Full Judgment
M.L. Bhat, J.
1. Retrospectivity or otherwise of the Amending Act No. XXI of 1972 was referred to the Full Bench. Mr. S. P. Gupta appearing before the Full Bench made a statement that he would not question the findings of the District Judge. Therefore, the Full Bench was of the opinion that reference was not required to be answered by it. The reference was sent unanswered to the single bench. This civil second appeal is therefore to be decided on its own merits.
2. The appeal is concluded by the concurrent findings of fact of the two Courts below. Courts below have found that the shop in question was only reconstructed and not constructed. Therefore provisions of the Houses and Shops Rent Control Act would apply to the said shop. The only question which was canvassed by Mr. Gupta appearing for the appellant, before this Court is that by virtue of provisions of Houses and Shops Rent Control Act, the shop in question is not governed by the Houses and Shops Rentcontrol Act because it was constructed after the last day of the year 1965.
3. It is pertinent to note that shops constructed after the last day of the year 1965 were excluded from the purview of the provisions of Houses and Shops Rent Control Act. The appellant's case was that the shop in question was constructed as a whole after the last day of the year 1965, therefore it will be exempted from the operation of the Houses and Shops Rent Control Act. Courts below have repelled this Contention.
4. It is a common ground that the shop in question was reconstructed partially after 1965 and the respondents claimed that it would not be deemed a new building, but would be considered to be old shop which was governed by the houses and Shops Rent Control Act.
5. It is also a common ground that the shop was not constructed but was only constructed on the old plinth with some portion of the old building also having been left intact. Even the respondent's goods and telephone were not shifted from the shop when it was being reconstructed. As to whether the shop was constructed or; reconstructed is a pure question of fact. Courts below have concurrently found that the shop was not constructed anew, but it was a reconstruction of the old shop. The evidence which was believed by the Courts below was that the contours of the shop had remained the same, which came to be rebuilt further. Three floors added as additional construction to the shop have been built on the roof of the shop without the perimeter of the shop in its walls being altered. Therefore, it cannot be construed that it was a new building put up at a place where none existed before the suit shop.
6. The term 'construction' and 'reconstruction' are sometimes interchangeable expressions. In both the cases there necessarily has to be the construction. But the purpose of construction has to be understood in the context of the expression which is used designedly by the Legislature in the enactment. It has not used reconstruction. It has used the expression construction. It seems that the Legislaturewas aware of the thin distinction between the two expressions. Reconstruction would imply, construction of the old building on the same place, where the old had existed. The words, 'construction' would mean altogether a new construction at new site where no building had ever existed.
7. Mr. S. P. Gupta relied on Sadhu Singh v. District Board, Gurdaspur, AIR 1962 Punj 204, to canvass that reconstruction would be construction for the purposes of Rent Control Legislation. The Punjab High Court has laid down that every reconstruction involves construction. The suffix 're' would mean again. But that would not take away, constructed building from the ambit and; scope of the notification which was issued by the Punjab State in respect of the application of Rent Control Act to buildings constructed during certain specified years. Their Lordships further held that the question whether a building has been constructed so as to attract the exemption from the provisions of the Act by virtue of the notification would depend on the facts and circumstances of such case. No hard and fast rule was therefore laid down in the said authority as to which building will be construed to be constructed or which will be construed to be reconstructed for the purposes of application or exemption of the notification issued by the State of Punjab under the provisions of Houses and Shops Rent Control legislation.
8. In the present case we have findings of the two Courts that the building was not constructed anew, but it was only reconstruction on the old plinth and some walls were also left intact and the defendant was in possession of the portion of the old building which was reconstructed and enlarged. That being a finding of fact cannot be disturbed in the second appeal. Therefore on the basis of the evidence it is to be held that the building in question is an old building constructed before 1965 to which the provisions of Houses and Shops Rent control Act were applicable and the said building was not exempted from the provisions of Houses and Shops Rent Control Act merely because portion of it was reconstructed after 1965. The contention of Mr. Gupta, to the contrary, must fail.
9. For the reasons stated above this civil second appeal is dismissed but without any order as to costs.