Vinod Kumar vs Naranjan Dass

N.K. Kapoor, J.—The defendant feeling aggrieved by the judgment and decree of the Additional District Judge has preferred this appeal.

Naranjan Dass plaintiff sought a decree for possession of shop a after terminating the tenancy of Vinod Kumar by giving valid notice u/s 106 of the Transfer of Property Act since he did not deliver the possession despite notice.

Defendant put in appearance, filed written statement and controverted the various averments made in the plaint. The defendant denied that the shop was let out to him or the rate of rent was Rs. 500/- per month as alleged by the plaintiff. According to the defendant, the shop in dispute was let out to M/s Vinod Kutnar An/I Kumar at monthly rent of Rs. 200/-. The defendant further averred that the shop in dispute was in existence before 24.4.1973 and thus the provisions of Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter called the Act'') are attracted i.e. to say that the suit is not maintainable in a Civil Court.

On the pleadings of the parties, following issues were'' framed :-

Whether the defendant is tenant in the property in dispute ? OPP

If issue No. 1 is proved then whether the plaintiff has terminated the tenancy of the defendant, if so to what effect ? OPP

Whether the provision of Haryana Act No. 11 of 1973 are applicable, if so to what effect ? OPD

Whether the civil Court has got no jurisdiction to try the suit ? OPD

Relief

The trial Court decided issues No. I and 2 in favour of the plaintiff and issue No. 4 against the defendant. Consequently, the suit of the plaintiff was decreed as prayed for.

The lower appellate Court once again examined the matter in controversy on facts as well as law. The learned counsel for the appellant primarily assailed the judgment and decree of the trial Court on the ground that the shop in dispute was in existence before the crucial date i e. 27-4-1973 and this way the Court below erred in law in ordering his eviction. According to the defendant, there was ample evidence on the record by which it could be inferred that only some repairs were effected by the plaintiff after having purchased the same vide sale deed dated 22.11.1975 Exhibit P-l. This way the defendant could only be evicted under the provisions of the Haryana Rent Act. Besides this, the counsel contended that the plaintiff filed application for ejectment u/s 13 of the Haryana Act whereby the rent had been recovered by him which amounts to waiver. The lower appellate Court did not find any merit in these contentions and consequently dismissed the appeal.

Learned counsel for the appellant by referring to Section 1(3) and 2(a) of the Act urged that before any building the construction of which is completed at or after the commencement of this Act is to be excluded from the provisions of the Act, it has to be established without any icta of doubt as to when such a building was completed. Unless there is clear proof on record as to the exact date when construction of a building is started the period of exemption granted vide Section 1(3) of the Act cannot be determined with precision. Dialating upon this aspect of the matter in the context of the present case, the counsel referred to deposition of the witnesses examined by the plaintiff and other documentary evidence adduced by him and thus urged that no definite date as to the construction of the building is discernible.

There is no denying the fact that exact date when construction of the shop was started and completed hare not been mentioned by the plaintiff in the plaint nor stated in, his deposition. However, the stand of the plaintiff is consistent that the construction of the shop was started and completed in the year 1977. In the instant case, the plaintiff purchased the shop in dispute by registered sale deed dated 22.11.1975 Exhibit P 1. The plan accompanying the sale deed is Exhibit P-2. The plaintiff with a view to prove that the existing structure had been demolished and new building had been raised has examined the draftsman who has prepared the new site plan which is Exhibit P-3 The appellant dispute the claim of the plaintiff that old structure had been demolished and a new building is raised thereupon. For this, the appellant highlights the non existence of any site plan submitted to the municipal authorities, existence off the electric meter at the premises in dispute even during the alleged reconstruction non existence of any evidence with regard to purchase of building material and source of money spent upon such a construction. The learned counsel for the appellant with some amount of vehemence urged that bare statement of the plaintiff in the absence of any material evidence worthy of credence ought, in the circumstances of this case have been ignored Referring to Sections 201 and 202 of the Haryana Municipal Act, 191i, the counsel urged that it was incumbent upon the plaintiff to inform the concerned authorities while erecting or re ending any building In fact, Section 201 of the Haryana Municipal Act specifically prohibits erection or re erection of the building without, sanction of such a building plan by the municipal authorities Section 202 of the Haryana Municipal Act empowers various municipalities to frame building by laws. In the instant case, no such site plan was submitted to the Municipal authorities and in the absence of the same it would be correct to infer that no such reconstruction of building ever begun Even there is no material difference between the alleged site plan submitted at the time of the sale deed and the alleged new site plan purportedly prepared Exhibit P-3.

Learned counsel for the respondent when called upon to explain in this regard drew the attention of the Court to the precise dimension of the shop in dispute as per site plan Exhibit P-3 and the one submitted at the time of execution of the sale deed Exhibit P-2. Elaborating, the counsel urged that bare look at these two site plans Exhibit P-2 and P-3 leave no manner of doubt that old construction of the building had been razed to the ground and the building was constructed afresh.

10 I find merit in this submission of the learned counsel for the respondent. As per site plan Exhibit P-2 which accompanied the sale deed dated 21-1.-1975 it despicts the shop having two ''khans'' and a godown. The area under the shop which consists of two ''khans Is 21''4"x 10'' !0'' which has a door in between and connected to the godown approximately 21''.15''.3". The new shop, as per Exhibit P-3, measures 15'' 8"x l0''.5". It has a shutter at its opening and a staircase at the back If we go by the dimensions, as given in Exhibit P-2 and P-3. it comes to light that there is change in the length and breadth of the walls of the shop clearly suggesting that at least three walls out of four had been freshly laid. The present building; has no opening in the godown. in fact a stair-case intervenes As per evidence adduced by the plaintiff, the opening door has been replaced by shutter, walls as well as the roof freshly laid. Earlier the roof was made of rafters whereas the present one is of lintel. With this material evidence on record, the case set up by the plaintiff, indeed, has prima facie merit.. Non submission of building plan to the municipal authority for raising a new construction may amount to violation of certain provisions of the Municipal Act and the building bye-laws framed thereunder ; yet the same cannot be so construed debarring the Court from examining the other evidence led by the parties that the building, in fact, was re-erected Haryana Municipal Act envisages imposition of fine or compounding of the offence with regard to raising of such construction which was merely violative of building bye-laws. This way appellant certainly cannot take much support from the provisions of the Haryana Municipal Act.

The counsel next urged that, admittedly, the plaintiff purchased the shop in dispute alongwith godown vide sale deed dated 21.11.1975 The whole structure had one house tax number. Even after the alleged reconstruction, the building bears the same house tax No. i e. to say for the shop as well as the godown Thus, as per plaintiff''s own case, the building consists of two buildings having Same house tax number consists of two district parts new and old Since the major part of the building comes within the ambit of old structures, mere cosmetic changes in the part of the building cannot bring the same within the exemption in terms of Section i (3) of the Act. According to the counsel, if the contention of the plaintiff is accepted in toto, it would lead to quite an anamolous situation. For the so called newly constructed shop bearing same house tax number the building shall be deemed to be exempt in terms of Section 1 (3) of the Act for a period of 10 years from the date of its completion whereas to recover possession, rent or its enhancement in respect of old portion, the plaintiff will have to institute application in terms of the Haryana Rent Act.

The plea of the appellant is quite attractive but without much substance especially in the context of the present case. In the instant case, admittedly, the plaintiff has let out the area under shop only to the appellant. This portion has now no contiguity with the area allegedly under the godown. In fact, there is no evidence as to whether godown exists at the spot or not In any case, for the, purposes of adjudicating the points raised herein this appeal, existence or non existence of the godown pales into insignificance for the reason that at no time area under the godown had been let out to him at the time of the inception of the tenancy. The municipal authority giving; one house tax number to a building which had earlier a composite structure by oversight or otherwise does not make such a structure as one. In any case, the house tax numbers are given by the municipal authority for the purpose of identification and valuation of the property of an owner/occupier for house tax purposes only.

Newly constructed buildings have been exempted from the purview of the Act for a period of 10 years from the date of its completion. Under the East Punjab Rent Restriction Act also, newly constructed buildings have been exempted by issuance of notification for a period of 5 years at a time Successive notification had been issued exempting the newly constructed buildings from the purview of the Act. These notifications were subject matter of challenge before the apex Court in a case reported as Punjab Tin Supply Co., Chandigarh and Others Vs. Central Government and Others, The apex Court examined the validity of the notification challenged and came to the conclusion that, in fact, the same advances the scheme, object and purpose of the Act. The Court further observed that the Act is to mitigate the hardship caused to the tenants Such mitigation can be attained by several measures, one of them being creation of incentive to persons with capital who are otherwise reluctant to invest in the construction of new building in view of the chilling effect of the rent control laws. As a part of the said scheme in order to persuade them to invest in the construction of new buildings exemption is granted to them from the operation of the Act for a short period of five years so that whatever may be the hardship for the time being to the tenants of the new buildings, the new buildings so constructed may after the expiry of the period of exemption be available for the pool of housing accommodation controlled by the Act. The exemption under the Haryana Act is for a period of 10 years from the date of completion of the building. No date of completion of the building has been given by the plaintiff. AH he states is that old structure was raised to the ground in the year 1977 and the new building came into existence by the end of 1977. Absence of clear date as to when the new construe ion had been raised can, of course, make adjudication of such a matter somewhat difficult. But so on the facts of the present case, this question can be termed as purely academic. The property in dispute is the instant case had been purchased by the plaintiff on 21-11-1975 Even if it be taken that sometime thereafter be plaintiff demolished the old structure and raised new one yet the same would come within the ambit of Section 1(3) of the Act on the short ground that the suit in the instant case had been filed on 17-7-1985 i.e. to say less than 10 years after the date of the execution of the sale deed dated 21-11-1975. lam thus of the firm view that the building stood exempted u/s 1(3) of the Act and the suit for possession was maintainable before a Civil Court.

The next point urged by the learned counsel for the appellant is that the plaintiff even after having terminated the tenancy by issuing notice u/s 106 of the Transfer of Property Act, on his own, filed petition u/s 13 of the Act for recovery of rent due thereby implying waiver on his part. For this view, the counsel relied upon the decision of the Allahabad High Court in a case reported as Ram Dayal v. Jawala Prasad A. I. R. 1966 All. 623.

The factual assertion with regard to the filing of the ejectment application and receiving the amount of rent due is proved on record and is also otherwise admitted. All that the plaintiff states is that after the expiry of the tenancy period defendant continued to be in its occupation unauthorisedly and was liable to pay for use and occupation of the shop in dispute for such period of his occupation. Since by the time these applications were filed, the exemption period of 10 years stood expired Not only this, the plaintiff had already instituted the present suit for recovery of possession on 17-7-1985. Acceptance of rent after termination of tenancy does not clothe the appellant with any tenancy rights. For this view, reliance was placed upon the decision of the apex Court in case reported as Ganga Dutt Murarka v. Kartik Chandra Das A. I. R. 1961 S.C. 1076. This decision of the apex Court squarely covers the point in controversy. It has been held therein as under:-

"It is, however, well settled that where a "contractual tenancy to which the rent control legislation applies has expired by efflux of time or by determination by notice to quit and the tenant continues in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy".

Mere acceptance of rent for use and occupation of the shop after terminating tenancy by no reasoning can amount to waiver of notice to quit.

For the aforesaid reasons, the appeal is devoid of any merit and consequently the same is dismissed. No order as to costs.