Bal Kishan Goel vs Delhi Race Club (1940) Ltd.
1997 Latest Caselaw 1024 Del

JUDGMENT

Cyriac Joseph, J.

(1) As per the averments in the revision petition the petitioner was allotted plot No. 4, measuring 32' x 34' situated adjacent to gate No. 2 of the Race Course at the rate of Rs. 60/ - per month by the respondent, Delhi Race Course (1940) Limited. The plot was allotted for a shop. The petitioner constructed the shop at his own expenses. After constructing the shop the petitioner has been paying rent. The petitioner got registration for his shop in the name and style of M/s. B.K. Goel vide registration No. 6/28088/J dated 14.12.1987. The petitioner has also been paying the license fee to the Ndmc for the storage and sale of snacks, biscuits, bakery products, eggs, butter etc. and water and electricity charges to the respondent. The respondent with a View to harass the petitioner filed a suit No. 176/95 for possession and recovery of rent. After the completion of pleadings issues were framed on 1.5.1996. Issue No. 5 is "whether the present suit is barred by the provisions of Delhi Rent Control Act, OPD". The petitioner (defendant in the suit) filed an application under Section 50(1) of the Drc Act for treating the abovementionedissueNo.5asa preliminary issue. After hearing Counsel for the parties the Trial Court rejected the said application under Section 50(1) of the Drc Act on 1.10.1997. This revision petition is filed against the said order dated 1.10.1997.

(2) The reason stated for rejecting the application is that the property let out to the petitioner was only a piece of land when it was let out to him and hence it did not come under the definition of "Premises' as defined in Section 2(i) of the Delhi Rent Control Act, 1958. But according to the learned counsel for the petitioner, the property let out to the petitioner did come under the definition of 'premises 'under section 2(i) of Drc Act. Section 2(i) of the Drc Act reads thus : "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 the landlord for use in such building or part of the building; but does not include a room in a hotel or lodging house.

(3) In view of the clear words in the above definition, there should necessarily be a building or part of a building in the 'premises' let out. As per the averments in the revision petition what was let out to the petitioner was only a plot of land and there was no building or part of a building on the said plot of land. According to the petitioner the plot was let out to him for running a shop and a shop was actually constructed by the petitioner at his own expenses. There is no averment that there was any structure existing on the plot of land at the time of letting out the same to the petitioner. The clear averment is that the plot of land was allotted for a shop and a shop was constructed at the expense of the petitioner. Hence it is clear that the shop or the structure was constructed by the petitioner only after the plot of land was let out to the petitioner. The construction of a building or a structure on the plot of land subsequent to the out of the land cannot bring it under the definition of premises. Hence the trial court was correct in holding that the property let out to the petitioner was not 'premises 'as defined under Section 2(i) of the Drc Act and that the application under Section 50(1) of the Drc Act was not maintainable.

(4) Learned counsel for the petitioner relied on a judgment of this court in Gobind Sahai v. Narain Dass & Ors., reported in Ilr 1972(1) Delhi 55 to contend that the impugned order of the trial court was wrong. Learned counsel referred to the following 7 conclusions arrived at by the learned Judge in the above case:-

"1. Whether or not a property is a building is primarily a question of fact depending upon the circumstances of each case and upon the form and substance of each transaction of letting. Still certain guidelines may broadly be adopted.

2.Premises is a building or part of a building which is separately let out for use. A building consists of a piece of land with super-structures which are habitable and are let out for a useful purpose like residence, commercial use or other normal and reasonable purposes.

3.A vacant piece of land, if appertaining to and forming part of a building, is included within the definition of 'premises' while an open and vacant land not so appertaining cannot constitute a building and is outside the connotation.

4.The land bounded by walls and covered by a roof and capable of being used for a useful purpose is normally a building.

5.The existence of boundary walls is not decisive of the matter as they may be erected to demarcate the boundaries of the land or to support a shed or a roof or for any other purpose.

6.A roofless structure would ordinarily not constitute a building unless it is established as a fact that the same was capable of being and was intended to be used as such without a roof, for example, an open air restaurant, a swimming pool etc.

7.The erection of super-structures by a tenant after the letting is irrelevant for determination of the question as to whether what had been let out by the landlord constitutes premises."

(5) According to the learned Counsel, conclusion No. 6 is applicable in this case. According to conclusion No. 6, a roofless structure would ordinarily not constitute a building unless it is established as a fact that the same was capable of being and was intended to be used as such without a roof, for example, an open air restaurant, a swimming pool etc. It means that there has to be a structure (even if roofless) which was capable of being and was intended to be used as such without a roof. Admittedly there was no structure at all on the plot of land let out to the petitioner at the time of letting out. In this connection it has to be pointed out that in conclusion No. 7 quoted above the learned Judge has said that the creation of super-structures by a tenant after the letting is irrelevant for determination of the question as to whether what had been let out by the landlord constituted premises. In my view conclusion No. 7 in the above judgment clearly demolishes the case of the petitioner herein. What was let out to the petitioner by respondent was admittedly a plot of land. There was no building or structure on the land at the time of the letting. The shop was constructed by the petitioner only subsequently. Hence the property let out to the petitioner is not covered by the definition of premises under Section 2(i) of the Drc Act. Therefore, the impugned order is not vitiated by any errors of law or fact.

(6) The petitioner has not made out any case for interference under Section 115, CPC. Therefore, the revision petition is dismissed.