- (1.) PRAKASH Krishna, J. The petitioner is a landlord of one shop of two Phars as described in the foot of release application filed under Section 21 (1) (b) of the U. P. Act No. 13 of 1972 against the respondent No. 2, the tenant, which was numbered as P. A. Case No. 14 of 1985. The said release application was filed on the pleas inter alia that the shop in question is in a dilapidated condition and requires demolition and reconstruction. Indisputably a compromise application was jointly filed by the parties wherein file respondent No. 2, the tenant stated that he is fully convinced that the property in question is in dilapidated condition and agreed to vacate the property in question by 20th of October, 1988. It was further agreed in the compromise that in case of failure to vacate it by 20th of October, 1988 the landlord shall have a right to take possession by police force. The release application was decided in terms of the compromise and the shop in dispute was released by the order dated 31st of August, 1988. Having failed to honour the terms of the compromise, the present petitioner filed an application under Section 23 of the Act for delivery of possession of the property in question. An objection was filed by the tenant on the ground that the said compromise is not binding at all on him as it is penal in nature and is not enforcible and the same is void ab initio and cannot be acted upon being in violation of provisions of Rule 17 of the U. P. Act No. 13 of 1972 and Order XXIII, Rule 3 C. P. C. The said objection has been accepted by the Executing Court by the impugned order dated 14-5-1992 (Annexure-5 to the writ petition ).
(2.) THE learned Counsel for the petitioner contends that the view taken by the Court below is not legally tenable in as much as the Court below was exercising the jurisdiction akin to the jurisdiction of the executing Court and thus, it was not permissible for it to go behind the release order. Elaborating the argument he submits that the release order was passed by a Court of competent jurisdiction, its legality and validity was not open to be challenged under Section 23 of the said Act. I have carefully considered the impugned order of the Court below. The Court below has rejected the application filed under Section 23 of the Act solely on the ground that the Court below while deciding the release application omitted to consider the requirements of Rule 17 of the Rules framed under the Act and thus, the said order of release is inappropriate and it was a mistake on the part of the Court for which the tenant cannot be penalized. He took the view that since it is the case of the tenant objector that the landlord got the signatures on the compromise application by playing fraud, the Court committed illegality in deciding a release application in terms of the compromise without taking care of Rule 17 of the Act. The only point mooted in the present petition is, thus, whether a compromise entered into between the parties in a release proceeding that the building in dispute is in dilapidated condition, is valid or void when the provision of Rule 17 was not taken into consideration. To begin with, it is desirable to notice the relevant statutory provisions first. Section 34 of the Act enumerates power of various authorities including Prescribed Authority and the procedure to be followed by them. It provides that the authorities and the Courts mentioned in the said Section will have the same powers as are vested in the Civil Court under the Code of Civil Procedure, when trying a suit in respect of the matters enumerated in clause (a) to (g) of Section 34. Clause (f) of Section 34 (1) reads as follows : " (f) Recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith. "
(3.) IT implies that the Prescribed Authority and the various other authorities and the Court exercising jurisdiction under the Act possesses jurisdiction to record a lawful agreement or compromise. The word 'lawful' though has not been defined under the U. P. Act No. 13 of 1972, but in a para materia provision under the Code of Civil Procedure under Order 23 Rule 3 similar Explanation 'lawful agreement' or compromise has been used which also deals with the power of a Court to decide suit where it is proved to the satisfaction of the Court that there has been an adjustment wholly or part by any "lawful agreement" or compromise in writing and signed by the parties and their Counsel. An agreement or compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning of the aforesaid provision vide Explanation which was inserted by the Code of Civil Procedure (Amendment) Act, 1976. Thus, there seems to be no difficulty that a proceeding under the provisions of the U. P. Act No. 13 of 1972 can be decided in terms of compromise and in this regard express provision has been made under Section 34 of the Act. The question whether such agreement or compromise is lawful or not is a different aspect. Section 23 of the Contract Act says that consideration or object of an agreement is lawful, unless (1) it is forbidden by law; (2) or is of such a nature that, it would defeat the provisions of any law; or (3) is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral; or opposed to public policy. Every agreement of which the object of consideration is unlawful is void. Compromise by a tenant with landlord in a release proceeding can be said to oppose to public policy has been considered by the Apex Court with some detail with reference to Section 21 of the Act in Martin and Harris Ltd. v. VIth Additional District Judge & Ors. , 1998 (1) JCLR 158 (SC) : 1998 (1) ARC 109. The Apex Court has held that it is easy to visualize that the proceedings under Section 21 (1) (a) of the Act would be between landlord on one hand and the tenant on the other. These proceedings are not of any public nature. Nor any public interest is involved therein. Only personal interest of landlord on the one hand and the tenant on the other hand get clashed and call for adjudication by the Prescribed Authority. The grounds raised by the landlord under Section 21 (1) (a) would be personal to him and similarly the defence taken by the tenant would also be personal to him. True. the above observations were made with reference to a case where the release was sought for on the ground of bona fide need but I see no reason as to why the aforesaid observations will not be applicable with equal force to a case where release has been sought under Section 21 (1) (b) of the Act on the ground that the building in question is in a dilapidated condition. I am of the view that the aforesaid observations of the Apex Court are applicable with greater force in a matter under Section 21 (1) (b) of the Act for the simple reason that under the aforestated Section, it is statutory obligation of a landlord to offer the newly constructed building to the tenant who was in occupation of the building said to be dilapidated.;