LAL CHAND AND ANR.versusDISTRICT JUDGE AGRA AND ORS.

A                           LAL CHAND AND ANR.
                                      v.
                        DISTRICT JUDGE AGRA AND ORS.

                                SEPTEMBER 16, 1999

B                 [M. JAGANNADHA RAO AND M.B. SHAH, JJ.]


             U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,
     1972.

C        S.2(2) Explanation (/)-Building exempted from operation of Act for
   10 years from its "Construction"-Tenancy of shop under United Provinces
  (Temporary) Control of Rent 'and Eviction Act-Building reconstructed--
  Shop vacated during reconstruction-Tenant put in possession after
  reconstruction of shop in 1970-Landlord filing civil suit in 1976 seeking
D eviction of tenant after. giving notice u/s. 106 of Transfer of Property Act and
  contending that because of reconstruction, building was exempt from
  provisions of 1972 Act-Tenant's contention that he has been a sta~utory
  tenant, exemption period of 10 years to a new construction would not be
  applicable, rejected by courts below and decree of eviction passed-Held,
  courts below have recorded a finding of fact that the shop was a new
E construction-Period of JO years even if reckoned from 1970, goes upto 1980
  and suit having been filed in 1976 during the ten years period is maintainable
  in as much as during the said period the building was exempt from the
  provisions of the Act-In Instant case, building having been demolished by
  way of an agreement between tenant and landlord, S. 19 of 1947 Act would
  not apply and statutory right of tenant came to an end-Judgments of High
F Court and Trial Court do not warrant any interference-Order of eviction
  not to be enforced for one year on tenant's filing usual undertaking-United
  Provinces (Temporary) Control of Rent and EvictiOn Act, 1947-S. 7 and 19.

          Words and Phrases.

G         "Construction "-Meaning of
                                                                                     ..._
                                                                                       I




          Om Prakash Gupta v. Dig. Vijendrapal Gupta, (1982)2 SCC 61; and
    Ramesh Chandra v. ///Additional District Judge and Ors., (1992)1 SCC 751,
    relied on.

H                                         664
                   LAL CHAND v. DISTT. JUDGE, AGRA                         665
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1040of1995.                  A
      From the Judgment and Order dated 5.9.94 of th~ Allahabad High Court
in C. Misc. W.P. No. 5650 of 1982.

      M.C. Dhingra for the Appellant.
                                                                                  B
      Arvind Kumar and Ms. Laxmi Arvind for the Respondent No. 3.

      The following Order of the Court was delivered :

      This appeal is preferred by the legal representative of Gian Chand, the
original tenant who was sought to be evicted by the respondent-landlord in        C
a regular Civil suit for eviction filed in 1976. According to the landlord, the
building was newly constructed in 1970, Gian Chand, the erstwhile tenant re-
took possession in 1970, but that because of reconstruction, the building was
exempt from the provisions of the U.P. Urban Building (Regulation of Letting,
Rent and Eviction) Act, 1972 (hereinafter referred to as the 1972 Act) for a      D
period of IO years as mentioned in Section 2(2) of the Act. The new Act came
into force on 15.7.72. The landlord gave notice for eviction in 1976 under
Section 106 of the Transfer of Property Act terminating the tenancy and
thereafter, he filed the present suit in 1976.

      The tenant, Gian Chand contended that he was tenant from 1959 and           E
that the building was reconstructed and the re-construction was completed
in 1970. He was occupying only a room earlier and though there was some
new construction, the room occupied by him did not suffer any reconstruction
and in any event, he was entitled to the protection which was available to
him under the old Act of 1947.
                                                                                  F
      Gian Chand was allotted the shop on rent by the prescribed authority
under Section 7 of the United Provinces (Temporary) Control of Rent and
Eviction Act, 1947, which was the authority to allot vacant premises on rent.
Subsequently, Gian Chand accommodated the respondent landlord by
voluntarily vacating the room in his occupation, upon an understanding that       G
he would be put back into possession after reconstruction. Therefore, after
reconstruction, he was again inducted into possession as tenant. Gian Chand
contended that he would continue to be a statutory tenant and, therefore, the
exemption period of l 0 years granted under the 1972 Act to a new construction
would not be applicable in this case.
                                                                                  H
     666                      SUPREME COURT _REPORTS (1999) SUPP. 2 S.C.R.

A           The Trial Judge, namely, the Judge in the Court of Small Causes, Agra
     in his judgment dated 19 .10.81 framed four issues for consideration as follows.

                (l) Whether disputed premises was newly constructed in the year
             1970 as stated in the plaint?

B                (2) Whether the defendants' rights are protected in respect of the
             disputed premises under provisions of U.P. Act No. 13 of 1972?

                (3) Whether the notice by plaintiff is illegal and wrong as has
             been stated in W. S.?

                 (4) To what relief plaintiff is entitled?
c
            On the first issue, the learned Trial Judge considered the oral and
     documentary evidence and came to the conclusion that the room and the
     entire building were reconstructed. and the room in question was a new
     "building" within Explanation-I bel~W Section 2(2) of the new Act, 1972.
D    Hence, the building as reconstructed was exempt from the Act for a period
     of l 0 years and the suit for eviction filed in the Civil Court after giving notice
     under Section l 06 of the Transfer of Property Act, was maintainable. He,
     therefore, passed a decree for eviction. This view was affrrmed by the High
     Court.

E.         Learned counsel for the appellants, (leg;tl heirs of Gian Chand) contended
     before us that Gian Chand having been a statutory tenant of the building
     before reconstruction, he, on induction into the new premises in 1970 continued
     to be a statutory tenant under the old Act of 1947. The room was not to be
     treated as a new one in as much as there was no reconstruction so far as the
     ~oom was concerned, though there were additions.
F
           Section 2 of the Act deals with e}!.emption from the operation of the Act.
     It states in sub-clause (2) that nothing in the new Act shall apply to a building
  during a period of 10 years from the date on which its construction is
  completed. There are three Explanations below sub-section (2) of Section 2.
G We are concerned with the first Explanation. The Explanation I reads as
  follows:

             "Explanation (J)(a): The construction of building shall be deemed
             td' have been completed on the date on which the completion thereof
             is reported to or /otherwise recorded by the local authority having
H            jurisdiction and Uf1 the case of a building subject to assessment, the
                  LAL CHAND v. DISTT. JUDGE, AGRA                           667
       .date on which the first assessment thereof comes into effect, and          A
        where the said date are different, the earliest of the said dates, and
        in the absence of dny such report, record or assessment, the date on
        which it is actually occupied (not including occupation merely for the
        purposes of supervising the construction or guarding the building
        under construction) for the first time;
                                                                                   B
       Provided that there may be different dates of completion or
       construction in respect of different parts of a building which are either
       designed as separate units 01: are occupied separately by the landlord
       and one or more tenants or by different tenants;

       (b) "construction" includes any construction in place of an existing . C
       building which has been wholly substantially demolished;

       (c) Where such substantial addition is made to an existing building
       that the .existing building becomes only a minor part thereof the whole
       of the building including the existing buildings shall be deemed to be
       constructed on the date of completion of the said addition."                D

      It is to be noticed that Sub-clause (b) of Explanation-I defines
"construction" as including any new construction made in place of an existing
building which has been wholly or supstantially demolished. Sub Clause (a)
of Explanation-I deals with the manner in which the period of IO years has         E
to be computed. Question arises whether the construction or reconstruction
must have taken place after 15.7.72, the date when the new Act has come into
force. But on this aspect there are two judgments. of this Court rendered by
three Judge Benches that the Act does not apply to constructions or
reconstructions made before 15.7.72 provided the IO years period spreads
over 15.7.72 and the suit is filed after Section 106 notice under the Transfer     F
of Property Act, within the l 0 years from the date of construction. See Om
Prakash Gupta v. Dig Vijendrapal Gupta, [1982] 2 SCC 61 and Ramesh
Chandra v. Ill Additional District Judge and Ors., [1992] 1 SCC 751. These
decisions are binding on us and canriot be distinguished on the ground that
they did not involve reconstruction.                                               G

      The trial Court as well as the High Court have held that this is a case
in which there is no evidence as to when the landlord reported the date of
completion of the reconstruction to the local authority. Therefore, the first
part of the clause (a) of the Explanation-I to Section 2(2) of the 1972 Act is
not applicable and under the second part of the Explanation, the relevant date     H
    668                     SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A   of reconstruction is the date of first assessment and ten years have to be
    counted from the date of the first assessment. The evidence shows that the
    first assessment is on 1.10.72. The Courts have found therefore, that the
    building is exempt from the provisions of new Act for a period of l 0 years
    from 1.l 0. 72 and that therefore, notice under .section l 06 of the Transfer of
B   Property Act could be given on 2.8.76 and the suit could be filed for eviction
    in 197 6 in as much as the building was exempt from the provision of the Act
    as on 1976. This view, in our opinion, is correct"

          The Trial Court and the High Court also considered the oral and
    documentary evidence adduced in the case and went into the nature of
C   various constructions made even with reference to the room which was under          .'
    the occupation of Gain Chand, the father of the appellants. The courts found
    that the .flooring was removed and lowered and the roof was also changed.
    The walls on two sides were totally removed and major change were also
    made in the remaining two walls. In one of the remaining walls, a door was
    fixed and in the other certain other changes were made. After considering the
D   evidence relating to the various constructions made in regard to the particular
    room which was under the previous occupation of Gain Chand, the Courts
    below came to the conclusion that even this room must be treated as one
    newly constructed. This being a finding of fact, we cannot interfere as we do
    not find any infirmity in the said fiAd.ing.

E         Learned counsel for the appellants however, contended that Gain Chand
    was a statutory tenant in respect of the premises and that in view of Section
    lA of the old Act of 1947, the room even if reconstructed in 1970 continued
    to be governed by the 1947 Act. Reliance is placed upon Section l A of the
    United Provinces (Temporary) Control of Rent and Eviction Act, 1947 which
F   reads as follows :

            "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 l,
            1951."

G          Learned counsel for the appellants contends that in as much as the new
    building is constructed in 1970 i.e. after l. l .1951 and before the new Act i.e.
    15.7.72, Gain Chand and after him, the appellants are entitled to the protecti9n
    of the provisions of the old Act. We are unable to agree. In view of the
    decisions of this Court quoted above in Om Prakash Gupta and Ramesh
    Chandra's cases the new Act is applicable and the period of l 0 years, eve_n
H   if reckoned from 1970 goes upto 1980 and the suit filed in 1976 during the lO
                           LAL CHAND v. DISTT. JUDGE, AGRA                          669
       years period, is maintainable .                                                     A·
.-'"         So far as the rights of statutory tenancy which related to the room
       covered by the 1947 Act are concerned, we find that Section 19 of the old
       Act no doubt gives protection to erstwhile tenant but it deals with a situation
       where the building gets demolished by fire, tempest etc. or is rendered unfit
       for the purposes for which it has meant and where such situations led to            B
       reconstruction. In such cases, Section 19 of the old Act gave protection to
       the erstwhile statutory tenant. Admittedly, in a case, like the one before us
       where the building was demolished by way of an agreement between the
       tenant and the landlord, Section 19 of the old Act would not apply.

             Under the new Act of 1972, Section 24(2) states that whenever a landlord
                                                                                           c
       obtains a building for demolition or reconstruction and follows a particular
       procedure for release, it will be open to the erstwhile statutory tenant to apply
       to the competent authority to allow him to re-occupy the premises newly
       constructed, with the same rights of statutory tenancy. But, there is no similar
       provision like Sub-clause (2) of Section 24 in the old Act. Indeed,· even as per    D
       the new Act, a case of an agreement entered into voluntarily for demolition
       and re-induction, does not fall under Section 24(2). The result is that once the
       building stood demolished before 1970 by an agreement,· the statutory rights
       of the tenent came to an end as there was no provision of the old Act which
       provided for continuance of any rights of statutory tenancy, in a situation of      E
       voluntary surrender and full reconstruction of the premises. For the aforesaid
       reasons the judgment of the High Court as well as of the trial Court do not
       warrant any interference. The appeal is, therefore, dismissed. However, in the
       circumstances of the case, there shall be no order as to costs.

               We, however, direct that the order of eviction passed by the lower F
       courts, as affirmed by us shall not be enforced for a period of one year from
       today provided the appellants file the usual undertaking in this Court within.
       a period of 8 weeks from today. The appellants shall also pay all the electricity
       due!l, or arrears of rent, if any, within three months from today. In case there
       is any breach of the terms of the undertaking filed by the appellants or of the
       conditions imposed by this order, ¢.e decree of eviction passed by the lower G
       courts as affrrmed by this Court, shall become immediately executable. Subject
       to the above condition, the appeal is dismissed.

       RP.                                                          Appeal dismissed.