Allahabad High Court
Surendra Nath Rai vs Arjun Kukreja on 11 January, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- WRIT - A No. - 49169 of 2005 Petitioner :- Surendra Nath Rai Respondent :- Arjun Kukreja Petitioner Counsel :- Pramod Jain Respondent Counsel :- A.K. Gupta Hon'ble Sudhir Agarwal,J.
1. Heard Sri Pramod Jain, learned counsel for the petitioner and Sri A.K. Gupta, learned counsel for the respondent.
2. The facts as borne out from the record, in brief, are that there exist certain property bearing Municipal No. 302,303, 304 and 305, situated at Western Kutchery Road, Meerut. It was owned by Sri Radhey Lal Singhal and Sri Surendra Singhal. The shape of property was like that of an Ahata consisting of two shops, one staircase and some open land, having a total area of about 176.57 sq. yards. One shop was in the tenancy of respondent, Arjun Kukreja, which is said to have commenced even before 1965. The petitioner purchased aforesaid property from its erstwhile owners, Sri Radhey Lal Singhal and Sri Surendra Singhal on 06.11.1971. It is said that a new plan got approved sometimes in 1977 from Meerut Development Authority and thereafter the entire existing construction was demolished and a new building was raised having three shops on the ground floor and other construction behind said shops. Besides, construction was also made on first floor and second floor. The construction of second floor consists of two rooms, verandah, kitchen and toilet. One of the aforesaid newly constructed shop thereafter was let out to defendant sometimes in 1978-79 on a monthly rent of Rs. 100/- considering the fact that he was a tenant in one of the two shops earlier existed and hence after new construction, one shop was let out to him. The petitioner-landlord determined tenancy of respondent vide notice dated 14.09.1984 and thereafter instituted Small Cause Suit No. 8 of 1985. It was pleaded that the shop in question being new construction, U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972") has no application thereon and since tenancy has already been determined, respondent-tenant is liable for eviction besides decree of arrears of rent and mesne profits.
3. The suit was contested by respondent alleging that the shop being old one, Act, 1972 is applicable and, therefore, suit is liable to be dismissed. He specifically disputed the case set up by petitioner-landlord about new construction of disputed accommodation in 1978 and pleaded that the tenancy never had come to an end and instead it is continuing since very beginning.
4. The petitioner-landlord also filed a replication dated 10.10.1988 reiterating his case of new construction and new tenancy coming into existence in 1978.
5. The Trial Court decreed the suit vide judgment dated 09.01.1990 holding Act, 1972 inapplicable on the ground that the earlier construction had disappeared and substituted by a totally different construction. After demolition of erstwhile construction consisting of two shops and one staircase a totally new construction has come out and that being so the mere fact that the respondent had been an old tenant, would make no difference since Act, 1972 would not be applicable for a period of 10 years to new construction made and, therefore, in 1985 when suit was filed, Act, 1972 was inapplicable to the shop in dispute. It further held that benefit under Section 20(4) cannot be extended to respondent-tenant since Act, 1972 itself is not applicable to disputed accommodation.
6. Aggrieved thereto the respondent-tenant preferred SCC Revision No. 19 of 1990. The Revisional Court vide impugned judgment dated 06.05.2005 has reversed Trial Court's judgment, and, allowing the revision, has dismissed petitioner's SCC Suit No. 5 of 1985.
7. Sri Pramod Jain, learned counsel for the petitioner contended that the question, whether there was a new construction or not is a disputed question of fact and once the Trial Court has recorded a finding of fact that a new construction has come into existence in 1978 in place of existing old construction, the Revisional Court was not justified in acting as a court of fact by interfering with the findings of fact recorded by Trial Court, as if it was hearing an appeal and not the revision and, therefore, the impugned revisional judgment is patently illegal and liable to be set aside. He further contended that a careful reading of Revisional Court's judgment would show that it has recorded contradictory findings and at places has found that their existed new construction yet relying on the factum of continued relationship of landlord and tenant between petitioner and respondent it has held that the old tenancy continued, meaning thereby Act, 1972 would be applicable in the case in hand. He submitted that Act, 1972 is applicable upon certain buildings and not to the relationship of landlord and tenant. Once specific provisions have been made by legislature to exempt certain buildings from application of Act, 1972, by no process of interpretation the factors which are wholly irrelevant, can be allowed to defeat the explicit mandate of legislature in respect to application of Act, 1972 and the Revisional Court has clearly erred in law in taking an otherwise view. He placed reliance on a Division Bench decision of this Court in Gopal Dass Vs. Bal Kishan Dass, 2012(2) ARC 408.
8. Sri A.K. Gupta, learned counsel for the respondent submitted that there was no pleading in the application that new construction was raised after demolition of erstwhile construction and landlord in the present case has failed to demonstrate such fact, therefore, the Revisional Court has rightly held that the landlord failed to demonstrate that accommodation in question was newly constructed in 1978 and that being so, it cannot be said that Act, 1972 came to be inapplicable to premises in question at any point of time and the Division Bench judgment in Gopal Dass (supra), therefore, has no application in the present case.
9. This writ petition was filed in 2005 and repeatedly time was granted to file counter affidavit to respondent but the same has not been filed. Sri A.K. Gupta, learned counsel for respondent, therefore, has advanced his submissions without filing any counter affidavit and has confined to record of writ petition.
10. The proceedings in question commenced with copy of plaint dated 01.01.1985 filed in the Court of Small Cause, Meerut so as to institute SCC Suit No. 05 of 1985. The case set up by petitioner therein is that the disputed shop was constructed in 1978 and, therefore, Act, 1972 is inapplicable thereto. The boundaries given at the end of plaint, read as under:
East- House plaintiff.
West- Door, shop and Western Kutchery Road.
North-House Sukhveer Singh.
South-Shop plaintiff.
11. The assertion made in plaint that shop was constructed in 1978 was disputed in para 4 of written statement dated 13.10.1986 filed by respondent-defendant. He alleged that part of building is existing for the last 12 years in which the defendant-respondent is a tenant. The plaintiff has not disclosed when building was completed and when its first municipal assessment was made or the completion of construction was recorded. The municipal number of disputed property is 215/2 which was earlier 302-305 and it is shown in the municipal register of the period of 01.04.1976 to 31.03.1981. The building is old as that of tenancy.
12. Subsequently, the defendant-respondent sought an amendment in written statement vide his amendment application dated 15.01.1988 which was allowed and thereby in para 22 he stated that tenancy is continuing prior to 1965. Earlier the plaintiff-landlord was also a tenant in a shop adjacent to respondent-tenant but subsequently the plaintiff purchased disputed shop and other shops and the entire property in dispute but his contention that shop was newly constructed in 1978 is incorrect. He also stated in para 24 that his firm M/s Capital Agency is an old registered establishment in municipal record and he is continuing with possession throughout as tenant. In para 31 he pleaded that sanctioned map etc. are not in respect to the disputed site and building but it may relate to some other property, hence would render no assistance to plaintiff.
13. A replication was filed by petitioner-plaintiff reiterating that Act, 1972 is not applicable, the shop being newly constructed in 1978. In para 4 of replication he has clarified, when the building in dispute was purchased in 1971 it consisted of two shops, a staircase and big ahata and after purchase thereof the entire existing building was demolished and in its place three new shops were constructed, besides construction on the first and second floor. The tenancy of respondent thus came into existence in the newly constructed shop in 1978 and the old tenancy disappeared as soon as the old building stood demolished.
14. The Trial Court formulated five issues before proceeding to adjudicate in the matter and issues No. 1 and 2 relates to question of new construction and read as under:
^^1- D;k okn xzLr edku lu~ 1978 dk fuekZ.k gS] ;fn gkWa rks D;k ml ij m0iz0 vf/k0 13 lu~ 72 ds izkfo/kku ykxw ugha gSaA 2- D;k okn xzLr nqdku dh la[;k 304 gS vFkok 302 \** "1. Is the building in question a construction of 1978. If so, does Uttar Pradesh Act 13 of 1972 not apply thereto ?
2. Is the shop in question numbered as 304 or 302 ?"
(English translation by the Court)
15. In order to determine the extent of construction made in 1978 the Trial Court has recorded its findings as under:
^^vc eq[; iz'u ;g gS fd nqdku fookfnr dk D;k fuekZ.k lu~ 1978 esa gqvk gS rFkk D;k ml ij m0iz0 vf/kfu;e 13 lu~ 1972 okn ;kstu ds fnu rd ykxw ugha FkkA okn xzLr edku ds fuekZ.k ls lEcfU/kr esjB fodkl izkf/kdj.k }kjk ikfjr Hkou ds ekufp= dks izekf.kr izfrfyfi dkxt la0 33x dks ns[kus ls irk pyrk gS fd lu~ 1977 ls okn xzLr Hkou esa igys dsoy nks nqdku o ,d thuk Fkk vkSj nqdkuksa dk lkbZu 10 fQV x 10 fQV ls vf/kd FkkA tcfd blds LFkku ij rhu nqdkus cuh ftudk lkbZt fHkUu gS x`gdj fu/kkZj.k ds fpV~Bs dh izekf.kr izfrfyfi 34 x tks o"kZ 1976 ls 1981 ds fy;s gS esa Hkh okn xzLr Hkou esa uohu fuekZ.k gksus dk mYys[k gSA bl lEcU/k esa izfroknh dh vksj ls ;g rdZ j[kk x;k fd mijksDr ekufp= 33 x esa 'kCn ,Mh'ku o vkUVjs'ku dk mYys[k gSA vr% fookfnr nqdku dks uohu fuekZ.k ugha ekuk tk ldrk gS fdUrq nqdku ds lkbZt esa vk;s vUrj ds izdk'k esa ih0MCyw0 1 Jh lqjsUnz ukFk dk Mh0MCyw0 1 vtqZu nso ds c;ku dks i<+u ls ;gh rF; fo'oluh; tku iM+rk gS fd okLro esa oknxzLr nqdku dk fuekZ.k lu~ 1978 esa gqvk gSA Lo;a Mh0MCyw0 1 vtqZu nso us ;g izfrijh{kk esa Lohdkj fd;k gS fd tgkWa nks nqdkus Fkh ogha rhu nqdkuksa dk fuekZ.k fd;k x;kA izfroknh ds fo}ku vf/koDrk us ih0MCyw0 &1 Jh lqjsUnz ukFk jk; us izfrijh{kk ds dFku esa ,d LFkku ij vius bl okD; dh vksj esjk /;ku vkdf"kZr fd;k fd u;h nqdku lu~ 1971 cuk;h A ysfdu ml okD; ls izfroknh dks dksbZ lgk;rk ugha feyrh D;ksafd Lohdkjr% izfroknh nqdku okn xzLr ds iqu% fuekZ.k ls iwoZ ls izfroknh oknh ds fdjk;snkj Fks vkSj ftlls csn[kyh izfroknh dh pkgh x;h gS mlds lEcU/k esa mDr ckr dgh x;h gksA lk{kh ds iwjs dFku dks nLrkostksa ds izdk'k esa i<+us ls ;gh rF; fl) gksrk gS fd okn xzLr nqdku dk iqufuekZ.k lu~ 1978 esa gqvk vkSj mDr rF; ds fl) gks tkus ds dkj.k okn xzLr Hkou ij m0iz0 vf/kfu;e la0 13 lu~ 1972 ckn ;kstu ds le; vFkkZr 1985 esa ykxw ugha gks ldrk Fkk rn~uqlkj fu.kZ;kFkZ fcUnq 1 o 2 oknh ds i{k esa fu.khZr fd;s tkrs gSaA** "Now the main question is whether the shop in question was constructed in 1978 and whether U.P. Act 13 of 1972 was not applicable thereto on the day of institution of the suit. On perusal of Paper No. 33C attested photocopy of the map approved by Meerut Development Authority in relation to the construction of the building in question, it transpires that there were earlier only two shops and one staircase in the building in question since 1977 and the dimensions of the shops exceeded 10 feet x 10 feet. However, three shops were built instead thereof with different dimensions. There is mention of new construction in the building in question in Paper No. 34C, too, being certified photocopy of house assessment papers for the year 1976 to 1981. In this respect it has been argued on behalf of defendant that the words 'addition' and 'alteration' find mention in the aforesaid map being Paper No. 33C. Hence, the shop in question cannot be treated as a new construction; but on going through the statements of PW-1 Sri Surendra Nath and DW-1 Arjun Dev in relation to the differences in the dimensions of the shops it does appear that the shop in dispute was actually constructed in 1978. In this cross examination, DW-1 Arjun Dev has himself admitted that the three shops were built exactly where two shops were built. In course of the cross examination of Sri Surendra Nath Rai, at a particular point, the learned counsel for the defendant has drawn my attention to his contention to the effect that the new shop was constructed in 1971. However, that contention does not come to the aid of the defendant inasmuch as the defendant was admittedly tenant of the plaintiff since the time preceding the re-construction of the shop in question and also because the said thing has been stated in reference to the shop from which the eviction of the defendant has been sought. If the entire statement of the witness is evaluated in the light of the documents, it does stand proved that the shop in question was re-constructed in 1978 and the said fact having been established the provision of U.P. Act 13 of 1972 could not have been applicable to the building in question at the time of institution of the suit, that is, in 1985. Accordingly, points for determination 1 and 2 are decided in favour of the plaintiff."
(English translation by the Court)
16. It thus has categorically held that earlier there were two shops and one staircase. The size of shops was more than 10x10 ft. Presently there are three shops. In place of two shops three shops have been constructed. It has not been shown that three shops, now constructed, are such which could have come into existence by removing very partition wall from the existing two shops and thereafter raising two partition walls to make them three. In fact the two shops and existing staircase has merged and thereafter in the entire area available three shops have been constructed. This finding has not been found to be incorrect or perverse by Revisional Court inasmuch as it has also reiterated that their existed earlier two shops, one staircase and some open land and now in place thereof there are three shops. The question of tenancy of respondent, whether it existed earlier or has continued would not determine the question of application of Act, 1972, inasmuch as if there is a new construction in place of existing construction to which, earlier Act, 1972 was applicable, it would cease to apply when a new construction has come out, in view of Section 2(2) read with Explanation (1)(a), (b) and (c). Without considering whether the kind of construction existing presently could have come into existence by mere minor alteration when erstwhile existing building consisted of two shops, one staircase and some open land, the Revisional Court has gone to observe that making of three shop out of two shops is nothing but a minor alteration and would not amount to new construction. It has completely misdirected itself by ignoring to consider that unless their existed material to demonstrate that three shops could have come into existence by a minor variation of existing shops, such inference and that too on an issue of fact is more based on conjectures and surmises than any credible evidence.
17. The Revisional Court normally ought not to have interfered with the findings of facts recorded by Trial Court unless it finds that such findings are perverse or materially inconsistent with the evidence or are founded by ignorance of some material evidence etc. but it cannot interfere with the findings of facts, as if it is sitting as a court of first instance or that of an Appellate Court and is entitled to draw a different opinion though the finding of fact recorded by Trial Court is not patently illegal or perverse. To my mind, the Revisional Court, in fact, has misdirected itself by co-relating the question of applicability of Act, 1972 with relationship of landlord and tenant by observing that in order to find out, whether Act, 1972 continued to apply or not it would have been proper if the plaintiff would have shown that after terminating or determining earlier tenancy, a new tenancy was established. This manifest error on the part of Revisional Court is evident from following:
^^1978 esa fuekZ.k ds vk/kkj ij oknh dk dFku gS fd nqdku ij m0iz0 vf/kfu;e la0 13 o"kZ 1972 ds izkfo/kku ykxw ugha gksrs gSaA ;g fLFkfr rc izklafxd vkSj lgh gks ldrh gS ;fn izfroknh dh fdjk;snkjh fdlh Lrj ij lekIr gksus ds ckn u;s fljs ls 1978 ls LFkkfir gqbZ gksA ,slk bl dsl esa izekf.kr ugha gqvk gS vkSj u gh tc oknh dk ;g dsl gSA** "On the basis of the construction in 1978 the plaintiff states that the provisions of U.P. Act No. 13 of 1972 do not apply to the shop. This position may be relevant and correct, if the tenancy of the plaintiff after being terminated at any juncture is established afresh since 1978. Nothing of this sort has been made out in this case nor does the plaintiff have this stand."
(English translation by the Court)
18. This observation and the supporting reason I find is wholly irrelevant for the purpose of determining the question of application of Act, 1972. The very title of Act and its preamble shows that it has been enacted in respect to certain urban buildings for regulating of their letting, rent and eviction. Section 2, which exempts Act, 1972, also refers to certain buildings described from Clauses (a) to (h) in sub-section (1) and in respect to the period of construction of certain buildings under sub-section (2).
19. It is not in dispute that respondent was tenant in one of the two shops existing earlier when the property, of which disputed shop forms part, was purchased in 1971 by petitioner. The only question up for consideration was about the nature of construction made in 1978. It is not in dispute that a map was sanctioned by Meerut Development Authority and thereafter petitioner-landlord proceeded with certain construction activities at the site where disputed shop is situated. It has not been shown by respondent-tenant that the shop, he was occupying earlier, remained same after such construction activities. On the contrary, both the courts below have found that in place of two shops, one staircase and some open land, now three shops have been constructed. Once this part of finding has been recorded by both the courts below, the onus, in my view, lies upon respondent-tenant to demonstrate that such kind of construction could have been possible even without demolition of existing structure and by some minor alteration etc.
20. It is evident from statement of DW 1 that at the same place where there existed two shops, three shops have been constructed. Before this Court, the petitioner has categorically stated that construction made in 1978 was after demolishing entire existing building. These facts has not been disputed by filing any counter affidavit despite repeated opportunities afforded to respondents.
21. In the entirety of above facts and circumstances and discussions, I have no hesitation in upholding the findings of Trial Court that it was a new construction made in 1978 which came into existence after demolition of existing old construction and extending a helping hand to respondent-tenant since he was earlier possessing one shop out of two, the petitioner-landlord let out one newly constructed shop to him in 1978. The Revisional Court has relied on municipal register for the period of 1978 to 1981 to observe that the old assessment has continued but here also it has completely misdirected itself by ignoring to consider the fact that assessment of construction as has come out, was made by Incharge Officer by his order dated 25.11.1980 w.e.f. 01.04.1980 and this shows that after new construction came into existence a new assessment was made w.e.f. 01.04.1980.
22. Whenever an existing building under tenancy is demolished the relationship of landlord and tenant comes to an end inasmuch as the lease itself comes to an end with the grounding of structure. Even if it is not a case of complete demolition yet the construction made is of such a nature which satisfy Explanation (1) Clause (c) of Section 2, in my view, it would render the building exempted from Act, 1972, from the date, such construction is completed, and this exemption shall be for the period provided in sub-section (2) of Section 2 of Act, 1972. This is what has been said by Division Bench of this Court in Gopal Dass (supra). The Court said that exemption in Section 2 is to the building specific and, therefore, the question that old tenancy continues is of no consequences and such an argument is meritless. The Court further said that tenanted building as soon as falls to earth, the tenancy comes to an end. The only exception is where Section 24 of Act, 1972 would be applicable i.e. when a building is vacated by existing tenant for demolition and reconstruction pursuant to an order under Sections 21 or 22 of Act, 1972. Meaning thereby except of the cases governed by Section 24, in other cases, the tenancy would come to an end as soon as the building is demolished or is vacated by him for its reconstruction/new construction.
23. This aspect has also been considered in Gopal Dass (supra) and in paras 26, 27 and 28 the Court said:
"26. Now, the next relevant section is 2(2) of the Act. It exempts from the operation of the Act, such new buildings for a period of ten years from the date on which its construction is complete, except for certain provisions specified therein. It is not in dispute that sub section (2) of Section 24 applies in its letter. However, it was submitted that its spirit is applicable.
27. A plain reading of sub-section (2) of Section 2 would show that except in the following cases, the Act shall not apply to a building during the period of ten years from the date on which which its construction has completed. They are -- (1) as provided in sub-section (5) of Section 12, (2) sub-section (1-A) of Section 21, (3) sub-section (2) of Section 24, (4) Section 24-A, (5) Section 24-B, (6) Section 24-C and (7) sub-section (3) of Section 29.
28. It is not the case of the tenant that his case falls in any of the aforesaid exceptions except sub-section (2) of Section 24. Section 24 provides the operation of re-entry by tenant under the circumstances specified therein."
24. The Division Bench has also followed Apex Court's decision in Lal Chand and another Vs. District Judge, Agra and others, 1999(2) ARC 678, which, in my view, also squarely applies to the facts and circumstances of this case.
25. Apparently the approach and the factors considered by Revisional Court in the case in hand is clearly erroneous and illegal. The impugned revisional judgment, therefore, cannot sustain.
26. In the result, the writ petition is allowed. The impugned judgment dated 06.05.2005 passed by Revisional Court in SCC Revision No. 19 of 1990 is hereby set aside. The judgment of Trial Court dated 09.01.1990 passed in SCC Suit No. 05 of 1985 is hereby restored and confirmed.
27. At this state, Sri A.K. Gupta, learned counsel appearing for respondent-tenant pleaded that since accommodation in question is a commercial one and he is occupying the same for the last more than three decades, he may be permitted to vacate the same by granting him some reasonable time.
28. Considering the above facts and circumstances and also with the consent of learned counsel for the parties I find it appropriate that respondent may be allowed three months' time to vacate the premise in question. Sri A.K. Gupta, Advocate appearing for respondent also stated that respondent undertakes to vacate the premise within aforesaid period.
29. In view of the above, it is provided that respondent, if file an affidavit within twenty days from today before the trial court containing an undertaking that he shall vacate the premises in question and hand over its vacant possession to the landlord-petitioner within three months from today, execution of judgment shall not proceed. It is also made clear that the respondent-tenant shall continue to pay rent of premise in question to petitioner-landlord month-to-month. However, in case of any default, the above indulgence granted by this Court shall automatically cease and it would be open to landlord(s) to proceed for execution of judgment immediately thereafter in accordance with law. It is also provided that in case the respondent-tenant after filing affidavit, as aforesaid, and enjoying deferment of vacation of premise in question, failed to comply with any of the conditions, as aforesaid, he shall be liable to pay for such non compliance of pious undertaking given to the Court, an exemplary costs of Rs. 50,000/- which shall also be recovered from respondent-tenant alongwith execution proceedings, if such necessity arises.
30. With the aforesaid indulgence and subject to time granted, as above, the writ petition is allowed.
31. No costs.
Order Date :- 11.01.2013 AK