Appeal No 18 of 1968
Appeal by Special leave from the judgment and order dated April 141967 of the Allahabad High Court in Second Appeal No 307 of 1965
694 VM Tarkunde Urmila Kapoor and R K Khanna for the appellant
section V Gupte and M V Goswami for the respondent
The facts are not in dispute
The appellant had been occupying a shop in Mathura belonging to the respondent from a very long time at a monthly rental of Rs 1837
In 1962 the respondent wanted to construct rooms on the upper Storey of the shop for his own residence
This construction could possibly be made only if the appellant vacated the shop for some period
On June 4 1962 the appellant and the respondent entered into an agreement 
After reciting the above facts it was agreed that the shop would be
vacated by the appellant on the condition that as soon as the required construction had been completed he would resume possession of the shop
At this stage the following clauses of the agreement may be set out
On this day the second party has withdrawn his possession from the shop bearing No 12C situate at Tilakdwar and has given the same to the first party
The first party shall get the shop constructed within thirty days and would then hand over the possession of the same to the second party
At present a sum of Rs 18 6 0 per mensem which includes house tax and water tax is being paid by the second Party to the first party as rent
After the construction of the shop the first party shall be entitled to get the same amount as rent from the second party
All the sections of the UP Rent Control and Eviction Act shall be fully applicable to this house
The first party shall in no case be entitled to derive benefits from it as the property built after 1 1 51 After the construction had been made and the appellant had resumed his possession of the shop the appellant offered rent to the respondent but the latter did not accept the same
Ultimately lie deposited the rent from April 1 1962 to July 31 1963 in court under section 7 C of the Act
The respondent served a notice April 20 1963 apparently under the provisions of the 695 Transfer of Property Act purporting to terminate the tenancy of the appellant
This was followed by a suit which the respondent filed for ejectment of the appellant and for arrears of rent damages etc
The Munsif dismissed the suit holding that the appellant was entitled to the protection conferred by section 3 of the Act which was applicable
The District Judge on appeal took the contrary view and decreed the suit
The  High Court affirmed the judgment of the District Judge
It was held inter alia that the respondent was entitled to rely on section 1 A of the Act and the appellant could not be given the benefit of section 3
Now there can be no manner of doubt that the tenancy between the appellant and the respondent was governed by the provisions of the Act prior to the reconstruction of the premises
It appears to have been accepted that when the respondent made the re construction after the agreement mentioned above in 1962 the buildings came to be constructed within the terms of section 1 A of the Act That section says that nothing in the Act shall apply to any building or part of a building which was under erection or was constructed on or after January 1 1951
It will have to be decided whether it was open to the respondent to give up the benefit of this provision or waive it by means of an agreement of the nature which was entered into between the appellant and the respondent in June 1962
According to the preamble on the cessation of the applicability of sub rule 2 of rule 81 of the Defence of India Rules after September 30 1946 it was considered expedient owing to the shortage of accommodation in the State of Uttar Pradesh to provide for the continuance during admitted period of powers to control the letting and the rent of accommodation and to prevent the eviction of tenants therefrom
Section 3 imposed restrictions on eviction
No suit could be filed in any civil court against the tenant for his eviction from any accommodation except on one or more of the grounds mentioned in sub section
1 of that section without the permission of the District Magistrate or of the Commissioner to whom a revision lay against the order of the District Magistrate
Section 5 contained provisions relating to control of rent
The ether provisions of the Act need not be noticed
It has never been disputed that the Act was enacted for affording protection to the tenants against eviction except in the manner provided by the Act
It was also meant to regulate the letting of accommodation fixing of rent etc
 the provisions relating to which were all intended to confer benefits on the tenants against unreasonable and capricious demands of the landlords
At the same time  it appears that the legislature was conscious of the fact that the Act might retard and slacken the pace of construction of new buildings because the landlords would naturally be reluctant to invest 696 money in properties the letting of which would be governed by the stringent provisions of the Act
It was for that purpose that the saving provision in section 1 A seems to have been inserted
The essential question that has to be resolved is whether section 1 A was merely in the nature of an exemption in favour of the landlords with regard to the buildings constructed after January 1 1951 and conferred a benefit on them which they could give up or waive by agreement or contractual arrangement and whether the consideration or object of such an agreement would not be lawful within the meaning of section 23 of the 
The general principle is that every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy
Thus the maxim which sanction the nonobservance of the statutory provision is cuilibet licat renuntiare juri pro se introducto
See Maxwell on Interpretation of Statutes Eleventh Edition pages 375  376 If there is any express prohibition against contracting out of a statute in it then no question can arise of any one entering into a contract which is so prohibited but where there is no such prohibition it win have to be seen whether an Act is intended to have a more extensive operation as a matter of public policy
In Halsbury s Laws of England Volume 8 Third Edition it is stated in paragraph 248 at page 143  As a general rule any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament or as it is said can contract himself out of the Act unless it can be shown that such an agreement is in the circumstances of the particular case contrary to public policy
Statutory conditions may however be imposed in such terms that they cannot be waived by agreement and in certain circumstances the legislature has expressly provided that any such agreement shall be void
 In the footnote it is pointed out that there are many statutory provisions expressed to apply notwithstanding any agreement to the contrary and also a stipulation by which a lessee is deprived of his right to apply for relief against forfeiture for breach of covenant Law of Property Act 1925
Section 23 of the provides The consideration or object of an agreement is lawful unless it is forbidden by law or 69 7 is of such a nature that if permitted it would defeat the provisions of any law or is fraudulent or involves or implies injury to the person or property of another or the Court regards it as immoral or opposed to public policy
In each of these cases the consideration or object of an agreement is said to be unlawful
Every agreement of which the object or consideration is unlawful is void
 It has never been the case of the respondent that the consideration or object of the agreement which was entered into in June 1963 was forbidden by law
Reliance has been placed mainly on the next part of the section namely that it is of such a nature that it would defeat the provision of any law and in the present case it would be section 1 A of the Act
Now section 1 A does not employ language containing a prohibition against or impose any restriction on a landlord and a tenant entering into an agreement that they would not be governed by that section
We concur with the view expressed in Neminath Appayya Hanumannavar vs Jamboorao Satappa Kocheri1 that the words if permitted it would defeat the provisions of any law in section 23 of the Contract Act defer to performance of an agreement which necessarily entails the transgression of the Provisions of any law
What makes an agreement which is other wise legal void is that its performance is impossible except by disobedience of law
Clearly no question of illegality can arise unless the performance of the unlawful act was necessarily the effect of an agreement
The following observations of Lord Wright in Vita Food Products Incorporated vs Unus Company Ltd1 in Liquidation are noteworthy in this connection Nor must it be forgotten that the rule by which contracts not expressly forbidden by statute or declared to be void are in proper cases nullified for disobedience to a statute is a rule of public policy only and public policy understood in a wider sense may at times be better served by refusing to nullify a bargain save on serious and sufficient grounds
 We are unable to hold that the performance of the agreement which was entered into between the parties in the present case would involve an illegal or unlawful act
In our judgment section 1 A 1 A IR 2  293
698 was meant for the benefit of owners of buildings which were under erection or were constructed after January 1 1951
If a particular owner did not wish to avail of the benefit of that section there was no bar created by it in the way of his waiving or giving up or abandoning the advantage or the benefit contemplated by the section
No question of policy much less public policy was involved and such a benefit or advantage could always be waived
That is what was done in the present case and we are unable to agree with the High Court that the consideration or object of the agreement entered into between the parties in June 1962 was unlawful in view of section 23 of the Contract Act
In the result the appeal is allowed the judgment of the High Court is set aside and that of the trial court restored
The appellant will be entitled to his costs in this court
VPS Appeal allowed


Summary:
The appellant was the tenant of the respondents shop
As the latter wanted to make some constructions they entered into ail agreement in 1962 according to which the appellant was to vacate the shop but reoccupy it on the same rent as soon as the construction was completed
It was also agreed that all the sections of the UP Temporary Control of Rent and Eviction Act 1947 shall be fully applicable to the new tenancy
After the construction was completed the appellant resumed possession and offered rent
The respondent refused the rent and filed a suit for ejectment
In appeal the High Court held that the appellant was not entitled to the protection of the Act because the res pondent was entitled to rely on section IA according to which nothing in the Act shall apply to a building constructed on or after 1st January 1951 and that the agreement was unlawful within the meaning of section 23 of the 
In appeal to this Court HELD  The general principle is that every one has a right to waive the advantage of a law made for his benefit in his private capacity when a public right or public policy is not infringed thereby
Section 1A was meant for the benefit of owners of buildings constructed after January 1 1951
But there is no prohibition in the section against a land lord and his tenant entering into an agreement that they would not be governed by that section
If a particular owner did not want to avail himself of the benefit of the section there was no bar created by it to his waiving or giving up or abandoning the advantage and no question of policy or public policy is involved
Therefore the performance of the agreement in the present case would not entail the transgression of any law and the agreement was not void under section 23 of the 
696 C 69 7 D E 698 A C Neminath Appayya Hanumannavar vs
Jamboorao Sateppa Kochteri AIR 1966 Mys
154 approved
Vita Food Products Incorporated vs Unus Co Ltd in Liquidation at 291 referred to