HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 58 Case :- MATTERS UNDER ARTICLE 227 No. - 3025 of 2015 Petitioner :- Jagdish Chand Kashyap Respondent :-Malti Agarwal Counsel for Petitioner :- Om Prakash Lohia, Noor Sabaa Counsel for Respondent :- C.S.C.,Arvind Srivastava,Pushkar Srivastava connected with Case :- MATTERS UNDER ARTICLE 227 No. - 3897 of 2015 Petitioner :- Jagdish Chand Kashyap Respondent :- District Judge Jhansi & Anr Counsel for Petitioner :- Om Prakash Lohia Counsel for Respondent :- C.S.C.,Arvind Srivastava Hon'ble Manoj Kumar Gupta,J.
1. The petitioner is a tenant of a shop in building no. 343-A (private no. 343-A/10 and present no.917) Jokhan Bagh, Civil Lines, Jhansi (hereinafter referred to as 'the shop in dispute'). The landlord of the shop is Smt. Malti Agarwal (the respondent herein).
2. Before the petitioner was inducted as the tenant of the shop in dispute, he was occupying another smaller shop in the same building, in pursuance of a lease agreement dated 27.5.1981 whereunder, the rent was Rs.500/- per month and the tenancy was for a period of 15 years with an option of renewal for a further period of five years. It is admitted case of the parties that in the year 1986-87, an adjoining shop in the tenancy of one Mohd. Qamar was got vacated and the said shop alongwith the shop in the tenancy of the petitioner, were merged together by undertaking extensive modifications and constructions. Whereas, the shop earlier in the tenancy of the petitioner measured 12.6' x 14.6', the new shop i.e., the disputed shop, now measures 30' x 20'. In pursuance of an oral agreement between the parties, the rent of the disputed shop was enhanced to Rs.750/- per month, out of which Rs.250/- was to be adjusted in the expenses incurred by the petitioner in remodelling the structure.
3. The respondent-landlord filed SCC Suit no. 8 of 1991 for recovery of arrears of rent and ejectment. In the said suit, the respondent-landlord took a specific plea that the disputed shop now in the tenancy of the petitioner since 1.2.1987, is a new construction within the meaning of U. P. Act no. 13 of 19721 and is exempt from the provisions thereof. The suit was contested by the petitioner by filing written statement in which it was admitted that during the year 1986-87, after getting the adjoining shop vacated from Mohd. Qamar, the two shops were merged together. However, it was pleaded that there was no default in payment of rent and tenancy of the petitioner was of a permanent nature and thus, he could not be evicted.
4. The Judge Small Causes Court, by judgement dated 3.9.2003 dismissed the suit holding that under the registered lease deed dated 27.5.1981, the tenancy being for a duration of 15 years, the petitioner could not be evicted before expiry of the said period. The suit for eviction was found to be bad in law. However, while deciding the question whether the provisions of the Act are applicable or not, it was specifically held that the new constructions undertaken during the year 1986-87, were so extensive in nature that the new structure now in the tenancy of the petitioner, would be deemed to be constructed on the date of completion thereof, and thus exempt from the provisions of the Act.
5. The respondent-landlord, aggrieved by the judgement of the Judge Small Causes Court dated 3.9.2003 dismissing the suit, preferred Civil Revision No.831 of 2003 before this Court. During the pendency of the revision, the respondent-landlord served a fresh notice dated 7.4.2011 upon the petitioner seeking to terminate his tenancy. Consequently, Civil Revision No.831 of 2003 pending before this Court was got dismissed as withdrawn on 11.5.2011, followed by filing of SCC suit no. 17 of 2011. It was pleaded therein that the remodelled shop in the tenancy of the petitioner was held to be a new construction in SCC Suit no. 8 of 1991 and the tenancy of the petitioner having been terminated by notice dated 7.4.2011, he is liable to ejectment.
6. The suit was contested by the petitioner admitting the relationship of landlord and tenant between the parties. It was admitted that extensive constructions and modification were undertaken in the year 1986-87 and the remodelled shop was let out to the petitioner. However, it was claimed that the petitioner had deposited rent in proceeding under section 30 of the Act being Misc. Case no. 25 of 2004. The same was duly allowed and thus, the respondent-landlord is now estopped from contending that the provisions of the Act are not applicable. It was further pleaded that the shop in dispute being used for manufacturing purposes and thus, in the absence of notice of six month, the tenancy cannot be validly terminated. It was further pleaded that the lease in favour of the petitioner was of perpetual nature and thus, the suit instituted for his ejectment deserves to be dismissed.
7. The trial court by judgment dated 1.4.2014 decreed the suit for eviction of the petitioner while it was dismissed for the relief of recovery of arrears of rent. The trial court held that the shop in dispute would be deemed to be a 'new construction' within the meaning of explanation 1 of section 2(2) of the Act and thus, the provisions of the Act would not apply; that the notice dated 7.4.2011 terminating the tenancy is legal and valid; that there was no default in payment of rent as the entire amount stood deposited in the court and thus, the respondent-landlord is not entitled for the relief of recovery of arrears of rent, but in view of the finding that the Act does not apply and the notice determining the tenancy was duly served, the respondent was held entitled to a decree for eviction of the petitioner.
8. Aggrieved by the judgement and decree by the Judge Small Causes Court dated 1.4.2014, the petitioner preferred SCC revision No.47 of 2014, which has been dismissed by the District Judge, Jhansi by judgement dated 29.4.2015. The petitioner has now assailed the judgement passed by the Judge Small Causes Court dated 1.4.2014 and the judgement dated 29.4.2015 passed in SCC revision no. 47 of 2014, by filing Petition No. 3025 of 2015 before this Court invoking the supervisory jurisdiction under Article 227 of the Constitution of India.
9. The petitioner also filed an application for review of the judgement passed by the District Judge, Jhansi dated 29.4.2015, which was rejected by order dated 1.7.2015. Against the same, the petitioner preferred a separate petition bearing no. 3897 of 2015. Both the petitions were clubbed and heard together and are being decided by this common judgment.
10. Sri Om Prakash Lohiya, learned counsel appearing for the petitioner challenged the impugned judgements by raising the following contentions :-
(a) The shop in dispute was only remodelled in the year 1986-87 and since the existing construction, i.e., the shop in dispute was built on the same foundation and thus, it could not be treated to be a new construction and provisions of the Act would apply. Accordingly, the petitioner was entitled to protection under the Act.
(b) The tenancy of the petitioner being for manufacturing purposes, the notice dated 7.4.2011 seeking to terminate the tenancy on expiry of 30 days, was thus, invalid.
11. On the other hand, learned counsel for the respondent-landlord submitted that the shop in dispute was newly built in the year 1986-87 and provisions of the Act are not applicable to it. It is urged that in previous proceedings, a categorical finding was returned to the effect that the provisions of the Act are not applicable to the shop in dispute. He further submitted that the findings recorded by the Judge Small Causes Court in the judgement dated 1.4.2014 that the shop earlier in the tenancy of the petitioner was substantially demolished and thereafter, the shop in dispute was constructed, is a finding based on the appreciation of evidence and does not call for any interference by this Court. It is further urged that the petitioner failed to prove that the tenancy was for manufacturing purposes and thus, there was no illegality in the view taken by the courts below in upholding the validity and legality of the notice dated 7.4.2011.
12. The main issue is the date on which the shop in dispute would be deemed to have been constructed and whether the provisions of the Act would apply to it or not.
13. It is now no more res integra as to whether the provisions of the Act would apply to a case where under an agreement, tenant voluntarily vacates the tenanted accommodation for demolition and new construction, and after demolition and new construction, the newly constructed premises is let out to the tenant. Earlier, there were divergent views and the issue was resolved by a Larger Bench in the case of Gopal Dass vs. Bal Kishan Dass2. The Larger Bench disapproved the view taken by a learned Single Judge in the case of Shri Prakash Chandra Mehta vs. III Additional District Judge,3 wherein, it was held that where the tenant voluntarily vacates the tenanted accommodation for purposes of demolition and new construction and subsequently inducted as a tenant in the new constructed building, the provisions of the Act would continue to apply. On the other hand, this court approved the decision in the case of Naseem Ahmed Vs. IV Additional District Judge4 wherein contrary view was taken. The larger Bench concluded by answering the reference as under :-
"It is, therefore, difficult for us to agree with the judgment delivered in the case of Shri Prakash Chand Mehta (supra). It is not a good law. The said case was decided more on equitable considerations than legal.
For the reasons given above, we answer the question referred to us by holding that the provisions of the U.P. Act No.13 of 1972 will not apply to new construction where under the agreement, a tenant voluntarily vacates the tenanted accommodation for demolition and new cons-truction and after demolition and new construction, newly constructed premises is let out to the tenant. To put it differently, a new construction after demolition shall be exempt from the operation of provisions of the U.P. Act No.13 of 1972 as provided under Section 2(2) of the Act notwithstanding the fact that the tenant who was earlier in occupation of the existing building voluntarily agreed to vacate it and in lieu thereof the landlord agreed to let the new construction out to such tenant after reconstruction."
14. The aforesaid proposition of law was also not disputed by learned counsel for the petitioner. Rather, he himself cited the decision in the case of Gopal Dass (supra) in submitting that the new structure should have been constructed after complete demolition of the existing structure. In other words, it was urged that where the old structure was not completely demolished as in the instant case, it would be treated to be an old construction and would not be exempt from the provisions of the Act.
15. In previous proceedings in SCC suit no. 8 of 1991, the trial court in the judgement dated 3.9.2003, while deciding issue no. 4, returned the following finding :-
^^fjekMfyax esa iwjh Nr iM+h] vkxs dh nhoky NksM+dj rhu nhokys tehu ls ubZ cukbZ xbZ Fkh] pkSFkh nhoky dqN Å¡ph dh xbZ bl izdkj ns[kk tk; rks okLro esa nqdku la[;k&343,@10 o"kZ 1986&87 esa iwjh rjg ubZ cukbZ xbZ FkhA igys nqdku dh dqy uki 12-6 x 14-6 QhV Fkh ogh iqu% fuekZ.k ckn bldh uki 30 x 20 QhV gks xbZA**
16. In the instant suit, the Judge Small Causes Court, while deciding issue no.1, regarding applicability of the Act, has held as under :-
ÞizLrqr ekeys esa ;g lk{; ls Lohd`r gS fd nksuksa nqdkuksa dks feykdj ds uofufeZr gkWy cuk;k x;k] tSlk fd iwoZ o if'pe fLFkr nhoky fxjk nh x;h rFkk nf{k.k dh nhoky Å¡ph dh x;h vkSj iwjh Nr u;s fljs ls Mkyh x;hA mRrj rjQ 4 'kVj o 'kVjksa ds e/; fiyj cuk;k x;k vkSj e/; ikVhZ'ku dh nhoky gVk nh x;hA bl izdkj ls uo&fufeZr gkWy dh iSekbZ'k 30 x 20 QhV gks x;hA mijksDr fof/kd fu.kZ; ds vkyksd esa izLrqr fuekZ.k uo&fuekZ.k dh Js.kh esa gS vkSj ml ij ;w0ih0 ,DV la[;k [email protected] ds izkfo/kku izHkkoh ugha gksrs gSA**
17. Learned counsel for the petitioner has not challenged the findings recorded by the trial court in relation to the extent of the constructions undertaken in constructing the shop in dispute. The findings returned by the courts below clearly reveals that two shops were merged and in their place, a new hall measuring 30' x 20' now in the tenancy of the petitioner was constructed. Whereas, the area of the structure earlier in the tenancy of the petitioner was 12.6' x 14.6', the shop in dispute now measures 30' x 20'. In constructing the existing structure, the eastern and western wall were completely demolished, the height of southern wall was raised and the roof was laid afresh. In the northern wall, four shutters were installed and between them, pillars were constructed. The partition wall was removed. The question, thus for consideration before this Court is whether these construction indisputably made, would amount to a new construction within the meaning of the Act or not.
18. Section 2 (2) of the Act stipulates that the provisions of the Act would not apply to a building for a period of 10 years from the date on which its construction is completed. Since 26.4.1985, in relation to a building, the construction whereof is completed on or after April 26, 1985, the period of exemption was initially enhanced to 20 years and thereafter to 40 years by U.P. Act No. 11 of 1988. The Explanation 1 to section 2(2) of the Act which is material for deciding the controversy is as under :-
"Explanation 1. (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time :
Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants;
(b) "construction" includes any new construction in place of an existing building which has been wholly or substantially demolished;
(c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building the existing building shall be deemed to be constructed on the date of completion of the said addition;
19. In Jagdish Prasad vs. District Judge, Ghaziabad and others5, this Court laid down certain tests for determining whether "substantial addition" within the meaning of clause (c) of the Explanation have been undertaken or not by holding thus :-
"It is contended that since an old Baithaka was used to carve out the shops, the said shops cannot be treated to be a new building unless the additional constructions made can be found to be the major part of the building after the alterations. This is said to be not so in the instant case because the roof and at least three outer walls are the same and only partition walls and front shutters have been installed. I am inclined to agree with the contention that the words 'substantial addition' in Clause (c) take within their ambit not merely the addition of wholly new construction increasing the area of the building but also the alteration of the existing building into a new accommodation by remodelling it which may include the use of some parts of the old structure. The test for determining whether the altered construction should be regarded as old or new under Clause (c) would be whether after considering the area added the alteration effected and the cost incurred in alterations vis-a-vis the presumptive cost of the old building utilised and the form and structure of the building after the alterations it can be said that the parts utilised remained a major part of the altered structure. The purpose of the landlord before and after alterations may also be relevant for appreciating the change in form and structure. No single factor can be decisive. Looked at from this point of view, I cannot find any infirmity in the view that where a long room used as a Baithak has been converted into four shops approximately 8' x 4 ½' each by making changes as above the shops do not remain parts of an old construction so as to be governed by the Act."
(Emphasis supplied)
20. In Phool Chand vs. III Additional District Judge6, this Court held that even if the some portion of old construction had been used to carve out the new shops, it would not bring the same within the purview of the Act. It has been held that Explanation 1 to section 2(2) of the Act shall "take within their ambit not merely the addition of wholly new construction, but also the alteration of the existing building into a new accommodation by remodelling it which may include the use of some parts of the old structure". In that case, wall of the building were changed and a double storey new roof was laid while utilising some part of the old existing constructions. In taking such view, the decision in the case of Jagdish Prasad (supra) was relied upon.
21. Applying these tests, it can safely be held that the shop in dispute would be covered by both clauses (b) and (c) of Explanation 1 of section 2(2) of the Act. The mere fact that the disputed shop was built over old foundation or by partially utilising one of the walls, will not make it an old construction. Concededly, partition wall between two shops was demolished, two walls were built anew, the level of one of the walls was raised and in the northern wall, four shutters were installed and new pillars were constructed. In making these constructions, the existing building was substantially demolished. The additions are substantial in extent so much so that the existing building becomes only a minor part of the shop in dispute. Consequently, the shop in dispute shall be deemed to be completed on the date of completion of the new addition, i.e, in the year 1987 as concurrently held by the courts below.
22. Learned counsel for the petitioner placed reliance on certain observations made in the case of Gopal Dass (supra), in contending that the new construction should have come into existence after completely demolishing the old building. However, this Court is unable to find any such proposition of law laid down in the said judgement. Infact, in that case, it was not in issue as to when the building would be deemed to be a new construction within the meaning of section 2(2) of the Act. On the other hand, as noted above, the question referred was as to whether in case new constructions have been made after demolition of existing constructions, a tenant would still be entitled to protection under the Act or not. Thus, this Court is unable to accept the contention made by learned counsel for the petitioner by placing reliance on the judgement in the case of Gopal Dass (supra).
23. The next decision relied upon by learned counsel for the petitioner is in the case of Vannattankandy Ibrayi vs. Kunhabdulla Hajee7. In that case, the question was whether in a case where the tenanted shop got completely destroyed by natural calamities and in its place, new constructions were made by the tenant himself, would the old tenancy continue. The Supreme Court held that such plea is not acceptable as after destruction of the existing shop, tenancy comes to an end automatically. It was observed as under :-
"On destruction of the shop the tenancy cannot be said to be continuing since the tenancy of a shop presupposes a property in existence and there cannot be subsisting tenancy where the property is not in existence. Thus when the tenanted shop has been completely destroyed, the tenancy right stands extinguished as the demise must have a subject matter and if the same is no longer in existence, there is an end of the tenancy and therefore : Section 108(B)(e) of the Act has no application in case of premises governed by the State Rent Act when it is completely destroyed by natural calamities."
The said decision is also of no help to the petitioner as therein, it was not in issue as to when a remodelled shop would be deemed to be a new construction as in the case at hand.
24. The other two decisions cited by learned counsel for the petitioner are in the case of Ajit Kumar Tandon vs. District Judge8 and Surendra Nath Rai vs. Arjun Kukreja9. In both these cases, the Court found that as a result of alteration and modification, the new structure stood exempted from the provisions of the Act. Thus, they are also of no help to the petitioner.
25. Learned counsel for the petitioner also made an attempt to suggest that in the absence of any building plan being sanctioned by the Development Authority and fresh assessment having been made, the shop in dispute cannot be said to be a new construction. However, the argument does not have any force. In case, constructions have been undertaken without getting the building plan sanctioned, it may be matter for consideration by the Development Authority, but the same would not make the shop in dispute an old construction for the purposes of determining the applicability of the Act. The same has to be adjudged by applying the test laid down in Explanation-1 to section 2(2) of the Act.
26. As regards absence of fresh assessment, it may be noted that under clause (a) Explanation-1 section 2(2), in case where fresh assessment has not been made, nor the completion thereof reported to or otherwise recorded by the local authorities, the date of construction of the building shall be the date on which it was actually occupied. Concededly, the shop in dispute after substantial demolition of the existing construction and reconstruction, was first occupied by the petitioner in the year 1987. It is also not in dispute that a fresh contract of tenancy was entered into between the parties, though oral, whereunder, the rent of the shop was also enhanced. In such view of the matter, this Court does not find any illegality in the view taken by the courts below in holding that the provisions of the Act would not apply to the shop in dispute.
27. The next contention of learned counsel for the petitioner is that the demised premises was being used for manufacturing purposes and thus six months' notice was required to determine the tenancy.
28. The finding returned by the Judge Small Causes Court is that the petitioner could not prove that he was engaged in manufacturing from the demised premises. It has further been noted that in the previous suit, no such pleading was made. The petitioner, though contended that he was utilising the shop in dispute for manufacturing purposes but in his statement as DW-1, he admitted that he had not filed any evidence to prove that the shop in dispute was being used for manufacturing purposes. Even before this Court, except for contending that the petitioner had taken loan from U.P. F.C., which is only extended by U.P.F.C. to an undertaking engaged in manufacturing, no evidence could be produced to prove that there had been any registration with the Industries department or any manufacturing activity was being done from the demised premises. In such view of the matter, this Court does not find any reason to interfere with the concurrent findings of fact recorded by the courts below to the effect that the demised premises was not being used for manufacturing purposes.
29. No other submission was made by learned counsel for the petitioner.
30. The order passed by the revisional court rejecting the review application was not subjected to attack at the time of hearing.
31. In view of the foregoing discussion, both the petitions are devoid of merit and are dismissed. No order as to costs.
Order Date : 24 Sept. 2015 skv (Manoj Kumar Gupta, J.)