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2009 (1) UAD 591
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Sudhanshu Dhulia
Writ Petition No. 166 of 2003 (M/S)
GARHWALI SABHA HARDWAR – Petitioner
Versus
VI ADDITIONAL DISTRICT & SESSIONS JUDGE,
SAHARANPUR & ORS. – Respondents
Decided on : 31.12.2008
(B) U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972, Sec. 2(1)(f) — "Building 'built and held' by a society" — Two relevant words in clause (f) of Sec. 2(1) of the Act, namely, "built" and "held" — In order to take the building outside the purview of the Act, the building must have been 'built' as well as 'held' by the Society.
(Para 9)
(C) U.P. Urban Buildings (Reulation of Letting, Rent & Eviction) Act, 1972, Sec. 16(1)(b) — U.P. Urban Buildings (Regulation of letting, Rent and Eviction) Rules, 1972, Rule 13(4) — A settled position of law that once a premises is declared vacant U/s 12 of the Act — The landlord, will have the first charge on the premises — Release application of the landlord, has to be considered first, u/s 16(1)(b) of the Act, no prospective allottee has got any right to be heard by the District Magistrate — While disposing of the release application of the landlord, the authority concerned can not rely upon the objections made by the prospective allottee — If such application is found to be bona fide — Immediately an order of release has to be passed in favour of the landlord — Impugned order of the authority concerned liable to be quashed. (Paras 11, 12, 16)
(D) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, Sec. 16(2) — Proviso to — Held — Memorandum of Association of the society did not say that the beneficiaries thereof might be born in a particular place — No discrimination of place of birth also and the Memorandum of Association of the trust was not hit by the 'proviso' to Sec. 16(2) of the Act. (Paras 13, 14, 15)
(E) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, Secs. 12, 16 & 18 and Constitution of India, Art. 226 — Even after the order of allotment, the propriety and legality of the order of the deemed vacancy can be challenged. (Paras 17 to 20)
¼v½ U;k; 'kkL= & fof/k dh ,d izfrikfnr fLFkfr gS fd lHkh vf/kfu;e LoHkko ls izR;kf'kr vFkok Hkkoh gksrs gSa vkSj ;fn mls Hkwry{kh cukuk gks rks vf/kfu;e esa Li"Vr;k ;g fy[kk tkuk visf{kr gSA ¼izLrj 6½ ¼c½ mRrj izns'k uxjh; Hkou ¼fdjk;k fu;a=.k] fdjk;k vkSj fjDr djkuk½ vf/kfu;e] 1972] /kkjk&2¼1½(f) ßHkou lfefr }kjk cuk;k x;k vkSj viuh feyfd;r n'kkZbZ xbZÞ & /kkjk&2¼1½ dh mi/kkjk (f) esa nks mi;qDr 'kCn gsa tks fd ^fcYV* vkSj ^gsYM* gSa & ml n'kk esa ;fn Hkou dks vf/kfu;e ds nk;js ls ckgj j[kuk gS rks Hkou lfefr }kjk gh cuk;k x;k gks vkSj mlh ds uke esa gksA ¼izLrj 9½ ¼l½ mRrj izns'k uxjh; Hkou ¼fdjk;k fu;a=.k] fdjk;k vkSj [kkyh djkuk½ vfèkfu;e] 1972] /kkjk&16¼1½(b) & mRrj izns'k uxjh Hkou ¼fdjk;k fu;a=.k] fdjk;k vkSj [kkyh djkuk½ vf/kfu;e] 1972] fu;e 13¼4½ & ;g izfrikfnr dkuwu gS fd ;fn ,d ckj /kkjk&12 ds v/khu dksbZ Hkou [kkyh ¼osdsUV½ ?kksf"kr gks tkrk gS rks edku ekfyd dh fjyht ,Iyhds'ku ij /kkjk&16¼1½(Ib) ds rgr loZizFke fopkj fd;k tk,xk & dksbZ Hkh Hkkoh of.Vrh ¼,ykVh½ ftyk eftLVªsV }kjk lqus tkus gsrq vf/kdr ugha gksxk & tc edku ekfyd ds fjyht izkFkZuk i= dks fuLrkfjr fd;k tk jgk gks rks lEcfU/kr vf/kdkjh dks Hkkoh of.Vrh ¼,ykVh½ dh vkifRr;ksa dks ugha lquk tk ldrk & ;fn izkFkZuk i= okLrfod ik;k tk, rks rRdky Hkou ekfyd ds i{k esa fjyht vkMZj ikfjr dj fn;k tkuk pkfg, iz'uxr vkns'k [k.Muh; djkj fn;k tk ldrk gSA ¼izLrj 11] 12] 16½ ¼n½ mRrj izns'k uxjh Hkou ¼fdjk;k fu;a=.k] fdjk;k vkSj [kkyh djkuk½ vf/kfu;e] 1972] /kkjk&16¼2½ & dk izfrca/k & fu.kZ; esa dgk x;k fd laLFkk ds Kkiu&i= ls ,slk fofnr ugha gksrk fd ml ls lEcfU/kr ykHkkFkhZx.k fdlh ,d fuf'pr LFkku ij iSnk gq, gksa & tUe LFkku dk dksbZ HksnHkko ugha gS vkSj laLFkk dk Kkiu i= èkkjk&16¼2½ ds izfrcU/k ls izHkkfor ugha gksrkA ¼izLrj 13] 14] 15½ ¼;½ mRrj izns'k uxjh; Hkou ¼fdjk;k fu;a=.k] fdjk;k vkSj [kkyh djkuk½ vfèkfu;e] 1972] /kkjk&12] 16 vkSj 18] vkSj Hkkjrh; lafo/kku vuqPNsn 226 & vkoaVu vkns'k ds ckn Hkh laHkkfor fjDrrk ¼MheM osdsUlh½ vkns'k dh izk;ksT;rk vkSj oSèkkfudrk dks pqukSrh nh tk ldrh gSA ¼izLrj 17 ls 20½
Heard learned counsels for the parties.
2. This matter pertains to the release/allotment of an premises, located in Haridwar. The two connected petitions, one filed by the landlord and the other filed by a person calling himself a ‘tenant’ of the premises, are being decided together. These petitions have been pending in this Court for the last almost 20 years and the matter itself pertains to the year 1979.
3. Much water has flown in the Ganges between 1979 and 2008 and presently the buildings or the premises of the present nature which are owned by a public religious or charitable institution are, in fact, outside the purview of the Uttar Pradesh Urban Buildings (Regulation of Letting Rent & Eviction) Act, 1972 (from hereinafter referred to as the Act). However, the dispute itself pertains to the period when admittedly the premises was within the purview of the Act.
4. Admittedly, the position is that the building in question is owned and held by a Society which is registered under the Societies Registration Act, 1860 and claims itself to be a public charitable institution. It would be the landlord of the premises. Proceedings under Section 12 of the Act were initiated in order to declare the premises as ‘vacant’ way-back in the year 1979, and vide order dated 13.7.1981, the premises were declared as ‘vacant’. Subsequently thereafter on 31.8.1982 a release application was filed by the landlord under Section 16 of the Act. For the same premises allotment applications were also filed by prospective allottees, one of them being respondent no. 5, namely, Suresh Chandra. The contention of the respondent no. 5 before the allotment authority was that he is the person who has initiated the entire proceedings of “vacancy” of the premises and he is an Ex-serviceman and wants to open a general merchant shop on the premises. Whereas in its release application, the landlord i.e. the petitioner had stated that it is a public charitable trust and it wants to open a reading room/library and a dispensary for public at large and, therefore, the premises must be released in its favour.
5. The learned counsel for the petitioner-landlord, before this Court, has made primarily three submissions. The first submission of the learned counsel for the petitioner-landlord is that the premises in question belongs to a public charitable trust and, hence, it is exempted from the operation of the Act.
6. This submission of the petitioner has no force even though it is true that presently the building has been exempted from the operation of the Act but this has been done vide an amendment in the year 1995 by way of U.P. Act No. 5 of 1995 which was w.e.f. 26.9.1994. No restropectivity, earlier than this (26.9.1994) has been given to this amendment and the relevant date would be the year when the building was declared as vacant under Section 12 of the Act which much proceeds the aforesaid amendment. It is a settled position of law that all Statutes are prospective in nature and in order to give retrospectivity to the Statute, it must be expressly stated in the Statute itself. Since, there is no retrospectivity given to the Statute, the building in question will not be said to be outside the purview of the Act. Therefore, the provision of excluding the said building cannot be referred back to year 1979 or 1983-84, as the case might be.
7. Second submission of the learned counsel for the petitioner is that admittedly the building is owned by a Society which is registered under the Societies Registration Act, 1860 and, therefore, it is again exempted from the operation of the Act under Section 2(1)(f) of the Act.
8. Regarding second submission of the learned counsel for the petitioner-landlord, it is necessary to first examine Section 2(1)(f) of the Act. Section 2(1)(f) of the Act exempts certain class of buildings from the operation of Act. Section 2(1)(f) reads as under:
“2. Exemption from Operation of Act.-
(1) …….
[(a) …….
[(b) …….
[(bb) …….
(bbb) …
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