The lease deed executed between the tenant and landlord that the Rent Control Act will not apply is void.

HIGH COURT OF JUDICATURE AT ALLAHABAD 

A.F.R.

Reserved on 29.02.2012
Delivered on 05.04.2012


Civil Misc. Writ Petition No.5826 of 2010
Dr. K. Gopal
Vs.
Smt. Sudarshan Devi Bhatia
~~~~~~~
Hon'ble Dilip Gupta, J.

This petition, at the instance of the tenant, seeks the quashing of the order dated 4th March, 2009 by which the Prescribed Authority has allowed the application filed by the respondent-landlady under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the '1972 Act') for release of the shop. The petition also seeks the quashing of the judgment and order dated 7th January, 2010 by which the appeal filed by the tenant under Section 22 of the 1972 Act for setting aside the aforesaid order has been dismissed.
The disputed shop was let out to the petitioner-tenant by the respondent landlady and for this purpose a lease deed dated 3rd May, 1972 was executed between the parties which was registered on 31st May, 1972. The shop was given on rent to the petitioner for a period of five years on a monthly rent of Rs.150/- with effect from 5th June, 1972 with the condition that The United Provinces (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the '1947 Act') or any other law coming in its place shall not apply to the shop. An option was also given to the tenant to renew the deed for a further period of five years without any enhancement of rent.
The application under Section 21(1)(a) of the 1972 Act was filed by the landlady on 3rd January, 2008 for release disputed shop as it was bonafide required for her younger son Pankaj for establishing him in independent business with the allegation that the opposite party was continuing as a tenant on a monthly rent of Rs.600/-; that Pankaj was married and had one son and one daughter; that presently Pankaj was assisting his elder brother and his father in the business of making silver ornaments but he required the shop as he needed to have an independent business; there was no vacant shop available with the landlady from where Pankaj could be established in business; that the opposite party-tenant had a big building in Gali Dashavatar Vrindavan-Mathura where he was not only residing but was also running a Medical Clinic; that the opposite party was also a Medical Consultant and it was not necessary for him to have a separate clinic since he could attend to his patients from his residence and even otherwise, the opposite party was sitting in the disputed shop for two hours only in the evening and that the landlady was likely to suffer greater hardship in case the application was not allowed whereas the tenant was not likely to suffer any hardship.
The petitioner-opposite party filed a reply asserting that Pankaj, for whom the need had been set up by the landlady, was engaged in manufacturing business of silver ornaments; that the landlady was initially residing at Gali Dashavatar Mathura but subsequently she purchased property at Kali Thatheran Chowk Bazar, Mathura which is the main market in Mathura and the husband of the landlady and their two sons were engaged in business of manufacturing silver ornaments from the building and, therefore, Pankaj did not require the disputed shop; that the disputed shop was situated at Bharat Gate which was not fit for carrying on such business; that the application filed by the landlady was not maintainable in view of the terms of the lease deed and that the opposite party was likely to suffer greater hardship.
Various affidavits were filed by the landlady as well as the petitioner in support of their case.
The Prescribed Authority, by the order dated 4th March, 2009, allowed the release application filed by the landlady. It rejected the contention of the tenant that the application was not maintainable because of clause 14 of the lease deed dated 3rd May, 1972 which provided that the 1947 Act or any other law coming in its place shall not apply to the building for the reason that the said condition was void in view of the provisions of Section 23 of the Indian Contract Act, 1872 (hereinafter referred to as the 'Contract Act'). It also accepted the contention advanced on behalf of the landlady that the terms of the lease deed will not apply since the duration of the lease was only for a period of five years with renewal for a further period of five years at the instance of the tenant without enhancement of rent, which period had expired and the monthly rent had also increased from 150/- to 600/- per month. The Prescribed Authority then examined the application on merits and held that the landlady bonafide required the disputed shop for her younger son Pankaj to establish him in independent business and that the landlady was likely to suffer greater hardship.
Feeling aggrieved by the order of the Prescribed Authority, the tenant filed an appeal under Section 22 of the 1972 Act which was dismissed by the judgment and order dated 7th January, 2010. The Appellate Court also rejected the contention of the tenant that the provisions of the 1947 Act or the 1972 Act shall not apply in view of the specific condition contained in the lease deed dated 3rd May, 1972. In this connection, the Appellate Court drew a distinction between the applicability of the Statute to the building and the waiver of the rights available under the Statue and observed that the applicability of a Statute in a contract is not the prerogative of the parties to such a contract and any contract which seeks to exclude the application of the statutory enactment to the building will be violative of Section 23 of the Contract Act. The Appellate Court also accepted the contention of the landlady that even otherwise Clause 14 will not apply as the contract was only for a period of five years. The Appellate Court also rejected the contention of the tenant that it was a case of lease by holding over and the same terms and conditions as were contained in the lease deed will govern it as the tenant had continued in possession of the shop even after the expiry of the lease period. The Appellate Court then confirmed the findings of the Prescribed Authority that the landlady bonafide required the shop in dispute for establishing her younger son Pankaj in independent business and that she was likely to suffer greater hardship.
Sri Manoj Gupta, learned counsel appearing for the petitioner submitted that the Prescribed Authority as well as the Appellate Court committed an illegality in holding that the 1947 Act or the 1972 Act will apply to the building despite the specific condition contained in clause 14 of the lease deed dated 3rd May, 1972 that the 1947 Act or any other law coming in its place shall not apply to the shop. It is, therefore, his contention that the release application filed by the landlady under Section 21(1)(a) of the 1972 Act was not maintainable. It is also his submission that the landlady could have waived the rights provided under the 1947 Act and the 1972 Act and in support of this contention, learned counsel has placed reliance upon the decisions of the Supreme Court in Sri Lachoo Mal Vs. Radhey Shyam AIR 1971 SC 2213; Nanakram v. Kundalrai, (1986) 3 SCC 83; Martin and Harris Ltd. Vs. VIth Additional District Judge & Ors., 1998 (1) ARC 109; Nutan Kumar & Ors. Vs. IInd Additional District Judge & Anr., (2002) 8 SCC 31; K. Vilasini & Ors. Vs. Edwin Periera & Ors., 2009 (1) ARC 282 and Nirbhai Kumar Vs. Maya Devi & Ors., 2009 (1) ARC 767; and the decisions of this Court in Raj Narain Jain Vs. Firm Sukha Nand Ram Narain & Ors., AIR 1980 Alld. 78 and Dr. Nawal Kishore Dubey Vs. Sardar Khajan Singh & Ors., 1984 (1) ARC 461.
It is also the submission of the learned counsel that since the petitioner continued in possession of the property even after the expiry of the five years, the principle of holding over as contemplated under Section 116 of the Transfer of Property Act, 1882 (hereinafter referred to as the 'Transfer of Property Act') will be applicable so that the petitioner continued as a tenant even after the expiry of the period provided under the lease deed on the same terms and conditions as stipulated in the lease deed. Learned counsel for the petitioner has, in support of this contention, placed reliance upon the decisions of the Supreme Court in Bhawanji Lakhamshi & Ors. Vs. Himatlal Jamnadas Dani & Ors. (1972) 1 SCC 388; The State of U.P. Vs. Zaboor Ahmad & Anr. (1973) 2 SCC 547 and the decisions of the High Courts in Nandlal Das Vs. Monmatha Nath Ghose, AIR 1962 Cal. 597; Shiv Nath, Minor Under Guardian Sahu Girdhar Lal Vs. Shri Ram Bharosey Lal, AIR 1969 All. 333 and M/s. Burma Shell Oil Storage & Distributing Co. of India Ltd., New Delhi Vs. State of U.P., AIR 1984 All. 89.
It is further submitted by learned counsel for the petitioner that the Prescribed Authority as well as the Appellate Court were not justified in holding that the landlady bonafide required the shop in dispute for establishing her younger son Pankaj in business of making sliver ornaments. In this connection, he has pointed out that Pankaj was engaged in the family business of manufacturing silver ornaments with his father and elder brother from a place known for this business and mere registration of the family business in the name of the elder son Paresh will not make it his exclusive business and the place where disputed shop was situated was also not suitable for doing this business. It is also his contention that Courts below have failed to consider the question of part release of the demised shop and in this connection he has placed reliance upon the decision of the Supreme Court in Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada, AIR 2003 SC 2713 as also the decision of this Court in Alok Brothers (Tea), Pvt. Ltd. Kanpur Vs. VIIIth Additional District Judge, Kanpur Nagar & Ors., 1989 (2) ARC 99.
Sri P.N. Saxena, learned Senior Counsel appearing for the respondent-landlady, however, submitted that Clause 14 of the lease deed is void in view of the provisions of Section 23 of the Contract Act and even otherwise, as the period of lease stood expired after five years, the tenant is not justified in placing reliance upon the deed to contend that the application filed by the landlady under Section 21(1)(a) of the 1972 Act was not maintainable. It is the contention of learned Senior Counsel for the respondent-landlady that since the rent was enhanced to Rs.300/- with effect from 1st January, 1983, to Rs.400/- with effect from 1st January, 1988 and thereafter to Rs.600/- with effect from 1st January, 1993, a fresh tenancy stood created for the reason that clause 12 of the lease deed provided that lease could be renewed for a further period of five years without any enhancement of rent. It is, therefore, his contention that clause 14 of the lease deed will not apply and the application filed by the landlady under Section 21(1)(a) of the 1972 Act was maintainable. He has further submitted that the findings of fact recorded by the Prescribed Authority as well as the Appellate Court that the landlady bonafide required the disputed shop for establishing her younger son in independent business and that the landlady was likely to suffer greater hardship do not call for any interference by this Court.
I have considered the submissions advanced by the learned counsel for the parties.
The foremost issue that arises for consideration in this petition is whether the 1947 Act or the successor 1972 Act will be applicable to the shop despite the specific condition contained in clause 14 of the lease deed dated 3rd May, 1972 that the 1947 Act or any other Act likely to replace it shall not apply to the tenanted property because the maintainability of the application filed by the landlady under Section 21(1)(a) of the 1972 Act will depend on the finding given on this issue.
In order to appreciate the contentions advanced by learned counsel for the parties, it is necessary to reproduce the relevant terms of the lease deed dated 3rd May, 1972 which is in Hindi and the English translation will read as follows:-
"Second party is a doctor in Ram Krishna Mission Hospital and he wants to start his medical practice in Mathura and wants to take the aforesaid shop on rent. The First party is ready to give the above shop on lease to the Second party. Therefore, they have agreed to following terms and the parties, their heirs and assignees shall remain bound by these terms.
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4. That the rent of the shop has been fixed at Rs.150/- per month. Payment of taxes shall be the responsibility of the second party.
5. That the payment of rent of the above shop shall start from 05.06.1972. During the tenancy, Second party shall have a right to get any changes made in the shop but the money spent shall not be adjusted from the rent.
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12. That the lease-deed is only for 5 years. After completion of 5 years, the Second party will have the option to continue as a tenant, without enhancement of rent, for another 5 years.
13. That the Second party every month, after paying the rent to the First party, shall obtain receipt. If the rent of more than 3 months becomes due despite service of legal notice, the First party shall have a right to evict him.
14. That the U.P. Rent Control Act or any other law coming in its place shall not apply to the aforesaid property."
The lease deed was executed on 3rd May, 1972 and it was registered on 31st May, 1972. The 1972 Act came into force on 15th July, 1972. Thus, at the relevant time when the lease deed was executed and was registered, the 1947 Act was in force.
The 1947 Act came into force on 1st October, 1946 and the Preamble of the Act is as follows:-
"An Act to provide for the continuance during a limited period of powers to control the letting and the rent of residential and non-residential accommodation and to prevent the eviction of tenants therefrom"

Section 3 of the 1947 Act places restrictions on eviction of tenants and is as follows:-
3. Restrictions on evictions.--(1) Subject to any order passed under sub-section (3) no suit shall without the permission of District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds--
(a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand;
(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the accommodation;
(c) that the tenant has, without the permission in writing of the landlord, made or permitted to be made any such construction as in the opinion of the court, has materially altered the accommodation or is likely substantially to diminish its value;
(d) that the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, or which is likely to affect adversely and substantially the landlord's interest therein;
(e) that the tenant has, on or after the 1st day of October, 1946, sublet the whole or any portion of the accommodation without the permission of the landlord;
(f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant;
(g) that the tenant was allowed to occupy the accommodation as a part of his contract of employment under the landlord and his employment has been determined."

Section 7 deals with control of sub-letting. Section 7-B provides that the landlord may make an application to the Munsif for an order of ejectment if any tenant, who is in occupation of an accommodation in pursuance of an order made under Section 7(2) of the Act, is in arrears of rent for more than three months. Section 7-D provides that no landlord shall, without just or sufficient cause, cut off or withhold any of the amenities enjoined by the tenant.
It needs to be noticed that prior to the enactment of the Rent Control Legislations, the relationship of landlord and tenant was governed by the Transfer of Property Act, 1882 and the conditions contained in the agreement executed between the landlord and the tenant. The tenant, therefore, could vacate the shop either voluntarily or the landlord could file a suit for ejectment after the terminating the tenancy through the notice as contemplated under the Transfer of Property Act. However, the Legislature stepped in for providing social reforms and gave special protection to the tenants by providing that they could not be evicted except under the conditions specified in the Rent Control Acts. Thus, to this extent the the agreement of lease and the Transfer of Property Act stood superseded. This is what was expressed by the Supreme Court in Kewal Singh Vs. Mt. Lajwanti, AIR 1980 SC 161, and the relevant observations are :-
"There is yet another important aspect of the matter which may be mentioned here. Prior to the enactment of the Rent Control legislation in our country, the relationship of landlord and tenant was governed by our common law viz. the Transfer of Property Act (Sections 107 to 111). The tenant was inducted with this tacit agreement to be regulated by the conditions embodied in the contract and could not be allowed to repudiate the agreement reached between him and the landlord during that period. The tenant was, therefore, bound in law to vacate the premises either voluntarily or through a suit after he was given a notice as required by the Transfer of Property Act under the terms and conditions of the lease. However, as a piece of social reform in order to protect the tenants from capricious and frivolous eviction, the legislature stepped in and afforded special protection to the tenant by conferring on him the status of a statutory tenant who could not be evicted except under the conditions specified and the procedure prescribed by the Rent Control Acts. Thus to this extent, the agreement of lease and the provisions of the Transfer of Property Act stood superseded. At the same time, the Rent Control Acts provided the facilities of eviction to the landlord on certain specified grounds like bona fide personal necessity or default in payment of rent etc. Thus any right that the tenant possessed after the expiry of the lease was conferred on him only by virtue of the Rent Control Act. ............"
(emphasis supplied)

The 1972 Act, which repealed the 1947 Act, came into force on 15th July, 1972 and the Preamble of the Act reads as follows:-
"An Act to provide, in the interest of the general public, for the regulation of letting and rent of, and the eviction of tenants from, certain classes of buildings situated in urban areas, and for matters connected therewith."

Chapter III of the 1972 Act deals with Regulation of Letting. Section 11 provides that no person shall let buildings except in pursuance of an allotment order issued under Section 16. Section 12 deals with deemed vacancy of building in certain cases and Section 13 places restrictions on occupation of building without an order of allotment or release. Section 16 deals with Allotment and Release of vacant building. Chapter IV deals with Regulation and Eviction.
The bar of suit for eviction of tenants except on specified grounds is contained in Section 20 of the 1972 Act. Sub-sections (1) and (2) of Section 20, which need to be referred, are reproduced below:-
"(1) Save as provided in sub- section (2) no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner:
Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceedings, which is either recorded in court or otherwise reduced to writing and signed by the tenant.
(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely;
(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:
Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act No.IV of 1925), has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy action while so serving, then relation to his heirs, the words, "four months" in this clause shall be deemed to have been substituted by the words "one year";
(b) that the tenant has wilfully caused or permitted to be caused substantial damages to the building;
(c) that the tenant has without the permission in writing of the landlord made permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it;
(d) that the tenant, has without the consent in writing of the landlord, used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with such use, or has been convicted under any law for the time being in force of an offence or using the building or allowing it to be used for illegal or immoral purpose;
(e) that the tenant has sub-let, in contravention of the provisions of Section 25 or, as the case may be, of the old Act the whole or any part of the building;
(f) that the tenant has renounced his character as such or denied the title of the landlord, and the latter has not waived his right of re-entry, or condoned the conduct of the tenant;
(g) that the tenant was allowed to occupy the building as part of his contract of employment under the landlord, and his employment has ceased."

The proceedings of release of building under occupation of tenant are contained in Section 21 of the 1972 Act and the relevant provisions of sub-section (1) of Section 21 are reproduced :-
"21. Proceedings for release of building under occupation of tenant. - (1) The Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely-
(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust;
(b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction :
Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds, mentioned in clause (a), unless a period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years.
Provided further that if any application under Clause (a) is made in respect of any building let out exclusively for non-residential purposes, the prescribed authority while making the order of eviction shall, after considering all relevant facts of the case, award against the landlord to the tenant an amount not exceeding two years' rent as compensation and may, subject to rules, impose such other conditions as it thinks fit :
Provided also that no application under Clause (a) shall be entertained -
(i) ... ... ... ... ...
(ii) ... ... ... ... ...
(iii) ... ... ... ... ..."

Certain obligations of the landlord and tenant are contained in Section 26 of the 1972 Act and Section 27 deals with enforcement of landlord's obligation regarding amenities.
It is, thus, seen that the 1947 Act or the 1972 Act are not merely laws meant to confer certain benefits on a limited class of people but they are Acts based on public policy for achieving a public purpose and the object of such Acts cannot be achieved if the parties are allowed to contract out of it. The provisions contained in the said Acts do not of admit any exception by a contrary contract executed between the parties. Where the protection is for the benefit of party and public policy is not involved, such protection can be waived and but where the protection is based on public policy, the parties cannot agree to disregard it by an agreement because if such an agreement is permitted to stand, every landlord will incorporate such a term in the lease deed and easily make the provisions of the Acts redundant. Every Act may have a "policy" behind it but every Act may not to be based on "public policy". Public policy comprehends protection and promotion of public welfare. It is a principle of law, under which freedom to enter into a contract is restricted by law for the good of the community.
To appreciate the contentions advanced by learned counsel for the parties, it would also be necessary to refer to sections 10 and 23 of the Contract Act.
Section 10 of the Contract Act is as follows:-
"10. What agreements are contracts- All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents."

Section 23 of the Contract Act is as follows:-
"23. What consideration and objects are lawful, and what not- The consideration or object of an agreement is lawful, unless-
it is forbidden by law; or
is of such nature that, if permitted, it would defeat the provisions of any law or
is fraudulent; or
involves or implies, injury to the person or property of another; or
the Court regards it as immoral, or opposed to public policy."

The implications of clause 14 of the lease deed dated 3rd May, 1972 have to be examined in the light of the aforesaid principles and the provisions of the 1947 Act, the 1972 Act and the Contract Act.
It is not in dispute between the parties that if the lease deed dated 3rd May, 1972 is ignored, the 1947 Act would apply to the accommodation i.e. the shop. It is clause 14 of the lease deed dated 3rd May, 1972 that seeks to exclude the applicability of the 1947 Act or the Act likely to replace it. Section 3 of the 1947 Act places restrictions on eviction of tenants and it provides that no suit shall be filed without the permission of the District Magistrate against a tenant for his eviction except on one or more of the grounds contained in clauses (a) to (g). If the 1947 Act was not to apply, the tenant could have been evicted by the landlady by filing a suit after service of notice contemplated under Section 106 of the Transfer of Property Act. The 1947 Act places restrictions by providing that the suit could be filed only if the conditions stipulated in clauses (a) to (g) of Section 3 were satisfied. The tenant, therefore, by executing the lease deed gave up the rights available to him under Section 3 of the 1947 Act. Likewise, the rights which became available to the tenant under the successor 1972 Act were also given up by the tenant as clause 14 of the lease deed also refers to the Act which may replace the 1947 Act. Section 20 of the 1972 Act provides that no suit shall be instituted for eviction of a tenant from a building notwithstanding the determination of his tenancy except for the grounds mentioned in sub clause (2) of Section 20. Even under section 21 of the 1972 Act, the landlord could move an application for release of the building only if the conditions provided under sub-clauses (a) or (b) existed. It is, therefore, a case where the tenant by executing the lease deed had waived the rights available to him under the 1947 Act or the 1972 Act. If the 1947 Act or 1972 Act was not to apply, the landlady could have proceeded to file a suit for eviction of the tenant after terminating the tenancy by serving a notice under Section 106 of the Transfer of Property Act without referring to any of the grounds contained in section 3 of the 1947 Act or section 20 of the 1972 Act and in that case the tenant could have taken a plea that the 1947 Act or the 1972 Act will apply since clause 14 of the lease deed was hit by section 23 of the Contract Act. It appears that the landlady was conscious of this fact and, accordingly, instead of filing a suit for ejectment of the tenant after determination of the tenancy by serving a notice under section 106 of the Transfer of Property Act, filed the application under section 21(1)(a) of the 1972 Act for release of the shop on the ground contemplated therein.
In Murlidhar Agarwal & Anr. Vs. State of Uttar Pradesh & Ors., AIR 1974 SC 1924, the Supreme Court examined clause 20 of the lease deed which is quite similar to clause 14 of the lease deed dated 3rd May, 1972 under consideration in this writ petition. Clause 20 of the lease deed provided that the landlord and tenant had agreed and declared that no party will ever claim the benefit of the 1947 Act and the provisions of the said Act had been agreed by mutual consent to be inapplicable to the deed. Two Civil Appeals namely Civil Appeal No.2370 of 1969 and Civil Appeal No.583 of 1971 were decided by the Supreme Court by the aforesaid judgment and the decision of the Supreme Court rendered in Civil Appeal No.583 of 1971 is relevant for the purpose of this case. Two questions arose before the Supreme Court in this Appeal, namely (1) whether the High Court was right in holding that Section 3 of the 1947 Act was applicable and, therefore, the suit was not maintainable ; and (2) whether clause 20 of the lease deed created a bar on the respondent-tenant from claiming that the provisions of section 3 of the 1947 Act were applicable. The Supreme Court noticed that section 3(1) of the 1947 Act provided that no suit shall, without the permission of District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation, except on one or more of the grounds contained in (a) to (g). The lease deed in question was executed after the commencement of the 1947 Act but the respondent had not obtained an allotment under Section 7(2) of the 1947 Act in his favour from the District Magistrate. It was, therefore, contended on behalf of the appellants-landlords that the respondent was not a tenant within the meaning of section 3 of the 1947 Act as the lease was created in violation of the provisions of section 7(2) of the 1947 Act. It is in this context that the Supreme Court observed :-
"17. Now, the landlord and the tenant cannot, by their agreement bind the District Magistrate. In spite of the lease, the District Magistrate may treat the accommodation as vacant and evict therefrom the tenant who is in occupation of the accommodation without an allotment order. This is his statutory obligation. But the appellants would be estopped from denying that the respondent is a tenant. The Act makes a distinction between a tenant by virtue of an allotment order and a tenant otherwise than by virtue of an allotment order. In most of the sections of the Act the word 'tenant' alone is used. If the word 'tenant' in section 3 is construed as "tenant under an allotment order", then the tenants who have been occupying an accommodation without an allotment order will be deprived of several material privileges conferred upon them by the Act Having regard to the definition clause and the scheme of the Act, we are of opinion that the respondent is a tenant under Section 3 even though he is occupying the accommodation without an allotment order. It follows that the respondent would get the protection under Section 3 and that the appellants' suit was, therefore, liable to be dismissed as it was found that it was instituted without the permission of the District Magistrate."

As regards the second question, which is relevant for the purpose of this petition, the Supreme Court observed :-
"18. We now turn to the other question, viz., whether under Clause 20 of the lease deed, the respondent was precluded from contending that the suit was not maintainable even though it was instituted without the permission of the District Magistrate. Clause 20 of the lease deed provides:
"That this agreement of lease has been made between the parties with the knowledge of the existing Rent Control and Eviction Act. The parties do hereby agree and declare that no party will ever claim the benefit of the said Acts and that the provisions of the said Acts have been agreed by mutual consent to be inapplicable to this deed."
19. The question for consideration is whether this Clause is illegal. Clause 20 contains two provisions. The first provision is that the parties will never claim the benefit of the Act. The second provision is that the provisions of the Act will be inapplicable to the lease deed. The High Court has taken the view that Clause 20 is illegal, and, therefore, the respondent was not precluded from contending that the suit was not maintainable.
20. The Act was passed inter alia to prevent the eviction of tenants from their accommodations. The language of Section 3 (1) is imperative and it prohibits the institution of the suit without the permission. If any landlord institutes a suit for eviction of the tenant without the permission of the District Magistrate, he commits an offence and is punishable under Section 15 of the Act. The object of Section 3 is to give protection to a tenant from eviction from an accommodation. The policy of the Act seems to be that a responsible authority like the District Magistrate should consider the claim of the landlord and the needs of the tenant before granting permission. There was alarming scarcity of accommodation. The object of legislature in enacting the law was to protect tenants from greedy and grasping landlords, and from their resorting to court for eviction of tenants without reasonable grounds.
... ... ... ... ...
24. Maxwell states the rule of law as follows:-
"Another maxim which sanctions the non-observance of a statutory provision is that culibet licit renuntiare juri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. Where in an Act there is no express prohibition against contracting out of it, it is necessary to consider whether the Act is one which is intended to deal with private rights only or whether it is an Act which is intended, as a matter of public policy, to have a more extensive operation..........."
25. So, the question is, whether Section 3 was enacted only for the benefit of tenants or whether there is a public policy underlying it which precludes a tenant from waiving its benefit. There can be no doubt that the provision has been enacted for protecting one set of men from another set of men, the one from their situation and condition are liable to be oppressed and imposed upon. Necessitous men are not free men.
... ... ... ... ...
27. There can be no doubt about the policy of the law, namely, the protection of a weaker class in the community from harassment of frivolous suits. But the question is, is there a public policy behind it which precludes a tenant from waiving it?
... ... ... ... ...
30. "Public Policy" has been defined by Winfield as "a principle of judicial legislation or interpretation founded on the current needs of the community" see Percy H. Winfield, "Public Policy in English Common Law". Harvard Law Rev. 76. Now, this would show that the interests of the whole public must be taken into account; but it leads in practice to the paradox that in many cases what seems to be in contemplation is the interest of one section only of the public, and a small section at that. The explanation of the paradox is that the courts must certainly weigh the interests of the whole community as well as the interests of a considerable section of it, such as tenants, for instance, as a class as in this case. If the decision is in their favour, it means no more than that there is nothing in their conduct which is prejudicial to the nation as a whole. Nor is the benefit of the whole community always a mere tacit consideration. The courts may have to strike a balance in express terms between community interests and sectional interests. So, here we are concerned with the general freedom of contract which everyone possesses as against the principle that this freedom shall not be used to subject a class, to the harassment of suits without valid or reasonable grounds. Though there is considerable support in judicial dicta for the view that courts cannot create new heads of public policy, See Gherulal Parakh v. Mahadcodas Maiya and Ors. [1959] Su. 2, SCR. 406 there is also no lack of judicial authority for the view that the categories of heads of public policy are not closed and that there remains a broad field within which courts can apply a variable notion of policy as a principle of judicial legislation or interpretation founded on the current needs of the community. See Dennis Lloyd, "Public Policy" (1953), pp. 112-113
... ... ... ... ...
33. We think that Section 3 is based on public policy. As we said, it is intended to protect a weaker section of the community with a view to ultimately protecting the interest of the community in general by creating equality of bargaining power. Although the section is primarily intended for the protection of tenants only, that protection is based on public policy. The respondent could not have waived the benefit of the provision."
(emphasis supplied)

This decision of the Supreme Court, therefore, concludes the controversy against the petitioner. As noticed above, clause 20 of the lease deed which was under consideration of the Supreme Court is similar to clause 14 of the lease deed under consideration in this case. Under clause 20 of the lease deed, the provisions of the Rent Control and Eviction Act were agreed by mutual consent to be inapplicable to the deed. The Supreme Court, after noticing that was there was a public policy in protecting the tenants who were weaker class in the community from having to contest frivolous suits, observed that the tenant could not have waived the benefit of the provisions. The petitioner, who is a tenant, therefore, could not have waived the applicability of the 1947 Act or the 1972 Act under clause 14 of the lease deed because if the 1947 Act or the 1972 Act were not to apply to the building, then the landlord could have evicted the tenant by filing a suit after determining the tenancy by a notice under Section 106 of the Transfer of Property Act and it would not have been necessary for the landlord to file a suit for eviction on one or more of the grounds contained in section 20 of the 1972 Act or the application for release of the shop under Section 21(1)(a) of the 1972 Act.
In this connection, the decision of the Supreme Court in Natraj Studios (P) Ltd. Vs. Navrang Studios & Anr., AIR 1981 SC 537 also needs to be referred to. The Supreme Court held that arbitration agreements between parties whose rights were regulated by the Bombay Rent Act cannot be recognised by a Court of law as public policy requires that parties cannot be permitted to contract out of the legislative mandate which requires certain kind of disputes to be settled by Special Courts constituted under the Bombay Rent Act and the observation are :-
"We may now proceed to consider the submission that the Court of Small Causes alone has exclusive jurisdiction to resolve the dispute between the parties. Section 28(1) of the Bombay Rent Act, positively, confers jurisdiction on the Court of Small Causes to entertain and try any suit or proceeding between a landlord and tenant relating to the recovery of rent or possession of any premises or between a licensor and a licensee relating to the recovery of licence fee or charge and to decide any application made under the Act and to deal with any claim or question arising out of the Act or any of its provisions, and negatively it excludes the jurisdiction of any other Court from entertaining any such suit, proceeding or application or dealing with such claim or question.
The Bombay Rent Act is a welfare legislation aimed at the definite social objective of protection of tenants against harassment by landlords in various ways. It is a matter of public policy. The scheme of the Act shows that the conferment of exclusive jurisdiction on certain Courts is pursuant to the social objective at which the legislation aims. Public policy requires that contracts to the contrary which nullify the rights conferred on tenants by the Act cannot be permitted. Therefore, public policy requires that parties cannot also be permitted to contract out of the legislative mandate which requires certain kind of disputes to be settled by special courts constituted by the Act. It follows that arbitration agreements between parties whose rights are regulated by the Bombay Rent Act cannot be recognised by a Court of law."
(emphasis supplied)
In Waman Shriniwas Kini Vs. Ratilal Bhagwandas and Co., AIR 1959 SC 689, the Supreme Court examined that clause of the lease deed which gave right to the tenant to sub-let the premises and held that the plea of waiver cannot be raised if it had the effect of enforcing an illegal agreement and thus contravene the statutory provisions based on public policy. It was observed:-
"2. .............The terms of the lease are contained in a document dated June 7, 1948, which is a letter in Marathi written by the respondent to the appellant and contains the following terms as to sub-tenancy :

"In the shops in the old chawl which are with you you have kept sub-tenants. We are permitting you to keep sub-tenants in the same manner, in this place also".

3. On April 20, 1949, the respondent brought a suit for ejectment on the ground of non-payment of rent and sub-letting of the premises. The defence of the appellant was that under the terms of the lease he had the right to sub-let the premises. As to the claim on the ground of non-payment of rent he deposited the arrears of rent in court. ..................."

11. ................ The respondent in the present case did not call upon the Court to enforce any agreement at all. When the instrument of lease was executed and possession given and sub-letting done it received its full effect; no aid of the Court was required to enforce it. The respondents' suit for ejectment was not brought for the enforcement of the agreement which recognised sub-letting but he asked the Court to enforce the right of eviction which flows directly from an infraction of a provision of the Act (S. 15) and for which the Act itself provides a remedy. There is thus a manifest distinction between this case where the plaintiff asked the Court to afford him a remedy against one who by contravening s. 15 of the Act has made himself liable to eviction and those cases where the Court was called upon to assist the plaintiff in enforcing an agreement the object of which was to do an illegal act. The respondent is only seeking to enforce his rights under the statute and the appellant cannot be permitted to assert in a Court of justice any right founded upon or growing out of an illegal transaction. Gibbs & Sterret Manufacturing Co. v. Brucker (1884) 111 U.S. 597; 28 L. Ed. 534. In our opinion s. 15 of the Act is based on public policy and it has been held that if public policy demands it even an equal participant in the illegality is allowed relief by way of restitution of rescission, though not on the contract.

12. It was next contended that s. 13(1)(e) is a provision for the protection of private rights of the landlord and unless there is in the Act itself any provision to the contrary such rights as far as they were personal rights may be parted with or renounced by the landlord. In other words the right of the respondent to sue for ejectment on the ground of sub-letting being a personal right for his benefit, the landlord must be taken to have waived it as by an express contract he had allowed the tenant to sub-let and consequently he could not evict the appellant under s. 13(1)(e) of the Act.

13. ............ Assuming that to be so and proceeding on the facts found in this case the plea of waiver cannot be raised because as a result of giving effect to that plea the Court would be enforcing an illegal agreement and thus contravene the statutory provisions of S. 15 based on public policy and produce the very result which the statute prohibits and makes illegal. ............"
(emphasis supplied)

In Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram & Ors., AIR 1974 SC 471, the Supreme Court observed that the parties, by their consent, cannot confer jurisdiction on the Rent Courts to pass a decree for possession on a ground which is dehors or ultravires the Bombay Rent Act in view of the public policy involved. The observations are :-
"11. The strain of the last World War, Industrial Revolution, the large-scale exodus of the working people to urban areas and the social and political changes brought in their wake social problems of considerable magnitude and complexity and their concomitant evils. The country was faced with spiralling inflation, soaring cost of living, increasing urban population and scarcity of accommodation. Rack renting and large scale eviction of tenants under the guise of the ordinary law, exacerbated those conditions making the economic life of the community unstable and insecure. To tackle these problems and curb these evils, the Legislatures of the States in India enacted Rent Control legislations.
12. The preamble of the Bombay Rent Act states that the object of the Act is "to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions". The language of the preambles of the Delhi Rent Act and Madras Rent Act is strikingly similar. The broad policy and purpose as indicated in their preambles is substantially the same viz,. to protect tenants against their landlords in respect of the rents, evictions and repairs. With the same beneficent end in view, all the three Acts interfere with contractual tenancies and make provisions for fixation of fair and standard rents, or protection against eviction of tenants not only during the continuance of their contractual tenure but also after its determination. Indeed, the neologism "statutory tenant" has come into existence because of this protective policy which is common to all enactments of this kind. Further, all the three Acts create Courts/Tribunals of special and exclusive jurisdiction for the enforcement of their provisions.
13. Section 28 of the Bombay Rent Act which begins with a non-obstante clause, specifies Courts which shall have exclusive jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant inter alia relating to (a) recovery of rent of any premises;(b) recovery of possession of any premises to which the provisions of Part II apply. The words "to which the provisions of Part II apply" are significant. They indicate that the exclusive jurisdiction for recovery of possession is to be exercised when the provisions of Part II, which include Sections 12 and 13, apply.
14. All these three Acts lay down specific grounds more or less similar, on which a decree or order of eviction can be passed by the Rent Court or the Tribunal exercising exclusive jurisdiction. In the Delhi Rent Act, such grounds are specified in a consolidated form under Section 13, while the same thing has been split up into two and provided in two sections (12 and 13) in the Bombay Rent Act which represent the negative and positive parts of the same pattern. Taken together, they are exhaustive of the grounds on which the Rent Court is competent to pass a decree of possession. Similarly, in the Madras Rent Act, the grounds on which a tenant can be evicted, are given in Sections 10, 14 to 16.
...............
18. Construing the provisions of Sections 12, 13 and 28 of the Bombay Rent Act in the light of the public policy which permeates the entire scheme and structure of the Act, there is no escape from the conclusion that the Rent Court under this Act is not competent to pass a decree for possession either in invitum or with the consent of the parties on a ground which is de hors the Act or ultra vires the Act. The existence of one of the statutory grounds mentioned in Sections 12 and 13 is a sine qua non to the exercise of jurisdiction by the Rent Court under those provisions. Even parties cannot by their consent confer such jurisdiction on the Rent Court to do something which, according to the legislative mandate, it could not do."
(emphasis supplied)

Learned counsel for the petitioner has, however, placed reliance on certain decisions.
In Sri Lachoo Mal & Anr. (supra), the Supreme Court observed that the landlord could waive the exemption benefit available under the 1947 Act for building constructed after 1st January, 1951. This decision was considered by the Supreme Court in Murlidhar Agarwal & Anr. (supra) and it was observed :-
"In that case this Court was considering the question whether it was open to a landlord to waive the benefit of a provision enacted for the benefit of landlords under the Rent Control Act. This Court said that if a provision is enacted for the benefit of a person or class of persons, there was nothing which precludes him or them from contracting to waive the benefit, provided that no question of public policy was involved.
If the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered as being indispensable. This rule is expressed by the maxim of law, quilibet potest renuntiare juri pro se introducto. As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court.... [See Craies on Statute Law, 7th ed,. pp. 269-270]"
(emphasis supplied)

The Supreme Court observed in the aforesaid decision that if a provision is enacted for the benefit of a person or class of persons, there is nothing which precludes him or them from contracting to waive the benefit provided no question of public policy is involved. In the present case, the issue is whether the tenant could have waived the benefit of the 1947 Act or the 1972 Act and in Murlidhar Agarwal & Anr. (supra) the Supreme Court observed that the public policy precludes a tenant from waiving it. This decision, therefore, does not help the petitioner.
The decision in the case of Nanakram (supra) also does not help the petitioner. The issue involved was whether it was open to a landlord to urge in a proceeding for permission to terminate the tenancy and for possession of the premises that the lease between the parties is void inasmuch as it was entered in contravention of clause 22 of the Rent Control Order. The issue, therefore, that arose was with respect to the first question that was answered by the Supreme Court in Murlidhar Agarwal & Anr (supra) in Civil Appeal No.583 of 1971 and not the second question and it is for this reason that the Supreme Court allowed the appeal:-
"................In a case under the Rent Control Order, with which these appeals are concerned, the position appears to be materially similar. The landlord is prohibited by Clause 22(1) from occupying the house or granting a lease except in accordance with Clause 23. There is a prohibition under Clause 22(2) on any other person seeking to occupy the house, except again in accordance with Clause 23. In Clause 23 it is the Deputy Commissioner who will order the landlord to let the vacant house to a person indicated by him, a person who falls in one of the categories specified in the clause or, if he is satisfied, he may permit the landlord himself to occupy the house. As was the position under the U.P. Rent Act, so also under the Rent Control Order, the Deputy Commissioner has power under Clause 28 to take steps and use force for the purpose of securing compliance with, or for preventing or rectifying, any contravention of the Rent Control Order. Clause 28 speaks of a power conferred on the Deputy Commissioner in that behalf. Nowhere does the Rent Control Order mandate that the Deputy Commissioner must eject a person who has entered into possession of a house in violation of Clause 22. If upon a view of the circumstances prevailing then the Deputy Commissioner takes no action in the matter, there is no reason why the lease between the landlord and the tenant, although inconsistent with Clause 22, should not be binding as between the parties thereto. It is not a void transaction. There is nothing in the Rent Control Order declaring it to be so. Now if the lease is not void then it is not open to either party to avoid the lease on the ground that it is inconsistent with Clause 22. The parties would be bound, as between them, to observe the conditions of the lease, and it cannot be assailed by either party in a proceeding between them. .................."
(emphasis supplied)

Learned counsel for the petitioner has also placed reliance upon the decisions of the Supreme Court in Martin and Harris Ltd. (supra) and Nirbhai Kumar (supra).
The issue that arose before the Supreme Court in Martin and Harris (supra) was regarding the maintainability of the application moved by the landlord under Section 21 of the 1972 Act. Two points which arose for consideration before the Supreme Court were (1) Whether the application filed by the respondent-landlord under Section 21(1) (a) of the Act was not maintainable in view of the conditions stipulated in the proviso to the said Section as it was filed before the expiry of three years from the date of purchase of the suit premises by the landlord; and (2) Whether the said application was not maintainable on the additional ground that it was filed prior to the expiry of six months from the date on which notice was given by the landlord to the tenant as was required by the said proviso. On the first point, the Supreme Court observed that the Prescribed Authority was justified in entertaining the application under Section 21(1)(a) of the 1972 Act at that stage and the decree passed on the said ground was not a nullity. With regard to the second point for consideration, the Supreme Court observed that the tenant was not only estopped from taking the plea about non-compliance of service of six months notice by the landlord but it was also not possible to agree with the contention of the tenant that this was for public benefit and could not be waived. The observations are :-
"12. ............So far as this question is concerned on the facts of the present case the answer must be in the affirmative. As we have noted earlier after the suit was filed the appellant filed its written statement on 17.09.1986. In the said written statement the appellant, amongst others, did take up the contention that the application as filed by the respondent-landlord under Section 21(1)(a) was not maintainable and was premature as six months' period had not expired since the service of notice dated 20.09.1985 when the suit was filed. But curiously enough thereafter the said contention raised by the appellant in written statement was given a go-by for reasons best known to the appellant................
12-A. It is not possible to agree with the contention of the learned Senior Counsel for the appellant that the provision containing the proviso to Section 21(1) of the Act was for public benefit and could not be waived. ..........
Consequently it must be held that the provision for six months' notice before initiation of proceedings under Section 21(1) of the Act, though is mandatory and confers protection to the tenant concerned, it can be waived by him. On the facts of the present case there is no escape from the conclusion that the appellant, for the reasons best known to it, consciously and being alive to the clear factual situation that the suit was filed on the ground prior to the expiry of six months' notice, did not think it fit to pursue that point any further and on the contrary joined issues on merits expecting a favorable decision in the suit and having lost therein and got an adverse decision did not think it fit even to challenge the decision on the ground of maintainability of the suit while filing an appeal and argued the appeal only on merits and only as an afterthought at the stage of writ petition in the High Court such a contention was sought to be taken up for the first time for consideration. On the facts of the present case, therefore, it must be held that the appellant had waived that contention about the suit being premature having been filed before the expiry of six months from the date of the suit notice.
13.Apart from waiver the appellant was estopped from taking up such a contention as the respondent, on account of the aforesaid contention of the appellant, had irretrievably changed his position to his detriment and lost an opportunity of seeking leave of the Court to withdraw the suit with liberty to file a fresh suit, as seen earlier. The second point for consideration is, therefore, answered in the negative, in favour of the respondent-landlord and against the appellant."
(emphasis supplied)

The Supreme Court in Nirbhai Kumar (supra) found the view expressed in Martin and Harris Ltd. (supra) to be the correct view.
These two decisions of the Supreme Court in Martin and Harris Ltd. (supra) and Nirbhai Kumar (supra), therefore, do not help the petitioner as it was held that the tenant was estopped from raising the plea that at the time of filing the suit, six months period had not expired after service of notice and the particular provision was not for public benefit and could be waived.
Learned counsel for the petitioner has also placed reliance upon the decision of the Supreme Court in Nutan Kumar & Ors. (supra).
In this case, the Supreme Court set aside the judgment of the Full Bench of the Allahabad High Court in view of the decision of the Supreme Court in Nanakram (supra) and the observations are :-
"These Appeals are against a Judgment dated 20th September, 1993 by which the Writ Petition filed by the Appellants has been dismissed. This Judgment dated 20th September, 1993 was based on a Judgment rendered by a Full Bench of the Allahabad High Court on 20th May, 1993. The questions which wee referred and considered by the Full Bench were as follows:
"1. Whether an agreement of lease between the landlord and the tenant for letting and occupation of a building in contravention of the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is void?

2. Whether the said agreement is enforceable in law and a decree for ejectment of the tenant can be passed in favour of the landlord on the basis thereof?"
.....................

The majority Judgment held that the intransigent discord between the decisions of this Court had lead to an embarrassing situation. The majority Judgment held that in view of the conflicting decisions they could follow the Judgment of this Court which appeared to them to state the law accurately and elaborately. The majority Judgment then held as follows:

"1. An agreement of lease between the landlord and the tenant for letting and occupation of a building in contravention of the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is void.

2. The said agreement is unenforceable in law and no decree for ejectment of the tenant can be passed in favour of the landlord on the basis thereof."

As stated above, pursuant to the majority Judgment of the Full Bench, the Writ Petition was dismissed. These Appeals impugn both Judgments dated 20th September, 1993 as well as the Judgment dated 20th May, 1993.

.......................

In the case of Nanakram v. Kundalrai, (1986) 3 SCC 83, the question was whether a lease in violation of statutory provisions was void. It was held that in the absence of any mandatory provision obliging eviction in case of contravention of the provisions of the Act the lease would not be void and the parties would be bound, as between themselves, to observe the conditions of lease. It was held that neither of them could assail the lease in a proceeding between themselves. This authority was in respect of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1940, whereunder also the landlord was obliged to intimate a vacancy to the Deputy Commissioner of the District and Deputy Commissioner could allot or direct the landlord to let the house to any person. The provisions were more or less identical to the provisions of the said Act. This authority has directly dealt with the questions under consideration and answered them.
.......................

As Nanakram's case was decided by three Hon'ble Judges of this Court, it would also be binding on us. We are therefore not going into the question of correctness or otherwise of such a view. We may however mention that the impugned Judgment dated 20-5-1993, of the Full Bench, is not correct for another reason also. Section 13 of the said Act specifically provides that a person who occupies, without an allotment order in his favour, shall be deemed to be an unauthorised occupant of such premises. As he is authorised occupation he is like a trespasser. A suit for ejectment of a trespasser to get back possession from a trespasser could always be filed. Such a Suit would not be on the contract/agreement between the parties and would thus not be hit by principles of public policy also.

In this view of the matter the decision of the Full Bench dated 20-5-1993 cannot be sustained and is set aside. It is held that the law, as laid down in Nanakram's case, still holds the field. Thus unless the statute specifically provides that a contract contrary to the provisions of the statute would be void the contract would remain binding between the parties and could be enforced between the parties themselves. Consequently the Judgment dated 20th September, 1993 dismissing the Writ Petition is set aside. The matter is sent back to the High Court for deciding the Writ Petition in accordance with law."
(emphasis supplied)

As noticed above, the decision in Nanakram (supra) does not deal with the controversy involved in this petition and, therefore, the decision in Nutan Kumar & Ors. (supra) does not help the petitioner.
Reliance has also been placed by learned counsel for the petitioner on the decision of the Supreme Court in K. Vilasini & Ors. (supra) wherein it was observed :-
"We have noticed hereinbefore that apart from other mortgagors who are not the appellants, appellant No. 1 herself had filed an application for withdrawal of the amount. Even possession has been delivered in favour of the respondents. The right to redeem a mortgage thus having been enforced, in our opinion, it is not a fit case where the impugned order should be interfered with. It is now a well settled principle of law that even a legal right can be waived. It is also well settled that nobody can approbate and reprobate at the same time. [See Deewan Singh and Ors. v. Rajendra Pd. Ardevi and Ors. (AIR 2007 SC 767)]."

This decision does not directly deal with the issue involved in this petition.
Learned counsel for the petitioner has also placed reliance on the decision of this Court in Raj Narain Jain (supra). The Division Bench observed that the landlord could waive the rights given to him under Section 21 of the 1972 Act but the tenant could not waive the rights as it was against the public policy and consequently void by reason of Section 23 of the Contract Act. The relevant observations are :-
"It was ultimately urged that because of the statutory provision contained in U. P. Act No. 13 of 1972 which entitled the landlord to obtain an order of eviction of his tenant on the ground of his personal need under Section 21 (1) (a) of that Act, the covenant which restricted the right of the lessor to evict his tenant only on the ground of non-payment of rent for a year stood obliterated. It is contended that the term in the lease being inconsistent with Section 21 (1) (b) of U. P. Act No. 13 of 1972 ceased to be of any legal effect. ..................

U. P. Act No. 13 of 1972 does not enlarge the rights which a lessor possessed either under the general law dealing with the subject of Landlord and Tenant or under the provisions of the T. P. Act. The Act has placed restrictions on the rights of the landlord to obtain eviction of his tenant on such grounds as are mentioned in Section 20 or 21 of U. P. Act No. 13 of 1972. Like the enactment which came up for consideration before the Supreme Court in Trimbak Damodhar v. Assaram Hiraman (AIR 1966 SC 1758) it is a piece of beneficial legislation conferring on the tenant additional rights and protection against eviction as a matter of public policy. If the lease deed had contained a covenant surrendering any protection provided to him by U. P. Act No. 13 of 1972 it might have been possible to successfully contend that such a covenant was against public policy and consequently void by reason of Section 23 of the Contract Act. There is nothing in the Act, however, to prevent the landlord from waiving such rights as have been left to him by U. P. Act No. 13 of 1972. There is no public policy involved in Section 21 of the Act as far as it restricts the rights of a landlord to obtain an order for the eviction of his tenant on certain limited grounds specified in that provision. For the principle enunciated above, we are fortified in our view by the decision of the Supreme Court in Lachoo Mal v. Radhey Shyam (AIR 1971 SC 2213). Section 1-A of U. P. Act No. 3 of 1947 made inapplicable the provisions of that Act to buildings constructed after the 1st January, 1951. ...............

As observed earlier in the Transfer of Property Act there was no restriction with regard to the grounds on which the landlord could obtain eviction of his tenant, except such as those to which the parties might have agreed. The effect of U.P. Act No. 13 of 1972 is that the landlord's right to obtain the eviction of his tenant has become confined to certain specified grounds. It is clearly open to the landlord to waive even such rights and confine his rights to evict his tenant on conditions specified in the agreement of the lease. There is no element of public policy involved in the landlord waiving such rights as have been left intact to him by the provisions of U. P. Act No. 13 of 1972."
(emphasis supplied)

This decision only supports the view of the respondents that the tenant cannot waive the rights available to him under the 1947 Act or the 1972 Act.
Learned counsel for the respondents has also relied upon the following observations of this Court in Dr. Nawal Kishore Dubey (supra):-
"26. He has urged that the agreement is bad in view of the provisions of Section 23 of the Indian Contract Act. He submits that under Section 21(1)(a) of the Act certain rights are conferred on a landlord and one of the rights is to apply for release of an accommodation on the ground of personal need. He submits that the agreements in question inhabits that right and is consequently bad in law.
27. He relies upon a decision of the Supreme Court in the case of Natraj Studios (P) Ltd. Vs. Navrang Studios & Anr., AIR 1981 SC 537 wherein the Supreme Court had held that a tenant cannot contract out of the benefit provided by the Act.
28. When the agreement was entered into the accommodation was not within the purview of the Act because it had been constructed sometime in the year 1960 or thereabouts, and being less than 10 years old was outside the purview of the Act. There was no bar on the part of the landlord in entering into such an agreement in the year 19866. The agreement did not become invalid by the coming into force of the New Act.
29. I will, however, add that in case of Raj Narain Jain Vs. Firm Sukha Nand Ram Narain & Ors., AIR 1980 Allahabad 78 a Division Bench of this Court held that a landlord can waive his rights under Section 21(1)(a) of the Act as the Act is meant for the protection of the tenant and there is nothing in the public policy against the landlord restricting his right as against a tenant under the Rent Control Laws in force"

This decision relies upon the Division Bench of the Court in Raj Narain Jain (supra), which as seen above, holds that the landlord can waive the rights but the tenant cannot waive the rights.
It is, therefore, clear from the aforesaid decisions that the 1947 Act and the 1972 Act give protection to a tenant from eviction from an accommodation and these Acts are based on public policy. The tenant, therefore, could not have waived the applicability of the provisions of the 1947 Act or the 1972 Act. Consequently, clause 14 of the lease deed is void and the application filed by the landlady under Section 21(1)(a) of the 1972 Act was maintainable. The first contention of learned counsel for the petitioner, therefore, cannot be accepted.
In such circumstances, it is not necessary to examine the contention of the learned counsel for the petitioner that even after the expiry of the period provided in the lease deed, the same terms and conditions shall continue to apply in view of the principle of holding over as contemplated under section 116 of the Transfer of Property Act.
On the merits of the application filed by the landlady under Section 21(1)(a) of the 1972 Act for release of the disputed shop, it is contended by learned counsel for the petitioner that the finding recorded by the Prescribed Authority as well as the Appellate Court that the landlady bonafide required the shop for her younger son Pankaj for establishing him in independent business deserves to be set aside. In this connection, learned counsel for the petitioner submitted that Pankaj was well established in business of silver ornaments with his elder brother and father from the residence situated at Kali Thatheran Chowk Bazar, Mathura, which is the main bullion market, while the disputed shop is situated at Bharatpur Gate which is not fit for doing such business and there was actually no need for Pankaj to do independent business. It is, therefore, his submission that the application was filed by the landlady with malafide purpose merely to evict the petitioner.
It is not possible to accept this submission of learned counsel for the petitioner. It is no doubt true that the husband and the two sons of the landlady are engaged in the business of silver ornaments from the house situated at Kali Thatheran Chowk Bazar, Mathura, but the documents on record filed by the parties indicate that the business was being run in the name of the elder son of the landlady. The landlady had filed the application for release of the disputed shop as she wanted to establish her younger son Pankaj in independent business. It cannot be said that such a need is not a bonafide need even if Pankaj was actually assisting his father and his brother in the business from the residential house. This is what has been observed by the Supreme Court in Akhileshwar Kumar & Ors. Vs. Mustaqim & Ors., AIR 2003 SC 532 which has been relied by the Appellate Court and the observations are :-
"3. In our opinion, the approach adopted by the High Court cannot be countenanced and has occasioned a failure of justice. Overwhelming evidence is available to show that the plaintiff No. 1 is sitting idle, without any adequate commercial activity available to him so as to gainfully employ him. The plaintiff No. 1 and his father both have deposed to this fact. Simply because the plaintiff No. 1 is provisionally assisting his father in their family business, it does not mean that he should never start his own independent business. What the High Court has overlooked is the evidence to the effect, relied on by the trial Court too, that the husband of plaintiff No. 4, i.e. son-in-law of Ram Chandra Sao, was assisting the latter in his business and there was little left to be done by the three sons."

In this connection, reference also needs to be made to the decision of the Supreme Court in Sushila Vs. IInd Additional District Judge, Banda & Ors., AIR 2003 SC 780 :-
"We find that Prem Prakash is a young man who is unemployed. He is married and has children. There is every justification for him or for his mother to settle him in life independently. He cannot be compelled to join his father in his Goldsmith and money lending work in his small shop. In our opinion, he is entitled to start business of his own choice and independently. .............."

This apart, the Supreme Court has held that it is for the landlord to choose the place where he wants to do business or reside. In this connection reference may be made to the decision of the Supreme Court in Sarla Ahuja Vs. United Insurance Company AIR 1999 SC 100 wherein it was observed:-
"................... When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."

The Supreme Court in Ragavendra Kumar Vs. Firm Prem Machinary and Co., AIR 2000 SC 534 also observed :-
"............ It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. ..........."

Learned counsel for the petitioner has submitted that the finding recorded by the the Prescribed Authority as well as the Appellate Authority on the bonafide need of the landlady is perverse. The finding recorded by the Appellate Authority regarding this issue needs to be noticed and the relevant portion of the judgment of the Appellate Authority is as follows:-
"(3). The landlord moved application under Section 21(1)(a) of the Act stating her need for the shop for establishing her son Pankaj in his own independent business, who presently is engaged only in assisting his father and elder brother in their business of manufacturing "Torias" of silver and gilt, as she has no other property/shop available for the purpose.
(4). In para 6 and 9 of his reply to the application of the landlord, the tenant has admitted that presently the husband and the two sons of the landlord are engaged in the business of manufacturing Torias of silver and gilt in her house situated in Gali Tatheran, Gudhai Bazar/Chowk Bazar. In other words, the tenant has admitted that Pankaj is also engaged only in the said family business, and not in any independent/separate business.
(5). The landlord has also filed few documents as Annexures to her affidavit (20 ka) filed in evidence to show that the business which is being run from/in her house in Gali Tatheran, Gudhai Bazar, is owned by and in the name of her son Paresh. Paper No.20ka/23 is the photo copy of form No.15 of the sales Tax Deptt. And paper No.20ka/24 is the photo copy of the order of the Sales Tax Officer dated 27.7.2006 passed under Rule 41(8) read with Section 7(3) of the Sales Tax Act. These two documents amply prove that Paresh is the sole proprietor of the business run under the name and style "Messrs. Brijbasi Abhushan Bhandar Gali Tatherean, Gudhari Bazar, Meerut". And in absence of any contrary evidence there is no reason to disbelieve the authenticity of these documents.
(6)(i) It is well established legal position that every member of the landlord's family has got a right/is entitled to establish his own separate and independent business and thus to establish a son in his own independent business is always considered a genuine and bonafide need of the landlord, even if he is assisting his father and brother in their business."

This finding of fact recorded by the Appellate Authority is based on the evidence on record and cannot be said to be perverse. The Supreme Court in Munni Lal & Ors. Vs. Prescribed Authority & Ors., AIR 1978 SC 29 observed that while examining the findings of bonafide need and comparative hardship of landlord and tenant, it is not for the High Court, in the exercise of its jurisdiction under Article 226 of the Constitution, to reappraise the evidence and come to its own conclusion which may be different from that of the Appellate Authority or the Prescribed Authority.
This view has been reaffirmed by the Supreme Court in Surya Dev Rai Vs. Ran Chander Rai & Ors., 2003 (2) ARC 385 and Ranjeet Singh Vs. Ravi Prakash, 2004 (1) ARC 613.
The finding of the Prescribed Authority and the Appellate Authority regarding comparative hardship cannot also be said to be perverse. There is also nothing on the record to indicate that the petitioner made any effort during the pendency of the release application to find out any alternative accommodation. This would also tilt the balance in favour of the landlady as was observed by this Court in Faiyaz Khan Vs. 2nd Additional District Judge, Jhansi & Ors., 2006 (24) LCD 929, after noticing the decision of the Supreme Court in Badrinarayan Chunilal Bhutada (supra):-
"Concept of comparative hardship can not be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. It has been brought on record that in adjoining town Dr. Amin was having a clinic even though he asserted that he attended that only off and on. In any case tenant did not show that he made any efforts to search alternative accommodation after filing of the release application. As held by the Supreme Court in B.C.Bhutada v. G.R. Mundada, AIR 2003 SC 2713, this by itself was sufficient to tilt the balance of hardship against the tenant."

This contention of learned counsel for the petitioner, therefore, cannot be accepted.
Learned counsel for the petitioner then submitted that the Appellate Court committed an illegality in not considering the question of part release of the building and in this connection, he has placed reliance upon the decisions in Badrinarayan Chunilal Bhutada (supra) and Alok Brothers (supra).
This submission of the learned counsel for the petitioner cannot also be accepted. Rule 16(1)(d) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 which deals with part release, is in connection with accommodation for the purposes of residence and is not applicable to the present case where the release of the shop is sought. It also needs to be noticed that this plea was not raised by the tenant in the Appeal filed by him under section 22 of the 1972 Act.
Thus, for all the reasons stated above, there is no merit in any of the submissions advanced by learned counsel for the petitioner.
The writ petition is, accordingly, dismissed. Interim order stands vacated.
Date:05.04.2012
GS/SK

After the judgment had been delivered, learned counsel for the petitioner-tenant made a prayer that some time may be given to the tenant to vacate the shop in dispute. He further states that the tenant shall now pay damages at the rate of Rs.2000/- per month and that the tenant shall furnish an undertaking before the Prescribed Authority within two weeks.
The tenant is, accordingly, granted time upto 4th August, 2012 to handover the peaceful possession of the shop to the landlady subject to the tenant giving an undertaking within two weeks from today before the Prescribed Authority to the following effect.
1. That the tenant shall handover peaceful possession of the shop to the landlady on or before the expiry of four months.
2. That the tenant shall pay damages at the rate of Rs.2000/- per month up to the date he hands-over the possession of the shop to the landlady.
3. That the tenant shall not induct any other person in the shop.

It is made clear that in the event the tenant fails to give the undertaking within the aforesaid period or fails to comply with any of the terms of the undertaking, it will be open to the landlady to get the order enforced.
Date:05.04.2012
GS/SK