BASANTI DEVI Vs. BAL KISHAN PANDEY

JUDGEMENT

(1.) This is a second appeal filed by the Plaintiffs who were the owners of a building, against the judgment and decree of learned I Additional District Judge dated 30-10-1974 affirming the judgment and decree of the learned Munsif, Almora dismissing the suit of the Plaintiffs that the Defendants be restrained from interfering with the reconstruction of the building in a part of which the Defendants were tenants. The question for determination centres round the interpretation of Section 29(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act, 1972). The facts are that the Plaintiffs were the owners of the building known as ' Manullah Building ' situated in Karkhana Bazar, Almora. There were two shops in the said building besides other accommodation; of one of the shops Defendant No. 1 was a tenant and in the other shop Defendant No. 2 was a tenant. In the night of 2-4-1973, the entire building belonging to the Plaintiffs was gutted in fire. The Plaintiffs obtained permission from the Municipal Board to reconstruct the building, but the Defendants caused obstruction. The Defendants asserted that they were entitled to re-erect the shop under Section 29(2) of the Act, 1972.

(2.) Both the trial court and the appellate court accepted the case of the Defendants that they were entitled to re-erect the portions of their tenancy under Section 29(2) of the Act. The case of the Plaintiffs is that Section 29(2) of the Act, 1972 will apply only when the entire building under tenancy constituting a unit is destroyed by virtue of the reasons, as stated in Sub-section (2) of Section 29, but if tenancy relates only to a part of the building, which as a whole was destroyed by the reasons given in Sub-section (2) of Section 29, then Section 29(2) will not confer any right on the tenants to rebuild their portions of tenancy only.

(3.) So the question for consideration is whether on the proper construction of Sub-section (2) of Section 29, the Defendants who were tenants of the two shops, will be entitled to reconstruct the portions of their tenancy under Section 29(2). The learned appellate court, in short, took the view that the definition of the building has been given in the Act, 1972 itself meaning as a residential or non-residential roofed structure and that the two shops let out to the Defendants being roofed structure, constituted the building under the Act, 1972 and, therefore, they were entitled to reconstruct the same under Section 29(2). In my opinion, the view taken by the authorities below is not correct. If the tenants are permitted to reconstruct their portions of tenancy in a much larger building then it will not only cause a great hardship to the owners of the building but that will greatly handicap the tenants also in materialising their right to reconstruct their portions of tenancy. The question is whether the word 'building' occurring in Section 29(2) of the Act, 1972 refers to a unit by itself or to a portion of a big unit/building. The contention of the Plaintiffs is that the word 'building' occurring in Section 29(2) means a unit and not a portion of a big unit/building. I find substance in the submission of the Plaintiffs. The expression 'any building under tenancy' occurring in Sub-section (2) of Section 29 if properly construed, may refer to a unit and not to a portion of a unit. If the building under tenancy is a unit by itself and if that is partly or wholly destroyed by any reason given in Sub-section (2) of Section 29, then only a tenant will have a right to reconstruct the same under Section 29(2) of the Act, 1972. If the Defendants are permitted to reconstruct only their portions of tenancy, then the question arises as to how the rest of the building will be completed. If one has a little idea of the masonry work then it will be seen that a sound construction cannot be made in piecemeal and whole structure has to go together. Though there is no impossibility in raising a much larger building in piecemeal but constructing a building in bit by bit will surely weaken the structure and that will not provide the same strength which would have been there if the whole project is taken up together. The strength of the building is greatly effected by disjointed foundation, walls or roof, which is inevitable, if the entire building Is not constructed at one point of time, but is taken up in different stages. If the tenants construct their portion of tenancy separately and if the rest of the buildiag is completed by the landlords at some other stage, then the construction of the building will not be so strong, as it would have been if the entire construction had been taken up together. The legislature would not have contemplated anything against the interest of the landlords by making a provision that the tenants will be permitted even to construct portions of their tenancy leaving the rest to be completed by the owner of the building. This view finds support by another reason also. Suppose a tenant was a tenant of the second floor and if it is accepted that under Section 29(2) a tenant is entitled to reconstruct a portion of the building, then the question will arise ho-v such a right assumed to have been conferred on the tenant, will be materialised. Unless the ground floor or first floor are completed by the landlord, the tenant will not be able to rebuild his second floor and the right so assumed to have been conferred on the tenant, could not be materialised. So the Section 29(2) has to be construed in such a manner as to not render the rights of the tenants infructuous or ineffective or at the same time not cause any hardship or injustice to the landlords. When Section 29(2) is harmoniously construed, it will follow that the tenants will have a right to reconstruct only if the building under tenancy constituted a separate unit by itself which could be reconstructed when destroyed by the reasons, envisaged by Section 29(2). In that situation the tenant may reconstruct the entire unit without depending on the landlord. This question has come earlier also before this Court and then in the case of Haji Mumtaz Husain v. III Additional District Judge Nainital,1978 ARC 491 this Court interpreted Section 29(2) after reproducing the material portion thereof that if the whole of the building which has been let out to a tenant is destroyed by any of the reasons mentioned in Sub-section (2) of Section 29, the tenant would certainly have a right to construct the building, but where a portion of the building alone was let out, the tenant cannot have a right to reconstruct. I wholly agree with the view taken in the said decision and hold that the view taken by the courts below of Section 29(2) is wholly untenable in law. The Learned Counsel for the Respondents relied on the case of Mohammad Shafi v. VII Addl. District and Sessions Judge All., 1977 AIR(SC) 836. Relying on this, he submits that under Section 29(2), the word 'building' does not mean a unit but that refers to a portion of the unit as well. The authority which is relied on does not support his contention. The Supreme Court interpreted the word 'building' as occurring in Explanation IV to Section 21(1) of the Act, 1972. The Explanation IV raised a presumption regarding the bonafide need of the landlord and that was in the following word: