Petitioners are owners and landlords of the property No.1029/880 Old Katra, Allahabad. It is said that the aforesaid property consisted of an old dilapidated house over 100 years old. Petitioners decided to develop the property and reconstruct a multi-storied building thereon.
Petitioners entered into a registered agreement with respondent No.3 on 8.6.01 agreeing for letting out a portion having an area of 17' X 35' with a minimum height of 12 ' on the first floor of the proposed building facing Chintamani Road and having access through the front portion of the building. The agreement also provided that the petitioners would construct a multi-storied building consisting of shops on the ground floor and the first floor with residential block on the second floor and that the landlords would complete the construction of the first floor within a period of one year on obtaining sanction of the map from the Allahabad Development Authority and shall deliver possession of the same whereupon tenant would start paying rent @ Rs.3,000/- per month. The agreement further provided that if the landlords fail to complete the constructions within time stipulated and deliver its possession to the respondent No.3 they shall be liable to pay damages @ Rs.6,000/- per month to respondent No.3. The tenancy would be for a period of 21 years with the option of renewal on such terms as may be agreed between the parties.
The petitioners got the map of the proposed building prepared and sanctioned from the Allahabad Development Authority on 21.9.01. The sanctioned map is Annexure-9 to the writ petition and it shows that the building would consist of a basement, a ground floor, a first floor and a second floor.
Respondent No.3 immediately thereafter instituted original Suit No.736 of 2001 against the petitioners for permanent injunction restraining the petitioners from entering into any agreement to sell or let out and deliver possession of a shop measuring 17' X 35' on the ground floor of the above property to any other person except respondent No.3; mandatory injunction directing the petitioners to deliver him actual physical possession of the ground floor shop (as per sanctioned plan)/first floor shop as per agreement dated 8.6.01 on the same terms and conditions as contained in the above agreement and damages for delay/non-performance of the agreement dated 8.6.01. In substance the suit envisaged for a decree of specific performance agreement dated 8.6.01 with damages and for permanent and mandatory injunction.
In the aforesaid suit respondent No.3 also applied for temporary injunction which was granted vide order dated 1.3.02 and the petitioners were restrained from letting out or otherwise to give a shop 17' X 35' being constructed just above the basement as per the approved map of the Allahabad Development Authority. The appeal against the aforesaid interim injunction order was dismissed by the Additional District Judge vide judgment and order dated 6.5.02. However, both the above orders were set aside by the High Court vide judgment and order dated 24.5.02 passed in Writ Petition No.22620 of 2002 filed by the petitioners on the ground that specific performance of the agreement was not legally permissible when the agreement provided for adequate compensation for its breach.
The aforesaid judgment and order of the High Court was taken to the Supreme Court by respondent No.3 by means of Civil Appeal No.6677 of 2002. The Supreme Court by a short judgment dated 30.4.2008 allowed the appeal, set aside the order of the High Court and directed the parties to strictly adhere to the conditions in the agreement dated 8.6.01. The Trial Court was directed to appoint a local Advocate as Commissioner to deliver possession to the tenant in terms of the aforesaid agreement. The suit was ordered to be closed with the above directions. The relevant extract of the order of the Supreme Court dated 30.4.08 is reproduced herein below:-
"Since there is an agreement entered into between the landlord and tenant we are of the view that the terms of agreement should be strictly adhered to by both the parties. We accordingly dispose of this appeal with the direction that the parties should strictly adhere to the conditions contained in the agreement dated 8.6.01. We, therefore, direct the Trial Court to appoint a local Advocate (Commissioner) to go to the disputed building and deliver possession to the tenant in terms of the aforesaid agreement. The remuneration of the Commissioner shall be fixed by the Trial Court.
The order impugned passed by the High Court is accordingly set aside. In view of our aforesaid direction the suit shall stand closed.
The appeal is accordingly disposed of."
It appears that the Trial Court vide order dated 24.5.08 appointed an Advocate (Commissioner) for affecting delivery of possession as directed by the Supreme Court.
The Advocate (Commissioner) submitted a report on 29.5.08 to the effect that delivery of possession could not be affected. According, to the Advocate (Commissioner) there is a dispute between the parties as to which of the portion would be considered as the first floor portion as at the time of agreement no basement was contemplated.
Subsequently, another Advocate (Commissioner) was appointed by the Trial Court vide order dated 30.5.08.
Thereafter, vide order dated 23.7.08 the Trial Court proceeded to decide the controversy with regard to the location of the first floor and the portion which was to be let out to respondent No.3. The Trial Court vide order dated 23.7.08 held that the floor above the so called basement which is being claimed as the ground floor by the petitioners is to be treated as the first floor and respondent No.3 is entitled to possession of a shop area 17' X 15' on the same. Necessary, directions for delivery of possession within three days through Advocate (Commissioner) was also issued.
The said order was challenged by the petitioners in Civil Revision No.196 of 2008 but the same was dismissed by the District Judge vide order dated 18.10.08.
Aggrieved by the judgment and order dated 18.10.08 of the revisional court and that of the the Trial Court dated 23.7.08 determining the floor above the basement as the first floor and directing for delivery of possession of a shop on the said floor to respondent No.3, petitioners have invoked the writ jurisdiction of this Court contending that the floor above the basement cannot be the first floor and the courts below have materially erred in treating the basement as the ground floor.
In short, the parties are at variance with regard to the first floor on which a shop in the building is to be given to respondent No.3 as per agreement dated 8.6.01.
In order to resolve the above controversy I would first like take into consideration the relevant terms and conditions of the agreement itself. The salient features of the agreement are as under:-
(i)the owners and landlords would let out a portion of the first floor area approximately 17' X 35' with minimum height 12' for the purposes of carrying business to the proposed tenant respondent No.3 on rent;
(ii)the shop would be in the front portion of the building facing Chintamani Road, Allahabad having access through front portion of the building;
(iii) the owners and landlords were obliged to complete the construction and to deliver possession within one year of the date of obtaining sanction from the Allahabad Development Authority;
(iv) the tenant shall pay rent @ Rs.3,000/- per month inclusive of house tax, water tax, water charges, sewer tax etc. and it would be the responsibility of the tenant to obtain electricity connection and to pay electricity dues;
(v) the tenancy shall be for a period of 21 years from the date of possession which may be renewed at the option of the tenant;
(vi) during subsistence of the tenancy rent shall be increased every five years by 10% of Rs.3,000/-;
(vii) tenant shall pay a sum of Rs.2,00,000/- as security deposit which has already been paid vide Cheque Nos.8807494l and 8807495 of Rs.50,000/- each both dated 21.5.01 drawn on Dena Bank, Johnstonganj, Allahabad and Rs.1,00,000/- in cash;
(viii) the said security would be refunded with 12% interest on the shop being vacated by the tenant;
(ix) in the event landlords fail to complete construction and deliver possession within time stipulated in the agreement they will be liable to damages @ Rs.6,000/- per month.
It may be noted that in the aforesaid agreement there is no stipulation as to the maximum height and the numbers of storeys of the proposed building. The agreement does not provide that the building would only be of three storeys or that there would be no basement.
According to the aforesaid agreement the tenant is entitle for a shop having an approximate area of 17' X 35' with minimum height of 12' on the first floor of the proposed building in premises No.1029/880, Old Katra, Allahabad in the front portion facing Chintamani Road and having access through the front portion of the building.
Petitioners in order to carry out the aforesaid agreement subsequently got the map of the building sanctioned by Allahabad Development Authority dated 21.9.01. The map of the building so sanctioned provides for a basement, a ground floor, a first floor and the second floor with a terrace. In other words, the approved map is of four storey building including the basement.
The Amin report paper No.29-A dated 9.7.08 establish that the building so constructed consist of four storeys. The lowest storey is about 5 ½' below and 3 ½' above the road level. It has several shops with a five wide lane in the middle. The second storey above it also has four shops and 5' 1'' lane in the middle. These two stories have their frontage towards Chintamani Road. The third storey consists of a hall 51' X 15 and 12' in height. The top storey has a permanent construction in half portion but the same was not available for inspection.
Respondent No.3 in the original suit instituted had claimed the following reliefs:-
(i)That by means of permanent injunction restrain the defendants from catering into any agreement to sell/or any agreement to let or otherwise creating any change in respect of suit property or deliver possession of one shop measuring approximately 17' X 35' situated on ground floor of House No.1029/880, Old Katra, Allahabad to any other person except the plaintiff.
(ii)That by means of Mandatory injunction this Hon'ble Court may be pleased to order the defendants to deliver to the plaintiff actual and physical possession of the ground floor shop (as per sanctioned plan)/First Floor Shop (as per registered agreement dated 8.6.2011), as lease on the terms and conditions given in the aforesaid registered contract dated 8.6.01 by evicting the defendants or any other person or persons who may found in possession of the said shop having been let in by the defendants.
(iii) That a decree of a sum of Rs.6,000/- per month be passed in favour of plaintiff against defendants by way of compensation or damages for non-performance of the agreement from 8.6.01 till the date of delivery of actual and physical possession by the defendants to the plaintiff as per clause II of the aforesaid registered contract dated 8.6.01.
(iv) That any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case be awarded to the plaintiff against defendants.
(v) That cost of this suit be awarded to the plaintiff against the defendants.
In sum and substance the reliefs claimed in the suit were with regard to the specific performance of the agreement dated 8.6.01 and for damages for default or delay and as per the agreement and it was specifically claimed that respondent No.3 be given possession of the first floor shop as per the agreement which in effect is the ground floor as per the sanctioned plan. To put it differently respondent No.3 claimed shop on the ground floor as per the sanctioned may though under the agreement a shop on the first floor was agreed to be let out.
In the aforesaid suit no issues were framed and the parties had not adduced any evidence. The suit was not decided by the courts below on merits. In the said suit only an application for temporary injunction was decided whereupon the matter traveled up to the Supreme Court. The Supreme Court vide order dated 30.4.08 directed the suit to stand closed and in view of the agreement entered into between the parties directed that the parties should strictly adhere to the conditions contain in the agreement and the Trial Court would appoint a local Advocate (Commissioner) to ensure delivery of possession to the tenant in terms of the agreement.
In the judgment and order of the Supreme Court there is no adjudication of the respective claims of the parties. The Supreme Court has also refrained itself from specifying the shop liable to be given to the respondent No.3 or the storey which was to be treated as the first floor according to the agreement. Thus, as the parties were in variance with regard to the storey on which the shop has to be given to the tenant, the Advocate (Commissioner) was unable to execute the writ of delivery of possession. Thereafter, the Trial Court took upon the task of executing the order of the Supreme Court and went on to adjudicate the claim with regard to the location of the shop or the storey on which it is to be given to respondent No.3.
I have heard Sri Ravi Kiran Jain, Senior Advocate, assisted by Sri Shamim Ahmad, learned counsel for the petitioners and Sri Vishnu Gupta, learned counsel appearing for respondent No.3.
The pleadings exchanged between the parties have also been examined by me.
The main thrust of the argument of Sri Jain, is that under the agreement respondent No.3 is entitle to a shop on the first floor of the building. The courts below are not justified in treating the floor above the basement as the first floor as the same is the ground floor and the first floor is the one above the ground floor.
The above submission has been countered by Sri Vishnu Gupta and it has been contended that at the time of the agreement there was no proposal for constructing a basement. The basement being the lowest floor, the floor above it would naturally be a first floor and as such the courts below have not erred in accepting the claim of respondent No.3. He has also submitted that the agreement further provided for letting out a shop to respondent No.3 not only on the first floor but in the front portion facing Chintamani Road and having access through the front portion of the building. The so called first floor as per the sanctioned map does not have access from the Chintamani Road and as such it is not suitable for commercial purposes.
I have considered the respective submissions of the parties in the light of the pleadings and the documents on record.
There is no material on record to establish that at the time of entering into an agreement there was any specific agreement between the parties with regard to the plan/ map according to which the proposed building was to be constructed. The map of the building was got prepared and approved subsequently.
In the agreement the basic requirement was that the petitioners would be offered a shop of the area specified on the first floor of the building on rent in the front portion facing Chintamani Road and having its access through the front portion of the building for commercial use.
The petitioners have not denied to offer a shop of the size specified but the difficulty has arisen due to rival claims as to the storey on which the shop would be located.
In the circumstances, the main question which falls for consideration is as to which of the storeys of the building would constitute the first floor of the building.
A storey is any level part of the building having a permanent roof. Ground floor is the floor closest to the level of street and is considered to be a principal floor of the building whereas basement is storey below the ground floor.
There are two major schemes in use across the world for the numbering of the floors of a building. The most commonly used scheme is the British convention which is also being followed in India.
In the said system the floor just above the ground floor is assigned the number one and is known as first floor and so on. All floors below the ground level are either called lower ground or basement. In almost All Common Wealth Countries storeys in a building are counted in the aforesaid manner. Thus, in a seven storey building the top most floor would generally be the 6th floor.
It appears that the Allahabad Development Authority has also adopted the Birtish system of numbering the floors of buildings and has accordingly approved the map of the petitioners by describing the floor which is practically at the ground level i.e. 5 ½' below 3 ½ ' above it to be the ground floor and the storeys above it by giving them numbers 1 and 2 i.e. first floor and second floor. The floor below the ground floor has been described as the basement. The aforesaid sanctioned map is a sacred and a most sacrosanct document having the approval of a specialized body consisting of experts in the field of architecture and a planning.
It is well settled that the decisions of experts or specialized bodies having technical knowledge in the subject are rarely interfered with by law courts unless found to be suffering from the vice of arbitrariness or are against settled principles. No such ground for inference in the decision of the Allahabad Development Authority is shown to exist.
It is also a common experience that elevators used in a multi-storied building are also on the same pattern. The ground floor is generally assigned a symbol G or Zero and all storeys above ground floor are given numbers in sequence 1, 2, 3 and 4 and so on whereas all storeys below ground level are assigned numbers by pre-fixing the sign of Minus (-) such as -1, -2, and -3.
In some buildings there are mezzanine floor or either intermediate or subterranean floors which are differently illustrated.
The basic principle which is culled out is that the floor which is closest/nearest to the ground level is normally described as the ground floor. In the present case, the ground floor described the sanctioned map is closest to the ground level being only 3 ½ ' above it. The basement is 5 ½ ' below the ground level and as such is not closest to ground level. Therefore, it can not be treated as the ground floor.
The agreement actually has no reference of a basement. The lower most storey of the building is admittedly 5 ½' below the road level and 3 ½' above the road level. It is virtually a basement being more than half below the road level. Generally, in India any storey or portion of a building which goes below the ground level in common parlance is described as a basement. Technically it may be half way and may be called a mezzanine floor which is generally referred to a structure half way between the first floor and the second floor. The concept of half way floor has now universal application and is referred to any storey which is in between the two stories such as in the present case regarding basement.
In any view, when the lowest storey which is 5 ½' below and 3 ½' above the ground the floor which is closest to the road level has rightly been described by the Development Authority as the ground floor in the sanctioned map and as such there is no alternative but to treat the same as the ground floor and any deviation from the same would only lead to confusion and chaos.
In this view of the matter, I am of the opinion that the courts below have certainly exceeded their jurisdiction in directing for treating the ground floor shown in the map sanctioned to be the first floor and in directing for providing shop to respondent No.3 on the said floor. There was no justification for the courts below to deviate from the sanctioned map to take a different view and to give the ground floor the nomenclature of the first floor.
The next submission which falls for consideration is that the first floor as per the sanctioned map does not have a shop but only a hall as is evident from the report of the Amin. It has no access from the front of the building and is therefore, not suitable for commercial purpose may be a valid point in favour of respondent No.3. However, it would not be of much help to respondent No.3 as admittedly the building had been constructed in accordance with the map sanctioned by the Allahabad Development Authority which is deemed to be in accordance with by laws and the regulations of the Development Authority. Therefore, any change in the building plan may not be possible at this stage except for some internal arrangement wherein the hall may be partitioned and converted into a shop of the size specified to accommodate respondent No.3. but it may not be possible to alter the entrance and to provide access to respondent No.3 from the front of the building . This however would not compel the petitioners to let out a shop to respondent No.3 on any other floor other than the first floor which is the most fundamental condition.
Therefore, in the event respondent No.3 is not satisfied and considers that the agreement has been violated the only remedy available to him is to sue the petitioners for the breach of the agreement and to claim damages which relief actually claimed but was not granted.
In the above view of the matter, I am of the firm opinion that as per the agreement dated 8.6.01 respondent No.3 is entitled to a shop of the specified size on the first floor of the building as described in the sanctioned building plan by the Allahabad Development Authority and the courts below were not justified in directing to treat any other floor as the first floor and in directing for delivering possession of a shop on such a floor.
Accordingly, the orders impugned dated 23.7.2008 and 18.10.2008 are set aside/ quashed and the court of first instance is directed to ensure that the respondent No.3 is delivered possession of a shop having an area of 17' X 35' with minimum height of 12' on the first floor as has been described in the sanctioned map of the building in premises No.1029/880 Old Katra, Allahabad preferably on the front portion facing Chintamani Road Allahabad.
Writ Petition allowed accordingly.
Order Date :- 25.5.2011 piyush