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Mohammad Aslam v. Om Prakash Dwivedi - WRIT - A No. 3494 of 2003  RD-AH 9515 (15 May 2006)
Civil Misc. Writ Petition No. 3494 of 2003
Om Prakash Dwivedi
Hon'ble Krishna Murari, J,
Heard Sri Iqbal Ahmad, learned counsel for the petitioner and Sri K.K. Tripathi for the respondent.
The petitioner is a tenant in shop in dispute. Respondent-landlord instituted SCC Suit No. 6/1996 for arrears of rent and eviction of the petitioner on the ground that he was in arrears of rent since 1994. It was alleged in the plaint that the shop was constructed in the year 1988-89 and therefore the provisions of U.P. Act No. XIII of 1972 (for short the ''Act') are not attracted. The petitioner contested the suit by filing written statement. It was pleaded that the shop in dispute is covered under the Provisions of the Act and that entire amount has been deposited under Order 15, Rule 5 C.P.C. In support of the said allegation, the petitioner filed a copy of the registration of the shop in dispute under the Provisions of Uttar Pradesh Dukan Aur Vanijya Adhisthan Adhiniyam, 1962 issued in the year 1983. The respondent-landlord though did not file any assessment record of the local authority which would have conclusively gone to establish the applicability of the Act instead he filed a certificate dated 28.7.1998 issued by the Executive Officer, Nagar Parishad, Bilhaur, Kanpur Nagar showing that the shop was assessed for the purposes of tax in the year 1989. The trial court vide order dated 18.8.1998 held that the provisions of the Act are not applicable and that the petitioner is in arrears of rent and decreed the suit. Aggrieved, the petitioner filed a revision. At the revisional stage, the respondent-landlord filed a photo copy of ''Register Wajibul Usool House Tax and Water Tax' to support the allegations that the shop in dispute was assessed for the first time in 1989 as such is outside the purview of the Act. The Revisional Court also confirmed the finding of the trial court that the provisions of the Act are not applicable to the shop in dispute and dismissed the revision.
Learned counsel appearing for the petitioner has contended that the burden to prove that building is not covered under the Provisions of the Act lies on the landlord but the courts below have wrongly shifted the said burden on the tenant-petitioner. It has further been contended that the trial court wrongly placed reliance upon oral evidence to record a finding that building was not covered under the Provisions of the Act as under explanation (1) of sub-section (2) of Section 2 of the Act , the municipal records pertaining to first assessment of the building would have been conclusive proof of the fact which were not filed by the landlord. It has also been pointed out that the trial court though held that the certificate produced by respondent-landlord from Nagar Parishad cannot be read in evidence as it was not proved in accordance with law but still relied upon the same. Similarly, the revisional court has also wrongly relied upon the Register Wajibul Usool House Tax and Water Tax to record a finding with regard to the completion of the construction of building as it was not a record relating to first assessment.
In reply, learned counsel appearing for the respondent has tried to justify the impugned judgements.
I have considered the arguments advanced by the learned counsel for the parties and perused the record.
Sub -section (2) of Section 2 of the Act in so far as it is material for the purposes of the case reads as under:-
" Except as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21, sub-section (2) of Section 24, Sections 24-A, 24-B, 24-C or sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed:
Explanation 1.- For the purposes of this sub-section,-
(a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time :..........."
From a plain reading of the aforesaid explanation, it is clear that in case the building is subject to an assessment it will be the date of first assessment which will be deemed to be the date of completion of the construction. It is only when there is no report or record of completion of construction or no assessment, the date of occupation would be taken to be the date of completion of the construction.
In the present case, the landlord-respondent filed a certificate dated 28.7.1998 issued by the Executive Officer, Nagar Parishad, Bilhaur, Kanpur Nagar showing that the building was assessed in 1989. The trial court though itself held that the said certificate cannot be read in evidence as it has not been proved in accordance with law yet relied upon the same on the g round it can be read in the light of the oral statement made by the landlord that the building was assessed for the first time in 1989. Before the revisional court, the respondent-landlord filed a photo copy of ''Register Wajibul Usool House Tax and Water Tax' to support his allegation that the shop in dispute was first time assessed in 1989 and as such is out of the purview of the Act. The revisional court misread the said document to be a copy of assessment register and on the basis of the same held that the building was assessed for the first time in 1989 and therefore does not come under the purview of the Act.
The copies of the certificate issued by the Executive Officer, Nagar Parishad, Bilhaur, Kanpur Nagar as well as Register Wajibul Usool House Tax and Water Tax relied upon by the trial court and the revisional court respectively have been filed as Annexures 4 and 10 to the writ petition. Accordingly to the own finding of the trial court, the certificate issued by the Executive Officer cannot be read in evidence as it was not proved in accordance with law and thus was not admissible in evidence, still the trial court wrongly and illegally relied upon the same to come to the finding that the building was assessed for the first time in 1989. Similarly, a perusal of annexure 10 goes to show that it is not a record of assessment but is the photo copy of the ''Register Wajibul Usool House Tax and Water Tax'. There are cutting and overwriting in the said document. In one column of the said document it has been mentioned that house tax is due from 1989-90 and 91. Apparently, it is not a document relating to register of House Tax Assessment and the revisional court has wrongly misread it to be the certified copy of Tax Assessment Register of Nagar Palika Parishad.
From the aforesaid facts it is clear that the building in question was subject to assessment and in accordance with explanation 1- the date of first assessment shall be deemed to be the date of completion of the building. The record of first assessment was not filed by the respondent-landlord in the proceedings. The Hon'ble Apex Court in the case of Ram Saroop Rai versus Smt. Lilawati 1980 ARC 466 has observed as follows:
"This sub-section and its construction is decisive of the fate of the appeal. Nothing in the rent control legislation shall apply to a building "during a period of ten years from the date of which its construction is completed" The first thing that falls to be emphasized is that in regard to all buildings the Act applies save where this exemption operates. Therefore, the landlord, who seeks exemption, must prove that exception. The burden is on him to make out that notwithstanding the rent control legislation, his building is out of its ambit. It is not for the tenant to prove that the building has been constructed beyond a period of ten years, but it is for the landlady to make out that the construction has been completed within ten years of the suit. This is sensible not merely because the statue express states so and the setting necessarily implies so, but also because it is the landlady who knows best when the building was completed, and not the tenant. As between the two, the owner of the building must tell the Court when the building was constructed and not the tenant thereof. Speaking generally, it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord, although in a small category of cases where the landlord is a purchaser from another, he will have to depend on his assignor to prove the fact."
Again in the case of Om Prakash Gupta Versus Dig Vijendrapal Gupta 1982 ARC 391,the Hon'ble Apex Court held that if there is assessment, the date of first assessment will be deemed to be the date of completion of building.
From the law laid down by the Hon'ble Apex Court, it is clear that the date of first assessment is to be treated as the date of completion of building. In the present case, the two documents namely the certificate of the Executive Officer and Register of Wajibul Usool House Tax and Water Tax filed by the respondent-landlord at least indicate that the building in question was subject to assessment. The respondent-landlord did not produce municipal records relating to first assessment of the building but instead filed irrelevant documents and the Courts below wrongly and illegally relied upon the same for recording the finding that the date of completion of the building is 1989 and thus it is out of the purview of the Act. Apparently, the Courts below have committed grave illegality in relying upon the said documents for recording the finding. In this view of the matter, the impugned orders cannot be sustained and are hereby quashed.
It may still be open to the respondent landlord to make out his case by producing better municipal record in the light of what has been stated above. In the facts and circumstances, the case is remanded back to the trial court. The trial court will give an opportunity to both sides to adduce fresh evidence oral or documentary, to make out the ground of exemption from the application of the Act.
The writ petition stands allowed and the case is remitted back to the trial court for fresh disposal in accordance with law and in view of the observations made hereinabove.
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