Ashok Kapil
Vs. Sana Ullah & Ors [1996] INSC 1203 (25 September 1996)
Thomas
K.T. (J) Thomas K.T. (J) Kuldip Singh (J) Thomas.J
ACT:
HEAD NOTE:
J U D
G M E N T
The
controversy between the parties in this appeal has narrowed down to a very
short question. A building became roofless before "allotment order' was
passed under Section 16(1) of U.P. Urban Buildings [Regulation of Letting, Rent
and Eviction] Act, 1972 [for short' the Act'] The question now remains in this
appeal is: should the structure have necessarily been a roofed one on the date
of allotment order? A summary of facts, out of which the said question has
emerged, is given below:
A
building situated at Meerut City owned by the contesting respondents' father [Sana Ullah]
was let out to one Deep Chand Gupta for a period of 5 years. On the expiry of
lease period i.e. 3.8.1974, Deep Chand Gupta surrendered vacant possession of
the building to the landlord. On 20.8 1974, the present appellant moved an
application before the District Magistrate [who is the competent authority for
passing allotment order under the Act] for allotment of the said premises to
him. Sana Ullah filed his objections on 3.9.1974,
in which he contended, inter alia, that the structure was not a
"building" inasmuch as it had no roof then. The District Magistrate
found that the structure was still a building and hence appellant was entitled
to its allotment. The case had thereafter passed through a chequered career
District Judge [the revisional authority under the Act] remanded the case on
two occasions to the District Magistrate for arriving at certain findings on
facts. Finally it was found that the building was a roofed structure when Deep Chand
Gupta vacated it, but subsequently its tin roofs were dismantled by the owner
of the building and that the structure remained roofless even on the date of
allotment order. Nevertheless, allotment order was passed by the District
Magistrate. Pursuant thereto the appellant occupied the building. In the
revision learned District Judge held that District Magistrate had jurisdiction
to allot such structure to the tenant and confirmed to the allotment order.
Landlord
filed a writ petition before the Allahabad High Court challenging the aforesaid
order. The High Court declined to interfere with the finding on facts that the
roof of the building was removed by the appellant after Deep Chand Gupta
vacated the premises but took the view that "an order of allotment under
Section 16 can be made only in respect of a building and not with respect to a
construction which was a building at the time when it was vacated but
subsequently ceased to be so." According to the learned Single Judge as
the legislature did not confer power of allotment in respect of a construction
which ceased to be a building at the time of allotment, the order of allotment
made in favour of respondent 4 was liable to be set aside." Writ petition
was hence allowed and the allotment order was quashed. The said judgment of the
Allahabad High Court is now being challenged in this appeal by special leave.
Before
we proceed to consider the question set out earlier we may observe that learned
counsel for the respondents assailed the concurrent finding of fact that roof
of the building was pulled down by the landlord. But we made it clear that in
view of the clear finding made by the District Magistrate and the learned
District Judge on that issue and in view of the fact that High Court declined
to disturb that finding, we would not go into that aspect in this appeal.
"Building"
is defined in Section 3(i) of the Act thus:
"building,
means a residential or non residential roofed structure and includes
(i) any
land (including any garden), garages houses appurtenant to such building;
(ii) any
furniture supplied by the landlord for use in such building;
(iii) any
fittings and fixtures affixed to such building for the more benefitial
enjoyment thereof." It is clear from the definition that any structure
without roof cannot fall within the ambit of the definition.
Here
the factual position is this: The structure remained a roofed building when it
became vacant but the roof was later dismantled by the owner. So on the date of
allotment order it remained rootless.
If the
crucial date is the date of allotment order, the structure was not a building
as defined in the Act. But can the respondent be assisted by a court of law to
take advantage of the mischief committed by him? The maxim "Nullus commodum
copere potest de injuria sua propria" (No man can take advantage of his
own wrong) is one of thee salient tenets of equity Hence, in the normal course,
respondent can not secure the assistance of a court of law for enjoying the
fruit of his own wrong.
While
considering the question whether District Magistrate would cease to have
jurisdiction to pass allotment order in respect of a roofless structure we may
refer to the relevant provisions of the Act.
Chapter
III of the Act contains a fasciculus of provisions (Sections 11 to 19) dealing
with allotment etc.
under
the heading Regulation of Letting". Section 11 prohibits the letting of
any vacant building except in pursuance of an allotment order issued under
Section 16.
Section
12 enumerates cases in which there would be deemed vacancy of building. Section
13 declares that if any person occupies a building which fell vacant otherwise
than under an order of allotment he would be deemed to be an cunauthorised
occupant of the building. Section 15 casts an obligation on the landlord as
well as the tenant to give notice of vacancy of the building to the District
Magistrate. (Landlord has to give such notice within 7 days of the occurrence
of such vacancy, whereas the tenant has to gives the notice within 15 days
prior to the date of vacancy. Section 16(1) reads thus:
"16(1).
Allotment and release of vacant building.-- (1) Subject to the provisions of
the Act, the District Magistrate may by order - (a) require the landlord to let
any building which is or has fallen vacant or is about to fall vacant, or a
part of such building but not appurtenant land alone, to any person specified
in the order (to be called an allotment order);
Jurisdiction
of the District Magistrate, therefore, is in respect of a building which is
either vacant or which "has fallen vacant" or is about to fall
vacant.
If a
structure was a building as per the definition at the time when it fell vacant,
the District Magistrate, no doubt, gets jurisdiction to initiate proceedings
for passing allotment order. But would he lose jurisdiction merely because the
structure became roofless subsequently? No doubt, if we go by the definition in
Section 3(i) stricto sensu, the structure without roof will cease to be
building.
But a
roofless structure can still continue to be building outside the fixed borders
of the definition. It is now necessary to notice that Section 3 of the Act,
which contains all. the definition clauses, prefaces with the words
"unless the context otherwise requires". Thus the legislature which
fixed contours for different expressions through the definition. clauses has
also provided sufficient play at the joints for contextual adaptations. In
other words, contextual varfations are not impermissible under the Act if such
variations are necessary to achieve the object of the enactment. Outside the
definition in Section 3 of the Act the word "building" need not
necessarily be a roofed structure for even roofless structures are, sometimes,
used as buildings in certain circumstances.
Stroud's
"Judicial Dictionary" (Vol.I of the 5th edn.) states that. "what
is a building must always be a question of degree and circumstances".
Quoting from Victoria City V. Bishopo of Vancouver Island (1921 AC 384, at p. 390).
the celebrated lexicographer commented that " the ordinary and natural
meaning of the word building includes the fabric and the ground on which it
stands". in black's Law dictionary (5th Edn) the meaning of the building
is given as " a structure or edifice in closing a space within its walls,
and usually, but not necessarily, covered with a roof" [emphasis supplied]
The said description is recognition of the fact that roof is not necessary and
indispensable adjunct for building because there can be roofless buildings. So
a building, even after losing the roof, can continue to be a building in its
general meaning taking recourse to such general meaning in the present context
would help to prevent a mischief.
The
upshot is, if the District Magistrate has commenced exercising jurisdiction
under Section 16 of the Act, in respect of a building which answered the
description given in the definition in Section 3 (i), he would well be within
his jurisdiction to proceed further notwithstanding the intervening development
that the building became roofless.
We are
inclined to afford such a liberal interpretation to prevent a wrong doer from
taking advantage of his own wrong.
We
therefore, allow this appeal and set side the judgment of the Allahabad High
Court. There will be no order as to costs.
However,
considering the importance of the locality in which building is situate and the
palpably low rent which appellant is now paying, we have no doubt, in the
interest justice, the appellant should pay higher rent. After hearing the
counsel on both sides regarding this aspect, we fix the monthly rent of the
building at Rs.500/-. Appellant shall pay rent at the enhanced rate from
1.8.1996 onwards.
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