M. Sen Sharma vs Ambika Prasad Sharma

D.B. Deshpande, J.—This revision raises a short interesting question in the following manner:-Petitioner was a tenant of the respondent-landlord on the first floor of the building. The first floor was admittedly constructed by the landlord some time after 1956 after obtaining necessary permission from the Nagpur Municipal Corporation in that behalf. The ground floor below this first floor was already standing and was constructed before 1-1-1951. The landlord respondent-plaintiff started ejectment proceedings against the petitioner-tenant contending that the first floor was constructed after 1952 and as such it was exempted from the operation of the C. P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as the Rent Control Order) and he prayed for the recovery of arrears of rent etc. The petitioner-tenant resisted this claim. The only question before the learned judge of the small causes court at Nagpur was whether the first floor was constructed after 1-1-1951, and after considering the material on record learned judge held that the first floor was constructed after 1-1-1951 and as such was exempted from the operation of the Rent Control Order. He, therefore, passed a decree for possession, for arrears of rent etc. Feeling aggrieved by this decision the tenant-defendant has filed this revision application.

There is hardly any dispute about the fact that the ground floor was in existence prior to 1-1-1951. The first floor was constructed some time in 1956 after obtaining the sanction on 25-6-1952. Hence according to landlord the first floor is exempted from the operation of the Rent Control Order. Now the relevant Notification in this respect is as follows :

State Government have exempted from the operation of all the provisions of the said order any house used for residential purposes if the house is constructed on a site lying vacant on 1st January 1951 or on a site made vacant on or after that day by demolition of any structure on such date.

According to Mr. Sanyal for the petitioner, the first floor was constructed on the ground floor and, therefore it cannot be said that the first floor was constructed on a site lying vacant. I am unable to agree with Mr. Sanyal. The site above the ground floor must be deemed as a vacant site because it was open to the sky when only the ground floor was standing as a structure on the open land. The first floor is admittedly constructed after 1-1-1951 on the site lying vacant above the ground floor and, therefore, the first floor is clearly exempted from the operation of the Rent Control Order.

Mr. Sanyal has placed reliance upon two decisions of this court. One is in the case of Hashmatrai and Another Vs. Tarachand and Others, . This ruling is on a totally different point and it has nothing to do with the question which has to be decided by me in this revision application. The question before the Court in that ruling was whether the open plot was a house. The question before me is whether the first floor, which is admittedly constructed after 1-1-1951 is exempted from the operation of the Rent Control Order. The second ruling is also a case decided by a learned Single Judge of this Court in Laxminarayan v. Gangaprasad 1969 Mh. L.J. Note 23. That ruling also turns on a totally different point and it has nothing to do with the point which is to be decided by me in this revision application. As already stated I am clearly of the opinion that the first floor was constructed on a site lying vacant above ground floor and it was constructed after 1-1-1951 and it is clearly exempted from the application of the Rent Control Order.

Mr. Sanyal made a grievance about the decree for Rs. 240 also but I do not find any force in his contention. Result is that there is no merit in this revision application and it deserves to be dismissed.

Revision Application is dismissed. Rule is discharged. Petitioner-tenant is granted 6 months'' time from today to hand over vacant possession to the respondent-landlord. As there is no appearance for the respondent there will be no order as to costs of this revision application.