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Lalsang Bhimji Vs. Hamidmiyan Huseinmiyan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1966)7GLR861
AppellantLalsang Bhimji
RespondentHamidmiyan Huseinmiyan
Cases ReferredMohanlal v. Prabhcuhanker
Excerpt:
- - the appellant came in the premises as a tenant on 25th october, 1955 but failed to pay any rent and this suit was filed on 15th november, 1956. the appellant raised various contentions one of which was that he cannot be evicted in view of the provisions of the saurashtra rent control act, 1951, (act no......appellate judge has accepted the respondent's version. the old building was, however, a different building and it consisted only of one single room which was let out as one shop before 1948 a. d. it was vacated before 1948 and was lying vacant. then the building underwent considerable changes to which i shall refer presently and new tenants came into the building in october and november 1955- one being kanubhai and the other the appellant. it is now necessary to notice what changes took place. the old building as i have stated earlier consisted of a single room. it had windows in the front wall and no doors. it is admitted by the appellant that the new building has cement flooring, r. c. c. roof and its front wall has doors in place of windows. it is also admitted that there is a.....
Judgment:

Akbar S. Sarela, J.

1. This appeal arises from a suit for eviction filed by the respondent against the appellant. The appellant who was the tenant of the respondent was sought to be evicted from a shop occupied by him at a monthly rent of Rs. 31/- as a tenant. The appellant came in the premises as a tenant on 25th October, 1955 but failed to pay any rent and this suit was filed on 15th November, 1956. The appellant raised various contentions one of which was that he cannot be evicted in view of the provisions of the Saurashtra Rent Control Act, 1951, (Act No. XXII of 1951). He also prayed for fixation of standard rent under that Act. It is not necessary to refer to the other contentions as they do not come up for consideration in second appeal. The trial court found against the appellant in respect of the contention that the Saurashtra Rent Control Act applied and that the standard rent could be fixed thereunder. The appellant went in appeal to the District Court and the learned District Judge, Jamnagar, by his judgment dated 27th of July 1960 has taken the same view as the trial court and has dismissed the appeal. The appellant has therefore come to this Court in second appeal.

2. The only point urged before me by Mr. R.C. Mankad who urged the appeal on behalf of the appellant is that the Saurashtra Rent Control Act 1951 (to be referred to hereinafter as the Act) applies to the premises in suit. It is not in dispute that the city of Jamnagar in which the premises are situated is within the area to which the Act extends. The short point which was urged before the lower courts and also before this Court is whether the premises are exempted from the operation of the Act under Section 4(2) of the Act. Sub-Sections (1), (2) and (3) of that section specify the premises to which the provisions of the Act do not apply and which are therefore described as exempted premises. Under Sub-section (1) the Act shall not apply to any premises belonging to the Government or a local authority. Under Sub-section (3) the Government has power to exempt from all or any of the provisions of the Act certain premises used for a public purpose of a charitable nature or any class of premises used for such purpose, premises used by a public trust for a religious or charitable purpose and let at a nominal or concessional rent or premises held by a public trust for a religious or charitable purpose and let with a view to applying the proceeds of rent to such purpose. We are not concerned here with sub-Sections (1) and (3) but with Sub-section (2) with reads as under:

This Act shall not apply to new premises erected and let for the first time on or after the 1st January 1951.

And the short question which has been argued before me is whether the suit premises fall within the class of premises covered by Sub-section (2) that is to say whether they are 'new premises erected and let for the first time on or after the 1st January 1951'.

3. It is necessary to clear the ground with reference to the findings of fact on the question of construction of suit premises, the time they were constructed or re-constructed and the nature of re-construction The premises as they stand at present consist of two shops one of which is occupied by the appellant as a tenant since 25th October 1965 and the other occupied by another tenant named Kanubhai who came on the premises according to his evidence on 13-10-1956. It is undisputed that the building as it now stands is a comparatively recent construction. According to the landlord the building as it now stands was fully constructed in 1955 and according to the appellant it was constructed in or about 1951-1952. The learned appellate Judge has accepted the respondent's version. The old building was, however, a different building and it consisted only of one single room which was let out as one shop before 1948 A. D. It was vacated before 1948 and was lying vacant. Then the building underwent considerable changes to which I shall refer presently and new tenants came into the building in October and November 1955- one being Kanubhai and the other the appellant. It is now necessary to notice what changes took place. The old building as I have stated earlier consisted of a single room. It had windows in the front wall and no doors. It is admitted by the appellant that the new building has cement flooring, R. C. C. roof and its front wall has doors in place of windows. It is also admitted that there is a partition wall dividing the building into two. The learned trial Judge and the learned appellate Judge have both held that the plinth of the new building is new and the walls are new and have been constructed from foundation upwards. Mr. Mankad has not been able to urge that the finding of the lower courts should not be accepted on this aspect of the matter. That being so it must be held that whereas the old building consisted of a single room, had mud floor tiled roof and windows in the wall the new building has a new cemented floor, new R. C. C. roof, four walls with doors in the front wall erected on fresh foundation and a new plinth which is higher in level than the old plinth. As to the time when this new building came into existence the respondent led the evidence of the contractor who had constructed it and relying on that evidence the learned appellate Judge held that the old building was pulled down by 1951 and construction was started in 1951 but was left because of the dispute between the contractor and the respondent and then really commenced and completed in 1955. The new building therefore according to the learned appellate Judge came into existence in 1955. There is no sufficient reason for not accepting that finding.

4. In the light of these facts the position of law may now be considered. Mr. Mankad for the appellant argued that even if the building as it now stands came into existence after first of January 1951 it cannot be called a new premises erected and let for the first time after 1st of January 1951 within the meaning of that expression as used in Section 4(2) of the Act. He first invites my attention to the definition of the expression 'premises' in Clause (4) of Section 5 of the Act. Under Sub-clause (a) of Clause (4) of Section 5 'premises' means any land not being used for agricultural purposes. We are not concerned with this sub-clause and Mr. Mankad does not rely on it. Under Sub-clause (b) of Clause (4) 'premises' means ' any building or part of a building let separately (other than a farm building)' and thereafter follow certain inclusive parts of the definition such as garden, grounds, garages and outhouses etc., with which we are not concerned in this case. Therefore, under Sub-clause (b) on which Mr. Mankad relies, 'premises' means a building or a part of a building let separately. Mr. Mankad says that before the first of January 1951 there were in existence premises as so defined because there was an old room which had been let out and therefore when those premises are re-built then whatever may be the shape or character of the new building they still are premises and can never become new because they were formerly premises falling within the definition of Section 5(4). 1 am not able to appreciate that argument. No doubt the old room was premises as defined by that Sub-clause (b) of Section 5(4) but if that old room ceased to exist there will be no premises as defined under Sub-clause (b) of Clause (4) and when thereafter new rooms came into existence at that very place, although they become premises within the meaning of Sub-clause (b) they are not the same premises. They are not the same building or a part of the building let separately. The mere fact that they are premises as defined, as contended by Mr. Mankad, does not preclude the consideration of the question whether or not they are new premises. The argument of Mr. Mankad on the definition of the expression 'premises' is not therefore sustainable.

5. Mr. Mankad's next argument is that under Section 4(2) of the Act the premises to which that provision applies must be erected and let for the first time on or after first of January 1951. His argument is that the words 'for the first time' indicate that there were no premises at that place before. It is not possible to accept that argument either. The expression 'for the first time' has reference to the erection and letting. If after the premises are erected and let on or after first January 1951, they are again re-erected, then although that may be done after first of January 1951, Section 4(2) would not apply. No doubt, the erection and letting 'for the first time', has reference to the premises which are so erected and let but if the words 'for the first time' qualify the word 'premises' in the manner suggested by Mr. Mankad there was no need for the use of the expression 'new' before the word 'premises'. The next argument of Mr. Mankad is that at any rate the expression 'new' indicates that, the premises to which Section 4(2) relates have come up for the first time and that at that place there was nothing in existence before which could come within the definition of the expression 'premises'. The expression 'new' has not been defined in the Act and that expression must be given its ordinary meaning consistent with the context. The expression is used in connection with premises erected. Now 'premises' means a building or part of a building. For a building to be new or newly erected it is necessary that there shall be no building at that place before. If a building is destroyed and a different building takes it place whether on the whole or part of the area on which the old building stood it would be reasonable to call it a new building. If the building is not destroyed but undergoes a reconstruction then whether or not the result is a new building would depend upon the nature of the re-construction. The question to be asked in cases of this nature is whether there is a change of identity. If there has been a change of identity then what has come into existence is a new building. If the building is new in accordance with this test, the premises can be called new premises within the meaning of that expression used in Section 4(2). In Chapsi v. Keshavji A.I.R. 1921 Bom. 225 the question that arose for consideration before the court was whether the standard rent of a particular godown could be fixed under the provisions of the Bombay Rent (War/Restriction) Act 1918. If it was a new building the restrictions as to rent were not attracted. It appears that there was an old godown before that Act came into force and if that godown had continued with the old rent which was Rs. 100/-per month that would have been the standard rent. But the godown was re-constructed. The whole building was practically re-built, re-roofed and re-floored and a new chowk was made to bring in more light and air. Most of the beams and joists were removed and new ones were put in. His Lordship held that it was a new building. The test, according to the learned Judge, is whether for all practical purposes a new building in place of the old building has come into existence. In Ibrahim Fazalbhai v. Jan Mahomad Rahim A.I.R. 1927 Bom. 648 a similar question arose in respect of the premises under consideration in that decision. In that case a wall had fallen down and extensive alterations had been made. His Lordship held that although the court can guard itself against any judicial decision that a landlord can by a pretence of substantial alterations deprive tenants of the benefit of standard rent, the test in each case is whether there has been a change of identity. The same test was applied in Gopalji v. Devji A.I.R. 1929 Bom. 220. Therefore the test is whether on a consideration of the facts established there has been a change of identity. No doubt those cases did not consider a provision of the nature made in Section 4(2) of the Act which is under consideration in this appeal, but that very test was applied by the Saurashtra High Court in Mohanlal v. Prabhcuhanker VI Sau. L.R. 378 in respect of the said Section 4(2).

6. Applying that test there is no doubt that the premises in this case which have undergone the changes which have been earlier set out are in identity entirely different from the old premises and are therefore new premises within the meaning of Section 4(2).

For these reasons the decision of the lower appellate court is correct and the appeal is therefore dismissed with costs.


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