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Judgment
S.U. Khan, J.
This writ petition was dismissed in default by me on 25.7.2003. Later on restoration application was filed. On 25.9.2003, learned counsel for the parties were heard on restoration application as well as writ petition and judgment was reserved. Cause shown in the restoration application is sufficient. Restoration application is allowed. Order dated 25.7.2003 dismissing the writ petition in default is setaside.
In this writ petition two points are involved, first is whether the building in dispute belongs to public charitable trust and U.P. Act No.13 of 1972 does riot apply to it by virtue of Section 2(1)(bb) and the second point is whether landlords respondents who obtained the property on 99 years tease from the previous landlord owner are entitled to file an application before RC & EO for release when the tenant petitioner was inducted as tenant by the previous owner landlord.
This writ petition on behalf of tenant is directed against orders dated 19.5.1998 and 6.3.1999 passed by RC & EO/ADM (Supply), Varanasi declaring vacancy of the house in dispute on the ground of acquisition of another house in the same city by the tenant petitioner. Through the order dated 19.5.1998 passed in case No, 199 of 1997 (Annexure 17 to the writ petition). RC & EO held that U.P. Act No 13 of 1972 was applicable to the building in dispute and as tenant opposite parties had acquired house in Mohalla Kihukutganj, Varanasi and then names had also been mutated on the said house in the Municipal Corporation record by order dated 19.2.1998 hence the house in dispute was vacant under Section 12(3) of the Rent Control Act. Against the aforesaid order review petition was filed by the petitioner tenant, which was dismissed by the orderdated 6.3.1999 passed by RC & EO (Annexure 22 to the writ petition).
As far as acquisition of other house by the tenants is concerned no argument has been raised by the learned counsel for the petitioner, rather the learned counsel has admitted the said fact.
As far as the second question of maintainability of application by subsequent lessee is concerned it has been held by various High Courts that under Section 109 of T.P. Act not only the purchaser from the lessor but also a subsequent lessee from the lessor is entitled to maintain eviction proceedings against the previous lessee. This Court in the authority reported in 1978 ALJ 759 (also reported in 1978 AWC 463) has also taken the same view after taking into consideration various authorities of different High Courts in paragraphs 7 to 10. Similar view has been taken by a Division Bench of Patna High Court reported in AIR 1975 Patna 97. Learned counsel for the landlord respondent has also cited 1990 ALJ 305 taking the same view. Accordingly this point is decided in favour of the landlord and against the tenant.
Regarding the first point of applicability of the Act RC & EO took into consideration that tenant himself initiated two proceedings against the landlord under the said Act one under Section 30 of the Act and the other under Section 28 of the Act hence it was no more open for him to raise the plea that the Act was not applicable. In this regard learned counsel for the landlord respondent has cited 1998 (2) ARC 109 where it has been held that after taking benefit of the Act by filing case under Section 30 tenant cannot be permitted to take the plea that the Act is not applicable in proceedings initiated by landlord under Section 16 of the Act.
Learned counsel for the landlords respondents has argued that the trust, managing trustee of which leased the property tor 99 years to the landlords is not a public charitable trust or public religious trust but only private religious trust. However in view of the fact that even after insertion of Section 2(1)(bb) with effect from 26.9.1994, tenant himself had recourse to Section 28 and 30 of the Act, he cannot be permitted to say that Act does not apply. The Supreme Court in AIR 1971 SC 2213 has held that even if Act does not apply, parties i.e. landlords and tenant may agree to the applicability of the Act. Right Control legislation is basically meant for the benefit of the tenant. It would be against public policy to permit a tenant to contract himself out of the Act. However if the tenant asserts that the Act applies then it is not against public policy to take that assertion as correct. The tenant having himself taken benefit of the Act twice cannot be permitted to assert that the Act does not apply. A party cannot be permitted to assert that a particular Act applies when it benefits him and turn around to assert that Act does not apply when the said assertion is beneficial to him in the changed circumstances. No one can be permitted to reprobate and approbate.
The next argument of the learned counsel for the petitioner is that by virtue of the trust deed dated 27.4.1927 Annexure 1 to the writ petition only a lease of 9 years could be created under Clause 5(a) thereof hence lease of 99 years was beyond the purview of the trust deed therefore invalid and void. In this regard learned counsel for the petitioner has cited an authority of Supreme Court reported in AIR 2002 SC 2171. In the said authority the Supreme Court was dealing with Tamil Nadu Rent Control Act. In the said Rent Control Act application for eviction filed before Rent Controller could be dismissed if tenant denied the title of the applicant and such denial was bonafide. In such situation Rent Controller had no jurisdiction to decide the case and he could only permit the landlord to file suit for eviction before Civil Court also on the grounds on which eviction could be ordered by the Rent Controller. In U.P. Act No. 13 of 1972 there is no such procedure prescribed.
The managing trustee who executed the lease deed filed affidavit in support of the landlords'' respondents. No other person concerned with the trust is either questioning the lease deed dated 2.9.1986 (Annexure 3 to the writ petition) executed by the managing trustee Indra Deo Prasad respondent No.6 or claiming any right over the property in dispute. No proceedings challenging the said deed are pending. If the plea of the tenant that the lease deed of 1986 is invalid is accepted then the result will be that the tenant will be having no landlord and he will virtually become owner. This will be extremely unjust position which cannot be brought into existence by granting the discretionary relief under Article 226 of the Constitution to the tenant petitioner.
The other authority cited by learned counsel for the petitioner reported in 2001 (44) ALR 117 is also not applicable as in that authority, it was found that lease deed was executed by the trust to defeat the provisions of law. In the instant case lease deed was executed in the year 1986 and application giving rise to the instant writ petition was filed in the year 1998.
Accordingly there is no merit in the writ petition and it is dismissed.
However, it is provided that tenant petitioner shall not be evicted for a period of four months from today even if meanwhile release order is passed in favour of the landlords'' respondents.
(Petition dismissed)