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2001 DIGILAW 258 (JK)

Yash Paul v. State Of J. &K.

2001-11-05

T.S.DOABIA

body2001
1. The property in question situated at Village Rakh Paipur, Tehsil Jammu. This is now within the Municipal limits. This is known as Pul Par, Bikram Chowk, Jammu. This was allotted to Des Raj. He has since died. On this land a building was raised by Des Raj father of the petitioner. Des Raj has since died. He has left behind Yash Paul and Sat Paul. The Municipality Jammu has now allotted the shop measuring 60x 12 on the ground floor of the said building in favour of Sat Paul and Bansi Lal. The petitioner submits that this could not be done. It is submitted that so far as land is concerned, the ownership no doubt is with the Municipality Jammu, but so far as building is concerned, the ownership of this would be in favour of Des Raj, father of the petitioner. 2. The concept of dual ownership came up for consideration of their Lordships of the Privy Council as early as in the year 1927 in Narayan Das Vs. JatindraNath, AIR 1927 pc 136, and their Lordships while pointing out distinction in the relevant law prevailing in England and this country approved the following observations of Sir Barnes Peacock in the case of Thakoor Chunderproamonick Vs. Ramdhone Bhuttacharjee, (1866) 6 Suth WR 228:- We have not been able to find in the laws or customs of this country any traces of the existence of an absolute rule of law that whatever is affixed to build on the soil becomes a part of it, and is subjected to the same rights of property as the soil itself. 3. In a still later case, that is, Vallabhdas Naranji Vs. Development Officer, Bandra, (1929) 56 Ind. App 259: AIR 1929 PC 163 the Privy Council once again referred to Sir Barness Peacocks observations as stated above. In this judgment the following observations of Couch C.J. in Narayan vs. Bholagir, (1869) 6 Bom. HCAC 80, were quoted with approval:- ... We cannot, however, apply to cases arising in India the doctrine of the English law as to buildings, viz, that they should belong to the owner of the land The only doctrine which we can apply is the doctrine established in India that the party so building on anothers land should be allowed to remove the materials.� 4. We cannot, however, apply to cases arising in India the doctrine of the English law as to buildings, viz, that they should belong to the owner of the land The only doctrine which we can apply is the doctrine established in India that the party so building on anothers land should be allowed to remove the materials.� 4. The legal position as enunciated above by the Privy Council was later followed by Tendolkar, J (as his Lordship then was) in Laxmipat Singhania Vs. Larsen and Toubro Ltd AIR 1951 Bom. 205 and was approved by the Supreme Court in Dr. K.A. Dharyawan Vs. J.R Thakur, 1959SCR799: AIR 1958SC789. In the latter case of Supreme Court, while consideringa similar notification under the provisions of Bombay Rents Hotel and Lodging House Rates Control Act, 1947, held as under:- Under a proper construction of the lease there was a demise only of the land and not of the building and consequently the provisions of the Act did not apply to the contract for delivery of possession of the building. The ownership in the building was with the lessees and in which the lessors had no right while the lease subsisted. There was no absolute rule of law in India that whatever was affixed or built on the soil became part of it, and was subject to the same rights of property.� 5. Yet in another case, that is, Messers Bhatia Cooperative Housing Society Limited V.D.C. Patel, AIR 1953 SC16, the Supreme Court recognised and held the above noted proposition of law that where a plot of land had been demised, the said plot can continue to belong to the lessor and the building or the superstructure raised by the lessee on that plot can belong to the later. 6. The law in England is that anything affixed to the earth belong to the lessor and it is not open to the lessee to take it away or to remove it at any rate in cases where it cannot be removed without causing serious damage to the structure. But under the provisions of the Transfer of property Act the law in India is quite different and under section 108(h) of that Act in the absence of a contract to the contrary, a lessee may even after the determination of the lease, remove all things which were put up by him. But under the provisions of the Transfer of property Act the law in India is quite different and under section 108(h) of that Act in the absence of a contract to the contrary, a lessee may even after the determination of the lease, remove all things which were put up by him. The effect of this provision is that the lessee is the owner of the building put up by him although it is put up on the land belonging to the lessor. There may thus be two distinct ownerships one of the land and the other of the structure. 7. In one case, open land was a part of the frontage of the shop and belonged to the municipality which the landlord had taken on lease from the Municipality. As regards the municipal land the landlord was a leasee of the Municipal Committee but on construction of the building covering a portion of the municipal land the landlord became landlord and the appellant, his tenant for the purpose of the Rent Laws. This view was taken by the Full Bench of the Punjab, md Haryana High Court in Hari Parshad Gupta Vs. Jitender Kumar Kaushik, AIR 1982 Pb & Hry. 165. The Supreme Court approved this view in Sushil Kumar Metha Vs. Gobind Kumar Vohra, 1990(1) PLR 187. It was held that even though there is a notification issued by the State Government exempting the lands belonging to Municipality from the provisions of the Rent Laws the building is not exempted from the provisions of the Rent Laws. The findings was that the shop in question stands mainly on the land of the landlord and a small portion is located on Municipal Land. Therefore, the building would be governed by the provisions of the Rent Laws and the exemption accorded by the Government under Section 3 East Punjab Urban Rent Restriction Act, 1949 was not attracted to the premises. 8. The concept of the dual ownership was considered again. The land belonged to the Government and one lessee had raised the construction. It was said that the words "belonging to" mean very much the same thing as of the ownership of though not necessarily of the absolute ownership of. 8. The concept of the dual ownership was considered again. The land belonged to the Government and one lessee had raised the construction. It was said that the words "belonging to" mean very much the same thing as of the ownership of though not necessarily of the absolute ownership of. When a person takes a building site from the Government on a lease for 99 years and having built flats on it leases out the premises to tenants, the premises belong to him for the purpose of ejectment of tenants and the flats are governed by the provisions of the Rent Laws. This view was expressed in Laxmipat Singh Hania VS. Lersen and Toubro Ltd. AIR 1951 Bom. 205. The building was constructed on land taken on lease from the Government. It was held that the building does not belong to Government but belongs to the person who raised construction on it. Anand Stores Vs. Smt. Prabhat Sharma, 1964 PLR 12. 9. If this be the situation, then the Municipality Jammu, would prima facie be competent to deal with the land only and not with the building. Apparently the Municipality would have no jurisdiction to deal with the building. 10. Shri SS Nanda appearing on behalf of the respondent No. 3 submits that this aspect of the matter would be taken note of and fresh orders would be passed after hearing the petitioner and respondent™s No. 4 and 5. This petition is accordingly, disposed of with a direction to the respondents-authorities that the legal position of law as noticed would be taken note of and fresh orders be passed. Let this be done within a period of three months from the date copy of this order is served by the petitioner to the respondent-authorities and also on the counsel who has put in appearance today.