Allahabad High Court
Satya Prakash & Ors vs Distt Judge Sultanpur & Ors on 19 January, 2018
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Judgment reserved on: 21.11.2017 Judgment delivered on: 19.01.2018 Court No. - 22 Case :- RENT CONTROL No. - 26138 of 2017 Petitioner :- Satya Prakash & Ors Respondent :- Distt Judge Sultanpur & Ors Counsel for Petitioner :- Prabhat Kumar,Shailesh Kumar Pathak Counsel for Respondent :- Mukesh Sharma,Gaurav Mehrotra Hon'ble Rajan Roy,J.
Heard Shri Prabhat Kumar, learned counsel for the petitioners and Shri Gaurav Mehrotra along with Shri Kunal Shah, learned counsel for the opposite party no. 3.
This is a petition under Article 227 of the Constitution of India challenging the orders passed by the Prescribed Authority and the revisional authority under the U.P. Urban Buildings (Regulation of Letting, Rend and Eviction) Act, 1972 (For short ''the Act, 1972'). The petition is by the tenants.
Sri Prabhat Kumar learned counsel appearing for the petitioners submits that on the date of notice the property in dispute was an open land as admitted by the landlord, therefore, the suit would not lie before the SCC Court, it would lie before the regular Civil Court in view of Section 15 read with Schedule-II (State Amendment) of the U.P. Provincial Small Cause Courts Act, 1887, as, once it was the case of the opposite party no. 3 herein that the building which had been let out had got demolished, then, the very basis of tenancy had ceased to exist, therefore, the proceedings were essentially for eviction from the open land per se, as such, the competent forum was the Regular Civil Court.
The contention of Shri Kunal Shah holding brief of Shri Gaurav Mehrotra, learned counsel for the opposite party no. 3 is that it is an admitted factual position that the tenanted premises were let out for residential purposes much prior to its purchase by his client in the year 1970 and that the tenancy continued even thereafter. However, at some stage the building got demolished, a fact has been denied by the petitioners, but this does not mean that the tenancy ceased to exist as, in view of the definition of ''building' it means land appurtenant to the building. The definition of building contained in Section 3(i) of the U.P. Act No. XIII of 1972 when read conjointly with enunciation of the meaning of ''building' by the Supreme Court in its decisions the land beneath it and appurtenant thereto is also part of it, therefore, even after demolition not only the building as defined aforesaid, continues to exist, but, the tenancy also subsists, in respect of which, the petitioners did not pay the rent since 1970, hence, a notice was given seeking arrears of rent and also on the ground that the structure no longer being in existence and the petitioner having illegally set up a ''Gumti' thereon contrary to the purpose for which the tenancy was created thereby changing the use for commercial purposes, seeking his eviction therefrom, and the Courts below had concurrently held that the petitioners were in arrears of rent and there was veritably no contest on this issue. The only issue raised by the petitioners being one of jurisdiction of the SCC Court to deal with such matters on the premise that what remains now is open land, it is absolutely misconceived, as, the dispute relates to tenancy in respect of a ''building' as defined under Section 3(i) of the Act, 1972, which continues to exist in the eyes of law, therefore, the jurisdiction was with the SCC Court and it was not a dispute where his client was seeking possession of open land per-se i.e. bereft of the tenanted premises and the tenancy. In support of his contention he relied upon judgments rendered in case of Vannattakandy Ibrayi Vs. Kunhabdulla Haje reported in (2001) 1 SCC 564, T. Lakshmipathi Vs. P. Nithyananda Reddy reported in (2003) 5 SCC 150, Shaha Ratansi Khimji & Sans Vs. Kumghar Sons Hotel (P) Ltd. reported in (2014) 14 SCC 1, Dr. Kundan Lal Vs. Shamshad Ahmad reported in AIR 1966 All 225 and Ashok Kapil Vs. Sana Ullah reported in 1996 (6) SCC 342.
In reply Shri Kumar submitted that none of the decisions cited by Sri Shah apply in the present case, as, in those cases the issue was pending before the Regular Civil Court and the question of competent forum i.e. whether the suit will lie before the SCC Court or not was not directly involved. He also submitted that in view of the definition of ''building' under Section 3(i) of the Act, 1972 the land beneath the building would not form part of the building for the purposes of tenancy. He says that the land being open land the jurisdiction was with the regular Civil Court.
It is not in dispute that the premises in question was let out by the erstwhile owner and landlord to Shri Ram Sajiwan the father and wife of the petitioners respectively. It is also not in dispute that the said premises were purchased by the opposite party no. 3 vide registered sale deed dated 28.08.1970 from the erstwhile owner landlord. The opposite parties no. 4 to 8 are proforma opposite parties as has been mentioned by the parties' counsel and is recorded in the order of this Court dated 21.11.2017. Immediately after purchase of the property some proceedings took place between the parties wherein the rent of the premises in question was determined as being Rs.3.75/- per annum. The said proceedings took place between opposite party no. 3 and Shri Ram Sajiwan the predecessor in interest of the petitioners herein. While the case of the opposite party no. 3, in the instant case was that, no rent was paid to him by the petitioners or their predecessor in interest since 1970, the case of the petitioners herein was that they paid the rent till 1991 in Court but thereafter did not pay the same and that they had paid the rent for 22 years since 1991 vide Money Order sent in the year 2011 i.e. after institution of the proceedings for eviction under Section 20 of the Act, 1972 in the year 2010 by the opposite party no. 3, after giving notice on 03.09.2009. The ground for seeking eviction was the arrears of rent as also change of user as according to the opposite party no. 3 initially the premises were let out for residential purposes, but, the building got demolished and the petitioners moved a ''Gumti' from the road on the said land and were running a shop therein. In the written statement the petitioners denied the fact that the building had been demolished. They asserted that a structure with tin roof existed on the land, the front portion of which was being used as a shop while the back portion was being used for residential purposes. It is not in dispute that the premises comprised of land appurtenant to the ''building' which was existing at the time of being let out to Shri Ram Sajiwan.
In the instance case, as the tenancy was not by a registered and/ or written lease and as there is nothing on record to show that it was in respect of an agricultural land, it continued on month to month basis in view of Section 106 of the Transfer of Property Act, 1882.
Before this Court the learned counsel for the petitioners did not dispute the fact that the initial structure on the land i.e. the premises which had been let out, got demolished.
The Prescribed Authority decreed the suit of the opposite party no. 3 on the ground of arrears of rent while it rejected the plea of change of user, as, according to it, there was no evidence to establish that the premises were initially let out for residential purposes. In the revision filed by the petitioners the only ground taken was with regard to the arrears of rent. There is nothing on record to suggest that the validity of the notice or its service upon them was disputed by the petitioners- revisionists. In fact in the judgments of the Courts below it has come that the notice was served and was not denied rather it was admitted, but, even thereafter, the arrears of rent were not paid in terms of Section 20(4) of the Act, 1972 i.e. on the date of first hearing nor was the amount deposited in terms of Order XV Rule V C.P.C.
Both the Courts below have ruled against the petitioners.
On a careful perusal of the pleadings in the petition the grounds mentioned therein, the Court does not find any challenge based on the validity of notice or its service, therefore, this plea which was sought to be raised during the course of arguments can not be considered nor accepted in view of the findings recorded by the Courts below in this regard.
Normally, the Writ Court would not consider a new plea being raised before it for the first time, but, considering the fact that it touches upon the jurisdiction of the SCC Court and also the fact that it is being raised on the premise that the building which had been let out had been demolished, a fact not disputed by the opposite party no. 3, which is also not being disputed now before this Court by the petitioners, though it was disputed before the Courts below, therefore, the Court proceeds to consider this issue.
The fact that the premises in question were let out is not in dispute. Tenancy in respect of premises is also not in dispute. The fact that the petitioners have continued in possession is not disputed. It is not in dispute that the structure over the land which was compositely the building or the tenancy premises, fell down, possibly on account of decay or dilapidation, but, the petitioners continued to be in possession of the land underneath the structure as also appurtenant to it. The fact that the opposite party no. 3 purchased the said premises on 28.08.1970 is also not in dispute and it is also not in dispute as far as the petitioners are concerned that since 1991 they did not pay rent to the opposite party no. 3 till they sent it in 2011 through Money Order i.e. after initiation of eviction proceedings. No claim to title has been raised by the petitioners over the land in question nor has the title of the opposite party no. 3 been denied by them.
The question to be considered is whether in the facts of the case eviction proceedings were maintainable before the SCC Court or before the Regular Civil Court.
If the landlord tenant relationship existed between the petitioners and the opposite party no. 3 and it continued even after the destruction of the roofed structure as also if the tenancy did not become automatically void on such destruction, then, proceedings under Section 20 of the Act, 1972 would be maintainable before the SCC Court.
The moot point is, did the tenancy continue even after destruction of roofed structure. The first and foremost question, therefore, is whether the ''building' which was the subject matter of tenancy existed on the date of notice of eviction as also initiation of proceedings under Section 20 of the Act, 1972 or not. Section 3(i) of the Act, 1972 defines building as under:-
"3(i) "Building", means a residential or non-residential roofed structure and includes-
(i) any land (including any garden), garages and out-houses, appurtenant to such building;
(ii) any furniture supplied by the landlord for use in such building;
(ii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof;"
Building as defined aforesaid comprises of a roofed structure and obviously land underneath or land which it bounds with its walls. The inclusive part of the definition relates to land appurtenant and not underneath. It has been so held by the Supreme Court in a decision reported in 1992 (4) SCC 429; State of U.P. and Ors. Vs. VII Additional District Judge and Ors. The relevant extract of this judgment, which pertain to the Act, 1972, is quoted herein below:-
"7. In any case, the definition of ''building' under the Act clearly shows that the building thereunder means roofed structure including the land underneath the said structure. Inclusive part of the definition only relates to the land appurtenant to such building and not to the land underneath the roofed structure."
Generally speaking also the term ''building' includes the ground on which it stands as has been held by the Supreme Court in the case of D.G. Gose and Co. Vs. State of Kerala reported in (1980) 2 SCC 410, wherein the term ''lands and buildings' was under consideration in the context of Entry 49 of List II Schedule- VII of the Constitution. Paragraphs 21, 22 and 23 of which read as under:-
"21. The word "building" has been defined in the Oxford English Dictionary as follows:
That which is built; a structure, edifice: now a structure of the nature of a house built where it is to stand.
Entry 49 therefore includes the site of the building as its component part. That, if we may say so, inheres in the concept or the ordinary meaning of the expression "building".
22. A somewhat similar point arose for consideration in Corporation of the City of Victoria Vs. Bishop of Vancouver Island with reference to the meaning of the word "building" occurring in Section 197(1) of the Statutes of British Columbia, 1914. It was held that the word must receive its natural and ordinary meaning as "including the fabric of which it is composed, the ground upon which its walls stand and the ground embraced within those walls". That appears to us to be the correct meaning of "building".
23. The Act contains its own definition of what is meant by "building", and Clause (e) of Section 2 is to the following effect:
(e) "building" means a house, outhouse, garage, or any other structure or part thereof, whether of masonry, bricks, wood, metal or other material, but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure.
There are two explanations to the clause, but they are not relevant for the controversy before us. The definition therefore makes it quite clear that as a house, outhouse, garage or any other structure cannot be erected without the ground on which it is to stand, the expression "building" includes, the fabric of which it is composed, the ground upon which its walls stand and the ground within those walls. It is equally clear that the ground referred to above would not have a separate existence, apart from the building, and would not be "lands" jointly stated with "buildings" as the subject-matter of the tax in entry 49 of List II. In other words, the "ground" referred to above would not be the subject-matter of a separate tax, apart from the tax on the building standing on it."
The case of Corporation of the City of Victoria Vs. Bishop of Vancouver Island referred in the aforesaid judgment is reported in AIR 1921 PC 240. The same view has been taken by the Kerala High Court in a judgment reported in AIR 1995 Kerala 99; V. Kalpakam Amma Vs. Muthurama Iyer and another case reported in AIR 1991 Kerala 55; George J. Ovungal Vs. Peter.
In view of the above discussion, it is not in dispute that ''building' as defined in Section 3(i) of the Act, 1972 not only includes the structure constructed over the land but also the land over which it is constructed. It also includes the land appurtenant to the structure.
The next question to be considered is as to whether the tenancy was rendered automatically void once the superstructure on the land is destroyed. Decisions are plethora that even if the superstructure is destroyed the tenancy continues as the land underneath the structure and that appurtenant to it still exits, unless the tenant exercises his option to void the lease as per Section 108(B)(e), meaning thereby, on mere destruction of the superstructure built on the land underneath, the lease of tenancy does not automatically become void and the tenant is entitled to retain the possession of the remaining part of the tenancy premises till it is determined as per law and the rights and liabilities of the landlord and tenant continue accordingly which includes the obligation of the tenant to pay rent.
The reference to open land after the demolition of the superstructure by the opposite party no. 3 in his notice dated 03.09.2009 has to be understood in the light of the meaning of ''building' as discussed herein above.
Reference may be made in this regard to the decision of the Supreme Court reported in (2003) 5 SCC 150; T. Lakshmipati and Ors. Vs. P. Nithyananda Reddy and Ors. In paragraph 19 of the said judgment the contention that on demolition of the building the tenancy premises had ceased to exist, therefore, the tenancy had come to an end in view of the very subject matter of tenancy having ceased to exist and in view of this a suit based on landlord tenancy relationship and seeking recovery of possession was misconceived, was noticed by the Supreme Court and in paragraphs 22 to 24 the same was repelled. While doing so the Supreme Court referred to Woodfall's Laws of Landlord and Tenant (28th Edition, Vol. 1), wherein it had been held as under:-
"Where the lessee covenants to pay rent at stated period (without any exception in case of fire), he is bound to pay it, though the house be burnt down; for the land remains, and he might have provided to the contrary by express stipulation, if both parties had so intended. And this rule applies, although the lessee's covenant to repair contain an exception in case of fire. Similarly, an action for use and occupation still lies in respect of the whole period of the tenancy notwithstanding the destruction of the premises by fire." (para 1-0778) "In a lease of land with buildings upon it the destruction of even the entirety of the building does not affect the continuance of the lease or of the lessee's liabilities under it, unless so provided by express contract." (para 1-2055) "A demise must have a subject-matter, either corporeal or incorporeal. If the subject- matter is destroyed entirely, it is submitted that the lease comes automatically to an end, for there is no longer any demise. The mere destruction of a building on land is not total destruction of the subject-matter of a lease of the land and building, so the demise continues. But if by some convulsion of nature the very site ceases to exist, by being swallowed up altogether or buried in the depths of the sea, it seems clear that any lease of the property must come to an end." (para 1-2056) It is evident from the aforesaid that mere destruction of a building on land is not total destruction of the subject-matter of a lease of the land and building, so the demise continues. But if by some act of nature the very site ceases to exist, by being swallowed up altogether or buried in the depths of the sea, it seems clear that any lease of the property must come to an end.
The Supreme Court also held that the tenancy cannot be said to have been determined by attracting applicability of the doctrine of frustration consequent upon demolishing of the tenancy premises. Doctrine of frustration belongs to the realm of law of contracts; it does not apply to a transaction where not only a privity of contract but a privity of estate has also been created inasmuch as lease is the transfer of an interest in immovable property within the meaning of Section 5 of the Transfer of Property Act read with Section 105. It went on to hold in Para 22 that a lease of a house or of a shop is a lease not only of the superstructure but also of its site. Para 22 of T. Lakshmipati's case (supra) reads as under:-
"22. A lease of a house or of a shop is a lease not only of the superstructure but also of its site. It would be different if not only the site but also the land beneath ceases to exist by an act of nature. In the present case the appellants who are the successors of the tenancy right have demolished the superstructure but the land beneath continues to exist. The entire tenancy premises have not been lost. Moreover, the appellants cannot be permitted to take shelter behind their own act prejudicial to the interest of the Respondent 1 under whom the Respondents 2 and 3 were holding as tenants and then inducted the appellants."
As this judgment of the Supreme Court was contrary to the view expressed in an earlier judgment reported in (2001) 1 SCC 564; Vannattankandy Ibrayi Vs. Kunhabdulla Hajee, therefore, the matter was referred to a Larger Bench which concurred with the view expressed in T. Lakshmipati's case (supra). The contrary view expressed in Vannattankandy Ibrayi's case (supra) was disapproved in the case of Shaha Ratansi Khimji and Sons Vs. Kumbhar Sons Hotel Private Limited and Ors. reported in (2014) 14 SCC 1.
Similar view has been taken by the Bombay High Court in a judgment reported in AIR 1996 Bombay 389; Hind Rubber Industries Pvt. Ltd. Vs. Tayebhai Mohammedbhai Bagasarwalla and Ors.
As per Halsbury's Laws of England, 3rd Edition, Volume 23, Landlord and Tenant, page 553- " the destruction of the premises by fire does not , in the absence of express stipulation, suspend the liability of the tenant to pay rent, and even though the landlord has received the money and refuses to rebuild the rent continues to be payable throughout the residue of the term."
In Simper Vs. Coombs, (1948) 1 All ER 306, Lord Denning held that:-
"The position at common law is plain. She had a contractual tenancy, and that tenancy had never been determined by due notice to quit. It, therefore, continues in existence. The destruction of the house by a bomb did not determine the tenancy. It is well settled that the destruction of a house does not by itself determine the tenancy of the land on which it stands."
Last but not the least, this very Court in the case of Dr. Kundan Lal Vs. Shamshad Ahmad reported in AIR 1966 All 225 has held as under:-
"It would thus appear that in case of the destruction of the leased accommodation through no fault of the landlord, the tenant can avoid payment of rent only if he declares the lease void under Section 108(e) of the Transfer of Property Act, but if he fails to do so, the lease will subsist for the benefit of both parties and the landlord is entitled to claim rent. The tenant may have his other remedies, if any, such as damages for breach of covenant to repair. But he cannot claim that the destruction of the building has deprived him of its possession and withhold rent from the landlord."
The fact that the tenancy continues even after destruction of the superstructure on the land is also evident from a reading of Section 29(2) of the Act, 1972.
In view of the above, the legal position with regard to the continuance of tenancy even after destruction of the superstructure on the land is that it can only be void at the option of the lessee. Thus, in the instant case, even though, the superstructure got destroyed the land underneath and that appurtenant to it continued to exist on the relevant date of determination of tenancy and the petitioners continued to be in possession on the said date, thus, it is not a case of destruction of the ''building' as defined in Section 3(i) of the Act, 1972 in its entirety. Not only the "building", whatever remained of it, continued to exist in the eyes of law, the possession of the petitioners also continued, who did not exercise their option under Section 108(B)(e) to get it voided by handing over possession of the same to the landlord.
Once it is so held then the logical consequence is that proceedings for eviction of the tenant from such ''building' were maintainable before the SCC Court in view of Section 15(1) of the Provincial Small Cause Courts Act, 1887 read with Clause (iv) of Schedule-II as amended for the State of U.P. w.e.f. 20.09.1972, according to which, a suit by a lesser for eviction of a lessee from a building after the determination of his lease is maintainable before the SCC Court. The meaning of the term ''building' used in Clause 4, as per its explanation, is similar to the meaning assigned to the said word in Section 3(i) of the Act, 1972, therefore, for the reasons already mentioned herein above it would include the land underneath and that appurtenant to it.
In view of the above discussion, the eviction sought was from a ''building' as defined under Section 3(i) of the Act, 1972 which was the tenancy premises and not from an open land per se.
Though, the status of the opposite party no. 3 as landlord is not being denied it is worthwhile to refer to the definition of ''landlord' as contained in Section 3(j) of the Act, 1972, which reads as under:-
"3(j) "Landlord", in relation to a building, means a person to whom its rent is or if the building were let, would be, payable and includes, except in Clause (g) the agent or attorney or such person;"
The opposite party no. 3 being the owner of the premises, rent was payable to him if building was let out, which it was, therefore, he falls within the definition of landlord, especially as, the petitioner does not claim to have paid rent for the period in question to any one else nor any other party claims to be the landlord.
In view of the above, as no argument was advanced by the learned counsel for the petitioners on any other issue nor any ground has been taken in the petition, therefore, the petition lacks merits and fails. It is accordingly dismissed.
Order Date :- 19.01.2018
R.K.P. (Rajan Roy,J.)