Neeraj Tiwari, J
1. Heard Sri Sudeep Harkauli, learned counsel for petitioner and Sri I.P. Srivastava, learned Additional Chief Standing Counsel for State-respondent.
2. Present petition has been filed seeking following reliefs:-
"(i) To direct the court below to decide the Execution Case No. 127 of 2023 within a time bound period of 30 days.
(ii) To direct the Rent Authority, Agra to strictly comply with the timelines specified in the Act in the cases pending before it."
3. Brief facts of the case are that earlier mother of petitioner (now deceased) has filed Case No. 696 of 2022 under Section 10(1) of Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021 (hereinafter referred to as 'Act No. 16 of 2021'), which was decreed in favour of petitioner vide order dated 22.07.2022. As the order was not complied with, therefore, petitioner has filed Execution Case No. 127 of 2023 for execution of order, which is pending since long without any positive order for execution. At this stage, petitioner has filed present petition to expedite the execution case. During the pendency of this petition, this Court has passed several orders. Ultimately execution case has proceeded and further vide order dated 28.05.2024, Executing Court has determined the amount of rent i.e. Rs. 62,60,720/- and further vide order dated 29.05.2024 directed the applicant/petitioner to deposit the court fee of Rs. 4,69,983/-. At this stage, petitioner has filed amendment application dated 30.05.2024 for certain amendments along with prayer. This Court vide order dated 31.05.2024 allowed the amendment application. In compliance of order, amendment was carried out and amended prayer is being quoted below:-
"(i)(a). Direct the respondent no. 2 to charge court fee as per section 39(3) of the Act, & not at the arbitrary enhanced rate as mentioned in the order dated 28.05.2024 and 29.05.2024"
4. Learned counsel for petitioner submitted that Section 39 of Act No. 16 of 2021 provides for court fees. Section 39(1) of Act No. 16 of 2021 clearly provides that The Court-fees Act, 1870 (hereinafter referred to as 'Act, 1870') shall apply in respect of applications or appeals presented before the Rent Authority or Rent Tribunal as the case may be. Section 39 (2) of Act No. 16 of 2021 further clarifies that for the purpose of computation of court fees, application for recovery of possession made to the Rent Authority and memorandum of appeal presented before the Rent Tribunal shall be deemed to be suit between the landlord and tenant. He further submitted that Section 39(3) of Act No. 16 of 2021 further clarifies that other applications presented before the Rent Authority, for that court fees shall be same as that of an interlocutory application presented in a Civil Court.
5. He firmly pointed out that in present controversy, application was filed before the Rent Authority under Section 10 of Act No. 16 of 2021 to determine the revise rent as there was dispute and it has nothing to do with the recovery of possession, therefore, in execution of order passed upon this application, court fees shall be governed by the provisions of Section 39(3) of Act No. 16 of 2021. He next submitted that court fees for the first category i.e. for recovery of possession may be charged as per Section 7(xi-b) of the Act, 1870 whereas for the second category i.e. for all other applications, it may be charged under Schedule-II Item No. 1-b of the Act, 1870. He also pointed out that recovery of possession is provided in proviso to Section 4(3), Section 20(2) and Section 27 Act No. 16 of 2021 whereas for other applications falling within second category, (applications other than for recovery of possession), it is provided under Sections 6(4), 6(5), 10, 14(2), 20(2) and 26(3) of Act No. 16 of 2021.
6. He further clarified that from perusal of Act No. 16 of 2021, it is clear that various kinds of applications may be moved under the provisions of this Act and only application moved for recovery of possession shall be treated as a suit between the landlord and tenant for the purpose of calculating court fees. He firmly pointed out that undisputedly in present case, application was filed under Section 10 of Act No. 16 of 2021 and execution case has been filed for payment of rent fixed by the Rent Authority, therefore, for the purpose of court fees, it shall be governed by the provisions of Section 39(3) of Act No. 16 of 2021. His next argument is that Section 42 of Act No. 16 of 2021 gives overriding effect to the provisions of Act No. 16 of 2021 and in case of inconsistency between Act No. 16 of 2021 and Act, 1870, the provisions of Act No. 16 of 2021 shall prevail and to be given effect.
7. He also submitted that before the Rent Authority or Rent Tribunal, many cases are pending for disposal and Sections 33(2), 35(2) & 36(3) of Act No. 16 of 2021 provide time bound manner to decide the application, appeal or execution etc., as the case may be. He prayed that direction may be issued to the Rent Authority to decide the case within the time limit prescribed in the Act No. 16 of 2021.
8. Per contra, Sri I.P. Srivastava, learned Additional Chief Standing Counsel for State-respondent vehemently opposed the submissions advanced by counsel for petitioner and his first argument is that there is no prayer for setting aside the orders dated 28.05.2024 & 29.05.2024. He further submitted that Section 39(1) of Act No. 16 of 2021 shall apply in respect of applications or appeals to be presented before the Rent Authority or Rent Tribunal as the case may be. His next argument is that court fee shall be paid in accordance with Section 39(1) of Act No. 16 of 2021 read with Section 7(xi-b) of Act, 1870 in the proceeding under Section 10(1) of Act No. 16 of 2021 and not as per Schedule-II Item No. 1-b of the Act, 1870. He also submitted that once by way of application/order dated 28.05.2024, claimed/determined rent of Rs. 62,60,720/-, he is liable to pay the court fees of Rs. 4,69,983/- and in light of Section 11 of Act, 1870, order dated 22.07.2022 and recovery amount determined on 28.05.2024 to the tune of Rs. 62,60,720/- shall not be executed until court fees has not been paid before the execution court.
9. In his rejoinder argument, learned counsel for petitioner submitted that in Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'Act, 1972'), there is no provision of court fees, therefore, provisions of Act, 1870 was applicable in toto. So far as Act No. 16 of 2021 is concerned, there is provision of court fees, therefore, court fees shall be charged in accordance with Section 39 read with Section 42 of Act No. 16 of 2021.
10. I have considered rival submissions advanced by counsels for parties and perused the records, provisions of law.
11. The first objection of counsel for respondent is that petitioner has not challenged the orders dated 28.05.2024 and 29.05.2024 by which rent was determined and court fee was fixed. Vide order dated 28.05.2024, rent was determined and report of Court Munsarim was called, therefore, there is no occasion for the petitioner to challenge the same. Further, validity of orders dated 28.05.2024 and 29.05.2024 depend upon the interpretation of Section 39 of Act No. 16 of 2021 read with Section 7 (xi-b), Schedule-II Item No. 1-b of the Act, 1870. After interpretation of above noted sections, in case orders are not found inconsonance with the interpretation so made by the Court, that would be remanded back to pass fresh order and in case it is in accordance with interpretation of Court, that would remain in operation, therefore, in light of such facts, there is no need to challenge the orders.
12. It is undisputed between the parties that application was filed under Section 10(1) of Act No. 16 of 2021 and after order of the Rent Authority, execution case has been filed for execution of order. Now, question before the Court is as to whether petitioner is required to pay court fees in terms of Sections 39(1) & 39(2) or 39(3) of the Act No. 16 of 2021 i.e. under Section 7(xi-b) of Act, 1870 or Schedule-II Item No. 1-b of Act, 1870. For proper adjudication of the case. Sections 10 & 39 of Act No. 16 of 2021 are being quoted below:-
"10. Rent Authority to determine the revised rent in case of dispute .-
(1) In case of any dispute between the landlord and the tenant regarding revision of Rent, the Rent Authority may, on an application made by the landlord or tenant, determine the revised rent and other charges payable by the tenant and also fix the date from which such revised rent becomes payable.
(2) In determining the rent to be revised, the Rent Authority may be guided by the prevailing market rent in the surrounding areas let out on rent.
(3) Once a determination under this section has been made, no application for fresh determination shall lie for a period of one year after the said determination.
(4) The Rent Authority may determine provisional rent during the proceedings for revision of rent which shall be subject to final determination.
39. Court fees.-
(1)The provisions of the Court Fees Act, 1870 (Act. no.7 of 1870) shall apply in respect of applications or appeals to be presented before the Rent Authority or Rent Tribunal, as the case may be.
(2) For the purposes of computation of court fees, the application for recovery of possession made to the Rent Authority and the memorandum of appeal presented before the Rent Tribunal, shall be deemed to be a suit between the landlord and the tenant.
(3) The court fees for the application filed before the Rent Authority shall be same as that of an interlocutory application presented in a Civil Court."
13. From the perusal of Section 10 of Act No. 16 of 2021, it is apparently clear that it is to determine the revise rent in case of dispute and it has nothing to do with the recovery of possession.
14. Now, coming to Section 39 of Act No. 16 of 2021; the same is having three parts i.e. Sections 39 (1), (2) & (3). Section 39(1) of Act No. 16 of 2021 provides general application of provisions of Act, 1870 in respect of all applications or appeals to be presented before the Rent Authority or Rent Tribunal as the case may be. Sections 39(2) & (3) made distinctions between the applications. Section 39(2) says that in case application for recovery of possession made to the Rent Authority or memorandum of appeal presented before the Rent Tribunal, it shall be deemed to be a suit between the landlord and tenant and accordingly, court fees shall be computed. Section 39(3) further clarifies that all other applications filed before the Rent Tribunal, court fees shall be same as that of an interlocutory application presented in Civil Court. After provisions of Section 39(1) of Act No. 16 of 2021, insertion of sections 39(2) & 39(3) are purposefully and not uselessly. In case, there is no Sections 39(2) & (3), the meaning would have been that Act, 1870 shall be applicable in toto in every applications either it is a suit for recovery of possession or an application, but the legislation was conscious of the fact, therefore, inserted Sections 39(2) and 39(3) of Act No.
16 of 2021, which provide difference between the both and according to that, any application for recovery of possession filed before the Rent Authority and memorandum of appeal presented before the Rent Tribunal shall be treated to be a suit between the landlord and tenant meaning thereby except for recovery of possession, any other application would not be treated to be a suit between the landlord and tenant and for those applications, court fees shall be charged as in the matter of an interlocutory application presented in Civil Court.
15. Now coming to Section 7(xi-b) of Act, 1870. For ready reference, same is quoted below:-
"between landlord and tenant.-(xi) In the following suits between landlord and tenant:-
(b) to enhance the rent of a tenant having a right of occupancy,"
16. Section 7(xi-b) of Act, 1870 deals between landlord and tenant. No doubt, until the promulgation of Act No. 16 of 2021, when the cases are governed by the Act, 1972 or any other Act, provisions of Section 7(xi-b) of Act, 1870 was also applicable in case of enhancement of rent of tenant having a right of occupancy, but now Act No. 16 of 2021 came into force having specific provisions of Sections 39 & 42 of Act No. 16 of 2021. For ready reference, Section 42 of Act No. 16 of 2021 is being quoted below:-
"42. Overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law of the State of Uttar Pradesh for the time being in force."
17. From perusal of Section 42 of Act No. 16 of 2021, it is apparently clear that in case of inconsistency with any other law for the time being in force, provisions of this Act shall have overriding effect, therefore, legal position is that unless the Act No. 16 of 2021 was not promulgated, all tenancy disputes are governed by Act, 1972 or SCC Act and provisions of Section 7(xi-b) of Act, 1870 shall be applicable, but once Act No. 16 of 2021 came into force with the provisions of Sections 39 and 42, which classify the application for court fees in two parts; i.e. recovery of possession and other applications, therefore, for the recovery of possession, any application either before the Rent Authority or memorandum of appeal before the Rent Tribunal shall be treated to be a suit between the landlord and tenant and court fees shall be charged in accordance with Section 7(xi-b) of Act, 1870, but for other applications as mentioned in Section 39(3) of Act No. 16 of 2021, court fees shall be charged as in the matter of interlocutory application filed before the civil court i.e. Schedule-II Item No. 1-b of the Act, 1870. Further, in light of Section 42 of Act No. 16 of 2021, in case of inconsistency, provisions of Act No. 16 of 2021 would prevail.
18. So far as Section 11 of Act, 1870 is concerned, it shall also not be applicable in light of Section 39 of Act No. 16 of 2021 read with Section 42 of Act No. 16 of 2021 .
19. Therefore, in the light of law discussed herein-above, this Court is of the firm view that court fees in terms of Section 39(2) of Act No. 16 of 2021 shall only be applicable for the applications filed for recovery of possession i.e. proviso of Sections 4(3), 20(2) and 27 of Act No. 16 of 2021 or any other applications for recovery of possession. So far as other applications, which have been filed under Sections 10, 6(4), 6(5), 14(2), 20(2) and 26(3) of Act No. 16 of 2021 or any other applications identical to same, court fee shall be charged in accordance with Section 39(3) of Act No. 16 of 2021. In case of inconsistency, in the light of Section 42 of Act No. 16 of 2021, provisions of Act No. 16 of 2021 shall prevail over the matter. To make it clear, provision of Act, 1870 shall only be applicable to the extent not inconsistant to Act No. 16 of 2021.
20. Therefore, under such facts, calculation of court fees calculated by respondent no. 2- A.D.M./Rent Authority, Agra vide orders dated 28.05.2024 and 29.05.2024 is incorrect. Matter is remitted back to respondent no. 2- A.D.M./Rent Authority, Agra to re-calculate the court fees in light of Section 39(3) of Act No. 16 of 2021 read with Schedule-II Item No. 1-b of the Act, 1870, maximum within two weeks from the date of production of certified copy of this order. Earlier orders dated 28.05.2024 and 29.05.2024 shall abide by the new orders passed by Rent Authority.
21. He shall further proceed to decide the execution case at the earliest not more than 30 days as provided in Section 36(3) of Act No. 16 of 2021.
22. So far as another argument of counsel for petitioner about the disposal of case in a time bound manner in concerned, needless to say that once there is provision in Act No. 16 of 2021 for disposal of different applications, appeal and execution cases, Rent Authority or Rent Tribunal, as the case may be, is bound to decide the case strictly in accordance with Act No. 16 of 2021. Therefore, Rent Authority and Rent Tribunal are directed to decide not only the cases of petitioner, but other cases pending before them strictly in a time limit prescribed by the provisions of Act No. 16 of 2021.
23. With the aforesaid observations, petition is allowed.
