S.K.Dhaon - (1.) THE petitioners are defendants in a suit which is pending in the trial court. THE relief claimed in the suit is for the ejectment of the petitioners from a certain accommodation on the ground that they were in possession as licensees and the licence has been revoked. A written statement was filed. Issues were struck. One of the issues related to the jurisdiction of the civil court to entertain the suit. This issue was decided as a preliminary issue. THE trial court held that the civil court had the jurisdiction. THE revisional court has endorsed this view. Hence this petition.
(2.) INDISPUTABLY the petitioners entered into possession as licensees in the year 1970. The jurisdiction of the civil court to entertain the suit is questioned on the basis of the provisions contained in sub-section (5) of Section 2-A of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). Section 2-A was for the first time inserted in the Act by U. P. Act 28 of 1976. It may be extracted :- 2-A. Special provisions for short term licence- (1) Notwithstanding anything contained in this Act, a person occupying a building as owner or as tenant or in any other capacity (hereinafter in this section referred to as licensor) may permit any other person (hereinafter in this section referred to as licensee) to occupy for purely temporary residential accommodation for a period not exceeding three months without any order of allotment under Section 16 : Provided that intimation of the grant of such licence shall be given jointly by the licensor and the licensee to the District Magistrate within one month from the date of occupation of the building of part by the licensee: Provided further that the District Magistrate may by order, extend the maximum period of such temporary occupation upto 6 months in the aggregate (including the original period of occupation) : Provided also that similar licence shall not be granted again to any other person in respect of the same building or part within a period of one year from the date of vacation of the building or part by the last licensee (2) Such licensee shall not be deemed to be a tenant for purposes of Section 20, notwithstanding that he pays or is liable to pay rent for use and occupation. (3) Such licensor shall not be deemed to have ceased to occupy such building or part within the meaning of Section 12 merely on the ground of having granted such licence. (4) The District Magistrate shall not make an allotment under Section 16 in respect of the building or part vacated by the licensee except with the consent of the landlord. (5) If the licensee omits or refuses to vacate the building or part after the expiry of the period of licence the licensor may make an application to the prescribed authority for his eviction, and the prescribed authority shall thereupon order his eviction, and its order shall be final : Provided that no order shall be made under this sub-section except after giving to the parties concerned a reasonable opportunity of being heard. Section 14 of the Act was substituted by the U P. Act No 28 of 1976. It reads : "14. Regularisation or 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 2-A) 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." The petitioners were not inducted as licensees in accordance with Section 2-A as the provision itself was not in existence in the year 1970. On account of the legal fiction created in Section 14 they became "authorised licensees" within the meaning of Section 2-A. But for the provisions of Section 14, the provisions of Sections 11, 12 and 13 of the Act would have been applicable to the accommodation in question. In Asha Lata v. Radha Swami Satsangh Sabha, 1982 ALJ 1237= 1982 AWC (SOC) 43, it has been held that Section 2-A does not apply to licensees in general. It applies to short term licences. The Act regulates the rights and liabilities of tenants and not licensees. The Amending Act 28 of 1976 does not make law with respect to licensees. Section 38 of the Act does not exclude the operation of the Easements Act. Section 2-A has been enacted to prevent the operation of Section 12 etc. of the Act, in the case of short term licences. It may be noted at this stage that in paragraph 11 the learned Judges constituting the Division Bench noted Section 14 of the Act as substituted by U. P. Act No. 28 of 1976. In Jhajhu Ram v. Chailu Ram, (1985) ALR 374 it has been held that Section 2-A applies where a person is admitted as a licensee in the way indicated therein on or after July 5, 1976. It is also held that since the defendant in that case was not a licensee as contemplated under section 2-A, there could be no question of ousting the jurisdiction of the civil court on the basis of sub-section (5) thereof.
(3.) IN Vishnu Mitra v. Presiding Officer, Jaunpur, 1982 ALR 571 it has been held that where terms and conditions of Section 2-A have not been followed sub-section (5) thereof will have no application. Learned counsel, not being oblivious of these authorities, seriously contends that all of them require reconsideration as in none of them the true import of Section 14 has been considered. The emphasis is on the non- obstante clause with which Section 14 opens and also on the legal fiction created by the Legislature by using the expression "shall be deemed to be an authorised licensee or tenant of such building". It is contended that the petitioners having been deemed to be authorised licensees, they cannot be ejected in any other forum except the one provided in sub-section (5) of Section 2-A.;