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Rashid Ali Vs. Azizan - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberS.A. No. 414 of 1963
Judge
Reported inAIR1964All183
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3, 3(1) and 29(1); Displaced Persons (Compensation and Rehabilitation) Act, 1954
AppellantRashid Ali
RespondentAzizan
Advocates:Shanti Bushan, Adv.
DispositionAppeal dismissed
Excerpt:
.....under central act does not exclude protection under u.p. act - u. p. act will apply after two years protection granted by central act - held, suit for ejectment cannot be sustained as no grounds under section 3 have been alleged for ejectment as required by u.p. act. - - the proviso does give the tenant protection against ejectment for a period of two years, but does not go beyond it and does not say that a person who is deemed to be a tenant under sub-section (i) of section 29 shall either cease to be a tenant after the expiry of two years, or shall notwithstanding any protection which he might enjoy under any other law for the time being in force, be necessarily liable to be evicted after the expiry of that period. the main provision made under section 29 is that the status of a..........applicable after the expiry of the periodof two years referred to above.the proviso does give the tenant protection against ejectment for a period of two years, but does not go beyond it and does not say that a person who is deemed to be a tenant under sub-section (i) of section 29 shall either cease to be a tenant after the expiry of two years, or shall notwithstanding any protection which he might enjoy under any other law for the time being in force, be necessarily liable to be evicted after the expiry of that period. the main provision made under section 29 is that the status of a person who is in lawful possession of any immovable property which is transferred to another person shall be that of a tenant, but since a tenant is liable to be evicted on being served with a notice under.....
Judgment:

S.D. Singh, J.

1. The plaintiff appellant in this second appeal filed a suit for the ejectment of the respondent and for recovery of arrears of rent in respect of an accommodation in which she was alleged to be a tenant. The property was evacuee property under the management of the Custodian of the Evacuee Properties. It was transferred to the plaintiff on 1st of May 1959. The respondent who was in occupation of the accommodation when it was transferred to the plaintiff, will, under Sub-section (i) of Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, be deemed to be a tenant in this accommodation. The plaintiff alleged that she had not paid rent for more than three months in spite of notice of demand under Clause (a) of Sub-section (i) of Section 3 of the U. P. Control of Rent and Eviction Act. The lower appellate Court found that the amount claimed by the plaintiff as arrears of rent was wrong, that only Rs. 3/- were due as such for the period 1st January, 1961 to 3oth June, 1961, and that the aforesaid amount was tendered to the plaintiff within the period of one month from the date of service of notice, but was refused by the plaintiff. The suit was, therefore, decreed only for the recovery of arrears of rent, and dismissed for ejectment.

2. The findings that only Rs. 3/- were due as arrears of rent for the aforesaid period and that the defendant tendered this amount within the period of one month aforesaid was not challenged in this second appeal. What was urged was that the liability of the defendant-respondent for ejectment would be governed by the Proviso to Sub-section (i) of Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (to be referred to hereafter as the Act) and that there being repugnancy between that Act and the U. P. Control of Rent and Eviction Act, III of 1947 it will be the Central Act, XLIV of 1954 which would prevail and the provisions of U. P. Act III of 1947 will to that extent be deemed to have been abrogated by it. This very question came up for decision before me in Mrs. P. Luthra v. Dr. Jag Mohan Singh, S. A. No. 789 of 1963 D/- 13-3-1963 (All). It was held in that case that even though the tenant may be entitled to protection for first two years under the proviso to Section 29(1) of the Act, and the provisions of Section 3 of the U. P. Control of Rent and Eviction Act may not be applicable to him during that period, he would be entitled to the protection given to him under Section 3 of U. P. Act, III of 1947, after the expiry of the period of two years.

3. What was contended on behalf of the appellant in this appeal was that there being repugnancy between the Central Act and the U. P. Act, the Central law would prevail over that of the State and that consequently the U. P. Act would stand repealed to the extent it affects the rights and liabilities of landlords and tenants in relation to property to which Sub-section (1) of Section 29 of the Act applies. Reliance for the purpose was placed upon Zaverbhai Amaida v. State of Bombay, AIR 1954 SC 752.

In that case the legislation under consideration was the Bombay Essential Supplies (Temporary Powers) and the Essential Commodities and Cattle (Control) (Enhancement of Penalties) Act, XXXVI of 1947, and the Essential Supplies (Temporary Powers) Act, 1946, as amended by the Central Act LII of 1950. Section 7 of the Central Act provided punishment for certain offences which were also punishable under Section 3 of the Bombay Act. The Bombay Act provided a maximum sentence of seven years' imprisonment for the same offence for which only three years imprisonment was provided under the Central Act. It was held that the question of punishment for contravention of the orders under the two Acts constituted a single subject-matter and could not be split up and that both the legislatures being competent to enact the respective laws, the Central law should prevail over that of the State. That was, however, a case in which there was over-lapping legislation in respect of exactly the same subject-matter.

As was pointed out in Mrs. P. Luthra's case, S. A. No. 789 of 1963, D/- 13-3-1963 (All) it is not necessary even in this case to express any opinion as to the application of the U. P. Act III of 1947 in the face of the Central Act aforesaid during the period of two years from the date of the transfer of the property in favour of the plaintiff. The proviso to Sub-section (i) of Section 29 merely says that a person who is deemed to be a tenant under Sub-section (i) shall be liable to be ejected from the property during a period not exceeding two years only under one or the other circumstance referred to in Clauses (a) to (c) of the proviso. Even assuming that during the period of two years, counting from the date of transfer in favour of the plaintiff, the defendant could be ejected only under any one of the circumstances referred to in Clauses (a) to (c) aforesaid and not on any otherground mentioned in Section 3 of U. P. Act III of1947, it cannot be said that the U. P. Act wouldnot be applicable after the expiry of the periodof two years referred to above.

The proviso does give the tenant protection against ejectment for a period of two years, but does not go beyond it and does not say that a person who is deemed to be a tenant under Sub-section (i) of Section 29 shall either cease to be a tenant after the expiry of two years, or shall notwithstanding any protection which he might enjoy under any other law for the time being in force, be necessarily liable to be evicted after the expiry of that period. The main provision made under Section 29 is that the status of a person who is in lawful possession of any immovable property which is transferred to another person shall be that of a tenant, but since a tenant is liable to be evicted on being served with a notice under Section 106 of the Transfer of Property Act and since there might not be legislation, like the one we have in Uttar Pradesh in the form of U. P. Control of Rent and Eviction Act, in any State in India, the Parliament provided that for a period of two years at least the person who is deemed to be a tenant under Sub-section (i) of Section 29 shall have some protection against ejectment, that protection being that he shall not be ejected except under specified circumstances within a period of two years. This does not by any means mean that any protection which the person in possession might enjoy as a tenant under any other law would be denied to him after the expiry of the period of two years.

Under Section 3 of the U. P. Control of Rent and Eviction Act, a tenant cannot be ejected except either with the permission of the District Magistrate or under any one of the circumstances referred to in Clauses (a) to (g) of Sub-section (i) of that section. It may be that this provision remained suspended for the period of two years, on which question I am not called upon to express any opinion in this appeal. But certainly after the expiry of the period of two years, the tenant cannot be deprived of the protection which he has under the U. P. Act, and the Proviso to Sub-section (i) of Section 29 of the Central Act cannot be interpreted in a manner so as to mean that it supersedes or repeals Section 3 of the U. P. Act for all tunes to come or that it necessarily provides that, notwithstanding anything contained in any other law, the tenant shall be liable to be ejected after the expiry of two years.

Reference in this connection may also be made to the opening words of the Proviso which do not refer to any other Act or law. What the proviso says is 'notwithstanding anything contained in any such terms and conditions' and not 'notwithstanding any law or enactment to the contrary'. As was pointed out in Mrs. P. Luthra's case, S. A. No. 789 of 1963, D/- 13-3-1962 (All) the words 'any such terms and conditions'' have reference to the terms and conditions as to payment or rent or otherwise, referred to in Sub-section (i) of Section 29 of the Central Act.

4. In my opinion, therefore, the provisions of the U. P. Control of Rent and Eviction Act would be applicable to the facts of this case. The respondent would not be liable to be ejected except on any one of the grounds mentioned in Section 3; and no such ground having been made out in this case, the suit for ejectment was rightly dismissed.

5. The appeal is consequently dismissed underOrder 41, Rule 11 of the Civil Procedure Code.


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