Mowasi Ram v. Sheikh Kannoo — 1964 DIGILAW 305 (ALL)

ORDER S.S. Dhavan, J. - This is a tenant's second appeal from the decree of Addl. Civil Judge, Mathura confirming a decree of Addl. Munsif Mathura for his ejectment from a plot of land. The Defendant Appellant Mawasi Ram was the tenant of a piece of land of which Sheikh Kannoo is the landlord. The Plaintiff alleged that the Defendant had agreed to pay rent at the rate of Rs. 3/- p.m. but fell in arrears, whereupon the Plaintiff terminated the tenancy by a notice u/s 106 of the Transfer of Property Act and asking the Defendant to vacate the land; that the Defendant continued to occupy the land in spite of notice; hence the suit. The Defendant contended that the suit was incompetent as it had been filed without the permission of the D.M. Both the courts below held that the plot of land was not an accommodation within the meaning of Section 2 of the UP Control of Rent and Eviction Act and therefore the permission of the D.M. was not necessary. The trial court decreed the suit and the lower appellate court dismissed the appeal of the Defendant who has come to this Court in second appeal. 2. Mr. S.C. Asthana learned Counsel for the Appellant urged only one point before me. He contended that the view of the courts below that a plot of land enclosed by a wall is not a building and therefore not an accommodation within the meaning of Section 2(a) of the Act is erroneous. Learned Counsel relied on a decision of Mithan Lal, J. "in Mahesh Chandra v. UP State (1) (1963 AWR 323) in which it was held that a gher must be deemed to be a building u/s 9 of the UP ZA and LR Act. He also cited my own decision in Devi Prasad v. Ghanshyam Das (2) ( 1961 AWR 213 ) in which I observed that the existence of a roof is not absolutely essential for a structure to be regarded as a building and that any edifice or structure of a permanent nature which is constructed for any useful purpose would be a building, and therefore a Bhatta or a brick kiln is ordinarily a building within the meaning of Section 9 of the ZA and LR Act. On the other hand the counsel for the. On the other hand the counsel for the. Respondent relied on a decision of Chandiramani, J. in Chanda Lal Vs. Ram Kishan, AIR 1952 All 607 in which it was held that the word building in Section 2(a) of the UP Control of Rent and Eviction Act cannotes a roofed structure and a plot of land which is not appurtenant to any roofed building but merely enclosed by a wall is not to be regarded as a building. 3. The question what is a building has been considered in many decisions, Indian, English and American. It is not necessary to cite all of them as our Supreme Court laid down a principle in a decision which was never reported- State of Bombay v. Sardar Venkat Rao Krishna Rao Gujar (4) (C.A. No. 455 of 1959). The decision was referred to by Mithan Lal, J. in Mahesh Chand v. UP State (1). The Supreme Court observed that the word building in its literal meaning means something which is built and would include virtually anything which is constructed or built-for example a chabutra. But the court further observed that the literal meaning cannot be applied in every case and must be modified according to the context of the Act in which the word "building" occurs, and the court must consider the purpose of the Act and whether the literal or a modified meaning will serve or frustrate this purpose. The Supreme Court pointed out that the English Court, while interpreting the scope of a restrictive covenant prohibiting the erection of a building of any kind within a Certain distance of a street had held that the erection of gasoline pump and the construction of under-gasoline-tanks and pits with concrete sides sunken in the ground came within the definition of building for the purpose of the covenant. The word was given a literal or popular meaning. In the case before them the Supreme Court held that even an uncovered ottas or chabutra falls within the terms building as used in Section 5(a) of the M.P. Abolition of Proprietary Rights (Estates, Mohah, Alienated Land) Act, 1950, and, the zamindar could rightly claim that such structures must be settled with him on the abolition of zamindari. In the case before them the Supreme Court held that even an uncovered ottas or chabutra falls within the terms building as used in Section 5(a) of the M.P. Abolition of Proprietary Rights (Estates, Mohah, Alienated Land) Act, 1950, and, the zamindar could rightly claim that such structures must be settled with him on the abolition of zamindari. I had applied this principle earlier in Devi Prasad v. Ghanshyam Das (2) while interpreting the word 'building' in Section 9 of the UP ZA and LR Act and held that scheme of the Act was that the zamindar should not be deprived of the fruits of his own efforts or those of his predecessor and therefore he could claim that a brick kiln constructed by him should be settled with hira. The view of Mithan Lal, J. that a gher must be deemed to be a building within the meaning of Section 9 of that Act was based on a similar principle. These decisions cannot serve as a guide in interpreting the words in Section 2 of the UP Control of Rent and Eviction Act which was passed for a purpose entirely different for that of the ZA and LR Act. 4. That Act was passed for the purpose of controlling the letting and the rents of residential and non-residential accommodation and to prevent the eviction of tenants therefrom. The preamble states that due to the shortage of accommodation in the State it was expedient to provide for powers to control the letting and the rent of such accommodation and to prevent the eviction of tenants. The Act was made applicable "to every municipality and notified areas established under the UP Municipalities Act and to areas situated within two miles of such Municipalities or Notified Area". These provisions make it clear that the Act was passed to deal with the problem of shortage of accommodation in urban localities. It has no application to rural areas. A Municipality or a town area does not ordinarily include agricultural plots of land. 5. The purpose of the Act is further clarified by Section 1A which was included by the Amending Act of 1954. It runs thus: "Nothing in this Act shall apply to any building or part of a building which was under erection or was constructed on or after January 1, 1951". 5. The purpose of the Act is further clarified by Section 1A which was included by the Amending Act of 1954. It runs thus: "Nothing in this Act shall apply to any building or part of a building which was under erection or was constructed on or after January 1, 1951". The preamble to this Amending Act explained that the controls imposed by the parent Act have resulted in discouraging landlords from making constructions and therefore it was considered necessary to make the Act inapplicable to buildings 'constructed after 1.1.1951 so that citizens might be encouraged to erect new buildings and thereby help to ease the shortage of accommodation. Thus Section 1(a) was passed with the object of persuading citizens to convert vacant plots of land in the urban areas for the purpose of being used as accommodation. The definition of the word accommodation is also suggestive. Section 2(a) provides in effect that accommodation means residential accommodation of any building or part of a building and includes gardens, grounds and out-houses if any, appurtenant to such building or part of a building. If the word accommodation had been used in its literal or popular meaning as including a plot of land enclosed by a wall, there was no necessity of providing or expressly providing that the word "accommodation" includes gardens etc. appurtenant to building. 6. The word accommodation is derived from the verb 'accommodate' which means to provide shelter. A house provides shelter for those who live in it, a shop for those who carry on business, a garage for those who work in it, and a godown provides shelter for goods and those in charge of them. In my opinion the question whether a particular structure provides shelter and is an accommodation within the meaning of Section 2(a) of the Act is one of fact which the court must decide after taking into consideration all the relevant circumstances and in the light of the guiding principles enunciated by the Supreme Court in State of Bombay v. Sardar Venkat Krishna Rao Gujar (4). Among other facts would be the nature of the building and the use to which it is put. Learned Counsel for the Respondent contended that a plot of land enclosed by wall can never be regarded as an accommodation u/s 2(a). I am not prepared to agree with this argument in such broad terms. Among other facts would be the nature of the building and the use to which it is put. Learned Counsel for the Respondent contended that a plot of land enclosed by wall can never be regarded as an accommodation u/s 2(a). I am not prepared to agree with this argument in such broad terms. A tenant who rents a plot of land enclosed by a wall for the purpose of starting a dairy and keeping cattle there may be entitled to claim the protection of the Act, though I would not venture a conclusive opinion on this point. Each case must be decided on its own facts, bearing in mind that the transcendent purpose of the Act is to relieve the shortage of accommodation. 7. Applying these principles to the present case, all that the Defendant Appellant has been able to prove that he rented a vacant plot of land for the purpose of tethering cattle. He alleged that the plot was enclosed by a wall but the Plaintiff denied this fact and the Appellant was not able to establish it to the satisfaction of the courts below. Under these circumstances, he cannot claim that the land let out to him can be regarded as an accommodation as contemplated u/s 2(a) of the Act. 8. Furthermore the third proviso to Sub-section (2a) of Section 1 expressly excludes any plot of land not covered by a roof. The relevant part of the proviso runs thus: "provided also that nothing in this Act shall apply.... (iii) to any tenancy or other relationship in respect of any plot of land not covered by roofed structure." Both the courts below have found that the Plaintiff's tenancy is in respect of a land which is not covered by a roofed structure. Therefore, the Act does not apply to the tenancy. 9. No other point was urged. 10. The appeal is dismissed with costs. Appeal dismissed.