Judgment

GROVER, J.: This is an appeal by special leave from a judgment of the Allahabad High Court and involves the question whether the appellant, who was the tenant, was entitled to the benefit of S. 3 of U. P. (Temporary) Cantrol of Rent and Eviction Act, 1947 hereinafter called the "Act."

2. The facts are not in dispute. The appellant had been occupying a shop in Mathura belonging to the respondent from a very long time at a monthly rental of Rs. 18.37. In 1962 the respondent wanted to construct rooms on the upper storey of the shop for his own residence. This construction could possibly be made only if the appellant vacated the shop for some period. On June 4, 1962, the appellant and the respondent entered into an agreement After reciting the above facts it was agreed that the shop would be vacated by the appellant on the condition that as soon as the required construction had been completed he would resume possession of the shop. At this stage the following clauses of the agreement may be set out.

"1. On this day the second party has withdrawn his possession from the shop bearing no. 1/2C, situate at Tilakdwar, and has given the same to the first party.

2. The first party shall get the shop constructed within thirty days and would then hand over the possession of the same to the second party.

3. At present a sum of Rs. 18.60 per mensum, which includes house tax and water tax, is being paid by the second party to the first party as rent. After the construction of the shop, the first party shall be entitled to get the same amount as rent from the second party. All the sections of the U. P. Rent Control and Eviction Act shall be fully applicable to this house. The first party shall in no case be entitled to derive benefits from it as the property built after 1-1-51."

3. After the construction had been made and the appellant had resumed his possession of the shop the appellant offered rent to the respondent but the latter did not accept the same. Ultimately he deposited the rent from April 1, 1962 to July 31, 1963 in court under S. 7-C of the ActThe respondent served a notice dated April 20, 1963 apparently under the provisions of the Transfer of Property Act purporting to terminate the tenancy of the appellant. This was followed by a suit which the respondent filed for ejectment of the appellant and for arrears of rent, damages etc. The Munsif dismissed the suit holding that the appellant was entitled to the protection conferred by S. 3 of the Act which was applicable. The District Judge, on appeal, took the contrary view and decreed the suit The High Court affirmed the judgment of the District Judge. It was held, inter alia, that the respondent was entitled to rely on S. 1-A of the Act and the appellant could not be given the benefit of S. 3.

4. Now there can be no manner of doubt that the tenancy between the appellant and the respondent was governed by the provisions of the Act prior to the reconstruction of the premises. It appears to have been accepted that when the respondent made the re-construction after the agreement mentioned above in 1962 the building came to be constructed within the terms of Section 1-A of the Act. That section says that nothing in the Act shall apply to any building or part of a building which was under erection or was constructed on or after January 1, 1951. It will have to be decided whether it was open to the respondent to give up the benefit of this provision or waive it by means of an agreement of the nature which was entered into between the appellant and the respondent in June 1962.

5. According to the preamble on the cessation of the applicability of sub-rule (2) of rule 81 of the Defence of India Rules after September 30, 1946 it was considered expedient owing to the shortage of accommodation in the State of Uttar Pradesh to provide for the continuance during a limited period of powers to control the letting and the rent of accommodation and to prevent the eviction of tenants therefrom. Secti