Smt. Raj Rani and others vs Radha Kishan

S.D. Bajaj, J.—The solitary question left to be decided by this Court in the present proceedings is whether the conversion of existing structure marked ''A'' in plan Exhibit P. 3 into construction marked ''B'' therein would render the shop in dispute a new construction raised in February to April, 1973 or it would be regarded as making an improvement in the existing construction marked ''A'' through repairs may be extensive.

Plan Exhibit P. 3 clearly indicates that intervening walls of rooms already existing, the stair-case behind them and the doors fixed in the existing two rooms in front were removed. The internal space becoming available thereby was divided into four shops of similar size, three partition walls were raised inside to give the outer facade a new shape and four shutters were put in front instead of the two doors previously existing.

Similar question came up for consideration before Jaipur Bench of the Rajasthan High Court in M/s. Deep Chan and Sons v. Mohan Dass 1979 (1) Rent C.R. 460 and it was held, "it will be a question of fact in each case as to whether the building which has now been let out, is newly constructed or not, even if it is part of the building, which has been in existence earlier or the same has been carved out therefrom. It cannot be said that construction of a new building can only be brought about if a building is put up which did not at all exist earlier. But in case an existing building is rebuilt, the reconstruction may, in the exigencies of a particular case, amount to construction. If in a big hall new walls are constructed and new premises are carved out in the shape of separate shops or rooms, which are capable of being let out separately, then such a reconstruction may amount to construction within the meaning of the exemption clause referred to above. If the essential character of the building remains to be the same then, in spite of structural changes made therein, reconstruction may not amount to a fresh construction. But if the nature of the premises is changed, then such a reconstruction may amount to a new construction. It may not be necessary in each case that the old building should be entirely pulled down and a new building be constructed from a scratch in place thereof, but if some of the old existing walls are made use of while reconstructing the premises and what comes into existence after such reconstruction of construction are new premises, then such premises may be held to be new construction within the meaning of the exemption clause. The facts of the present case disclose that four separate independent shops have now come into existence, though they may be situated at the same place where one single shop existed earlier and it might be that some of the old walls of the bigger shop might have been utilized while constructing the four new shops, yet I have no hesitation in holding that each shop which is capable of being separately let out, is a ''premises'' as defined in clause (v) of section 3 of the Act and is a new construction within the meaning of the exemption clause contained in the proviso to sub-section (2) of Section 2 of the Act."

A diametrically opposite and wholly contradictory view was taken by the Delhi High Court in Smt. Krishna Devi v. Shri Dhan Raj Singh 1973 Rent C.R. 257, wherein it was held. "The findings of fact concurrently recorded by the authorities below are that a big hall originally constructed on the ground floor in the year 1984 had been converted into 23 shops by raising partition walls without changing the roof or the ceiling or the flooring and the main structure of the building remained the same old one. On this finding as a result of the application of the test stated above, I hold, in agreement with the Tribunal below that the premises in dispute do not constitute newly constructed building. As such they are not exempt from the operation of the standard rent for any period under clause (b) of sub-section (2) of Section 6 of the Act." Neither of the two authorities can, therefore, be regarded as persuasive in reaching the conclusion as to whether the structural alterations carried out by the land-lord in the tenancy premises in 1973 are a more repair or amount to reconstruction.

The point whether changes made in the building could be termed renewal or repair on one side and construction/reconstruction on the other, was considered by this Court at intervals in Sadhu Singh v. District Board, Gurdaspur (1962) 64 P.L.R. 1, Rai Bahadur Sewak Ram Trust Society v. Mokham Chand (1964) 66 P.L.R. 526, Gian Chand v. Shri Chhaju Ram 1972 C.L.J. 153, and Girdari Lal etc. v. Bhag Singh (1984) 86 P.L.R. 747. It was laid down in the basic Dvision Bench Authority in Sadhu''s case (supra). "The definition of ''building'' in the Rent Restriction Act covers a part of a building which is let to a tenant. Therefore, the unit is the building in possession of the tenant though it is only a part of the building. This is special definition enacted for the purposes of the Rent Restriction Act, the object of the Act being to prevent eviction of tenants and to restrict the charging of excessive rent. At one time, the learned counsel sought to make a distinction between reconstruction and construction, but later on they realised the futility of the argument and were agreed that construction and reconstruction are interchangeable terms and the only difference is that the phrase ''construction'' will be used where a new building is put where none existed before, but reconstruction will apply to a building which is rebuilt in place of an existing building, but in both these cases there would be construction and the notification will apply............................ In the light of the scheme and purpose of the Rent legislation one test by which to define ''building'' and ''re-building'' is this that it should be such a nature that will require displacement of the tenant. In other words, the ''purpose'' or ''building'' or ''re-building'' within the meaning of the Rent legislation must be of such a nature as cannot be carried out if the tenant remains in occupation of the premises under the consideration. This, in my judgment, provides a sufficient standard and working test, by which the words ''building'' or re-building'' are to be understood under the Rent Act of 1948 or 1950. If, therefore, repairs so extensive and ''fundamental in character as, for instance, in this case where the very foundation on which the ground floor rests have to be reconstructed, where the very walls which have become cracked and moist have to be thrown down and rebuilt that they cannot be carried out if the tenant remains in possession, then it becomes a case in my opinion, of "building'' or ''rebuilding'' within the meaning of the Statutes................. A renewal may be a repair or a reconstruction. Renewal is a repair if it is only restoration by renewal or replacement, of subsidiary parts of a whole. If, on the other hand, it amount to a reconstruction of the entirely or of substantially the whole of the subject matter it is not repair but a construction. The test, therefore, which decides the question whether a thing is a ''repair'' or not is to see whether the act actually done is one which in substance is a replacement of defective pans of a replacement of the entirety or a substantial part of the subject matter. Therefore, as already observed, in each case it is a question of decree as to when any construction and substantial repairs would amount to construction of a building within the meaning of the notification." The three subsequent Single Bench decisions of this Court mentioned above only apply these tests to the peculiar facts and circumstances obtaining in these cases in regard to constructions allegedly made or repairs carried out therein, for determination their nature and decide whether those were constructions/re-constructions are mere repairs/improvements and have, therefore, limited application for those cases only.

Applying the aforesaid test to the facts and circumstances of the present case, it has to be held that conversion of two existing rooms into four shops was not possible without the tenant vacating the previously existing premises, that the erection of three partition walls inside the area so becoming available; after removal of one which separated the two existing rooms and the fixing of four shutters in place of two doors in front, completely changed the nature of structure, instead of two rooms already existing, four new shops, capable of being let out separately came into being. Every one of the four new shops is a premises in itself as defined in the Haryana Urban (Control of Rent and Eviction) Act, 1973. These structural changes have to be regarded as replacement of a substantial part of the existing structure and thus amount to re-construction of the tenancy premises carried out in 1973.

In this view of the matter, Civil Revision is allowed, assailed orders dated 6th August, 1985 of the learned Rent Controller and dated 1st September, 1986 of the learned Appellate Authority are both set aside and the case is remanded back to the learned Rent Controller for fixation of fair rent afresh. Parties have been directed to appear before the learned Rent Controller on 25th July, 1988. Respondent-tenant shall pay to the petitioner-landlord the costs of this petition. Counsel''s fee assessed at Rs. 500/- (rupees five hundred only).