Delhi High Court
Umika Agencies vs Suresh Tanwar on 26 July, 1993
Equivalent citations: 1993RLR623
JUDGMENT Jaspal Singh, J.
(1) Does the land with respect to which a decree for possession has been passed fall within the meaning of "premises" as defined in S. 2(i) of Delhi Rent Control Act (the Act). This question assumes importance since it is not disputed that if what had been let out was actually "premises", S. 50 of the Act was a bar to the respondents obtaining the decree for possession.
(2) On 24.9.1970 the predecessor-in-interest of the respondents entered into a lease agreement with the petitioner with regard to a piece of land. The lease was to commence "on the handing over the possession of the said land with the planned boundary wall around". Clause 3 of the agreement was : "THAT the said Lessees will provide shed, office as we 1 as Chowkidar hut at their own expenses and costs and will remove all materials at their own cost at the time of termination of the lease, mutually arranged and agreed."
(3) Admittedly the petitioner, after having entered into possession of the land, raised construction as per the terms of the lease agreement. It is also not disputed that the agreement being for eleven months it was renewed from time to time. However, it is not the case of the present petitioner that after the expiry of the initial period of eleven months any fresh agreement had been entered into.
(4) On 18.9.1985, after serving a notice u/S. 106 of the T.P.A., the respondents instituted a suit for possession. One of the objections taken to the suit by the petitioner was that it was not maintainable in view of S. 50 of the Act. It was alleged that what had been let out were "premises" as defined in S. 2(1) of the Act. Clause (i) defines "premises" as under:- "(I)"premises" means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose, and includes,-- (i) the garden, grounds and outhouses, if any, appertaining to such building or part of the building ; (ii) any furniture supplied by landlord for use in such building or part of the building ; but does not include a room in a hotel or lodging house ;"
(5) The learned trial court held that only a vacant piece of land had been let out and that consequently the provisions of the Act were not attracted and as such the suit was not barred under the said Act. It thus passed a decree for possession.
(6) Aggrieved by the judgment the petitioner filed an appeal but without success. The first Appellate Court also agreed with the learned trial court that what had been let out was not "premises" within the meaning of S. 2(i) of the Delhi Rent Control Act. Hence, this second appeal.
(7) The learned counsel for the appellant has taken me through the lease agreement and has submitted that both the courts below had not appreciated the point involved in the right perspective and that although what had been initially let out was a piece of land with a boundary wall since constructions in terms of the lease agreement had been raised without any objection from the owners-landlords, therefore, it could not be said that what had been let out were not "premises" within the meaning of S. 2(i) of the Act.
(8) There is no dispute that the Act would be applicable if what had been let out was "premises" within the meaning of S.2(i) of the said Act. In order to determine whether the lease was with regard to vacant land or of "premises" we must necessarily take into account not merely the form alone but the substance of the transaction as well. [See A.R. Salay Mohd. vs. Jaffer Mohd. 1969 Rcr 322 (SC) and Prabhat Mfg. Ind. Society vs. Banwari Lal 37 (1989) Dlt 4 7 (SC)]. The lease agreement shows that at the time of the transaction there were no super-structures and no buildings. A sentence taken out from clause (2) of the lease agreement has already been reproduced by me above. It refers to the commencement of the lease "on the handing over the possession of the said land with the planned boundary wall around." Clause 6 of the agreement also emphasises that what had been demised was "land". Even the appellant in para 2 of the appeal under the head note Facts of the Case admits that what had been let out was "apiece of land--..bounded by boundary wall". Thus what had been let out was vacant land only. . The mere fact that it was bounded by a boundary wall would not convert it into a building nor would it convert the lease into one for "premises" within the meaning of S. 2(i) of the Act. True, permission was granted to raise a shed or some other construction. It was a temporary measure and it is not disputed that at one point of time when the petitioner sought to raise puce constructions, the respondents had protested and filed a suit for permanent injunction. In any case as per clause (3) of the lease agreement reproduced in the introductory paragraph of this order, it was within the right of the leasee to remove those constructions. The owner had no right, title or interest in the construction so raised.
(9) The position being as noticed by me above, I am firmly of the view that neither in form nor in substance was there a letting of a "premises". In support I seek to draw force from Krishna Pasuba vs. Duttatreya (1966) 1 SCJC- 601 ; Sobha Singh vs. Sant Dass and Vinod Nagpat vs. Bakshi S. Kuljas Rai .
(10) I may mention that in the judgments of this court referred above emphasis was laid on the initial letting and the position at that time. In Sobha Singes case it was observed that what has to be seen is : "AS to what is the contract of tenancy between the parties. If by the contract of tenancy only a vacant plot of land has been let out with the permission to the tenant to raise super-structures at his own costs and with a stipulation that the tenant shall remove the super-structure on termination of the lease, it cannot be held at all that any tenancy has been created in respect of the super Structure."
(11) In Vinod Nagpal in para 36 the learned single judge drawing force from two D.B. judgments of this court observed : "THE first judgment is in case Ram Prakash Chawla v. Amrit Kaur where it has been specifically observed by the learned Single Judge of this Court that for the purpose of determining as to whether the property included in the tenancy is premises within the meaning of section 2(i) of the Delhi Rent Control Act, it has to be seen as to what was actually let out by landlord in the particular case. It was held further where only a plot of land was let out, and erection of the superstructure by the tenant was after the letting out, Delhi Rent Control Act would not apply. There is another Division Bench judgment of this Court reported as: Noor Elahi v. Shaikh Abdul Gaffar 1982 Rajdhani Law Reporter 192, where the same proposition has been enunciated, namely, that for the purpose of determination as to whether the property is premises or not, what was actually let out in a particular case at the time of letting, is the determining factor."
(12) It may be noticed that in Vinod Nagpal's case the basic description of the property was "vacant land" and whatever structure existed at the time of the institution of the suit had been put up subsequently by the tenant as per the permission granted to him under the terms of the lease and still the letting was held to be of a vacant land and not of "premises" within the meaning of S. 2(1) of the Act.
(13) In Krishna Pasuba's case, a rent-note was executed stating that the subject-matter of the letting was open land with a Khatta. Admittedly Khatta was not a building. The rent-note showed that on a portion of the land the tenant had built a shed at his own cost and as per the rent-note the tenant could remove the structure raised by him on termination of tenancy. It was contended by tenant that what had been let out to him was "premises" within the meaning of S. 5(8) of the Bombay Rent Act and that S. 13(1) was a bar to the landlord obtaining a decree for eviction in respect of premises which were building and ground appurtenant to the building. The Supreme Court observed : "THE building belonged to the tenant and was not the subject-matter of the letting. The land only was the subject-matter of the letting. Consequently the premises are land."