- (1.) PRAKASH Krishna, J. Heard Shri Siddhartha Verma, the learned Counsel for the petitioner and Smt. Swati Agrawal, the learned Counsel for the respondents. This is really an unfortunate case. This is third round of litigation in this Court as pointed out by the learned Counsel for the respondents.
(2.) IT appears that a suit for recovery of arrears of rent and ejectment in respect of house No. 152/1, Mohalla Quaji Tola, District Ghazipur was instituted by the respondent No. 1 against the petitioner. The said suit after contest was decreed and the matter travelled up to the Apex Court. The Apex Court decided the matter against the present petitioner. An application for execution of the decree was filed as execution case No. 5 of 1988 was registered. The execution case No. 5 of 1988 is pending and since then about 20 years are going to pass. IT appears that in the Courts of execution proceedings the present petitioner who is judgment-debtor filed certain objection under Section 47 of C. P. C. alleging that the decree has become null and void and cannot be executed in view of the certain amendments carried out in the U. P. Act No. 13 of 1972 whereby the property owned by a Wakf has been exempted from the operation of the provisions of the U. P. Act No. 13 of 1972. The said objection having been rejected by both the Courts below, the present writ petition was filed. It may be stated here that the writ petition was taken up by this Court on 20th of February, 2007 and 26th of March, 2007 was the date fixed for hearing of the writ petition. Thereafter, a mention was made and also an application was filed by the learned Counsel for the petitioner that the matter is urgent one and it may be taken up before the date fixed. A recall application No. 52570 of 2007 was filed. In view of the urgency shown by the learned Counsel for the petitioner, the hearing of the writ petition was preponed. The matter was heard on 12th of March, 2007. On that date, it was pointed out to the learned Counsel for the petitioner that by no stretch of imagination, it is a fit case for exercise of discretion in favour of the petitioner and time was given to him to obtain instructions with regard to the time which may be required by the petitioner to vacate the disputed premises and for damages. It was thereafter taken up on 12th of March, 2007 and 13th of March, 2007. On 13-3-2007 on the request of the learned Counsel for the petitioner the case was postponed for today. Today, Shri Siddhartha Verma, the learned Counsel for the petitioner stated that he was unable to contact the petitioner. The stand taken by the learned Counsel for the petitioner is difficult to appreciate. On the earlier occasion, Shri Siddhartha Verma made mention in the Court and also filed an application for preponing hearing of the writ petition on the pretext that the execution proceeding is going on and the petitioner is likely to be evicted. It is difficult to appreciate that after 12th of March, 2007 the petitioner did not contact his Counsel, specially when the petitioner was under threat of immediate eviction. Be that as it may, it is not necessary to deal with this aspect any further. An objection under Section 47, C. P. C. was filed by the present petitioner on the allegation that the decree for his eviction which has been confirmed up to the Apex Court has become null and void in view of the fact that Clause (bbb) to Section 2 (1) has been inserted by the U. P. Act No. 5 of 1995 w. e. f. 26th of September, 1994 which has granted exemption to any building belonging to or vested in a Wakf including a Wakf Alal Aulad. This objection was not found favour by both the Courts below. The learned Counsel for the petitioner submitted that in view of insertion of the aforesaid clause (bbb) in the Act, the building in question is not now governed by the provisions of the U. P. Act No. 13 of 1972 and therefore, the decree is not executable. The said argument is not tenable for the reasons more than one. Firstly, a plea based on the aforesaid clause (bbb) was not raised by the tenant either in the suit or in the revision or in the writ petition or before the Apex Court. The said plea was available to him and failure to raise plea in a suit disentitles a party to raise that plea before the executing Court. Secondly, the argument of the learned Counsel for the petitioner is misconceived on the ground that by granting exemption, the effect is that a landlord of such a building can file a suit for eviction of tenant after terminating his tenancy by giving a notice as required under Section 106 of the Transfer of Property Act. In other words, such landlord need not to establish any ground specified under Section 20 of the U. P. Act No. 13 of 1972. Section 20 of the Act restricts right of a landlord to evict a tenant.
(3.) THE Apex Court in M/s. Ambalal Sarabhai Enterprises Ltd. v. M/s. Amrit Lal and Co. & Anr. , JT 2001 (7) SC 477, has examined restriction placed on the eviction of a tenant of a controlled building and the effect of the subsequent amendment withdrawing that restriction. It has been held that the Rent Control Act merely provides a protection to a tenant as against unbridled power of landlord under the general law of the land. THE right of a tenant under the Rent Act at the best could be said to be a protective right which cannot be construed to be a vested right and the moment when the protection is withdrawn the landlord's normal vested rights reappear which could be enforced by him. THE relevant para-17 of the report is reproduced below : "the right of a tenant under the Rent Act at the best could be said to be a protective right which cannot be construed to be a vested right. In effect, in view of this special enactment of the Rent Act, the right and remedies available to a landlord under the general law remains suspended. In other words the landlord's vested right under the general law continue so long it is not abridged by such protective legislation, but the moment when this protection is withdrawn the landlord's normal vested right reappears which could be enforced by him". The aforesaid proposition of the judgment has been followed in Vishwant Kumar v. Madan Lal Sharma & Anr. , JT 2004 (4) SC 435.;