Gita Ram Vs Anant Ram and Others

R.S. Pathak, C.J.@mdashThis is a tenant''s revision petition arising out of ejectment proceedings under the East Punjab Urban Rent Restriction Act, 1949.

2. The Respondents and the Petitioner are landlords and tenant respectively of the property located at Sanjauli in Khasra Nos. 72 and 73, Khata Khatauni Nos. 16 and 17, and measuring 1845 sq. ft. The Respondents (the landlords) filed a petition u/s 13(3)(ii) of the East Punjab Urban Rent Restriction Act for the ejectment of the Petitioner (the tenant), alleging inter alia that they required the plot of land for their own use as they intended to raise a building on it for their bakery business. The petition was opposed by the tenant. He urged that the petition was not competent inasmuch as the premises represented a "built-up area", that the landlords did not bona fide require the premises for their own use, that no valid notice had been served terminating his tenancy, and that a previously instituted petition by the landlords had been dismissed.

3. The Controller allowed the ejectment petition by an order dated January 20, 1973, and directed the tenant to hand over vacant possession of the site to the landlords. The tenant appealed, and the appeal has been dismissed by the Appellate Authority, Simla, by its order dated March 30, 1976. The Appellate Authority has found that originally a building belonging to the previous owners of the premises had stood on the site, that it was gutted by fire, and thereafter the land site was let out by them to the present Petitioner. The tenant carried on the business of a coal depot on the land and constructed a temporary structure as an office for the purpose of the business. The Appellate Authority has held that the premises let out to the tenant consisted of a vacant site, and could not be described as a building. The tenancy covering the present occupation has been found to be a tenancy from month to month and the notice u/s 106 of the Transfer of Property Act to be valid. It has also found that the earlier petition filed by the landlords was withdrawn with permission to file a fresh petition. The Appellate Authority then considered the case of the parties on the material on the record and has affirmed that the landlords required the premises for their own use.

4. In this revision petition, learned Counsel for the tenant challenges the finding of the Appellate Authority that the premises consists of a land site and not a building. Now, a photograph of the premises filed on the record, which has been admitted by the tenant, shows that the property presently consists of a vacant site surrounded by three broken down brick walls of uneven height. There is no brick wall on the remaining side, but a wooden fencing has been put up. Apparently, this represents what remains of the original building after it was burnt down. There is no roof whatever. In one corner of the plot a small shack has been erected, admittedly by the tenant after the property was let out to him. It is indisputable that the walls in their ruined state cannot be said to represent the original building standing on the land. It is obvious that when the building was burnt down and all that remained effectively was the vacant land, the original owners let out the land to the tenant who utilised it for stacking his coal.

5. It will be pertinent to refer to the oral and documentary material on the record. The sale-deed (Ex.PX) dated December 19, 1966, under which the property was transferred from the original owners, Sant Ram and Mehar Chand, to Anant Ram, Salig Ram, Shakti Chand and Raja Ram (the present landlords) declares that the property which was described as a shop in the revenue record is now used as a Coal depot because the shop has been burnt down. The precise words are: "jahan ab coal depot hai kyonke dookaan jal chooki hai". To a notice by the landlords requiring the tenant to hand over possession, a reply was filed on April 23, 1968, in paragraph 1 of which the tenant himself described the premises as "a plot". Kundan Singh, RW 1, who is a Municipal Tax Inspector, refers in cross examination to the premises as a plot of land on which a temporary structure, 8 feet by 12 feet, has been raised. This is the structure constructed by the tenant and used as an office. Amar Singh, RW 2, states that originally a building existed on the site which was burnt down a long time ago and that a coal depot was now maintained on the ruined site. He refers to it as "a burnt area". In cross examination he relates the surviving walls and window to the burnt building. Ram Saroop, RW 4, is the Special Attorney of the tenant. He refers to the premises as half burnt, without any roof or ceiling, and consisting of half burnt walls and windows and doors. These witnesses, who have been produced by the tenant, have attempted to support the case of the tenant that the premises can be described as a building, but in our opinion they have not succeeded in doing so. The photograph, to which reference has been made earlier, demonstrates the true condition of the premises.

6. As long ago as Baladin Vs. Lakhan Singh, , the Allahabad High Court held that for the purpose of Section 60(c) of the CPC a house of an agriculturist, which was in ruins, without any doors and a roof, was not exempt from attachment. In Tulsiram Shaw Vs. R.C. Pal Ltd., the Calcutta High Court laid down that vacant land enclosed by walls with an iron gate was not a building for the purposes of the Calcutta Municipal Act. In Jonda Ram v. Ch. Shaddu AIR 1953 Pb. 109 , the Punjab High Court held that a property consisting of a katcha roof which had fallen down in parts due to the rain, and which was surrounded on one side by a Wall with a gate in it and on the other side by houses, was not a building. K. Mohamed Sheriff Vs. P.S. Mohamed Thasim Sahib, , was a case where the original structure on the property had fallen down leaving only a vacant site. It was held by the Madras High Court that the Buildings (Lease and Rent Control) Act did not come into play. Learned Counsel for the tenant relies on Makkhan and Others Vs. Emperor, , but the view taken there does not support him. It was observed in that case by the Allahabad High Court that the ordinary and usual meaning of a building is a block of brick or stone work covered by a roof and if an open piece of land is surrounded by a wall it would probably be impossible to call it a building. As regards those observations which may be said to favour the tenant, it is necessary to notice that the learned Judge was considering the meaning of the word "building" in Section 442 of the Penal Code, which calls for considerations wholly different from those which are relevant before us. Nor do we find anything in Abdul Sami and Another Vs. Mohammad Noor, , which can be of assistance to the tenant. It is true that the Allahabad High Court in that case observed that the existence of a roof is not necessary for the structure to be classed as a building. In every case, it seems to us, the decision must turn upon the facts of that case. Reliance was also placed on A.C. Mohamed and Another Vs. Sailendra Nath Mitra, , where the Calcutta High Court discussed the connotation of the expression ''building''. After referring to some decided cases, the learned Judges concluded that in order to constitute a building it was sufficient if a connected and entire structure existed. In the case before them, the only shortcomings in the building were that the walls had not been plastered, the steel posts alone of the sixth floor had been erected, the doors and windows had not been fixed, the staircase not completed, the drainage work had not been done and the tubewell had not been sunk. It was held that nonetheless the structure constituted a building. The case is clearly distinguishable from the instant case. Reference has also been made to State of Bombay Vs. Sardar Venkat Rao Krishna Rao Gujar, , but in that case the Supreme Court was concerned with the expression ''building'' in Section 5(a) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals and Alienated Lands) Act, 1951. The Supreme Court laid down that "ottas and chabutras" were "buildings" within the meaning of Section 5(a) of the Act. The Court pointed to the provision that where an proprietor had spent money on constructing something within the limits of the village sites, that thing had to be settled with him, and consequently the word ''buildings'' had to be given a literal meaning as something which was built.

7. It was urged by learned Counsel for the tenant that house tax was being levied in respect of the premises, and that could only be on the assumption that the premises was a building. It is clear from the evidence on the record that house tax was being levied because of the wooden structure raised by the tenant on the vacant land.

8. In this connection learned Counsel for the landlords contends that if a vacant site is let out to a tenant, the construction of a structure by the tenant thereon will not alter the nature of the property. It will remain a plot of land rented to the tenant. The contention must be accepted. If it were otherwise, it could be open to a tenant to whom land has been rented out to make himself immune from ejectment on the the grounds set forth in Section 13(3)(a)(ii) of East Punjab Urban Rent Restriction Act by raising a structure on the land and thus defeating a right given to the landlord by statute. In this conclusion, we are supported by the observations of a Full Bench of the Punjab and Haryana High Court in The Model Town Welfare Council, Ludhiana Vs. Bhupinder Pal Singh,

9. Accordingly, we hold that the premises, which constitute the subject matter of the ejectment petition, cannot be described as a building but must be referred to as "rented land" within the meaning of that expression in the Act.

10. It is next contended by learned Counsel for the tenant that inasmuch as, on the case of the landlords themselves, the land was needed by them for constructing a building for their bakery business, the provisions of Section 13(3)(a)(ii) of the Act are not attracted. Section 13(3)(a)(ii) provides:

A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-

(i).....

(ii) in the case of rented land, if-

(a) he requires it for his own use;

(b) he is not occupying in the urban area concerned for the purpose of his business any other such rented land; and

(c) he has not vacated such rented land without sufficient cause after the commencement of this Act in the urban area concerned.

We are referred by learned Counsel to Attar Singh Vs. Inder Kumar, where this provision has been construed by the Supreme Court. An application was made by the landlord u/s 13(3)(a)(ii) of the East Punjab Urban Rent Restriction Act for the ejectment of the tenant on the ground that the landlord needed the land for the construction of a residential house. The submission of the landlord before the Supreme. Court was that when the landlord stated that he required the rented land for his own use, the nature of the use was immaterial, and those words must be given their widest amplitude. The Supreme Court rejected the contention, holding that Clauses (b) and (c) of that provision limited the application of those words to a case where the landlord required the rented land for his business. It is relevant to note that the purpose expressed by the landlord for obtaining possession of the land was the construction of a residential building. The Supreme Court was not concerned with a case where the purpose was to raise a building for carrying on a business. Such a case came on before the Punjab and Haryana High Court in Model Town Welfare Council, Ludhiana (supra), where the rented land was required by the landlord for the construction of a library building. The learned Judges distinguished Atter Singh (supra) and unanimously held that a petition for ejectment in the circumstances would lie u/s 13(3)(a)(ii) of the Act. We are in agreement with the view taken there. No doubt, as has been held by the Supreme Court in Atter Singh (spura) possession can be applied for by the landlord only if he requires the land of carrying on his own business on it. The landlord may intend to carry on business on the land as such, or may propose to raise a building on the land for the purpose of carrying on his business. It will all depend on the nature of the business which the landlord has in mind. The limited construction which learned Counsel for the tenant seeks to put on this provision, that the landlord must require the rented land for the purpose of carrying on his business on it as vacant land, is not warranted by any express or implied object of the Act. So far as Clauses (b) and (c) of Section 13(3) are concerned they merely limit the requirement of the landlord for the rented land to a business purpose. They do not further limit the manner in which the business will be carried on, whether on a vacant site or in a building constructed on that site. Learned Counsel for the tenant has laid great stress on the view taken in Dhan Devi and Another Vs. Bakhshi Ram and Another, but with respect to the learned Judges who decided that case, we are not persuaded by the reasons set forth in that case. On the contrary, one of the learned Judges, R.S. Narula, J., subsequently took a contrary view in Model Town Welfare Council, Ludhiana (supra).

11. Reference has been made on behalf of the tenant to the language of Section 13(3)(a)(ii) as it stood before its amendment of the East Punjab Urban Rent Restriction (Amendment) Act, 1956. Before the amendment the provision included reference to a non-residential building besides rented land. In consequence of the amendment, reference to such a building was deleted. As the the Statement of Objects and Reasons of the Amendment Act declares, that was done merely to protect tenants of commercial or industrial buildings against ejectment on the ground of personal use. The protection was evidently not extended to tenants of rented land.

12. In our opinion, the second contention advanced for the tenant must also fail.

13. Finally, learned Counsel for the tenant points out that during the hearing of the appeal the Appellate Authority, Shri T.R. Handa, made a local inspection of the premises but he recorded no inspection note on the file. It is urged that his ommission to do so has vitiated the appellate judgment. We do not see how that can be so. It was his successor, Shri N.S. Shandil, who as Appellate Authority decided the appeal and in the judgment did not rely in any manner on the inspection taken by Shri Handa. It was as if no inspection had taken place, and he must be assumed to have proceeded on that basis. This contention of learned Counsel for the tenant must also fail.

14. The revision petition is dismissed with costs.