MUNNALAL AGARWALversusJAGDISH NARAIN AND ORS

                              MUNNALAL AGARWAL                                            A
                                       v.
                            JAGDISH NARAIN AND ORS.

                                 NOVEMBER 16, 1999

                        [V.N. KHARE AND S.N. PHUKAN, JJ.]                                 B

              U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,
      1972.

            Sections 3(/c) and 5-Noticefor enhancement of rent-Effect of-Held,            C
      landlord automatically becomes entitled to the enhancement of rent not
      exceeding the standard rent-Failure to exercise option under Section 5-
      Ejfect of-Held, landlord can still apply for f1Xation of standard rent.

            Section 5-Noticefor enhancement ofrent- 'Given '-Interpretation of-Held,
      to derive benefit of notice it should be delivered to tenant within 3 months        D
      from date of commencement of the Act-Mere sending, dispatching or posting
      notice within 3 months is not the requirement of the Section.

            Section 5 of the U.P. Urban Buildings (Regulation of Letting, Rent and
      Eviction) Act, 1972 provided a condition under which landlord could enhance         E
      the rent payable to any amount not exceeding the standard rent by a notice in
      writing, given within three months from the date of commencement of the
      Act, i.e. 15.7.1972. As Section 5 was applicable, landlord sent a notice of
      enhancement of rent on 8.10.1972 which was received by the tenant on 19.10.
      1972. Since tenant failed to pay the enhanced rate of rent, landlord filed a
      suit for ejectment on the ground of default of payment of rent which was            F
      decreed by the trial court. Revision filed by teuant was allowed on the ground
      that landlord was not entitled to derive any benefit of the said notice as it was
      given to the tenant after three months of the commencement of the Act Against
      the said order landlord filed a petition under Article 226 of the Constitution
      which was dismissed by the High Court Aggrieved by the judgement of the
      High Court, landlord has filed the present appeal.                                  G
            The appellant contended that word 'given' occurring in Section 5 of the
      Act means the date when the notice was sent to the tenant and not the date
      when it was received by him; and that if notice is not given in three months
      then landlord would forfeit his right for enhancement of standard rent for all      H
·-~                                         ~3
    454                     SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R

A   times to come;

          Dismissing the appeal, the Court

           HELD: l. If the interpretation as canvassed by the appellant is accepted,
    then the date on which notice was served to the tenant is immaterial and in
B   that case a tenant can be subjected to default in payment of enhanced rent.
    The word 'given' occurring in Section 5 of the U.P. Rent Act distinctly shows
    that the legislature intended that notice must actually be delivered to the tenant
    within three months from the date of commencement of the Act. Mer~ sending
    notice or dispatching or posting the notice within three months in not the
    requirement of Section 5 of the Act. What the provision of the Act
C   contemplated is that notice should be tendered, offered or handed over to the
    tenant within three months from the date of commencement of the Act and in
    case the service of notice is after three months of the commencement of the
    Act, the landlord is not entitled to take benefit of such notice. The notice of
    the landlord having been served on the tenant after expiry of three months
D   from the date of commencement of the Act the landlord was not entitled to
    take benefit of such notice. [456-C, D, E)

           2. What Section 5 provides in that by notite given within three months
    of the date of commencement of the Act, automatically the landlord becomes
    entitled to the enhancement of rent. Standard rent has been defined in Section
E   3 (k). If the landlord has not exercised his option as contemplated under
    Section 5 of the Act, it would still be open to the landlord to apply for fixation
    of standard rent. (456-H, 457-A, E)

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3122of1995.

F        From the Judgment and Order dated 5.9.94 of the Allahabad High Court
    in C.M.W.P. No. 4986 of 1981.

         Manoj Swarup, Ms. Lalita Kohli and Ms. Maulina Swarup for the
    Appellant.

G         H.K. Puri for the Respondents.

          The Judgment of the Court was delivered by

          V.N. KHARE, J. The appellant herein is the landlord of shop No. 142,
    Mohalla Parwaran in the town of Jhansi and the respondent is the tenant of
H   the said shop on rent at the rate of Rs. I 0 per month. It appears that there
     MUNNALAL AGARWAL v. JAGDISH NARAIN [V.N. KHARE, J.] 455

is long standing dispute between the parties regarding payment of rent with       A
the result the respondent tenant had been depositing rent under Section 7-
C of the U.P. Act No. III of 1947. By U.P. Act No. XIII of 1972, U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 ( in short the
Act) which came into force on 15th July, 1972, the Act No. Ill of 1947 was
repealed. After coming into force of the Act, the respondent continued to
deposit rent under Section 30 of the Act. Section 5 of the Act provided that      B
in case of tenancy continuing from before the commencement of the Act, in
respect of a building to which the old Act was applicable, the landlord may,
by notice in writing, given within three months from the commencement of
this Act, enhance the rent payable therefore to any amount not exceeding the
standard rent.                                                                    C

      In pursuance of the aforesaid provision, the landlord sent a notice on
8th October, 1972 enhancing the rent. Admittedly, the said notice was
received by the tenant on 19th October, I 972. The period of three months
from the date of commencement of the Act expired on 16th October, 1972.
Since the tenant did not pay the enhanced rate of rent to the landlord, the       D
landlord brought a suit for ejectment of the tenant of the ground of default
in payment of rent. The said suit was decreed by the trial court. However,
on revision filed by the tenant the decree of the trial court was set aside and
the suit was dismissed. The revisional court held that since the notice was
given to the tenant on I 9th October, much after three months of the              E
commencement of the Act, the said notice was illegal and void and the
landlord was not entitled to derive any benefit arising therefrom. The landlord
thereafter filed a petition under article 226 of the Constitution. The High
Court dismissed the said writ petition while affirming' the order of the
revisional court. It is in this way the appellant is before us.
                                                                                  F
      Learned counsel appearing for the appellant urged that the word 'given'
occurring in Section 5 of the Act may be given a literal meaning. According
to learned counsel the meaning of the word 'given' means, when the notice
was sent to the tenant and not the date when it was received by the tenant
and if such a meaning is assigned to the word 'given', the notice of G
enhancement of rent sent by the landlord on 8th October, I972 was a valid
notice and the tenant having not complied with the notice had committed
default in payment of arrears of rent; rendering himself liable for ejectment
from the premises in dispute. It is not disputed that the Act came into force
on 15th July, I972 and three months of commencement of the Act expired on
16th October, 1972. The notice for enhancement of rent was sent by the H
    456                     SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R

A   landlord on 8th of October 1972 which was served on the tenant on 19th
    October 1972. The question that arises for consideration is what meaning
    should be assigned to the word 'given' within three months occurring in
    Section 5 of the Act. Section 5 of the Act runs as under:
            "5. Rent payable in case of old buildings.-In case of a tenancy
B           continuing from before the commencement of this Act, in respect of
            a building to which the old Act was applicable, the landlord may, by
            notice in writing, given within three months from the commencement
            of_J_his Act, enhance the rent payable therefore to an amount not
            exceeding the standard rent, and the rent so enhanced shall be payable
            from the commencement of this Act."
c
    If the interpretation as canvassed by learned counsel for the appellant is
    accepted, then the date on which notice was served on the tenant is immaterial
    and in that case a tenant can be subjected to default in payment of enhanced
    rent. The word 'given' occurring in Section 5 of the Act distinctly shows that
    the legislature intended that notice must actually be delivered to the tenant
D   within three months from the date of commencement of the Act. Mere
    sending notice or dispatching or posting the notice within three months is
    not the requirement of Section 5 of the Act. What the provision of the Act
    contemplated is that notice should be tendered, offered or handed over to
    the tenant within three months from the date of commencement of the Act
E   and in case the service of notice is after three months of the commencement
    of the Act, the landlord is not entitled to take benefit of such notice. Of
    course, if the notice for enhancement of rent is sent to the tenant is refused
    by him within three months from the commencement of the Act, it would
    be valid notice. But it is not the case here. Notice for enhancement of rent
    was sent on 8th October, 1972 which was received by the tenant on 19th
F   October, 1972.
          We are, therefore, in agreement with the view taken by the High court
    that he notice of the landlord having been served on the tenant after expiry
    of three months from the date of commencement of the Act the landlord was
    not entitled to take benefit of such notice.
G
           Learned counsel for the appellant then urged that if such interpretation
    is given to the word 'given' then Section 5 itself would be discriminatory.
    His argument is if notice is not given in three months, the landlord would
    forfeit his right for enhancement of standard rent for all times to come. What
    Section 5 provides is that by notice given within three months of the date
H   of commencement of the Act, automatically the landlord becomes entitled to
      MUNNALAL AGAR WAL v. JAGDISH NARAIN [V.N. KHARE, J.) 457

 the enhancement of the rent, otherwise he has to apply for fixation of standard     A
 rent. The standard rent has been defin~d in Section 3 (k), which reads as thus:

           "3(k): "standard rent", subject to the provisions of Section 6, 8 and
           10, means
           (i)   in the case of building governed by the old Act and let out at      B
                 the time of the commencement of this Act-

                 (a) where there is both an agreed rent payable therefore at such
                     commencement as well as a reasonable annual rent (which
                     in this Act has the same meaning as in Section 2( f) of the .
                     old Act, reproduced in the Schedule) the agreed rent or the
                     reasonable annual rent plus 25 per cent thereon, whichever C
                     is greater;
                 (b) where there is no agreed rent, but there is a reasonable
                     annual rent, the reasonable rent plus 25 per cent thereon;

                 (c) where there is neither agreed rent nor reasonable annual        D
                     rent, the rent as determined under Section 9;
            (ii) in any other case, the assessed letting value, for the time being
                 in force, and in the absence of assessment, the rent determined
                 under Section 9;"
       If the landlord has not exercised his option as contemplated under            E
 Section 5 of the Act, it is still open to the landlord to apply for fixation of
 Standard rent. We, therefore, do not find any merit in the submission of the
 learned counsel.

        Learned counsel for the appellant lastly urged that the tenant has not
 deposited the arrears of time barred rent and, therefore, was not entitled to       F
 the benefit of sub-section 4 of Section 20 of the Act. It appears that neither
 any issue was struck on this question nor the trial court or the revisional
 court addressed themselves on this issue. Therefore, the High Court was
 justified in not entertaining the said argument.

       For the aforesaid reasons, we do not find any merit in this appeal. It is,    G
 therefore, dismissed. There shall be no order as to cost.

. A.K.T.                                                      Appeal dismissed .