law at the instance of the landlord and a decree for ejectment and rent could be passed against the tenant. This question was, therefore, referred to a larger Bench and that is how the Full Bench was constituted which considered the said question. The controversy has been resolved and in this case, Full Bench has held that an agreement to let out a premises governed by U. P. Act No. 13 of 1972 otherwise than in pursuance of an order of allotment is illegal and void. Sections 11, 13 and 17 of the new Act of 1972 unmistakably stipulate that a building covered by it can neither be let or occupied except in pursuance of an allotment or release order under Section 16 of this Act. Letting or occupation of a building without allotment/release order is completely forbidden in the view of the Full Bench.
(3.) I have perused the Full Bench decision and have heard the learned counsel for the respondents, who submitted that the ratio of the decision of the Full Bench is not at all applicable to the facts of the present case. The question whether a tenancy in the absence of an allotment order would be unauthorised or not does not arise in cases where Section 14 comes into play because by virtue of this section, where the tenant is in occupation of a building with the consent of the landlord/landlady immediately before the commencement of the new Act or the amending Act, he would be deemed to be an authorised tenant of the said building. The unamended Section 14 as it stood originally in U. P. Act No. 13 of 1972 reads as follows : "Regulation of occupation of existing tenants.-Notwithstanding anything contained in any general order made under sub-section (2) of Section 7 of the old Act, any tenant in occupation of a building with the consent of the landlord immediately before the commencement of this Act, not being a person against whom proceedings under Section 7A of the old Act are pending immediately before such commencement shall be deemed to be in authorised occupation of such building." Section 14 as amended by U. P. Act No. 28 of 1976 reads as. follows : "Regularisation of occupation of existing tenants.-Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 not being a person against whom any suit or proceeding for eviction is pending before any Court or authority on the date of Such commencement shall be deemed to be an authorised licensee or tenant of such building." Sri S. K. Mehrotra while rebutting the argument of the learned counsel for the petitioner that the Full Bench decision is applicable to the facts of this case, submitted that the tenancy in favour of the tenant stood regularised under the provisions of Section 14 of the Act. The shop in question was admittedly let out to the tenant in the year 1975 at a monthly rental of Rs. 175 and the parties admitted the relationship of landlord and tenant between them with effect from 1975. Since aforesaid Section 14 gives protection to such tenants who were in occupation of premises covered under U. P. Act No. 13 of 1972 without an order of allotment, hence the tenancy in question stood regularised and, therefore, nonexistence of an allotment order under Section 16 of the Act would not come in the way of filing of the application for release of the shop in question under Section 21 (1) (a) of the Act. Sri Mehrotra in support of his contention placed reliance on the decision of Hon'ble Supreme Court in the case of Jaspal Singh v. Additional District Judge, Bulandshahr and others, 1984 (4) SCC 434. Following the same, a learned Single Judge of this Court in the case of Smt. Gulab Devi v. Gauri Shanker, 1988 (1) ARC 316 had held that once a person who is admitted into tenancy by a landlord prior to coming into force of U. P. Act No. 13 of 1972 or the U. P. Act No. 28 of 1976 would be deemed to be an authorised tenant and in such case, question of allotment would be irrelevant. I have read these decisions. Since the legal position is very clear on this aspect of the matter, therefore, I find no merit in the contention raised by the learned counsel for the petitioner and I reject the same.;