Case: Rizwan Akhtar Vs Shrawan Kumar Bhatia and Anr.. High Court of Allahabad (India)
| Judges | Rakesh Tiwari, J. |
| Issue | Constitution of India - Article 226 |
| Citation | 2007 (2) AWC 1409 All |
| Judgement Date | September 18, 2006 |
| Court | High Court of Allahabad (India) |
Judgment:
Rakesh Tiwari, J.
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Heard learned Counsel for the parties and perused the record.
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The petitioner claims to be occupying a structure below balcony in House No. 123/376 (New) and 123/110A (Old), Gaderiyanpurwa, Kanpur Nagar since 1996 on rent at the rate of Rs. 500 per month as the tenant of respondent No. 1. The structure is bounded by iron grills with the balcony above serving as roof. He carries on the business of welding/repairing of tractor, trolleys etc.
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The case of the petitioner is that he was a tenant and though initially there was no agreement to this effect between the parties but subsequently upon his repeated requests a written permission was granted to him to run the workshop.
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It appears that the landlords had purchased the premises in dispute vide sale deed dated 15.5.1995. It also appears from the record that the landlord was doing the business of welding and repairing of automobile vehicles, i.e., trucks, tractors etc. in the same building and he allowed the petitioner to do the aforesaid business on commission basis in his premises in a small area below the balcony which was surrounded by iron grills.
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At some point of time there arose a dispute between the petitioner and the landlords of the premises and as such Suit No. 313/2000 was filed by the petitioner for permanent injunction against the landlords for the relief not to evict him except in accordance with law on the allegation that the landlords wanted to throw him out without following the process of law. The suit is said to be still pending before the Civil Judge (Junior Division), Kanpur Nagar.
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It is alleged that because of the suit the landlords got an application filed through Sri D.N. Dubey who is their servant for allotment upon which proceedings were initiated under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The report of Rent Control Inspector was sought by the Rent Control and Eviction Officer which was submitted by him on 20.7.2004 for deciding the question of vacancy.
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The case set up by the landlord was that no agreement was entered into with the petitioner and he was not his tenant. It was averred in the affidavit filed by the landlord that the petitioner was doing his work on commission basis since 1999 and had subsequently put his lock on the grills claiming himself to be a tenant on the basis of an alleged agreement with one Sri Manish Bhatia son of Sri Shrawan Bhatia, one of the landlords. The Rent Control and Eviction Officer after hearing the parties and on the basis of evidence and record held that the alleged agreement of the petitioner with Sri Manish Bhatia regarding tenancy is unbelievable as it is not executed by the landlords or co-landlords and even if it is given credence it does not effect the question of vacancy involved in the case as the question still remains whether the petitioner was an unauthorized tenant of the disputed part of the building or not. The Rent Control and Eviction Officer by the impugned order dated 13.6.2005 declared vacancy.
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Aggrieved, the petitioner filed Writ Petition No. 50150 of 2005 which was disposed of vide order dated 20.7.2005 with the observations that the petitioner may challenge the order of vacancy in revision. It appears that in the meantime the premises in question was released in favour of the landlord vide order dated 27.12.2005 against which Revision No. 10/2006 was preferred by the petitioner which was also dismissed by the revisional court vide order dated 11.7.2006. The petitioner has challenged the aforesaid order dated 13.6.2005 and 27.12.2005 passed by the Rent Control and Eviction Officer and 11.7.2006 passed by the revisional court/Additional District Judge Court No. 8, Kanpur Nagar. The learned Counsel for the petitioner has urged that the courts below have committed following illegalities in the order:
(a) The courts below failed to appreciate that the premises in dispute cannot be treated as building as per provisions of Section 3(i) as any walls do not cover it, only Grill is erected, and as such the order declaring vacancy and subsequent order are absolutely illegal.
(b) The courts below ignored that the petitioner was running a workshop and as such it was not covered by the provisions of the Act and therefore the Rent Control and Eviction Officer had no jurisdiction over the premises in dispute.
(c) In any case the premises in dispute was let out by the landlord himself in 1996 and therefore subsequently he cannot claim that there is vacancy.
(d) The agreement between the parties whether oral or in writing is always binding on the parties. Therefore, it is assumed that the agreement was executed in 2003 between the son of the landlord and the petitioner though the tenancy started in year 1996. This cannot be a ground for discarding the agreement and the landlord is bound by his own conduct.
(e) The landlord cannot be permitted to adopt short cut method of proceeding under Section 16(1)(b) due to his own conduct instead proceeding under Section 21(1)(a).
(f) In any case, the vacancy, which has occurred long before, cannot be disturbed after such a long time. If any vacancy was there in the premises in dispute in the year 1996, it no longer remained after the landlord let out the space under the balcony bounded by grills to the petitioner.
(g) There is no time limit provided for declaration of vacancy, still the Courts must act within the reasonable time, as such vacancy could not have been declared by the Rent Control and Eviction Officer.
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In support of his contention the learned Counsel for the petitioner has relied upon paragraphs 15 and 16 of the decision in Sana Ullah v. VIII Additional District Judge. Meerut and Ors. 1979 ARC 138. After noticing the definition of 'building' as defined in Section 3(i) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) in para 15 of the decision the Court in para 16 observed that since in the definition of building expression 'means' has been used it indicates that the definition is exhaustive, that is to say, it is not possible to read in it some thing which has not been provided expressly therein. The Court thereafter held that the definition clearly shows that in order to fall within it, there must be a roofed structure. If there is no roofed structure, the premises cannot be a building. Apart from the meaning given in the Act, what is a 'building' must be a block of brick or stone work covered in by a roof. The roof need not be laid with lintel or other similar constructions. The ordinary and natural meaning of the word 'building' includes the fabric and the ground on which it stands. It is a structure roofed in and capable of upholding protection and shelter. Therefore, a roofless "Ahata" which merely surrounds a piece of land, though stayed and tied together is not a building within the definition given above.
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In the aforesaid case the question being considered by the Court was whether a roofless structure or "Ahata" could be called a building. The facts of the instant case are different. It is admitted to the parties that the balcony above roofed structure has been given the shape of a room and is utilized as such by supporting grills from below.
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In fact the aforesaid ruling in Sana Ullah (supra) relied upon by the learned Counsel for the petitioner is clearly against him as it is apparent that in the ordinary and natural meaning of the word 'building' includes even other fabrics than bricks for the purpose of walls like tins, grills, thatched walls, kachcha walls, glass walls, fiber walls etc.
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The walls need not be only of bricks as is apparent from the decisions cited/relied upon by the learned Counsel for the petitioner:
(i) In Udham Singh v. Hari Chand 1983 (2) 22 RCR 425 (P&H); and
(ii) Salig Ram. v. Rent Control and Eviction Officer and Ors. 2006(1) ARC 111.
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In the case of Udham Singh (supra) there were similar provisions under Sections 2(a), 2(b) and 13(3)(a)(ii) of the East Punjab Urban Rent Restriction Act, 1949. In that case the dispute was regarding a Kacha Dhara (Open Verandah) with open space given on rent for dairy business. It was held that what was let out was rented land and not a building. Small Dhara (Open Verandah) on open site does not make it a building and the landlord was entitled to eject the tenant on the ground of bona fide requirement.
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Thus, the aforesaid case relied upon by the learned Counsel for the petitioner is not applicable to the instant case and is clearly distinguishable.
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In the case of Salig Ram (supra) also the definition of 'building' as defined in Section 3(i) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972) was given a meaning. The Court held that the building under Section 3(i) means a roofed structure which means a roof placed upon some sort of walls which may be either pucca or kachcha or wooden or of tin or of any other material. In that case there was no finding that the tin shed was placed upon...
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