PETITIONER: PREMJI BHAI PARMAR & OTHERS ETC. Vs. RESPONDENT: DELHI DEVELOPMENT AUTHORITY & OTHERS DATE OF JUDGMENT21/12/1979 BENCH: <NAME>, D.A. BENCH: <NAME>, D.A. KRISHNAIYER, V.R. CITATION: 1980 AIR 738 1980 SCR (2) 704 1980 SCC (2) 129 ACT: Constitution of India 1950 Articles 14 & 32 & Delhi Development <ORG> Act 1957-<ORG> constructing flats and selling them to public-Levy and collection of surcharge as price of flat in addition to the construction cost- <ORG> to work on 'no profit no loss' basis-Such surcharge-Whether illegal-Discriminatory. HEADNOTE: The Delhi Development <ORG> Act was enacted to provide for the development of Delhi through Master and Zonal Plans. The authority undertakes constructions of dwelling units for people belonging to different income groups styled as Middle Income, Low Income, <ORG> and <ORG>. In 1971, the authority commenced registration of intending applicants desirous of having dwelling units in different Income Groups. Some of the petitioners got themselves registered with the authority in accordance with the terms and conditions laid down by it, for allotment of flats in deposits as required by the terms and conditions for <ORG> Scheme at Lawrence Road, Prasad Nagar and Rajouri Garden and made the initial deposit. The number of available flats being less in each scheme compared to the number of applicants registered, lots were drawn and the petitioners were informed that each of them should deposit the amount mentioned in the letter of allotment. The Petitioners paid the amount as intimated and consequently a flat was allotted to each of them and they entered into possession. In their writ petitions under Article 32 , the petitioners assailed the levy and collection of surcharge in addition to the cost price of the flats. It was con tended on their behalf that; (i) The treatment meted by the <ORG> is discriminatory inasmuch as no surcharge was levied on flats in <ORG> schemes constructed and allotted prior to November, 1976 and after January, 1977; (ii) As the authority formulates income-wise, area-wise schemes for constructing flats, there should be only income-wise classification wholly ignoring area and time factor for classification; (iii) Levying of surcharge runs counter to the object for which the authority was set-up namely to make available housing accommodation on "no profit no loss" basis; (iv) Surcharge is arbitrary inasmuch as how the surcharge is worked out in each case does not conform to any rational, tangible, scientific or understandable formula; (v) The Vice-Chairman had no authority to levy surcharge and that even if he has authorised the same, it runs counter to the principle of fixing disposal price incorporated in resolution No. 209 dated November 26, 1974; (vi) Even if the Vice-Chairman had such power there is nothing to show that he has exercised this power and given direction for adding the surcharge to the disposal price and that therefore, the levy of surcharge is unauthorised; and (vii) that the authority has made a, huge profit by levy of surcharge. The respondents raised a preliminary objection that the petitions were not maintainable under Article 32 of the Constitution inasmuch as the petitioners have not come to the <ORG>. fol enforcement of a fundamental right conferred upon. 705 them under Part III of the Constitution but that the petitioners have invoked the jurisdiction of the <ORG> for the relief of reopening concluded contracts, and that if the court accepts the contentions, the petitioners would derive an unfair advantage over others who may not have applied for flats because of the price set out in the brochure and if surcharge is excluded they may have applied for Flats at a lower price. The <ORG> should not therefore entertain the petitions. Dismissing the petitions, ^ HELD: 1. As the <ORG> has heard the petitions on merits it is not inclined to reject them on the preliminary objections. It is undeniable that camouflage of Art. 14 cannot conceal the real purpose motivating the petitions, namely to get back a part of the purchase price of flats paid by the petitioners with wide open eyes after flats have been securely obtained. Petition to this <ORG> under Art. 32 is not a proper remedy nor is the Supreme <ORG> a proper forum for re-opening concluded contracts with a view to getting back a part of the purchase price paid after the benefit is taken. [712 D-E] In the instant case it is difficult to appreciate how Art. 14 can be attracted. Cost price of a property offered for Sale is determined according to the volition of the owner who has constructed the property unless it is shown that he is under any statutory obligation to determine cost price according to certain statutory formula. The authority is under no obligation to fix price of different flats in different schemes albeit in the same income group at the same level or by any particular statutory or binding formula. Those who opt to take flats in a particular income- wise, area-wise scheme in which all flats came up together as one project, may form a class and any discriminatory treatment In the same class may attract Art. 14. But to say that the <ORG> would be bound to offer flats income- group-wise according to the same price formula is to expect the <ORG> to ignore time, situation, location and other relevant factors which all enter the price structure. [713 E, 715 A-F] Radhakrishna Agarwal & Ors. v. <ORG> & Ors.  3 S.C.R. 249 at 255; <ORG> etc. v. <ORG>  3 S.C.R. 254, referred to. 2. In price fixation executive has a wide discretion and is only answerable provided there is any statutory control over its policy of price fixation and it is not the function of the <ORG> to sit in judgment over such matters of economic policy as must be necessarily left to the Government of the day to decide. The experts alone can work out the mechanics of price determination, <ORG> can certainly not be expected to decide without the assistance of the experts. [715 F-G] Prag Ice & Oil Mills and Anr. etc. v. <ORG>,  3 S.C.R, 293 at 330; <CITATION>  1 S.C.R. 845; <CITATION> , etc.  3 S.C.R 760 at 782; referred to. 3. Price of land, building, material, labour charges and cost of transport, quality and availability of land, supervision and management charges are all variable factors that enter into price fixation. Their cost varies time-wise, place wise and availability-wise. All these uncertain factors cannot be overlooked for the purpose of classification. It is not possible therefore to hold that allottees of 706 flats in <ORG> scheme at any place and executed at any time will form one class for the purpose of pricing policy. The only valid basis for classification would be income-wise, area-wise, time-wise, scheme-wise, meaning all flats constructed at or about the same time in same area in one project for particular income-group will form a class, and there is no discrimination amongst them. [716 G-H. 717 A-B] 4. Pricing policy is an executive policy. If the <ORG> was set up for making available dwelling units at reasonable prices to persons belonging to different groups it would not be precluded from devising its own price formula for different income-groups. If in so doing it uniformally collects something more than cost price from those with cushion to benefit those who are less fortunate it cannot be accused of discrimination. In this country where weaker and poorer sections are unable to enjoy the basic necessities, namely, food, shelter and clothing, a body like the <ORG> undertaking, a comprehensive policy of providing shelter to those who cannot afford to have the same in the competitive albeit harsh market of demand and supply nor can afford on their own meagre emoluments or income, a little more from those who can afford for the benefit of those who need succour, can by no stretch of imagination attract Art. 14. [717 B-D] 5. It is a well recognised policy underlying tax law that the State has a wide discretion in selecting the persons or objects it will tax and that the statute is not open to attack on the ground that it taxes some persons or objects and not others. It is only when within the range of its selection the law operates unequally, and this cannot be justified on the basis of a valid classification, that there would be a. violation of Art. 14. [717 <CITATION> ,  1 S.C.R. 404. 6. The principle of "no profit no loss" cannot apply either to every flat or to every scheme or to every piece of land developed by the <ORG>. It would be impossible for the <ORG> lo function on such fragmented basis and such a policy statement has not been made by the <ORG>. [718 D-E] 7. There is not the slightest or even a remote reference to "no profit no loss" formula for determining the cost price. A survey of the Regulations do not spell out any formula for price determination on the basis of "no profit no loss". Project-wise price fixation cannot be dubbed as arbitrary or discriminatory by comparing it with other projects at different places or at different times. [719 A-B JUDGMENT:

In the instant case after the work commenced and the actual cost estimate started coming in the revised estimate for 304 flats was of the order of Rs. 2,07,33,000/- which was approved by the Vice-Chairman on September 18, 1976. According to the revised estimate the approximate disposal cost for each flat. came tc Rs. 68.202/- and the cost of land per dwelling; unit was Rs. 7008/-. The revised estimate showed the disposal price of each flat as Rs. 75.200/-. The Commissioner of Income Tax who wanted to acquire 40 MIG flats in Prasad Nagar area offered the price of Rs. 75,000/- per flat which price was accepted. The difference between the cost price and the disposal price of Rs. 75,000/- per flat was treated as surcharge and the purpose was to use the extra money for extending price reduction benefit to The allottees of flats in <ORG>, <ORG> and <ORG> schemes. It is therefore difficult to entertain the contention that even if surcharge could be justified its actual computation is arbitrary and irrational. [720 B-E, E-F] 8 . The Vice-Chairman is appointed by <ORG> as per Section. 3(3)(b) of the Act. He is a whole time officer and the Chief Executive of the <ORG>. The composition of the <ORG> as set out in section 3 would include such persons as Finance and Accounts Member, Engineering Member, representatives of <ORG> and representatives of <ORG>. Three other persons, were to be nominated by <ORG> of whom one shall be person with experience of planning. It is a high power body. Yet it completely abdicated its power and authority in favour of <ORG>. The <ORG> will practically supplant the <ORG>. By a process of elimination the <ORG> would supplant the <ORG> and the Chairman could constitute the <ORG>. Therefore, the Chairman enjoyed a very wide discretionary power. However once the power to delegate is given by the Regulations, the challenge to validity on the ground of delegation must fail. [720 G-H; 721 E-H, 722 A]

9. Resolution No. 209 is the one adopted by <ORG>. It takes note of the delegation of powers to fix disposal and hire-purchase price of flats to the Vice- Chairman and further provides that if there is a marginal saving in any scheme the amount be diverted to subsidies cost of <ORG> and <ORG> houses. The Resolution No. 200 of the <ORG> read with Resolution No. 709 of <ORG> sets out clearly that the power to fix the disposal price was delegated to the Vice-Chairman and ordinarily such excessive delegation to one man may be galling to a judicial body yet the scheme of regulations and the provisions contained in Regulation 3 read with Section 59 clearly envisages such delegation of powers. [722 C-E]

10. The note of Accounts Officer (Housing) dated September 8, 1976, submitted to the Financial Advisor (Housing) shows that the flats have been offered at the rate of Rs. 75,000/- to the Commissioner of Income Tax for <ORG> and that should be the disposal price. This note was approved by the Financial Advisor (Housing) and ultimately countersigned by the Vice-Chairman Even if it includes surcharge it cannot be said with confidence that the Vice-Chairman has not approved has not approved the surcharge as a component of disposal price. [722 G-H]

11. The contention that the <ORG> has made a huge profit by levy of surcharge is without merits. On the contrary it appears that the overall working of the <ORG> is deficit ridden. [723 A-B] & ORIGINAL JURISDICTION: Writ Petitions Nos. 4660/78 & 562/79 (Under Article 32 of the Constitution).

<NAME> and <NAME> for the Petitioner in W.P. No. 4660/78.

<NAME>, <NAME>, <NAME> and <NAME> for the Respondent No. 1 in both the Writ Petitions.

<NAME> and <NAME> and <NAME> for the Petitioner in W.P. No. 562/79.

The Judgment of the Court was delivered by <ORG>, J. Allottees of flats, constructed by <ORG> ('<ORG>' for short), located at Rajouri, Garden, Prasad Nagar and Lawrence Road comprised in <ORG> scheme, question the decision of first respondent (Delhi Development. <ORG>) to collect surcharge as part of the sale price of each flat from each of them as unauthorized and discriminatory i character, in there two petitions under Article 32 of tho Constitution. Both the petitions raise identical contentions and i was said that Writ Petition No. 562 of 1979 is more comprehensive in character and, therefore, the facts alleged therein may be taken as representative character. They may be briefly stated.

<ORG> was set up under the Delhi Development Act, 1957. The Act was enacted to provide for the development of Delhi according to plan and for matters ancillary thereto and for carrying out the objects underlying the Act, the <ORG> has prepared Master and Zonal development plans for Delhi. With a view to easing the acute housing problems in the capital city the <ORG> undertakes construction of dwelling units for people belonging to different income groups styled as <ORG> ('MIG' for short), <ORG> ('LIG' for short), <ORG> and <ORG> ('<ORG>' for short). In 1971 the <ORG> commenced registration of intending applicants desirous of having n dwelling unit in different income groups. Some of the petitioners got themselves registered with the authority in accordance with the terms and conditions laid down by it and made the initial deposits as required by the terms and conditions. Petitioners had applied and got themselves registered for allotment of flats in MIG scheme situated at Lawrence Road. As the number of available flats in this scheme were less than the number of allottees registered, lots were drawn and the petitioners were informed that they have been allotted flats and that each of them should deposit the amount mentioned in the letter of allotment. It appears that the petitioners paid the amount they were called upon to pay and a flat was allotted to each of them and they have entered into possession. Petitioners now contend that the <ORG> being a statutory body formed with an object of working on 'no profit no loss' basis and having prescribed a formula for working out the cost price of flats has levied and collected a surcharge from each of the petitioner. According to the petitioners the cost price worked out in accordance with the formula prescribed by the <ORG> cost of each flat would be between Rs. 51,800 and Rs. 55,600 depending upon the area, extra balcony etc. However, each one of them had to pay between Rs. 56,000 to Rs. 60,000 and that according to the petitioners a surcharge varying from Rs. 3,400 to Rs. 6,000 for a flat has been illegally and unlawfully collected by way of premium or profit. It is further alleged that the <ORG> has not levied and collected such surcharge from other A allottees of flats in some other MIG Schemes and that this action of levying and collecting surcharge is violative of Art. 14 inasmuch as persons belonging to the same class, namely, allottees of flats in MIG Scheme have been unequally treated. It is also alleged that there was no valid or understandable justification of levying and collecting surcharge as price of flats comprised in MIG Schemes, between 1976 and 1977, and that from May 10, 1978, this unauthorised surcharge has been abolished. Petitioners also contend that the assertion of the <ORG> that this surcharge was levied and collected with a view to financing housing projects for lower income groups, <ORG> and <ORG> dwelling units so as to provide these weaker sections of the society, houses at a price lower than cost price with a view to making them affordable by such members of the weaker sections of the society, is belied by facts undisputed and that the whole attempt of the <ORG>, in violation of its avowed policy, was to make profit by levying such illegal surcharge. The petitioners, therefore, prayed for issue of a writ or order or direction declaring the levy of surcharge as illegal and unconstitutional and for a direction for refund thereof together with the interest at the rate of 12% per annum from the date of levy and collection till the date of refund.

In the cognate petition the petitioners are allottees of flats situated at Prasad Nagar and Rajouri Garden under MIG scheme and they complain that in their case surcharge varies from Rs. 19,200 to . 22,600.

Respondents to the petition are <ORG>, No. 1 and Chairman and Vice-Chairman of the Authoring, Nos. 2 and 3 respectively. In Writ Petition No. 4660/78 the <ORG> is respondent 1 and <ORG>, respondent 2. Petitions were mainly contested by and on behalf of the <ORG>.

The Delhi Development Act, 1957 ('Act' for short), was enacted as its long title shows with the a view to providing for the development of Delhi according to the plan and for arresting haphazard growth and for matters ancillary thereto. It envisages the setting up of an <ORG> to be styled as Delhi Development <ORG> which would be a body corporate by the name aforesaid having perpetual succession and a common seal with power 'o acquire, hold and dispose of property, both movable and immovable, and to contract and shall by the said name, sue and be sued. The composition of the <ORG> is set out in sub-section (iii) of s. 3. Amongst others, Administrator of <ORG> would be an ex-officio Chairman and a Vice-Chairman to be appointed by <ORG>. The Vice-Chairman may be either a whole-time or part-time officer as <ORG> may think fit. Section S contemplates the constitution of <ORG> for the purpose of advising, the <ORG> on the preparation of the master plan and on such matters relating to the planning of development or arising out of or in connection with the administration of the Act. Section 5A which was added by amending Act 56 of 1963 confers power on the <ORG> to constitute as many committees consisting wholly of members or wholly of other persons or partly of members and partly of other persons and for such purpose or purposes as it may think fit. Chapter Ill-A which was inserted by the Amending Act of 1963 confers power for modification of the master plain once prepared. Chapter IV provides for development of lands. Chapter V confers power on <ORG> to acquire land for the purposes of development or for any other purpose under the Act under the provisions to the Land Acquisition Act , 1894, and further authorises <ORG> to transfer the land so acquired to he <ORG>. Chapter VI provides for finances and audit of the accounts of the <ORG> Chapter VII provides for supplemental and miscellaneous provisions. Section 52 confers power on the <ORG> to delegate any power exercisable by it under the Act, except the power to make regulations, on such officer or local authority or committee constitued under s. 5A as may be mentioned, by a notification to be published in the Official Gazette in such cases and subject to such conditions, if any, as may be specified therein. One more section of which notice should be taken is s. 57 which confers power on the <ORG> with the previous approval of <ORG> by notification in the official Gazette to make regulations consistent; with the Act and the rules made thereunder to carry out the purposes of this Act. Sub-s. provides that until the <ORG> is established under the Act any regulation which may be made under. sub-s. may be made by <ORG> and any regulation so made may be altered or rescinded by the <ORG> in exercise of its powers under sub-s. Section 58 makes it obligatory to lay every rule and regulation made under this Act before <ORG> in session for a period of 30 days and subject to any alteration or modification therein the rule or regulation shall after expiry of the prescribed period mentioned have effect only in such modified form or be of no effect as the case may be, so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under the rule or regulation.

Petitioners belong to <ORG>, each of whom registered himself as an intending applicant for a flat in <ORG> scheme and each of whom has been allotted a flat either in Rajouri Garden, Prasad Nagar or Lawrence Road. Number of persons desirous of having a flat registered with the <ORG> far outnumbered the available flats with the result that lots had to be drawn and the lucky ones got a letter of allotment to pay the price set out in the brochure in respect of each scheme and to obtain a flat. Each petitioner had paid the price and has entered into possession of the allotted flat. All the petitioners now contend that the <ORG> has levied and collected a surcharge as part o: purchase price of flat arbitrarily and without the authority of law and has collected the same from them in violation of its object of functioning on 'no profit no loss' basis and thereby made a huge profit. They further contend that they have been subjected to discriminatory treatment in contravention of Art. 14 of the Constitution inasmuch as no surcharge has been collected from allottees of flats in <ORG> schemes prior to November 1976 and subsequent to January 1977 except these three schemes and one Wazirpur <ORG> scheme. Further, no other <ORG> scheme flats have been subjected to such unauthorised levy of surcharge. It is pointed out that the levy of surcharge has been scrapped in 1978. The petitioners contend that levy of surcharge has no nexus to the object for which the <ORG> was set up namely, providing housing accommodation at reasonable price by the <ORG> whose declared policy is 'no profit no loss'. It was said on behalf of the petitioners that even if the <ORG> was set up for providing housing accommodation to the people in different income groups (keeping in view their financial capacity/affordability) yet a statutory body like the <ORG> operating on 'no profit no, loss' basis must have a scientifically prescribed formula for working out its price structure and that must be uniformly applied to all those who apply for flats and to whom they are allotted and such a statutory <ORG> cannot discriminate in working out the disposal price of the flats by including surcharge in respect of some <ORG> schemes within a certain specified period, a surcharge not authorised by law and not sanctioned by the <ORG> as a component of price and unknown to pricing of flats, while others similarly situated and similarly circumstanced and belonging to the same income group enjoyed the benefit cf getting flats at cost price and, therefore, petitioners have been accorded discriminatory treatment in the matter of price of flats allotted to them. Petitioners, therefore, contend that even if they applied for flats anc got registered and were offered flats and accepted the same at the price stated in the brochure and even if it has resulted in a concluded contract yet the <ORG> should not turn a blind eye to such gross discrimination by a statutory authority charged with a duty to provide housing accommodation acting on the declared policy of 'no profit no loss'. It was simultaneously contended that the Vice- Chairman of the <ORG> authorised to determine the prices of flats in each income group has not made any order or has not given any direction for levy of surcharge and that the levy of surcharge was wholly unauthorised.

A preliminary objection was raised by the <ORG> that the petitions are not maintainable under Art. 32 of the Constitution inasmuch as The petitioners have not come to the <ORG> for enforcement of a t fundamental right conferred upon the petitioners under Part III of the Constitution but the petitioners have invoked jurisdiction of this <ORG> for a relief of re-opening concluded contracts. It was also submitted that if the <ORG> accepts the contention of the petitioners they would derive an unfair advantage over others who may not have applied for flats because of the price set out in the brochure and if surcharge is excluded they may have applied for flats at a lower price and, there fore, also the <ORG> should not entertain the petitions.

Though we are not inclined to reject the petitions on this preliminary objection as we have heard them on merits it is undeniable that camouflage of Art. 14 cannot conceal the real purpose motivating these petitions, namely, to get back a part of the purchase price of flats paid by the petitioners with wide open eyes after flats have been securely obtained and petition to this <ORG> under Art. 32 is not a proper remedy nor is this <ORG> a proper forum for re-opening the concluded contracts with a view to getting back a part of the purchase price paid and the benefit taken. The undisputed facts are that petitioners offered themselves for registration for allotment of flats that may be constructed by the, <ORG> scheme. After the registration and when the flats were constructed and ready for occupation brochures were issued by the <ORG>. One such brochure for ', allotment of <ORG> flats in Lawrence Road residential scheme is Annexure R-1. This brochure specifies the terms and conditions including price on which flat will be offered. It also reserved the right to surrender or cancel the registration, the mode and method of paying the price and handing over the possession. There is an application form annexed to the brochure. Annexure 'A' to the brochure sets out the price of flat on the ground floor, first floor and second floor respectively. It sets out the premium amount payable for land as also the total cost in respect of the flats on the ground floor, first floor and second floor. The statement also shows the earnest money deposited at the time of the registration and the balance payable. It is on the basis of these brochures that the applicants applied for the flats in Lawrence Road and other <ORG> schemes. They knew and are presumed to know the contents of the brochure and particularly the price payable. They offered to purchase the flats at the price on which the <ORG> offered to sell the same. After the lots were drawn and they were lucky enough to be found eligible for allotment of flats, each one of them paid the price set out in the brochure and took possession of the flat, and thus sale became complete. There is no suggestion that there was a mis-statement or incorrect statement or any fraudulent concealment in the information supplied in the brochure published by the <ORG> on the strength of which they applied and obtained flats. How the seller works out his price is a matter of his own choice unless it is subject to statutory control. Price of property is in the realm of contract between a seller and buyer. There is no obligation on the purchaser to purchase the flat at the price offered. Even afar registration the registered applicants may opt for other schemes. His light to enter into-other scheme opting out of present offer is not thereby jeopardised or negatived and applicants so outnumbered the available flats that lots had to be drawn. With this background the petitioners now contend that the <ORG> has collected surcharge as component of price which the <ORG> was not authorised or entitled to collect. Even if there may be any merit in this contention, though there is none, such a relief of refund cannot be the subject-matter of a petition under Art. 32. And Art. 14 cannot camouflage the real bone of contention. Conceding for this submission that the <ORG> has the trappings of a <ORG> or would be comprehended in 'other authority' for the purpose of Art. 12 , while determining price of flats constructed by it, it acts purely in its executive capacity and "is bound by the obligations which dealings of the <ORG> with the individual citizens import into every transacting entered into the exercise of its constitutional powers But after the <ORG> or its agents have entered into the field of ordinary contract, the relations are no longer governed by the Constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. No question arises of violation of Art. 14 or of any other constitutional provision when the <ORG> or its agents, purporting to act within this field, perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the. terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the <ORG> in the contractual field which is apart from contract" (see <CITATION> .) Petitioners were under no obligation to seek allotment of flats even after they had registered themselves. They looked at the price and flats and applied for the flats. This they did voluntarily. hey were advised by the brochures to look at the flats before going in for the same. They were lucky enough to get allotment when the lots were drawn. Each one of them was allotted a flat and he paid the price voluntarily. They are now trying to wriggle out by an invidious method so as to get back a part of the purchase price not offering to return the benefit under the contract, namely, surrender of flat. I The <ORG> in its affidavit in reply in terms stated that it is. willing to take back the fiats and to repay them the full price. The transaction is complete, viz., possession of the flat is taken and price is paid. At a later stage when they are secure in possession with title, petitioners are trying to get back a part of the purchase price and thus trying to re-open and wriggle out of a concluded contract only partially. In a similar and identical situation <ORG> in <NAME> & <ORG>. v. <ORG> has observed that those who contract with open eyes must accept the burdens of the contract along with its benefits. Reciprocal rights and obligations arising out of contract do not depend for their enforceability upon whether a contracting party finds it prudent to abide by the terms of the contract. By such a test no contract would ever have a binding force. The jurisdiction of this <ORG> under Art. 32 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. It would thus appear that petitions ought not to have been entertained. However, as the petitions were heard on merits, the contentions canvassed on behalf of the petitioners may as well be examined The principal contention canvassed on behalf of the petitioners is that the treatment meted to them by the <ORG> is discriminatory inasmuch as no surcharge was levied on flats in <ORG> scheme constructed and allotted prior to November 1976 and after January 1977. <ORG> flats involved in these petitions were constructed and were available for allotment in November 1976 and the lots were drawn in January 1977. There is one more <ORG> scheme at Munirka where the allotment took place at or about the same time but in which case no surcharge was levied. The contention is that once for the purpose of eligibility to acquire a flat, the criterion is grounded in income brackets, <ORG>, LIG, et . those in the same income bracket form one class even for the purpose of determining disposal price of flat allotable to them irrespective of situation, location or other relevant determinants which enter into price calculation and therefore, in the same income group there cannot be differentiation by levying of surcharge in some cases and charging only the cost price in other cases and that the discrimination is thus writ large on the face of the record because by levying surcharge in case of petitioners they have been treated unequally and with an evil eye. It is difficult to appreciate how Art. 14 can be attracted in the circumstances hereinabove mentioned. Cost price of a property offered for sale is determined according to the volition of the owner who has constructed the property unless it is shown that he is under any statutory obligation to determine cost price according to certain statutory formula. Except the submission that the <ORG> has a proclaimed policy of constructing and offering flats on 'no profit no loss' basis which according to Mr. <NAME> has a statutory flavour in the regulations enacted under the Act, the <ORG> is under no statutory obligation about its pricing policy of the flats constructed by it. When the flats were offered to the petitioners the price in round figure in respect of each flat was mentioned and surcharge was not separately set out and this price has been accepted by the petitioners. The obligation that regulations are binding on the <ORG> and have provided for a statutory price fixation formula on 'no profit no loss' basis will be presently examined but save this the <ORG> is under no obligation to fix price of different flats in differed. schemes albeit in the same income group at the same level or by any particular statutory or binding formula. The <ORG> having the trappings of a <ORG> might be covered by the expression 'other authority' in Art. 12 and would certainly be precluded from according discriminatory treatment to persons offering to purchase flats in the same scheme. Those who opt to take flats in a particular income- wise area-wise scheme in which all flats came up together as one project, may form a class and any discriminatory treatment in the same class may attract Art. 14. But to say that throughout its course of existence the <ORG> would be bound to offer flats income-groupwise according to the same price formula is to expect the <ORG> to ignore time, situation, location and other relevant factors which all enter the price structure. In price fixation executive has a wide discretion and is only answerable provided there is any statutory control over its policy of price fixation and it is not the function of the <ORG> to sit in judgment over such matters of economic policy as must be necessarily left to the Government of the day to decide. The experts alone can work out the mechanics of price determination; <ORG> can certainly not be expected to decide without' the assistance of the experts (See <ORG> and <ORG> v. <ORG>) In the leading judgment it has been observed that mechanics of price fixation have necessarily to be left to the executive and unless it is patent that there is hostile discrimination against a class the processual basis of price fixation has to be accepted in the generality of cases as valid.

This Court in <CITATION> ,(l) approved the following dictum of <NAME> on Constitutional Law, page 587:

"The <ORG> does not have to tax everything in order to tax something. It is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonably . . . <ORG> has been practical and has permitted a very wide latitude in classification for taxation.

What is forbidden by Art. 14 is discrimination amongst persons of the same class and for the purposes of allotment of flats scheme-wise, allottees of flats in the same scheme, not different schemes in the same income bracket, will have to be treated as a class and unless in each such class there is unequal treatment or unreasonable or arbitrary treatment, the complaint that Art. 14 is violated cannot be entertained. Therefore, in the <CITATION> , etc., <NAME>, J., speaking for the <ORG> observed as under:

"A reasonable classification is one which includes all who are similarly situated and none who are not. The question then is what does the phrase 'similarly situated' mean ? The answer to the question is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law. The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good."

Is the classification income-wise scheme-wise violative of Art. 14 in any manner ? The <ORG> formulates income- wise area-wise schemes for constructing flats. Petitioners contend that there should be only income-wise classification wholly ignoring area and time factor for classification. They say that allottees of flats in all <ORG> schemes irrespective of area and location and irrespective of when the flats were constructed form one class for determining price of flats. There. is no merit in this contenting. What are price determinants ? Price of land, building material, labour charges and cost of transport, quality and availability of land, supervision and management charges are all variable factors that enter into price fixation. Their cost varies time-wise, place-wise, availability-wise. All these uncertain factors cannot be overlooked for the purpose of classification. Therefore, it is not possible to hold that allottees of flats in <ORG> scheme at any place and executed at any time will form one class for the purpose of pricing policy. only valid basis for classification would be income-wise, area-wise, time- wise, scheme-wise, meaning all flats constructed at or about the same time in same area in one project for particular income-group will form a class. And there is no discrimination amongst them.

Pricing policy is an executive policy. If the <ORG> was set up for making available dwelling units at reasonable price to persons belonging to different income-groups it would not be precluded from devising its own price formula for different income-groups. If in so doing it uniformally collects something more than cost price from those with cushion to benefit those who are less fortunate it cannot be accused of discrimination. In this country where weaker and poorer sections are unable to enjoy the basic necessities, namely, food, shelter and clothing, a body like the <ORG> undertaking a comprehensive policy of providing shelter to those who cannot afford to have the same in the competitive albeit harsh market of demand and supply or can afford it on their own meagre emoluments or income, a little more from those who can afford for the benefit of those who need succour, can by no stretch of imagination attract Art.

14. People in, the <ORG> can be charged more than the actual cost price so as to give benefit to allottees of flats in <ORG>, <ORG> and <ORG>. And yet record shows that those better off got flats comparatively cheaper to such flats in open market. It is a well recognised policy underlying tax law that the <ORG> has wide discretion in selecting the persons or objects it will tax and that the statute is not open to attack on the ground that it taxes some persons or objects and not others. It is only when within the range of its selection the law operates unequally, and this cannot be justified on the basis of a valid classification, that there would be a violation of Art. 14 , (see <CITATION> ). Can it be said that classification, income-wise-cum-scheme-wise is unreasonable ? The answer is a firm no. Even the petitioners could not point out unequal treatment in same class. However, a feeble attempt was made to urge that allottees of flats in <ORG> scheme at Munirka which project came up at or about the same time were not subjected to surcharge. This will be presently examined but aside from that, contention is that why within a particular period, namely, November 1976 to January 1977 the policy of levying surcharge was resorted to and t-hat in <ORG> schemes pertaining to period prior to November 1976 and later April 1977 no surcharge was levied.

If a certain pricing policy was adopted for a certain period and was uniformly applied to projects coming up during that period, it cannot be the foundation for a submission why such policy was not adopted earlier or abandoned later.

It was, however, said that levying of surcharge runs counter to object for which the <ORG> was set up, namely, to make available housing accommodation on 'no profit no loss' basis. The argument proceeds on the assumption that the principle of 'no profit no loss' implies that in respect of each flat the cost of its construction must be worked out and that alone can be the disposal price of each flat. Principle of 'no profit no loss' has been explained by the respondents. It IS said that in the over- all working, planning and execution of projects which the <ORG> undertakes as part of development of Delhi, the integral part of it being construction of flats for different income-groups the motives and working of it would not be profit oriented but would work on 'no profit no loss' economic doctrine. This would not for a moment suggest that the principle of 'no profit no loss' should apply either to every flat or to every scheme or to every piece of land developed by the <ORG>. It would be impossible for the <ORG> to function on such fragmented basis and such a policy statement has not been made by the <ORG>. Of course, some public statement appears to have been made that the overall working of the <ORG> is on "no profit no loss' basis. Respondent 1 has been able to point out that the <ORG>'s housing scheme, as a whole has been running in a heavy deficit because flats including such as those of the petitioners actually cost much more than the initially determined estimates and by the time flats are ready for occupation initial estimates founded on prevalent market prices of materials and labour escalate and revised estimates have to be made. It is also shown that till Municipal authority takes over municipal services the <ORG> spends for the same and incurs cost. Apart from that petitioners have not been able to show that the <ORG> is actuated by commercial profit oriented approach in its overall working.

It is, however, necessary to examine the contention whether this 'no profit no loss' policy statement has any statutory flavour as contended by Mr <NAME>. The regulations styled as the Delhi Development <ORG> (Management and Disposal of Housing Estates) Regulations, 1968, ('Regulations' for short) are framed in exercise of the powers conferred by s. 57 and were laid before <ORG> as required by s. 58 . Disposal price has been defined in Regulation 2(13) to mean in relation to a property such price as may be fixed by the <ORG> for such property. There is not the slightest or even a remote reference to 'no profit no loss' formula for determining the cost price. A quick survey of the Regulations do A not spell out any formula for price determination on the basis of 'no profit no loss'. Whether the power to determine disposal price is in <ORG> will be presently examined. Regulations, however, on the contrary indicate that the power to determine the disposal price is vested in the <ORG> and as price has been fixed by the delegate of the <ORG> even if it is inclusive of surcharge it cannot be said that it runs counter to the declared policy of the <ORG>.

It is at this stage necessary to examine the contention that in the case of Wazirpur and Munirka LIG schemes which came up during this very period no surcharge was levied and, therefore, there is invidious discrimination amongst members of the same class. Again the argument proceeds that income- wise classification alone is valid. Here time-wise (November 1976 to January 1977) classification is relied upon. It is an admitted position that no surcharge is levied on <ORG> flats at Munirka. The affidavit in reply shows that the land on which flats are constructed in Munirka <ORG> scheme turned out to be very rocky with the result that the construction cost in respect of flats at Munirka <ORG> scheme worked out at Rs. 456 per plinth area per metre whereas in respect of Lawrence Road it came to Rs. 401.54 p. Only. The <ORG>, therefore, thought that if surcharge is levied on flats under <ORG> scheme in Munirka area the disposal price would be very high and would be beyond the reach of <ORG>. It is in this background of the special facts that 'no surcharge was levied in respect of any flat in <ORG> in Munirka area. Project-wise price fixation cannot be dubbed as arbitrary or discriminatory in comparison with other projects at different places.

It was, however, pointed out that 132 flats in Rajouri Garden MIG scheme were disposed of- without levying surcharge as component of sale price. It is pointed out in affidavit in reply that those flats were handed over to <ORG> for meeting their needs for staff quarters and that was done in the year 1978. It is also pointed out that the Government charged half the price of the land in respect of these 132 flats and, therefore, surcharge was not levied. There is two-fold fallacy in this submission. Government ordinarily is in a class by itself and its needs of staff quarters deserve to be met in large public interest. Government has not got any undeserved benefit at the cost and risk of petitioners. Hence their complaint in this behalf is without merits.

It was next contended that surcharge is arbitrary inasmuch as how the surcharge is worked out in each case does not answer any rational, tangible, scientific cr understandable formula. How the figure of surcharge has been worked out has been explained in detail in affidavit in reply. Briefly recapitulating the same, it may be mentioned that initial estimates for 304 MIG flats in Prasad Nagar area were prepared in or about 1971 and the estimated cost was Rs. 1,17,83,200 and that on March 21, 1972, an estimate of Rs 1,09,97,100 was sanctioned. After the work commenced and the actual cost started coming in the revised estimate for 304 flats was of the order of Rs. 2,07,33,000 which was approved by the Vice-Chairman on September 18, 1976. According to the revised estimate the approximate disposal cost for each flat came to Rs. 68,202 and the cost of land per dwelling unit was Rs. 7,008. Extracts of original notes of Financial Adviser (Housing) and the approval of the same by the Vice- Chairman have been set out in the affidavit in reply. The subsequent revised estimates show that disposal price of each flat would be Rs. 75,200. In the meantime <ORG> wanted to acquire 40 MIG flats in Prasad Nagar area and the same were offered at the price of Rs. 75,000, per flat. Commissioner of Income Tax accepted the price. This became the starting point for working out the disposal price in that period. The difference between the cost price and the disposal price of Rs. 75,000 per flat was treated as surcharge and the purpose was to use the extra money for extending cost reduction benefit to the allottees of flats in <ORG>, <ORG> and <ORG> schemes. Affidavit in reply of the Secretary of Respondent 1 provides further information which show that the cost price would be Rs. 78,000. Therefore, at best the component of surcharge would be between Rs. 1700 to Rs. 2200 in Rajouri Garden MIG flats. Similarly, with regard to MIG flats at Lawrence Road the actual cost price would be in close proximity of the disposal price would be in close proximity of the disposal price charged from the petitioners. It is, therefore, difficult to entertain the contention that even if surcharge could be justified its actual computation is arbitrary and irrational.

The next contention is that Vice-Chairman had no authority to levy surcharge and that even if he has authorised the same it runs counter to the principle of fixing disposal price incorporated in Resolution No. 209 dated November 26, 1974. The Vice-Chairman is to be appointed by <ORG> as per s. 3(3)(b) of the Act. It appears that this Vice-Chairman is whole-time officer and will be the Chief Executive of the <ORG>. This becomes clear from regulation 3 of the Regulations which provides as under:

"3. These regulations shall be administered by the Vice-Chairman, subject to general guidance and resolutions of the <ORG>, who may delegate his powers to any officer of the <ORG>".

Thus the Vice-Chairman, subject to general guidance and resolutions cf the <ORG>, shall administer the regulations. He can delegate the functions to any officer of the <ORG>. Regulation 59 is important which reads as under:-

"59. The <ORG> may delegate all or any of its powers under these regulations to the Vice-Chairman or to a whole time member".

Armed with this power of delegation the <ORG> adopted Resolution No. 60 dated February 21, 1970 which reads as under:

"Resolved that the recommendations of the <ORG> be approved and all the powers of <ORG> be exercised by the Housing <ORG> and the Chairman, <ORG> be authorised to constitute the said committee, determine the organisational set-up and take (sic) all efforts for implementing the housing and allied schemes".

Serious exception was taken to this gross abdication of its powers and functions by the <ORG>. The composition of the <ORG> as set out in s. 3 would include such persons as <ORG> Member, Engineering Member, representatives of <ORG> and representatives of <ORG> as and when set up. Three other persons were to be nominated by <ORG> of whom one shall be person with experience of planning. It is a high power body. Yet it completely abdicated its power and authority in favour of <ORG>. The <ORG> will practically supplant the <ORG>. But the more objectionable part of Resolution No. 60 is that such <ORG> which is to enjoy all powers and functions of the <ORG> was to be constituted by the Chairman at his sole discretion because he was authorised not only to constitute the <ORG> but to determine organisational set up and then make all efforts for implementing the housing and allied schemes. It is really difficult to appreciate such whole-sale abdication or delegation of powers by a statutory authority in favour of a <ORG> whose composition would be determined by one man, the Chairman. By a process of elimination the <ORG> could supplant the <ORG> and the Chairman could constitute <ORG>. Therefore, the Chairman enjoyed a very wide discretionary power. Though Mr. <NAME> did challenge the validity of Resolution No. 60, Mr. <NAME> in cognate petition refrained from doing so. Once the power to delegate is given by the Regulations the challenge to validity on the ground of delegation must fail It is, however, necessary to examine the submission whether Vice-Chairman could have permitted levy of surcharge as a component of the price of flats in MIG schemes. In this connection it would be advantageous to refer to Resolution No. 20 dated June 18, 1968. Of the <ORG> by which the recommendations of the Standing <ORG>, inter alia, empowering the Vice-Chairman to approve forms of application as well as to fix the disposal and hire-purchase price were accepted. Resolution No. 209 is the one adopted by the <ORG>. It takes note of the delegation of powers to fix disposal and hire-purchase price of flats to the Vice-Chairman and further provides that if there is a marginal saving in any scheme the amount is always diverted to subsidies cost of <ORG> and <ORG> houses. It seems the Resolution is for information of the <ORG> and the <ORG> has merely resolved that the information be noted. The Resolution No. 200 of the <ORG> with Resolution No. 209 of the <ORG> sets out clearly that the power to fix the disposal price was delegated to the Vice-Chairman and ordinarily such excessive delegation to one man may be galling to a judicial body yet the scheme of regulations and the provisions contained in Regulation 3 read with s. 59 clearly envisages such delegation of powers. It is, therefore, idle to contend that the Vice-Chairman had no authority to levy the surcharge as component of disposal price of flats.

It was next contended that even if Vice-Chairman had such power there is nothing to show that he has exercised this power and that, therefore, somewhere without any authority someone has added the surcharge to the disposal price and that, therefore, the levy of surcharge is unauthorised. The submission seems to be factually incorrect. The note of Accounts officer (Housing) dated September 8, 1976, submitted to the Financial Advisor (Housing) shows that the flats have been offered at the rate of Rs. 75,000 to the Commissioner of Income Tax for <ORG> and that should be the disposal price This note was approved by the Financial Advisor (Housing) and ultimately countersigned by the Vice-Chairman. There fore, the price of Rs. 75,000 as the disposal price is approved by the Vice-Chairman. Even if it includes surcharge it cannot be said with confidence that the Vice-Chairman has not approved the surcharge as a component of disposal price.

The last contention is that the <ORG> has made a huge profit by levy of surcharge. In this connection statistical table was annexed to the petition and there was serious controversy about the facts and figures set out therein, by the other side. Having gone through the detailed affidavit in reply it transpires that the contention is without merits. Therefore, there is no substance in the contention that the <ORG> has made a huge profit. On the contrary it appears that the overall working of the <ORG> is deficit ridden.

These were all the contentions in these petitions and as there is no Merit in any of them the petitions are dismissed. There will be no order as to cost <ORG> Petitions dismissed.


<NAME>, J.

1. The defendant in O.S.No. 454 of 1975 on the file of the City Civil Judge, Madras, is the petitioner in this revision. The respondent is the plaintiff decree-holder. The defendant admittedly was let into possession of the premises in question as a tenant. The tenancy was terminated and the plaintiff laid the suit for ejectment of the defendant. Apart from other contentions,, the defendant raised a plea that the suit for ejectment is not maintainable in view of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 hereinafter referred to as the Act. The plaintiff counteracted this defence of the defendant by stating that the building was completed only in March, 1970 and as per Section 30(i) of the Act, nothing in the Act shall apply to any building for a period of five years from the date on which the construction is completed and notified to the local authority concerned. <ORG> countenanced this case of the plaintiff. The suit came to be heard in January, 1976 and was, in fact, disposed of on 19th January, 1976, and by that time, the five year period of exemption under Section 30(i) of the Act had lapsed. Hence, the defendant put forth a contention that a decree as such could not be passed. This contention of the defendant was also rejected by the first Court. The defendant appealed in A.S.No. 247 of 1976, which Was heard and disposed of by a Bench of this Court, consisting of <NAME> and <NAME>, JJ. The defendant repeated the very same contention that the period of exemption had lapsed and the inhibition with regard to eviction of tenants will come into play. The learned Judges considered it unnecessary at that stage to go into the question as to whether : any decree that may be passed in the suit is executable or not in view of the provisions of Section 10 of the Act, as that question will arise only at the stage of the execution after the decree is passed. The learned Judges expressing an opinion that the first court was in error in going into that question at that stage, set aside that finding of the court below, and without going into the question of the executability of the decree, the decree for ejectment was confirmed, leaving it open to the defendant to agitate the. same at the stage of execution. The appeal was ultimately dismissed. The plaintiff has levied execution in E.P.No. 2166 of 1981. of the decree for ejectment. The defendant, apart from contesting the execution for delivery of possession, took out E.A.No. 924 of 1982 under Section 47 of the Code of Civil Procedure to declare that the decree passed in the suit is not executable in view of the provisions of the Act. The court below has dismissed E.A.No. 924 of 1982 -and consequently directed delivery of possession in E.P.No. 2166 of 1981. This revision is preferred against the order passed by the Court below in. E.A.No. 924 of 1982. The Court below relied on a pronouncement of <NAME>, J. in <CITATION> .

2. Mr. <NAME>, learned Counsel for the defendant, would submit that even prior to the date of the decree in the suit and pending the suit the exemption under Section 30(1) of the Act had lapsed and even though the jurisdiction of <ORG> to pass a decree is not ousted, on the lapse of the exemption, the Act became applicable to the premises in question and when the execution came to be levied, the provisions of the Act squarely applied and there could not be an eviction of the defendant, who has become a tenant within the meaning of the Act, except under the provisions of the Act. Learned Counsel further submits that with or without the exemption, the jurisdiction of <ORG> to pass a decree in ejectment even against a tenant within the meaning of the Act is not ousted and this proposition has emerged from the judicial precedents rendered under the Rent Control Statute, which prevailed and which is prevailing in this State and the* only inhibition is with reference to evicting the tenant in execution of such a decree or otherwise except through the processes under the Act, and on the conditions set out therein getting satisfied therefor, and when the execution came to be levied in respect of the decree, the Act had come to be applied to the premises in question and the decree could not be availed of to evict the defendant, who is a tenant within the meaning of the act. As against this, Mr. <NAME>, learned Counsel appearing for the plaintiff, would heavily rely on the pronouncement of <NAME>, <NAME> referred to above to state that the decree obtained by the plaintiff can be executed though the period of five years under, Section 30(1) of the Act had expired by the time the decree was granted and the execution proceedings initiated.

3. The contentions raised by the respective counsel oblige me to bestow some serious attention on the case law on the subject including that which has arisen in similar contingencies under the Act itself or under similar statutes, current and prevailing anterior to the enactment of the Act. Before I do that, I would like to advert to the broad and general implications of the exemption provision in Section 30(1) of the Act. It says that nothing in the Act shall apply to any building for a period of five years from the date on which the construction is completed and notified to the local authority concerned. This exemption has got a peculiarity of its own. A building within the meaning of the Act comes into existence for the first time. Normally the provisions of the Act should apply. By this exemption, the application of the Act gets postponed for a period of five years, and the Act comes into force so far as this building is concerned only after the lapse of the five years. Hence the principles discussed in judicial precedents, taking note of the coming into force of provisions similar to those under the Act, for the first time before the decree or after the decree and before the levying of execution or after the levying of execution and under similar contingencies are very relevant for the purpose of deciding the implication of the present exemption provision. The first principle to construe an exemption provision is that it should be properly and strictly construed against the person who claims it. Courts are not supposed to enlarge or extend the exemption beyond the scope of the provision. But for the exemption, the Act would apply even to a new building. The application of the Act to new building gets postponed and hence on the lapse of the period of five years, the Act must be applied to even such a building.

4. <CITATION> (1954)1 M.L.J.44 : A.I.R.1945 Mad. 181 Chandrasekhara Aiyar, J. held that there was an ouster of jurisdiction of Civil Courts and the remedy of the plaintiff was to go before the Controller.

5. <CITATION> (1945)1 M.L.J.441 : 58 L.W.527 : A.I.R.1945 Mad.386, <NAME>, J. dealt with a case where the landlord had, after giving notice, filed a suit for evicting a tenant and had obtained a decree therein and levied execution for delivery prior to the amendment of the House Rent Control Order prescribing that a tenant could not be evicted except under an order of the Rent Controller, and the learned Judge held that the landlord's right to execute the decree was not taken away by the amendment, which came into force subsequent to the application to execute the decree. <NAME>, J. after referring to the decision of <NAME>, j. summed up the proposition in the following terms:

and when an application for possession comes before the Controller, the Controller should apply his mind to the circumstances actually present before him to enable him to make or refuse an order, and it would be for one side or the other to point out that the application for ejectment had lost its force owing to the fact that since the application had been made, difficulties which were then not in existence had arisen or difficulties that were in existence had disappeared. I am not however concerned with any such position in this case.

6. In V.R.R. Sami Ayyar, In re (1946)1 M.L.J. 134 : A.I.R.1946 Mad.321, <NAME>, J. dealt with the contention that a decree for eviction could not be passed by <ORG> in view of Section 7(A) of the Madras House Rent Control Order, 1941. Before the learned Judge, the pronouncement of <NAME>, J. in <NAME> <NAME> v. <ORG> (1945)1 M.L.J.44 : A.I.R.1945 Mad. 181, was relied on, but the learned Judge did not accept the same and held that the wording of the section is not such as to deprive <ORG> of their power to entertain the suit for eviction and to adjudicate upon it and what the Control Order prohibits is eviction outside the provisions of Section 7(A) of the Order. The very same learned Judge in <NAME> v, <NAME> (1946)1 M.L.J. 135 : A.I.R.1946 Mad.320 once again dealt with a similar contention and repelled the same, holding that:

It cannot be said that these words are wide enough to deprive <ORG> of their jurisdiction to pass decrees; all that the rule contemplates is the control of the relief of eviction.

Even here, <NAME>, J. did not follow the pronouncement of <NAME>, J.

7. In <NAME> v, <NAME> (1948)2 M.L.J.359 : 61 L.W.639 : A.LR.1949 Mad.367, <NAME>, J. was dealing with a case where the suit for ejectment was pending when the Madras Non-Residential Building Rent Control Order was amended. However, an ex parte decree was passed subsequently and the property itself was delivered to the plaintiff landlord in execution proceedings. But the execution application was not normally closed and the defendant/tenant applied to the <ORG> for redelivery of the property and the same was ordered. The District Munsif upheld the contention of the defendant that under Section 8(1) of the Amended Non-Residential Buildings Rent Control Order, a tenant could not be evicted and accordingly held that the previous order directing delivery was wrong and the court had jurisdiction to set aside that order and to order re-delivery as the execution petition had not been closed and the proceedings were still pending before the <ORG>. The decree-holder appealed and the appellate <ORG> also agreed with the first <ORG> on this question. A civil miscellaneous second appeal was preferred to this <ORG>. <NAME>, J. construed the expressions "in execution of a decree or otherwise" occurring in Section 8(1) of the Control Order and held that it would have reference to a decree in a suit instituted after the amendment and the learned Judge declined to construe the section retrospectively and further held as follows:

...If there is nothing else in the enactment to indicate that every pending legislation or pre-existing substantive rights of parties were intended to be affected by the amended Order, I must hold in accordance with the well established rules of construction of statutes "that the amended Control Order, Section 8 , Clauses 1 and 2 had no application to the present execution petition and that the order for delivery originally made was right and proper. Reference may usefully be made in the discussif i of the questions as to how far statutes can be taken to have retrospective operation to the judgment in <ORG> Mt. Atiga Begum (1940) F.C.R.I 10 : 53 L.W.397 : A.I.R. 1941 F.C. 16. <NAME>, J. points out that unless either by express or by necessary intendment it is made out in the new legislation that it applies to pending proceedings as well, it ought not to be construed to have retrospective operation so as to affect the rights of parties in pending suits. <NAME>, J. also refers to the same principle and explains the decision of the judicial Committee in <NAME> v, Mst. <NAME> (1936) L.R.63 I.A.47 : I.L.R.(1936) 15 Pat.268 : 43 L.W.336 (P.C.) : 70 M.L.J.105 : A.I.R.1936 P.C.49.

The learned Judge further observed that the Order itself is only for a short duration and if and when it is repealed or it expires without being renewed, the previous decree of <ORG> will have to be executed by the civil court as in ordinary cases. In the result, the learned Judge allowed the civil miscellaneous second appeal.

8. As against the decision of <NAME> J. on leave being granted by the learned Judge, a Letters Patent Appeal was preferred and the matter came up before <NAME> and <NAME>, JJ. in <CITATION> (1949)1 M.L.J.37.6 : A.I.R.1949 Mad.809. The learned Judges adverted to the fact that execution proceedings were filed long after the amendment came into force and that they are not concerned with the applicability of the new law to pending proceedings. The contention before the Bench was that the moment a person files a suit, he obtains thereby a vested right to have applied not only to the suit, but to all execution proceedings also, the law relating to execution as it existed at the time of filing the suit. The Bench repelled the said contention, observing as follows:

We know of no such principle; and we find no reason to think from the cases that have been cited before us that if a new law is introduced restricting the right to execute, execution proceedings can nevertheless be instituted if such a right existed on the date of the filing of the suit.

The Bench was not prepared to follow the Judgment of <NAME>, J. in the United Province v. Mt. Atica 'Begum (1940) F.C.R.110 : 53 L.W.397 in which a reference was made to certain English cases interpreting British statutes said to be similar to the statute under consideration, and the learned Judges declared that they have not seen those decisions of statutes and they are not at all convinced that any such general principle exists. The learned Judges also referred to the Judgment of <NAME>, J. in <NAME> v. <NAME> (1945)1 M.L.J. 441 : 58 L.W,527 : A.I.R.1945 Mad.386 and after adverting to the passage in the judgment of <NAME>, <NAME> (supra), opined that <NAME>, J. far from thinking that a landlord had, by the institution of the application for possession in <ORG> acquired an absolute right to physical possession, contemplated proceedings before the Rent Controller in which it would be contended by the tenant that in view of the new legislation actual possession could not be given. The learned Judges allowed the Letters Patent Appeal and set aside the pronouncement of <NAME> J. in <NAME> v. <NAME> (1948)2 " M.L.J.359 : 61 L.W.639 : A.I.R.1949 Mad.367.

9. <CITATION> (1949)1 M.L.J.452 : I.L.R. (1950) Mad. 152 : 63 L.W.1059 : A.I.R.1949 Mad.765 a Bench of this Court, consisting of <NAME>, <NAME> and <NAME>, J. was concerned with a suit filed by the landlord for eviction of the tenant from the building, which suit was thrown out by the first Court, following the pronouncement of <NAME>, J. in <CITATION> . (1949)1 M.L.J,44 : A.I.R.1945 Mad.181 on the ground the provisions of the Madras Non-Residential Buildings Rent Control Order (1942) prohibited the institution of a suit for possession. However, on appeal, the lower appellate court following certain decisions of this Court subsequent to the pronouncement of <NAME>, J. referred to above, held that the suit was maintainable and passed an order of remand to the first Court. This order of remand was put in issue in a civil miscellaneous appeal before the Bench. The Bench expressed the view that the eviction could only be in accordance with the provisions of the Rent Control Order, there was no prohibition regarding institution and passing of a decree by <ORG>, the civil court which passed the decree might not have jurisdiction to execute the decree for possession and the decree for eviction cannot be executed for some time, during the continuance of the Rent Control Order, Dissenting from the view of <NAME>, J. in <CITATION> (1945)1" M.L.J.44 : A.I.R.1945 Mad.181 the Bench summed up the proposition by stating that the jurisdiction of a civil court to entertain and pass a decree in a suit for eviction by the landlord against the tenant was not expressly or impliedly taken away by the provisions of the Rent Control Order and in this view, the Bench dismissed the civil miscellaneous appeal before it.

10. In <NAME> v. <ORG>, P.N. Ramaswami, J. following the earlier pronouncements in In re. V.R.R. Sami Ayyer,' (1946)1 M.L.J.134 A.I.R.1946 Mad.321 and <CITATION> (1949)1 M.L.J.452 observed as follows:

It is now well settled that a decree in ejectment can be passed by <ORG> and all that the Madras Buildings (Lease and Rent Control) Act ensures is that during the subsistence of that Act, <ORG> cannot execute the decree, but the landlord will have to take appropriate steps under the provisions of the said Act. There is no taking away of the jurisdiction of <ORG> but only an imposition of restrictions in regard to the mode of execution.

11. <CITATION> . <NAME>, C.J. and <NAME>, J. dealt with the case of a decree on compromise passed in a suit instituted by the landlord against the tenant for recovery of possession of the property. The compromise decree was passed on 15th March, 1954. The order for delivery was made in execution on 12th April, 1954 directing delivery by 10th June, 1954. As against this order, there was an appeal and the order of delivery was stayed ex parte on 15th April, 1954. On 27th May, 1954, the landlord decree-holder died. On 8th July, 1954, the appeal was dismissed, upholding the order of delivery and the appellate court apparently taking the view that Section 7 of the Madras Buildings (Lease and Rent Control) Act would not make the original order for possession ipso factc invalid. but it might be that the Judgment debtor could object to actual eviction in pursuance of the order. On 12th July, 1954 the tenant applied for stay of execution. It must be pointed out that earlier on 16th June, 1954 the Rent Control Act got extended to the village where the property was situated. The legal representative of the deceased landlord decree-holder filed ah application also on 12th July, 1954 to be added as a legal representative and praying for an order directing delivery of possession. This was admittedly done after the Rent Control Act was made applicable to the village in question.

12. The ground taken by the tenant was that the Rent Control Act having been extended to the village in which the property was situated on and from 16th June, 1954, the legal representative of the landlord/decree-holder could not evict him. The District Munsif overruled the objection of the tenant and brought the legal representative of the landlord/decree--holder on record and passed an order for delivery of possession to the legal representative. Against this order of the District Munsif, the tenant filed an appeal, which was heard and disposed of by the Subordinate Judge, who dismissed the appeal on the ground that Section 7 of the Act could not apply to pending execution proceedings, that is to say, the prior execution petition wherein an order for eviction had already been passed. Against this order, the tenant preferred an appeal to this Court, which came up for decision before <NAME>, J. The learned Judge' held that Section 7 of the Act did apply and was a complete answer to the claim of the legal representative of the landlord/decree-holder to evict the tenant and hence the appeal was allowed and the execution petition filed by the legal representative of the landlord/decree-holder was dismissed. However, on leave being granted by he learned single Judge, a Letters Patent Appeal came up before the Bench. The Bench found as per the facts above that though there was an order of eviction in a prior execution petition, the tenant could not be evicted in pursuance of that order and that was why the subsequent execution petition was filed on 12th July, 1954 and it was filed after the Rent Control Act had come into operation in the village in which the property was situated. Referring to the decision in <CITATION> (1949)1 M.L.J.376 : A.I.R.1949 Mad.809 the Bench observed as follows:

It was contended before <ORG> that the moment a person files a suit, he obtains thereby a vested right to have applied not only to the suit, but to all execution proceedings also, the law relating to execution as it existed at the time of filing the suit. The learned Judges had no difficulty in rejecting this contention as they were not aware of any such principles. They found no reason to think that, if a new law is introduced restricting the right to execute, execution proceedings can nevertheless be instituted if such a right existed on the date of the filing of the suit . . . .

No doubt there is a reference to pending proceedings in one part of the judgment, but it was not necessary to deal with the point because they held that during the interval between the passing of the decree and the filing of the execution petition, there was no pending proceeding. The basis of the decision is certainly against the view that Clause 8 would not affect pending proceedings....

Referring to the observations of <NAME>, J. in <NAME> v. <NAME> (1945)1 M.L.J.441 : A.I.R.1945 Mad. 386 extracted supra, the Bench expressed the view as follows:

We must confess we are not able to fully appreciate the scope of these observations.

Ultimately the Bench countenanced the principle that the executing <ORG> is bound to apply the provisions in the statute, which had come into force even before the date of the execution petition; which it was called upon to dispose. The Bench also took note of the fact that it was not a case where during the pendency of an already filed execution petition, the Rent Control Act came to be extended to the village in question and by the time of the filing of the concerned execution petition, the Act had already come into force.

13. <CITATION> <ORG> dealt with a case where possession was delivered to the landlord from the tenant of a building even though the provisions of Mysore House Rent and Accommodation Control Order (1948) was in operation on that date. The language of Section 9(1) of the Mysore House Rent and Accommodation Control Order (1948) was more or less similar to Section 10(1) of the Act, when it stated that a tenant in possession of a house shall not be evicted therefrom whether in execution of a decree or otherwise except in accordance with the provisions of that clause. Section 16 of the Mysore House Rent and Accommodation Control Order (1948) while giving liberty to the landlord to file a suit for eviction of a tenant before a competent <ORG> provided that no decree for eviction of a tenant passed by a <ORG> shall be executed unless a certificate to that effect is obtained from the Controller. <ORG> referring to the contention that ignoring the above provisions is no more than an error in the exercise of jurisdiction, observed as follows:

The contention raised that ignoring Sections 9(1) and 16 of the 1948 House Rent Control Order is no more than an error in the exercise of jurisdiction does not appear to be sound because those sections are a fetter on the executability of the decree and not merely an error in the exercise of the jurisdiction. In the present case the two sections mentioned above were a restriction on the power of the <ORG> to execute the decree and therefore this argument must also be rejected.

<ORG> confirmed the view of <ORG> that the executing Court had no jurisdiction to order the eviction of a tenant because of the provisions of the Mysore House Rent and Accommodation Control Order (1948), which was in operation on the date of eviction.

14. <CITATION> <ORG> dealt with a notification issued under Section 3 of the Punjab Urban Rent Restriction Act, 1949. To appreciate the ratio enunciated by <ORG> in the context of the said notification, it is better that the said notification stands extracted in this order also.

In exercise of the powers conferred by Section 3 of the Punjab Urban Rent Restriction Act, 1949 and all other powers enabling him in this behalf, the Governor of Punjab is pleased to direct that the provisions of Section 13 of the said Act shall not apply in respect of decrees for ejectment of tenants in possession of buildings which satisfy the following conditions, namely:

(a) Buildings constructed during the years 1959, 1960, 1961, 1962 and 1963 are exempted from all the provisions of the said Act for a period of five years to be calculated from the dates of their completion, and.

(b) During the aforesaid period of exemption suits for ejectment of tenants in possession of those buildings were or are instituted in civil courts by the landlords against the tenants and decrees of ejectment were or are passed.

Section 13(1) of the Punjab Act stated that a tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of the Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of that section. The building in that case was completed in March, 1960 and the suit was filed on 14th January, 1963. However the decree for ejectment was obtained on 14th August, 1969. On 29th August, 1969 execution was levied, which was dismissed on the ground that the notification of exemption could not apply. <ORG> in second appeal held that the decree was executable. <ORG> upheld this decision of <ORG>. In that case, the suit, as stated above, was filed before the lapse of the period of exemption though the decree came to be passed after such lapse. It was contended before <ORG> that the decree having been passed after the lapse of the period of exemption, the exemption from the restrictions placed by Section 13 will not be available because not only the suit ought to have been filed, but the decree for eviction ought to have been obtained within the period of exemption. <ORG> pointed out that this contention on the face of it would lead to incongruity, or would it accepted have the effect of nullifying the very purpose for which the exemption was being given. The language of the notification was clear and what was exempted was the decree for ejectment of a tenant from the application of Section 13 . Clause (b) of the notification prescribed a time during which a suit in which a decree could be passed should be filed. The decree passed in such suits were held by <ORG> to be executable free from the fetters imposed by Section 13 . It was pointed out that the filing of the suit by itself did not confer any exemption because what was exempted from the provisions of Section 13 was the decree. <ORG> took note of the fact that the buildings constructed in 1959, 1960, 1961, 1962 and 1963 had already been exempted from the provisions of Section 13 by two earlier notifications and found that the notifications granted exemption to decrees in suits filed within the period of exemption though the decrees came to be passed after the lapse of such period.

15. I must straightway point out that the language of Section 30(1) of the Act is different and its intendment is also different. It merely states that nothing in the Act shall apply to any building for a period of five years from the date on which the construction is completed and notified to local authority concerned. It does not speak about the institution of a suit or the obtaining of a decree in such a suit as in the case dealt with by <ORG> in Firm <NAME> v, <NAME> . As I have initially pointed out, Section 30(1) merely postpones the application of the Act to newly constructed buildings for a period of five years, on the lapse of which the Act would apply to such buildings. This is the simple and apparent implication of the provision in Section 30(1) of the Act. As to what would be the implications and impact of the coming into force of the Act in respect of such buildings, I shall presently advert to, after completing my discussion of the case law on the subject.

16. In <ORG> v. <NAME>, Appeal No. 518 of 1973, Judgment dated 12th February, 1974 (1974)1 M.L.J.16 (S.N.) a <ORG> of this Court, consisting of <CITATION> . dealt with a case where during the pendency of an appeal against a decree for ejectment, Section 30 of the Act was amended, limiting the exemption for new buildings for a period of five years only, in contract to the earlier permanent exemption of buildings constructed after the Act, and on the ground that the period of five years had lapsed, it was pleaded before the <ORG> that the decree ought to be set aside. The learned Judge held, following the earlier <ORG> pronouncements in <CITATION> (1949)1 M.L.J.376 : A.I.R.1949 Mad.809, <CITATION> (1949)1 M.L.J.452 : A.I.R.1949 Mad.765 and <CITATION> that the provisions of the Act do not prevent <ORG> from passing a decree for possession though it might not be possible to execute the same in view of the specific provisions contained in the Act, which enables a Controller to pass an order of eviction only on stated grounds. The learned Judges felt that it was unnecessary to go into the question of executability of the decree since, the validity of the decree is one thing and its executablity is another and the court while passing the decree is not concerned with the executability. Leaving open the question of executability of the decree to the execution proceedings, the learned Judges affirmed the decree for ejectment.

17. In <NAME> v. <NAME> (1977) T.N.L.J.69 Ismail, J. (as he then was), dealt with a case where a decree was passed prior to the amendment to Section 30 of the Act and taking advantage of the amendment limiting the period of exemption to new buildings only for a period of five years, it was contended that the decree stood nullified. This contention was repelled by the learned Judge holding that the decree was validily passed, following the pronouncement of the Bench in <ORG> v. <NAME> (1974)1 M.L.J.16 (S.N.). The learned Judge also pointed out that It is one thing to hold that the decree passed by the Courts below was validly passed with jurisdiction and it is another thing to say whether the said decree can be executed or not, in view of the particular provision of the Act.

18. <CITATION> . dealt with a case where a decree was obtained prior to the amendment of Section 30 of the Act by virtue of which the Act became applicable to the building. The tenant contended before the executing Court that the decree for eviction cannot be executed. This objection was rejected by the executing Court and that view was confirmed by the lower appellate court. The view taken by the two courts below was challenged in appeal before the learned Judge and the learned Judge following the pronouncement of the Bench in <CITATION> held that the decree even though valid is not executable so long as the provisions of the Act continue to apply to the building....

19. In <NAME> v. <NAME> <ORG> dealt with a case where a suit for ejectment was filed taking advantage of Clause (iii) of Section 30 of the Act prior to the amendment in 1964, which provided that nothing contained in the Act would, apply to any non-residential building, the rental value of which on the date of the commencement of the Act as entered in the property tax assessment book of the municipal council, district board, panchayat or panchayat union council or <ORG> exceeded Rs. 400 per mensem. Pending the suit, an amendment was introduced by virtue of which Clause (iii) of Section 30 was omitted, and further Section 3 of the Amendment Act provided that all proceedings instituted on the ground of exemption by virtue of Clause (iii) (deleted) shall abate. <ORG> held that the suit will abate even if there was no express allegation in the plaint to the effect that the suit was instituted on the ground that the building was exempted under Clause (iii) of Section 30 of the Act and the Act as such could apply to the building in question and the tenant became a statutory tenant and he could not be evicted, except in accordance with the provisions of the Act....

20. <CITATION> (1980)93 L.W. 202 <NAME>, J. dealt with a case where execution of a decree for. ejectment came to be levied after the Pondicherry Buildings (Lease and Rent Control) Act (1969) came into force. The decree in the first <ORG> was obtained on 31st May, 1972, and the first appeal was dismissed on 17th November, 1973. The second appeal was dismissed by this <ORG> on 7th November, 1977. The Pondicherry Act had come to be enforced to the area in question on 17th October, 1972. A contention that the suit itself was barred and the civil <ORG> had no jurisdiction to pass a decree In ejectment was negatived by this <ORG> in second appeal, and the question as to whether reliance could be placed on the provisions of the Pondicherry Act was left open to the stage of execution of the decree. When the question was raised in execution, the tenant could not succeed and the executing <ORG> held that the decree was one passed before the enforcement of the Act to the area in question, and that was no bar to the executability of the decree. On revision, <NAME>, J. after adverting to the pronouncement of the Bench of this <ORG> in <CITATION> and of the Supreme <ORG> in <CITATION> held that the Pondicherry Act had come into force to the area in question long prior to the filing of the execution petition and at the time when the execution petition came to be dealt with by the executing <ORG>, the bar against eviction of tenants except in accordance with the provisions of the Pondicherry Act had come into force and hence the decree in ejectment was not executable.

21. <CITATION> (1980)2 M.L.<NAME>463 S. <NAME>, J, was concerned with a suit for ejectment where a decree was obtained and both the first appeal and the second appeal were dismissed. However, during the pendency of the first appeal, the Act was made applicable to the town where the building was situated, and the tenant filed an application in the first court for a declaration that the decree cannot be executed. The first court dismissed the application, and on revision, S. <NAME>, <NAME> after adverting to the case law on the subject, held that though the decree is not null and void, yet a declaration regarding its non-executability can be given. The learned Judge observed in paragraph 6 of the Judgment as follows:

The resultant position therefore, is that the filing of a suit for recovery of possession of a property from a tenant or the passing of a decree therein by the <ORG> in favour of the landlord, is not prohibited under the Act. But the decree cannot be executed so long as the Act remains in force.

22. <CITATION> . dealt with a case where the building was constructed in March, 1975. The suit for recovery of possession by the landlord against the tenant was filed on 4th January, 1980 when the five year period under Section 30(1) of the Act had not yet lapsed. On 28th January, 1981, the suit was decreed. On 9th November, 1981 the appeal was dismissed. On 6th January, 1982 the execution petition was filed and on 19th January, 1982 an order for delivery by 30th January, 1982 was made. However, delivery could not be effected since the building was found locked. On 30th January, 1982 the tenant filed an application that the decree is not executable, and the order of delivery obtained by the landlord was erroneous. That application was dismissed by the first court and the matter came before the learned judge by way of a revision. The learned Judge has opined that the institution of the suit before the expiry of the period of exemption would suffice the purpose and the lapse of the period by the time the decree or order in the proceedings is passed and further proceedings are taken thereafter to realise the benefits thereof, would not take away the benefit of the decree or order so obtained. The learned Judge has expressed his views in the following terms:

Where a new building is constructed and the construction thereof is notified to the local authority, the building would be exempt from the operation of the provisions of the Act for a period of five years therefrom. During this period of five years, if no proceedings are initiated, then the exemption will lapse on the expiry of the period of five years. But on the other hand, if within the period of five years proceedings are taken based on the exemption then even though by the time the decree or order in the proceedings is passed and further proceedings are taken thereafter to realise the benefits thereof, the five years period had lapsed, nevertheless, the benefit of the decree or order so obtained would be available to the party, who secured it.

*** The irremovability of the tenant from the premises in his occupation despite a decree except in accordance with an order under Section 10 or 14 to 16 of the Act, lost as a result of the exemption under Section 30(1) of the Act is not restored statutorily in a case where the decree or order is passed after the expiry of five years or the execution is levied after that period. It cannot therefore be readily assumed that in such cases the benefit of exemption or the fruits of the proceedings based on such exemption are totally lost to the party for whose benefit also the exemption was granted.

The learned Judge felt that the decision of <ORG> in Firm A mar <CITATION> would lend support to his view that the exemption would operate not only to the building, but also to the decree obtained in respect of the building.

23. <CITATION> <ORG> was concerned with Section 2(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act , 1972, which provided that nothing in the U.P. Act shall apply to a building during the period of ten years from the date on which its construction is completed. There the landlord filed a suit for eviction and for other reliefs on the ground that the period of ten years had not lapsed on the date of suit. The tenant contended that the period of ten years had lapsed and the Act would apply. <ORG> held that the exemption would apply and the Act would not apply and decreed the suit. On revision, <ORG> found that the building was not ten years old on the date of the suit and hence the Act would not apply, and that the tenant cannot get any protection. <ORG> confirmed all the findings except about the arrears of rent and remanded the matter to <ORG> for determination of arrears. The only point argued before <ORG> on a special leave petition was whether the premises, which was not ten years old on the date of the suit and was exempted from the operation of the U.P. Act could be governed by it if ten years expired during the pendency of the litigation. A contention was put forth that the <ORG> had to decide the case on the basis of cause of action that had accrued prior to the filing of the suit and not on a new cause of action. The Supreme <ORG>, after adverting to its pronouncement in <CITATION> held that the benefit of the U.P. Act could be given to the tenant when the Act became applicable to the premises in question during the pendency of the litigation. The Supreme <ORG> ruled out that the moment the building becomes ten years old to be reckoned from the date of completion, the U.P. Act would become applicable for the purpose of enabling the tenant to work out the rights under it. While setting aside the order of <ORG> relating to eviction, the case was sent back to the first court for it to apply the U.P. Act and to give the protection of the said Act to the tenant.

24. The discussion of the case law, which has preceded and my assessment thereof, oblige me to take note of the following indisputable propositions;

(1) The Act as such does not oust the jurisdiction of <ORG> to entertain a suit for eviction by a landlord against a tenant and the passing of a decree in such a suit.

(2) If the landlord succeeds in obtaining a decree for eviction in such a suit, that cannot be put into execution to evict the tenant and the eviction could be only in accordance with the provisions of the Act, so long as the Act applies to the building in question.

(3) The validity of a decree is one thing and executability is another thing. A decree validly passed would still be unexecutable on account of the law that is prevailing or which comes into force at the relevant point of time. The above three propositions are well-settled and well recognised ones as per the pronouncements of the Benches of this Court referred to above, (4) The exemption under Section 30(1) of the Act postpones the application and the enforcement of the Act to the newly constructed buildings for a period of five years, on the lapse of which, the Act would apply. With or without the exemption, the maintainability of the suit and the obtaining of a decree in a suit before <ORG> is not taken away by the Act. It is not as if only on account of the exemption or under its cover, the civil process could be resorted to. Resort to civil process never stands prohibited even under the Act; and only the eviction, otherwise than under the Act stands prohibited. On the lapse of the period under the exemption provision, the Act would become applicable and enforceable to the building and the eviction of the tenant could only be in accordance with the provisions of the Act. The moment the ' building completes the period of exemption, the Act would become applicable to the building. This is exactly the principle countenanced by <ORG> in <CITATION> .

(5) The impact and the implications of the exemption cannot survive beyond the period of exemption. On grounds of equity, inconvenience and hardship, the Court is not supposed to stretch the scope of the exemption. The filing of the suit in <ORG> during the period of exemption and the obtaining of a decree in such a suit even during or after the lapse of the period of exemption is of no consequence at all and if at the time the decree is put into execution to evict the tenant, the Act has intervened and come into force, that alone would govern. The courts are not concerned with the policy of the legislature or with the result, whether injurious or otherwise, by giving effect to the language used, nor is it the function of the Court where the meaning is clear act to give effect to it merely because it would lead to hardship. The. above rule was held to be an unexceptionable one in <CITATION> (6) The lapse of the period of exemption automatically makes the Act applicable to the building in question. If at the time when the actual eviction is sought for, the Act had become applicable to the building in question, the fact that the proceeding in which the decree was obtained, was filed during the period of exemption, is not a relevant factor because as already noted, neither the institution of the suit nor the obtaining of the decree before a civil court stands ousted by the Act, and only the eviction of the tenant stands circumscribed as per the provisions of the Act. The ruling of <ORG> in <CITATION> is categoric when it countenanced that the moment the building becomes ten years old and thereby the period of exemption lapsed, the U.P. Act in that case, would become applicable. This categoric pronouncement of <ORG> settles the law beyond any ambiguity.

(7) A doubt was expressed in the earlier pronouncements of this Court as to whether, if execution had already been levied pursuant to a decree obtained prior to the coming into force of the Act, and such execution petition was pending at the time of the coming into force of the Act, such pending proceedings could be affected - <CITATION> (1949)1 M.L.J.376 : A.I.R.1949 Mad.809 and <CITATION> <ORG> in the latest judgment in <CITATION> has applied the law which came into operation during the pendency of the litigation. In the present case, I am not called upon to decide this question specifically because it does not arise on facts.

25. The facts of the present case disclose that at the time when the execution came to be levied, the period of exemption under Section 30(1) of the Act had lapsed. The result is, the Act had become applicable to the building in question. If that is so, applying the ratio of <ORG> in <CITATION> , the eviction of the defendant cannot but only be in accordance with the provisions of the Act; and admittedly the process of the Act has not yet been resorted to, to evict the defendant. In this view, this revision requires allowing and accordingly the same is allowed. I make no order as to costs. It is up to the defendant/the petitioner herein, to work out his rights on the basis of this order, if in fact, he had been dispossessed as claimed by the plaintiff. Obviously the pronouncement of <ORG> referred to above was not rendered at the time <NAME>, J. expressed his views in the decision in <CITATION> . The pronouncements of Benches of this Court and the latest pronouncement of <ORG> have got to be followed and applied to the facts of the present case, and I have done it while allowing this revision.

ORDER

1. After this order was pronounced, Mr. <NAME>, learned Counsel for the plaintiff, wants that restitution pursuant to this order may stand postponed for a reasonable time. Taking cognizance of this request, I direct that initiation of restitution proceedings which the defendant/the petitioner herein, may resort to, will stand postponed for a period of four weeks from today.