SUPREME COURT OF INDIA

Before:- S.N. Variava and Bisheshwar Prasad Singh, JJ.

Civil Appeal No. 150 of 2000. D/d. 14.3.2002.

U.P. State Agro Industrial. Corporation. Ltd. - Appellant

Versus

Ravindra Mehrotra and others - Respondents

Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, Section 21 - Constitution of India, 1950, Articles 226 and 136 - Application under Section 21 by respondent decreed exparte - Exparte decree later recalled - Parties entered into a compromise - Compromise filed in Court - Rent was enhanced and appellant permitted to retain procession for 10 years period - Suit decreed in terms of compromise - After expiry of 10 years period tenant did not vacate - Execution application filed - Executing Court dismissed the objections - Contention that Act do not apply to public Sector undertaking - Not raised before the decree was passed - After the decree was passed execution authority was required to examine the matter in the light of decree before it - Decree not a nullity - Appellant continued in occupation of the premises for full period of 10 years and paid enhanced rent - After enjoying the benefits under the compromise decree - It sought to challenge the jurisdiction of the P.A. to pass the decree - Appeal dismissed - Time to vacate granted.

[Para ]

JUDGMENT

S.N. Variava and Bisheshwar Prasad Singh, JJ. - This appeal by Special Leave is directed against the judgment and order of the High Court of Judicature at Allahabad in CMWP No. 9871 of 1990 dated 1st November, 1999, whereby the High Court refused to exercise its discretion under Article 226 of the Constitution of India having regard to the fact that in its opinion the appellant had not approached the Court with clean hands. The judgment of the High Court is assailed before us on various grounds.

2. We shall briefly notice the facts of the case.

3. It is not in dispute that the appellant, namely. U.P. State Agro Industrial Corporation Limited took on rent the premises belonging to respondents herein under an agreement dated April 1, 1972. An application was filed by the respondents - landlords under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction} Act, 1972, praying for eviction of the appellant from the premises in question on the ground of bonafide personal need. It appears that though the appellant was served with notice of the proceedings, it did not appear to contest the application and ultimately an ex-parte decree was passed. Thus the Court applied its mind and concluded that there was a bona-fide need However, on application made by the appellant I for recall of the order, the ex-parte decree was recalled and thereafter the matter was heard.

4. In the course of the proceeding the parties entered into a compromise and filed the same before the Competent Authority under the Act. The said compromise application dated 24.10.1977 provided for enhancement of rent from Rs. 300/- to Rs. 500/- per month and also contained a clause for 10% increase in rent every year. The appellant was permitted to retain possession of the premises for a period of 10 years from 1st of October, 1977, but was to vacate and deliver possession of the premises after the aforesaid period to the landlord. By an order dated 24.10.1977 the suit was decreed in terms of the compromise.

5. It is not in dispute that thereafter the appellant - Corporation continued in possession and occupation of the premises for a period of 10 years and paid the enhanced rent under the compromise decree. The 10 years period came to an end on 30th September 1987. The appellant-tenant did not vacate t the premises and instead entered into negotiations with the respondent, but that did not yield any result. Ultimately, the respondent filed an execution application for execution of the decree passed on 24.10.1977.

6. In the course of execution proceeding the appellant raised objection to the execute-ability of the decree, and the sole ground on which the execution I of"the decree, was objected was that the provision of Section 21 (a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 did not apply to the dispute since the premises were in occupation of i a Public Corporation. In pith and substance the objection was that the appellant I; being a public Corporation, an application under Section 21 of the Act was not maintainable as against it, as no decree could have been passed against the Corporation for its eviction since the aforesaid Act did not apply to the. premises let out to a public Corporation.

7. By an order dated 9.8.1990 the Executing Court dismissed the objection application. It held that in the eviction petition no ground had been taken by the appellant that the Act did not apply to the tenancy in question. Secondly the engineer who had signed the compromise was the one who had throughout taken part in the proceeding on behalf of the appellant. Lastly, it held that there was no averment that the engineer acted malafide. The Prescribed & Authority also observed that the appellant having taken advantage of the I decree and having continued in possession as tenant for 10 years, could not be permitted to resile from its undertaking, and to challenge the decree passed on the basis of consent.

8. Aggrieved by the order passed by-the Prescribed Authority dismissing the objection raised by it, the appellant preferred a Writ Petition before the High Court under Article 226 of the Constitution of India, which as noticed earlier has been dismissed by the High Court on the ground that it is not a fit case for exercise of jurisdiction under Article 226 of the Constitution.

9. It is not necessary for us to consider the various arguments urged on behalf of the appellant, which were not even raised in its objection petition in the execution proceeding. Counsel for the appellant sought to urge that the Prescribed Authority could not have passed the decree unless it recorded its satisfaction that one of the grounds for eviction mentioned in Section 21 was made out. He also contended that the Prescribed Authority under the Act had no jurisdiction in a case where the premises were let out to a public Corporation.

10. We may, at the outset, observe that this is not a case of inherent lack of jurisdiction. What was before the Prescribed Authority was the case of a tenant claiming to be a Public Sector undertaking as defined in the Act. and contending that no order of eviction could have been passed against it in relation to the premises occupied by it as a tenant. This was a contention which should have been agitated before the decree was passed. After the decree was passed the Executing Authority was therefore, required to examine the matter in the light of the decree before it. This, therefore, cannot be said to be case of the decree being a nullity due to inherent lack of jurisdiction.

11. The question then arises as to whether in exercise of our discretion under Article 136 of the Constitution of India, we should interfere with the order passed by the High Court. We have noticed the fact that the appellant entered into a compromise with the landlord and in terms of the compromise availed of the benefit thereunder and continued as a tenant for 10 long years. It did not challenge the consent decree as being a nullity. It took full advantage of the decree and did not, during the period provided in the decree, raise the objection that the decree was not executable being a nullity The appellant continued in occupation of the premises for the full period of 10 years and even paid the enhanced rent to the landlord thus holding itself bound by the terms of the decree. After enjoying the benefit under the compromise decree for the full period of 10 years, it sought to challenge the jurisdiction of the Prescribed Authority to pass that decree. In these facts and circumstances we cannot say that the High Court acted either erroneously or arbitrarily in not exercising its discretion under Article 226 of the Constitution to grant relief to the appellant. The High Court has dismissed the writ petition on the ground that having regard to the conduct of the appellant this was not a proper case in which the Court ought to exercise its jurisdiction under Article 226 of the Constitution. We find no reason to interfere with that order. This appeal is accordingly dismissed.

12. After the judgment was dictated. Counsel for the appellant submitted that having regard to the hardship that may be caused to the appellant, some time may be granted to the appellant to vacate the premises. On the appellant furnishing the usual undertaking within four weeks, the time for vacating the premises in question is extended till 30th of September. 2002. The undertaking shall clearly mention that on the expiry of the aforesaid period, the appellant without compelling the respondent to resort to legal proceedings, shall itself, and without demur handover the possession to the respondent.

Appeal dismissed.