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PETITIONER: ASHOK KAPIL

       Vs.

RESPONDENT: SANA ULLAH [DEAD] AND OTHERS

DATE OF JUDGMENT:       25/09/1996

BENCH: THOMAS K.T. (J) BENCH: THOMAS K.T. (J) KULDIP SINGH (J)

ACT:

HEADNOTE:

JUDGMENT:                       J U D G  M E N T      THOMAS.J      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

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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

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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

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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.