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Dr. R.N. Gupta Vs. Smt. Sarla Khandelwal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 80 of 1969
Judge
Reported inAIR1974All376
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 2
AppellantDr. R.N. Gupta
RespondentSmt. Sarla Khandelwal and ors.
Appellant AdvocateS.C. Mathur, Adv.
Respondent AdvocateM.K. Seth, Adv.
Excerpt:
.....to that extent. if a rich person hires a palatial building for his residence which has four garages also appurtenant to it his tenancy including the tenancy with regard to these garages shall be protected by the act and the corresponding restrictions imposed on the right of the landlord guaranteed under article 19(1)(f) shall be justified as being in public interest. but if a poor taxi car driver who earns his living by plying his taxi car on hire, hires a tin shed or a roofed garage for securely keeping his vehicle therein when it is not used by him on the road, he will not be protected by the act, because the restrictions placed on the right of the landlord to deal with such garage in any manner he likes cannot be deemed as reasonable restriction in the interest of general..........been defined in section 2 (a) of the act as below:--' 'accommodation' means residential and non-residential accommodation in any building or part of a building and includes-- (i) gardens, grounds and out-houses, if any, appurtenant to such building or part of a building;(ii) any furniture supplied by the landlord for use in such building or part of a building;(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof. but does not include any accommodation used as a factory or for an industrial purpose where the business carried on in or upon the building is also leased out to the lessee by the same transaction.' 2. the definition is not happily worded since it uses the same word 'accommodation' in defining that very expression......
Judgment:

Mathur, C.J.

1. The question is whether a part of a building let out to a tenant and used by him as a garage for keeping his car is an accommodation within the meaning of Clause (a) of Section 2 of the U. P. (Temporary) Control of Rent & Eviction Act, 1947 (to be referred hereinafter as the Act). The matter was referred to a Full Bench because in the opinion of the learned Single Judge the decision in an unreported case H. K. Dhaon v. State of U. P., Civil Misc Appln. No. 96 of 1955 (O. J.), D/- 2-4-1958 (All.) requires reconsideration. The term 'accommodation' has been defined in Section 2 (a) of the Act as below:--

' 'accommodation' means residential and non-residential accommodation in any building or part of a building and includes--

(i) gardens, grounds and out-houses, if any, appurtenant to such building or part of a building;

(ii) any furniture supplied by the landlord for use in such building or part of a building;

(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof. But does not include any accommodation used as a factory or for an industrial purpose where the business carried on in or upon the building is also leased out to the lessee by the same transaction.'

2. The definition is not happily worded since it uses the same word 'accommodation' in defining that very expression. However, the import of the main clause of this definition is clear. It means that 'accommodation' is a building or part of a building which provides a space or room for residential or non-residential purposes and includes those things also which are mentioned in sub- Clauses (1) to (iii). The use of the word 'includes' further suggests that the expression 'accommodation' has been used in a comprehensive sense and the definition is not exhaustive. The main stress of the definition is upon a building or part of a building which includes other things appurtenant to such building or part of a building or affixed thereto for the beneficial enjoyment thereof or supplied by the landlord for use in such building.

3. The other material provisions of the Act having some bearing on this question are contained in Clause (iii) of the third proviso to Sub-section (2-a) of Section 1 which lays down that nothing in this Act shall apply to any tenancy or other relationship in respect of any plot of land not covered by roofed structure It means that an open piece of land will not be governed by the provisions of the Act. Even if such land has been enclosed by boundary walls without any roof it would also not fall within the purview of the Act. Again, Section 1-A provides that 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. This shows that only those buildings or parts of buildings which had been constructed before January 1, 1951 shall be governed by the provisions of the Act.

4. The expression 'building' has not been defined in the Act and so it will have its ordinary Dictionary meaning. In Webster's New International Dictionary, Vol. I the meaning of 'building' is as below:

'Act of making, erecting, or establishing. That which is built; specif: (a) As now generally used, a fabric or edifice framed or constructed, designed to stand more or less permanently, and covering a space of land, for use as a dwelling, store-house, factory, shelter for beasts, or some other useful purpose.'

5. The garage in question by it-self, is admittedly a permanent roofed structure and it is also a part of a building which too is a permanent roofed structure. It can be put to various useful purposes including the purpose of keeping a car therein. Consequently, the garage shall fall within the ordinary Dictionary meaning of the word 'building' and would come within the purview of 'accommodation' as defined in Section 2 (a).

6. The learned counsel for the respondents has laid some stress on Sub-clause (i) of Clause (a) of this section which includes gardens, grounds and out-houses, if any, appurtenant to such building or part of a building in the definition of 'accommodation'. The gardens and grounds standing by themselves shall be excluded from the operation of the Act in view of Clause (iii) of the third proviso to Sub-section (2-a) of Section 1. But if the gardens and grounds are appurtenant to a building or part of a building, they would be included in the definition of 'accommodation'. It is contended that by similar inclusion the outhouses have been brought within the definition of 'accommodation' which otherwise would have been excluded from this definition. So it is argued that if outhouses by themselves stand excluded from the definition of 'accommodation' but for this Sub-clause (i) there is nothing strange that a garage which is not appurtenant to any building was meant to be excluded from the definition of 'accommodation'. In our opinion, this argument is not sound. Out-houses which are roofed structure and used for residential purposes by the servants etc. by themselves fall within the definition of 'accommodation'. Perhaps they have been included in Clause (i) with another purpose to provide a rule of presumption in regard to such out-houses which, though detached from the main building, are usually appurtenant to it.

7. If there is a building which has five out-houses appurtenant to it and in an allotment order passed by the District Magistrate under Section 7 (2) only the building has been mentioned without any specific reference to out-houses, the out-houses being appurtenant to that building would be deemed to be included in the allotment order by virtue of Sub-clause (i). If, however, three of those out-houses had been independently let out by the landlord and only two of them were treated as appurtenant to the building, those very two out-houses would be deemed to be included in the order of allotment. But it does not mean that the other three out-houses which have been independently let out by the landlord for residential or non-residential purposes would not constitute 'accommodation' within the meaning of the aforesaid Clause (a). So this Sub-clause (i) is of no help in deciding the point whether or not a garage is included in the definition of accommodation.

8. If we look to the Dictionary meaning of the word 'accommodation', different meanings have been given to this word. One which can be considered to be material is 'the accommodation that is, lodging and food at a hotel'. The words 'lodging and food' have reference to the accommodation generally provided at a hotel, which is a boarding and lodging place. The hotel may also provide for garaging motors. It may also afford other kinds of accommodation or facilities. It cannot, therefore, be inferred from this Dictionary meaning of 'ac-commodation' that it has specific reference to the user by a human being for his own personal purpose.

9. Coming to the unreported decision of the Division Bench consisting of Desai and Mulla, JJ. in Civil Misc. Appln. No. 96 of 1955 (O. J.), D/- 2-4-1958 (All.) (supra), on the facts of that case the order of allotment which suffered from several illegalities was rightly, if we may say so with respects, quashed by the Bench. The Bench, however, further ruled that a garage was not covered by the definition of 'accommodation' contained in Section 2 (a) and as such it is not at all governed by the provisions of the Act. Desai J. (as he then was) expressed the view that accommodation within the meaning of the Act must be required for occupation by a human being. He further observed:

'The very use of the words 'residential or non-residential' in the definition suggests that what is contemplated is accommodation for a human being because only a human being can be said to use an accommodation for a residential or a non-residential purpose. The words 'residential or non-residential' are inappropriate for describing the use to which a building required by cattle or for inanimate things may be put.'

10. With all respects to the learned Judge we are unable to agree with this view. The cattle, the inanimate things and goods including a motor car are possessed by human beings. If they (human beings) require accommodation or room for keeping those things, the accommodation is being used by human beings, of course, for a non-residential purpose, and not by those inanimate objects. It will be odd to say that the accommodation is being used by the inanimate things which are stored or kept in that accommodation. Desai J. was conscious of this fact when he observed at another place that a car cannot by itself go into a garage or come out of it and it must be taken inside or taken out by a human being, but, according to him, this use by a human being does not convert it into accommodation. He thinks that when a person takes a car into a garage, he is not really using the garage, the garage is used by the car being stored in it. If this reasoning is accepted the building which is hired by a person for being used as a godown for storing his cotton bales or a room which is hired by another person for keeping his household effects in it cannot be said to be used by any human being but only by the cotton bales in one case and by the household effects in the other and so in either case building or the room shall not constitute accommodation. We find nothing in the definition of this term as contained in Section 2 (a) or as given in a Dictionary to warrant such inference.

11. Desai J., himself conceded that the same garage which was at one time used for keeping a motor, shall become an accommodation as defined in Section 2 (a) if it is used for residential purpose or even for such non-residential purpose as carrying on a trade, business or profession therein. When the same garage can, when put to some other non-residential purposes, became an 'accommodation' there is no reason why it should not be treated as an accommodation when used by a person for keeping his car in it. Section 2 (a) of the Act has been generally worded. It nowhere makes reference to the nature of various non-residential purposes. On the other hand, it covers every accommodation whether used for residential or non-residential purpose. The term 'non-residential' must be given a wider meaning and should include any purpose other than the purpose of residence. In that view the keeping of car in a building or part of the building is also a use of that building or part for a non-residential purpose.

12. The other reason given by the Bench for holding that a garage cannot be included in the definition of accommodation contained in Section 2 (a) is that the inclusion of garage, particularly a garage which is not appurtenant to any building, in this definition would put the very constitutionality of the Act in jeopardy. Desai J. expressed himself as follows on this point:

'A garage is a luxury and not a necessity. A car is not a necessity but even if it were, a garage is not a necessity. Accommodation for human beings is necessary and it may be in the interest of general public to restrict the landlord's right guaranteed tinder the Article 19(1)(f) in respect of the accommodation for human beings, but the same cannot be said in respect of sheds for motor cars, garages which are not appurtenant to any accommodation, like the one in dispute must be very few. For these reasons I am not prepared to say that it is in the interest of general public to impose any restriction upon the rights of landlords over garages not appurtenant to lodging. Therefore, if the Act does govern garages which are not appurtenant to buildings used for accommodation it is to that extent ultra vires the legislature.'

13. It is a matter of personal opinion whether in modern times a car or for that matter any vehicle which can be parked in a garage, is only an article of luxury or in many cases it is also a necessity. But we fail to understand how the inclusion of garage in the definition of accommodation would render the Act unconstitutional to that extent. If this reasoning is accepted, it would come to this: if a rich person hires a palatial building for his residence which has four garages also appurtenant to it his tenancy including the tenancy with regard to these garages shall be protected by the Act and the corresponding restrictions imposed on the right of the landlord guaranteed under Article 19(1)(f) shall be justified as being in public interest. But if a poor taxi car driver who earns his living by plying his taxi car on hire, hires a tin shed or a roofed garage for securely keeping his vehicle therein when it is not used by him on the road, he will not be protected by the Act, because the restrictions placed on the right of the landlord to deal with such garage in any manner he likes cannot be deemed as reasonable restriction in the interest of general public within the meaning of Article 19(5). In our opinion, there is no rational justification for this distinction.

14. The preamble of the Act is generally worded for continuance of power to control the letting and the rent of residential and non-residential accommodation and to prevent the eviction of the tenants therefrom. It does not show that the Act has been passed to safeguard the interest of tenants in respect of that accommodation only which is required by him to satisfy his necessities and not some other purpose which may be termed as a luxurious purpose. As noted above, even a poor taxi driver may need a garage for the safe custody of his taxi when it is not being used. It would be quite unreasonable to hold that a garage when hired by a poor person for keeping his taxi car would not be entitled to the protection of the Act but a garage which has been hired by a rich person as appurtenant to the house let out to him for his residence would nevertheless be entitled to such protection. Such a distinction has no legal basis and is not warranted by the provisions of the Act.

15. To sum up, we are of the opinion that a garage which is in the form of a roofed structure by itself or is a part of some other big roofed building is an 'accommodation' within the meaning of Section 2 (a) and is governed by the provisions of the U. P. (Temporary) Control of Rent and Eviction Act. The reference is answered in the affirmative. The second appeal shall now be listed before the learned Single Judge for hearing on other points.


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