Ved Prakash Dwivedi And 2 Others vs Sunil Kumar Jaiswal And Another
2019 Latest Caselaw 2267 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 
Case :- S.C.C. REVISION No. - 51 of 2016
 
Revisionist :- Ved Prakash Dwivedi And 2 Others
 
Opposite Party :- Sunil Kumar Jaiswal And Another
 
Counsel for Revisionist :- Kumar Ajit,Rahul Sahai,Sharad Sharma,Sharda Prasad Mishra,Vinit Mishra
 
Counsel for Opposite Party :- Ashish Agrawal, Ramesh Srivastava, Ratnesh Srivastava
 

 
Hon'ble Manoj Kumar Gupta,J.

The instant revision is directed against the judgement and decree dated 27.10.2015 passed by Judge Small Causes in SCC Suit No. 26 of 2008 decreeing the suit for recovery of arrears of rent and for eviction and also awarding mesne profit/damages till delivery of actual possession.

The suit was instituted by the plaintiff-respondents (for short 'the plaintiffs') against Ved Prakash Dwivedi, the predecessor-in-interest of the revisionists. Ved Prakash Dwivedi (hereinafter referred to as 'the defendant') died during pendency of the suit and in his place the revisionists were substituted. The suit was founded on the allegation that the demised premises, which is a shop having four shutters, is on rent with the defendant at the rate of Rs.1800/- per month. It is part of Building bearing No.37/44-A, Sheo Charan Lal Road, Allahabad. The shop in tenancy of defendant was constructed post 1986 and thus beyond the purview of U.P. Act No.13 of 1972 (for short 'the Act'). The tenancy of the defendant having been terminated by a valid notice, he is liable to eviction.

The suit was contested by the defendant by filing written statement in which he admitted that the rate of rent is Rs.1800/-. He alleged that in fact the shop has five shutters instead of four and that the provisions of the Act are fully applicable. In additional plea, it was asserted that the building No.37/44-A, Sheo Charan Lal Road, is a very old building. Its' old municipal number is 37, which got changed to 44. It was at that time recorded in the name of Mahadeo Prasad, ancestor of the plaintiff. In khasra of Nagar Nigam for the period 1972-1979, it has been recorded as 44-A in view of partition of the building between heirs of Late Mahadeo Prasad. At that time there was also increase in annual value of the Building. The Building had not been demolished nor any new construction has been made. In khasras of 1979-2008, name of the plaintiffs came to be recorded against Building No.37/44A and there is nothing to prove that the building was re-constructed or any map for such purpose was got sanctioned. He had been depositing rent under Section 30 of the Act in Misc. Case No. 93 of 2008 and there is no default in payment of rent consequently the suit is liable to be dismissed.

The trial court held that the building was constructed after 26.4.1985 and consequently on the date of institution of the suit, it was exempt from the provisions of the Act. The trial court also held that although Building No. 37/44-A, Sheo Charan Lal Road, Allahabad is a very old building but in the year 1986, a new building plan for carrying out additions and alterations in the old building was got sanctioned from Allahabad Development Authority, Allahabad and in pursuance whereof, additions and alterations were made in the existing building. In consequence, the Nagar Nigam, Allahabad proposed to enhance the annual value to Rs.73,755/- taking note of the additions and alterations carried out in the Building. By order of Nagar Nigam, Allahabad dated 14.12.2001, the annual value of the Building, after considering the objection, was fixed at Rs.55,353/- per annum. The additions and alterations are substantial in nature and in view of clause (b) and (c) of Explanation I to sub-section (2) of Section 2 of the Act, the disputed shop would be exempt from the provisions of the Act. The trial court also held that notice dated 1.3.2008 was duly served and it validly results in determination of tenancy of the defendant. Accordingly, the suit has been decreed.

Sri Rahul Sahai, learned counsel for the revisionist made only one submission. It is urged that the findings recorded by the trial court with regard to the date of construction of the building is manifestly illegal. He submitted that even as per findings recorded by the trial court, Building No.37/44-A, Sheo Charan Lal Road, Allahabad is very old construction dating back to the year 1940. He submitted that the map which was got sanctioned by the landlord for carrying out additions and alterations in the said building reflects that only an area measuring 188.76 sq. ft on ground floor got affected thereby although, the total covered area of the ground floor was 1162.50 sq. ft. In other words, according to him, the alterations/additions undertaken by the plaintiff in Building No.37/44-A, Sheo Charan Lal Road, Allahabad is only a minor part of the existing building. Therefore, the entire Building No. 37/44-A could not be treated to be a new construction and view to the contrary is illegal.

On the other hand, counsel for the plaintiff-respondent submitted that the phrase 'building' used in clause (b) and (c) of Explanation I, refers the building in the tenancy of a tenant and not the entire building of which the tenanted premises is a part. Thus accordingly to him, although it may be true that major additions and alterations in Building as a whole may not have been undertaken but since the shop in which the defendant is tenant was constructed in pursuance of map got sanctioned in the year 1986, therefore the shop would be exempt from the provisions of the Act.

The facts which are not in dispute at this stage is that Building No.37/44-A, Sheo Charan Lal Road, Allahabad is very old building as its existence is recorded in Nagar Nigam, Allahabad even in the year 1941 as is evident from copies of khasra (Paper No.33-Ga to 37 Ga). At that time, it was recorded in the name of Mahadeo Prasad, the ancestor of the plaintiffs. During the period 1972-73, it came to be recorded in three parts i.e., 44, 44-A and 44-B in pursuance of partition between three sons and grand sons of Late Mahadeo Prasad and part of the building which fell to the share of the plaintiff-respondent was recorded as No. 44-A. The plaintiffs got a building plan sanctioned from Allahabad Development Authority, Allahabad on 15.9.1986 (paper No. 70-Ga). In pursuance thereof, they made alterations and additions on the ground floor and first floor and in consequence whereof, Nagar Nigam, Allahabad, by order dated 14.12.2001, enhanced the annual value of the building to Rs.55,353/- to be effective from 1.4.2000. The order records that a market was constructed on ground floor and first floor and because of which the annual value was being enhanced.

Sri Rahul Sahai does not dispute that the shop in tenancy of the revisionist is part of alterations and additions carried out in Building No.37/44-A. However, as noted above, his submission is that it constitutes only a minor part of the existing old building, therefore, could not be treated to be a new construction.

Under sub-section (2) of Section 2 of the Act, the legislature has provided for the manner in which date of construction of a building has to be ascertained for purposes of the Act. The relevant part of sub-section (2) of Section 2 is extracted below :-

"(2) Except as provided in sub-section (5) of Section 12 or sub-section (1-A) of section 21, sub-section (2) of Section 24, Section 24-A, 24-B, 24-C or sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed.

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Provided further that where construction of a building is completed on or after April 26, 1985 then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of forty years from the date on which its construction is completed.

Explanation I. For the purposes of this Section,-

(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 a 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 designated 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 including the existing building shall be deemed to be constructed on the date of completion of the said addition."

A plain reading of the above provision reveals that the legislature has engrafted a legal fiction for ascertaining the date of construction of a building. According to Explanation I, clause (a), the construction of the building is deemed to have been completed on the date on which its completion is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a 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 for the first time.

The proviso to clause (a) of Explanation I is of great significance to the facts of the instant case. It provides 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. It is amply clear from the same that different parts of a building could have different dates of completion of construction, if such parts are designed as separate units or occupied separately by the landlord and one or more tenants or by different tenants.

The word 'building' has been defined in clause (i) of Section 3 of the Act as follows :

(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;

(iii) any fittings and fixture affixed to such building for the more beneficial enjoyment thereof.

The issue as to whether 'building' would mean the entire building even though the tenament let out is only a small part thereof, was considered by this Court in Ajay Kumar Jaiswal vs. Smt. Shanti Singh, 1998 (2) ARC 14. While repelling a contention that exemption of building from the provisions of the Act with monthly rent exceeding 2000/- rupees would be in reference to whole building and not merely the tenament in occupation of the concerned tenant, it has been held thus :-

"17. The context and the subject-matter in connection with which the word 'building' has been used in clause (g) are Important factors having a bearing on the question. The propriety or necessity of construing the word 'building' is obvious because all parts of the Act have to be in harmony with the statutory intent. Keeping this in mind, if we turn to the purpose and object of the Act including the amending Act and examine the Scheme of the Act, the only possible and reasonable construction on the language used in clause (g) would be that this clause applies to a building in occupation of the concerned tenant or in other words to that tenement which is the subject-matter of dispute and not to the whole building complex which may be having several separate and independent tenements. A 'building' under the Act means an Independent allottable accommodation, whether singly situated or is part of a building complex. In the same sense, the word 'building' has been used in all other provisions of the Act. Under the scheme of the Act, every single, separate and independent tenement in occupation of a tenant or unauthorised occupant is a 'building' and if any other Interpretation is given to clause (g). It would lead to absurdity which had never been intended by the Legislature. Thus, the accommodation in question which is the subject-matter of the present dispute is a 'building' in the context of clause (g) and the mere fact that another portion in the building complex has been let out to 'Usha Fones' at a monthly rent of Rs. 4,500 will not make the Act inapplicable as the rent paid by 'Usha Fones' is in respect of a separate building (tenament) and its rental cannot be added with that of the accommodation in question for the purposes of determining the ceiling limit of rent as contained in clause (g). For these reasons, the contention raised on behalf of the petitioner is rejected."

Concededly, in the instant case, the shop in the tenancy of the defendant-revisionist is a separate and independent unit and also in his exclusive possession. For the purpose of Explanation I the portion in possession of the tenant as a separate unit alone would be relevant for construing the date of construction. In other words, it is the date of construction of the premises in possession of a particular tenant as a separate unit which is relevant for ascertaining the date of construction and not the entire building as a whole of which the tenanted portion is a part.

Clause (c) of Explanation I states that 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 including the existing building shall be deemed to be constructed on the date of completion of the said addition. Once again the phrase 'existing building' used in clause (c) would draw its colour and meaning from the proviso to clause (a). Thus, while considering whether the additions made to the building is substantial or not, the building in the tenancy of a particular tenant alone has to be taken into consideration and not the entire building of which the tenament is a part.

Since it is not in dispute that the shop in the tenancy of the revisionist was constructed by carrying out substantial additions in pursuance of building plan sanctioned in the year 1986, therefore, this Court is of firm opinion that the additions/alterations made were substantial in character so that the existing old structure in place of which disputed shop in the tenancy of the defendant was constructed became only a minor part thereof.

The Nagar Nigam, taking notice of additions and alterations assessed the same for the first time by order dated 14.12.2001. The order of the Nagar Nigam specifically records that on ground floor and first floor of the building, a market has been constructed and accordingly, the earlier annual value was enhanced to Rs.55,353/-, to be effective from 21.4.2000. Prior to it, the additions/ alterations were never subjected to assessment. Accordingly, the building in tenancy of the petitioner, which alone has relevance, would be deemed to be constructed on the date it is first assessed by the local authority, as per clause (a) of Explanation I of sub-section (2) of Section 2. The view taken by the court below therefore does not suffer from any legal infirmity which may warrant interference in exercise of revisional power. The shop in the tenancy of the revisionist having been constructed after 26.4.1985 would thus remain exempt from the operation of the Act for a period of 40 years as provided under the second proviso to sub-section (2) of Section 2.

The revision accordingly lacks merit and is dismissed.

Order Date :- 2.4.2019

skv

(Manoj Kumar Gupta, J.)