CIVIL REVISION NO.2789 OF 1984 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 23 , 2008 Pishori Lal .....Petitioner VERSUS Sh.Thakur Ji, Thakurdwara Sunami Gate, Patiala And others. ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? PRESENT: Mr. A. K. Jain, Advocate, for the petitioner. Mr. Arihant Jain, Advocate. **** RANJIT SINGH, J. This order will dispose of the above-noted Civil Revision No.2789 of 1984 (Pishori Lal Vs. Sh.Thakur Ji, Thakurdwara Sunami Gate, Patiala and others) and Regular Second Appeal No.644 of 1993 (Shri Thakur Ji, Thakur Dwara Sunami Gate, Patiala and another Vs. Municipal Committee, Patiala and another), which was ordered to be heard alongwith this revision CIVIL REVISION NO.2789 OF 1984 :{ 2 }: petition vide order dated 3.3.2004. The revision is of an old vintage and has now reached its turn for hearing. The order impugned is the one passed by Appellate Authority, Patiala, up-holding the order dated 30.4.1982 passed by Rent Controller, Patiala. Petitioner, Pishori Lal, took on rent the land comprised in Khasra No.313 min and 314 min situated outside Sunami Gate, Patiala, at the rate of Rs.80/- per month from a religious Institution, named, Shri Thakur Ji, Thakur Dwara, Sunami Gate, Patiala (respondent No.1). The property was taken on rent through Mohatmim Jagan Nath. The rent deed was executed and is dated 14.7.1975. Though, the petitioner was only allowed to construct one shed and one Kacha room for his residence and office purposes, but contrary to the terms of the rent note, he had constructed 13 shops on the rented land. It is claimed that the petitioner has, thus, materially impaired its value and utility of the rented premises. Grievance further is that the petitioner has sub-let these shops in favour of respondent Nos.3 to 16. Respondent Nos.17 to 20 were subsequently inducted as sub-tenants during the pendency of the ejectment application. It is also pleaded that the petitioner is in arrears of rent since August 1977 and, thus, petition for eviction was filed on the grounds of sub-letting, impairing the value of the property and arrears of rent. Only the petitioner had contested the rent petition. The remaining respondents absented after putting in appearance on some dates and subsequently were proceeded exparte. The petitioner did not dispute the tenancy but pleaded CIVIL REVISION NO.2789 OF 1984 :{ 3 }: that he was inducted as a tenant in the year 1971 and the rent deeds were executed every year upto 1977. The petitioner further pleaded that the respondent-landlord had with-held these rent deeds and that in the rent deeds dated 30.4.1976 and 7.10.1977, the petitioner had been permitted to raise construction on the rented land at his own cost. The petitioner also claims that he was authorised to make construction in terms of the contract of tenancy and even to sub-let the same. He has accordingly pleaded that there is no case of either material impairment or sub-letting etc. Respondent Nos.3,5,8,12,13 and 20 had filed written statements but pleaded ignorance about the relationship of landlord and tenant between the petitioner and respondent No.1. Respondent Nos.11,15 and 16, however, filed reply to the application, supporting the plea taken by the petitioner, pleading that they had taken shops on rent from the petitioner with the consent of respondent No.1. The Rent Controller framed the following issues:- “1. Whether respondent No.1 has materially impaired the value and utility of the rented land? OPA 2. Whether respondent No.1 has further sub-let the premises with the consent of the application? OPR 3. Relief.” The issue of impairing the value and utility of the land was decided against respondent No.1-landlord by the Rent Controller. However, it was found that the landlord had never given a written permission to the petitioner to construct to sublet the same and, thus, the issue was decided against the petitioner, directing his ejectment. CIVIL REVISION NO.2789 OF 1984 :{ 4 }: The Appellate Court has up-held the finding of the Rent Controller, thus, leading to filing of the present revision petition. There is not much dispute on the factual matrix in this case. It is conceded that the petitioner had built the shops and sublet them in favour of respondent Nos.3 to 21. The petitioner could not lead any evidence to show that there was a written consent of the landlord, respondent No.1, for subletting the rooms built on the land which was taken on rent by the petitioner. However, the plea which was canvassed before the Appellate Court as well as before this Court is to the effect that rooms built on the land taken on rent would not amount to subletting as the rooms were admittedly built by the tenant and their ownership would be different from the ownership of the rented land, which may be owned by the landlord, respondent No.1. In support of this proposition, the learned counsel has placed very heavy reliance on the case of Hari Parshad Gupta Vs. Jatinder Kumar Kaushik, 1982 All India Land Laws Reporters 246 and on the case of Mrs.Dosai Bai Vs. L.Khem Chand Gorumal, AIR 1966 Supreme Court 1939. On the other hand, counsel for respondent No.1 would say that the facts in these cases were entirely different and distinguishable and as such, the ratio of law laid down in these authorities can not be applied to the present case. According to the counsel, subletting of a portion of a rented land is also necessarily involved even if tenant sublet a building constructed by him on the rented land, which even had been raised with the consent of a landlord. Support is sought from the ratio of law laid CIVIL REVISION NO.2789 OF 1984 :{ 5 }: down in Madan Lal Vs. Smt.Vidya Wati and others, 1981 PLR 18 and Gurdial Singh and others Vs. Pran Nath, 1973 PLR 592. As noticed above, the counsel for the petitioner has placed strong reliance on the Full Bench decision of this Court in the case of Hari Parshad Gupta (Supra). The observations made by Full Bench of this Court, as relied by counsel for the petitioner, that there can be two distinct ownerships and that lessor can be owner of a plot and lessee can be owner of a building appears to have been made in entirely different context. This observation came to be made while interpreting the true import and scope of State Government notification dated 3.6.1959 issued under Section 3 of the East Punjab Urban Rent Restriction Act, 1947 (for shot, “the Act”). As per this notification issued under Section 3 of the Act, Governor was pleased to direct that the aforesaid Act shall not be applied to the building, rented land belonging to the Municipal Committee, N.A.Cs, District Boards or Panchayats. The question in this case related to the jurisdiction of the Rent Controller to entertain and decide the application under the provisions of the Act. It was argued that if a construction is raised on a piece of land taken on lease from the Municipal Committee, then the super-structure also belongs to the Committee and, thus, in view of the notification the provisions of the Act would not apply. Reliance was placed on the Single Bench judgment of this Court in Kirpal Singh Vs. Parabhjot Singh , (1970) 72 P.L.R. 431. The matter was then referred to a Larger Bench and that is how it came to be decided by Full Bench of this Court. The observation in regard to the maintainability of the petition under the CIVIL REVISION NO.2789 OF 1984 :{ 6 }: Act was made while interpreting the notification. Still, it was held that the matter essentially is dependent on the terms of a contract between the parties. It is further held that the factum of consent or no consent by the Municipal Committee or the local authority to the construction raised by the lessee on the demised municipal land is not decisive of the matter. It is the form and substance of the term of the lease entered into between the municipal committee and the lessee that have to be considered and construed to find out whether the building on the leased land belongs to municipal committee or not. It was on this fact that the jurisdiction of the Rent Controller was dependent and in the absence of terms and conditions of the lease, the Court came to take the view that the building in this case too belongs to Municipal Committee, Gurgaon. Further in this case, the lease was in respect of two rooms including one constructed by the petitioner on the municipal land and it was held that Rent Controller, thus, would have jurisdiction to go into the matter. The Court has further held that the legislature did intend to confer immunity from the operation of the Act on the premises leased out by the municipal committee but it did not mean that the petitioner or the lessee by changing those premises into different types of construction on the plot of a land demised in his favour does not lease out a different premises to his tenant. It was further observed that answer to the whole issue is dependent upon the question what was actually let out to a tenant in a particular case. Thus, it is seen that the observation in this case came to be made in entirely different context, while interpreting the provisions of the notification issued by the CIVIL REVISION NO.2789 OF 1984 :{ 7 }: Government. This Court in the case of Madan Lal (supra) has clearly held that where landlord had let out vacant site to a tenant and later had constructed a Kotha thereon and let out the same to the sub- tenant and the landlord seeks ejectment of the tenant on the ground of subletting, that the position of the tenant on the rented land would not undergo any change with the construction that may be made by him thereon. As held in the event of building constructed on the rent land being let out, it can not be said that subletting of land therein is not involved. Contrary observation, if any, noticed in the Full Bench decision of this Court in the case of Hari Parshad Gupta (supra) were made in the context of the notification, which was being considered and in the absence of the term of lease as can be seen from the following:- “In the case in hand the terms and conditions of the lease entered into between the petitioner and the Municipal Committee, Gurgaon, are not before us. In the absence of the same and on the basis of the admitted facts that the petitioner has raised the construction on the land, which he had taken on lease from the Committee and it was this construction which had been leased but to the respondent tenant by the petitioner it cannot possibly be held that the building in this case too belongs to the Municipal Committee, Gurgaon. As between the petitioner and the respondent what has been leased out is the building, that is the two rooms including the only constructed by the petitioner on the municipal land. Thus apparently the Rent CIVIL REVISION NO.2789 OF 1984 :{ 8 }: Controller had the jurisdiction to go into the matter.” To further clarify, reference can be made to the observations made by the Full Bench in the above-noted case, wherein difference between the words `building' and the `rented land' as used in the notification are referred to say that these are two different concepts or identities and have respectively been defined in clauses (a) and (f) of Section 2 of the Act. The different concept of buildings and rented land, thus, have been formulated by referring to the Privy Council decision in the case of Narain Dass Vs. Jatinder Nath, AIR 1927 Privy Council 135. In this case, the English decision in the case of Thakoor Chunder Proamanick Vs. Ramdhone Bhattachsbarjee, 6 Suth J.R. 228, is also referred to, to say that there is no law or custom in this country, showing traces of the existence of an absolute rule of law that whatever is affixed on a building or soil becomes part of it subjected to the same rights of property as the soil itself. Though the land and building may be held to be not same but still this judgment would not support the proposition that by taking a land on rent, the tenant can be permitted to raise construction without the consent and then plead that it would not amount to subletting as is being done in the present case. The ratio of Madan Lal's case (supra) would apply to this case whereas the ratio of law laid down in Full Bench decision in Hari Parshad Gupta's case (supra) is not attracted at all to the facts of the present case. I do not find any infirmity in the view taken by the Appellate Court. Even otherwise, the petitioner in this case had clearly CIVIL REVISION NO.2789 OF 1984 :{ 9 }: admitted that the shops had been sub-let and the case now set-up by him before the Appellate Court and before this Court that letting of the rooms built by him on the land would not amount to sub-letting. The petitioner can not be allowed to plead entirely a different case than set up by him before the Rent Controller. The petitioner has also not been able to establish anything from record to show that there was any written consent for construction or sub-letting, which could justify the action of the petitioner in this regard. Thus, the submissions made by learned counsel for the petitioner are without any merit and deserves to be rejected. The order impugned in the Regular Second Appeal is that of Additional District Judge, Patiala, whereby suit filed by respondent No.1 (in the revision petition) against the Municipal Committee, Patiala and Pishori Lal (petitioner in the revision petition), for restraining Municipal Committee, from recovering any amount of house tax from respondent No.1 (in the revision) has been dismissed and so also the appeal against the said order. The plea in this case is that only vacant plot had been rented to petitioner, Pishori Lal, who has illegally constructed several Khokas and had leased these out to different persons and is realising rent from them. The plea of respondent No.1 that the house tax is recoverable from the tenant, Pishori Lal (petitioner in revision) is declined, which is under challenge in the present Regular Second Appeal. It has rightly been held by the Courts that under the Act, landlord is entitled to recover the house rent paid by him to the Municipal Committee from the tenant and it is nowhere provided that the house tax is recoverable CIVIL REVISION NO.2789 OF 1984 :{ 10 }: by the Municipal Committee from the tenant and not from the landlord. It would, thus, be seen that respondent No.1 has been recognised as landlord even by petitioner, Pishori Lal, not only of a land but in regard to Khokas that he has constructed. Respondent No.1 has also been held liable to pay house tax not only of land but also of Khokas constructed thereon with liberty to recover the same from Pishori Lal, petitioner, who had been held to be a tenant. The counsel have not been able to point out anything which may call for any interference in this finding. Accordingly, both the Civil Revision as well as Regular Second Appeal would stand dismissed. April 23 ,2008 ( RANJIT SINGH ) khurmi JUDGE