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1999 Supreme(Pat) 1046
PATNA HIGH COURT
S.N.Jha, J.
Binay Kumar Maheshwari
Versus
Fanindra Prasad Mishra
Civil Revision No. 1041 of 1999 ;
Decided On : OCTOBER 4, 1999
The provisions of the BBC Act, including the special procedure under Section 14, are applicable to a lease of vacant land where the lessee is permitted to construct a building on the land and the cost of construction is treated as rent paid in advance.
Headnote:
BBC ACT - LEASE OF VACANT LAND - SECTION 2(B), 105, 11(1)(E), 14 - WHETHER THE PROVISIONS OF THE BBC ACT ARE APPLICABLE TO A LEASE OF VACANT LAND - WHETHER THE SPECIAL PROCEDURE LAID DOWN UNDER SECTION 14 OF THE ACT WOULD APPLY.
Fact of the Case:
The petitioner filed a civil revision against the order dismissing his objection to the maintainability of a suit for eviction on the ground of expiry of the tenancy period under Section 11(1)(e) of the Bihar Buildings (Lease, Rent, and Eviction) Control Act, 1982 (BBC Act). The petitioner argued that the BBC Act was not applicable as the subject matter of the lease was a vacant piece of land and that the special procedure under Section 14 of the Act did not apply.
Finding of the Court:
The court held that the subject matter of the lease was a building, not a vacant piece of land, as evidenced by the recitals of the lease deed which permitted the lessee to construct a pucca double-storied house at his own expense, with the cost being treated as rent paid in advance. The court also held that the BBC Act was applicable and that the special procedure under Section 14 applied to suits filed on the ground of expiry of the tenancy period.
Issues: 1. Whether the provisions of the BBC Act are applicable to a lease of vacant land. 2. Whether the special procedure laid down under Section 14 of the Act would apply.
Ratio Decidendi: 1. The court interpreted Section 2(b) of the BBC Act, which defines 'building' as 'any structure or part thereof used or intended to be used for residential, commercial, industrial or any other purpose, whether of permanent or temporary nature', and held that the subject matter of the lease, which was a vacant piece of land with a partially constructed wall, fell within this definition. 2. The court interpreted Section 14 of the BBC Act, which provides a special procedure for suits filed on the ground of expiry of the tenancy period, and held that it applied to the present case since the suit was filed on this ground.
Final Decision: The court dismissed the civil revision, holding that the BBC Act was applicable to the lease and that the special procedure under Section 14 applied to the suit.
1. This civil revision by the defendant is directed against the order dated 14.5.99 in Title suit No. 26/94 dismissing his objection as to maintainability of the suit.
2. The suit has been filed for eviction on the ground of expiry of period of tenancy in terms of Section 11(1) (e) of the Bihar Buildings (Lease, Rent, and Eviction) Control Act, 1982 (in short the BBC Act). The objection of the petitioner is two-fold. Firstly it is said that as the subject-matter of the lease is a vacant piece of land, the provisions of the BBC Act are not applicable, and secondly, in any view, the special procedure laid down under section 14 of the said Act would not apply. In support of the plea that the subject matter of the land is a vacant piece of land, Shri Sidheshwari Prasad Singh, learned counsel for the petitioner placed frontal reliance on the description of the premises as mentioned in the schedule to the lease deed. Shri Chittaranjan Sinha, learned counsel for the opposite party, on the other hand, referred to the recitals of the deed in support of his contention that what was leased out and the subject-matter of the lease, is building and not any vacant land. At this stage it would be useful to refer to the description of the premises as mentioned in the schedule and then to refer to the relevant recitals of the deed as under:
"Description of the lease-hold premises: In Deoghar Town within ward no.2, a portion of holding no.152 apparently a vacant piece of land measuring about in length 48 feet and in which (sicwidth ?) 38 feet, with brick pillars and unfinished, unplastered one wall towards North of the height of about seven feet only bounded as follows:-
.................."
"1. The lessor hereby lets out the said premises fully described below in schedule "A" for a period of twenty years commencing from the date of registration of this Deed of Lease at a monthly rental of Rs.275/- payable by the Lessee unto the Lessor, after adjustment as specified clearly hereafter.
2. The Lessee hereby takes the same on rental aforesaid, which he shall pay in the first week of the succeeding month for which the rent falls due after adjusting the same in the manner set in here below.
3. That on and from the date of tenancy and within a reasonable time, the Lessee, which the Lessor hereby permits shall build/construct pucca double storied building for Lessees own business and residence purposes according to his own choice, suitability and convenience after obtaining necessary sanction from Municipality afresh after submitting plan and petition duly signed by the Lessor, and in such construction the Lessee shall extend spend and invest all that the amount actually needed for such construction subject to a maximum of Rs. 25,000/- (twenty five thousand) only which investment actually made subject to a maximum of Rs. 25,000/- shall be deemed to be rent paid in advance to the Lessor by the Lessee. The tenancy shall commence and shall be deemed to commence on and from the date of registration of the Lease, but the monthly rent as aforesaid shall be payable after adjustment set in and specified below on and from the first day of November 1974, which rent and all successive rents shall be paid as aforesaid by the first week of the succeeding month for which the rent falls due."
3. It is clear from the above that the lessee i.e. defendant took the premises on lease on payment of monthly rental of Rs. 275/- payable in the manner stated in paragraph 3. As per the recitals of paragraph-3 the lessor i.e. the plaintiff permitted the lessee to build pucca double storied house at his own expenses subject to ceiling of Rs. 25,000/- which amount was to be treated as rent paid in advance to the lessor @ Rs. 275/- per month as provided in preceding paragraph, it would thus, appear that the subject-matter of the lease really was building which the parties agreed, would be constructed by the lessee at his own expenses and the cost or expenses was to be treate
