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FAKIR CHAND JATAV versus SURENDRA KUMAR GUPTA

High Court of Judicature at Allahabad

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Fakir Chand Jatav v. Surendra Kumar Gupta - WRIT - A No. 9097 of 2003 [2003] RD-AH 31 (5 March 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.3

     Civil Misc. Writ Petition No. 9097 of 2003

Fakir Chand Jatav        Vs. Surendra Kumar Gupta

Hon. S.P.Mehrotra J.

This writ petition has been filed under Article 226 of the Constitution of India , interalia, praying for quashing the order dated 13.2.2003 ( Annexure no. 14 to the writ petition ) passed by the learned Additional District Judge, Court No, 7 Saharanpur, and the judgment and order dated 28.8.1998 ( Annexure No. 11 to the writ petition ) passed by the learned Judge Small Cause Court, Saharanpur.

The dispute relates to a shop situated at Powel Bridge,  near Employment Exchange , Shastrinagar , Saharanpur . The said shop has hereinafter been referred to as the " Disputed shop".

From the allegations made in the writ petition, it appears that the respondent filed a suit for ejectment, arrears of rent and damages etc., against the petitioner in respect of the disputed shop. It was , interalia, alleged by the respondent in the suit that the petitioner was tenant of the disputed shop  at the monthly rent of Rs. 330/- ; and that ten years had not elapsed since construction of the disputed shop; and that the first assessment of the disputed shop had been made by the Nagar Mahapalika , Saharanpur in the year 1986; and that the disputed shop did not come within the purview of the U.P. Act No. XIII of 1972( In short, also referred to as  the "the Act"). It was , interalia, further alleged by the respondent in the suit that by the notice dated 7.9.1992, the tenancy of the petitioner in respect of the disputed shop was determined on the expiry of 30 days from the date of service of the said notice; and that the said notice was served on the petitioner on 9.9.1992; and that the petitioner  did not comply with the terms of the said notice, and instead gave incorrect reply to the said notice on 18.9.1992. The said Suit was registered as S.C.C. Suit No. 171 of 1992. Copy of the plaint has been filed as Annexure no. 3 to the writ petition . As certain paragraphs of the said plaint were omitted in the copy of the plaint annexed as  Annexure no. 3 to the writ petition. Learned counsel for the petitioner produced a complete copy of the plaint during the course of arguments which is taken on record.

The petitioner contested the said Suit and filed written statement , copy whereof has been filed as Annexure no. 4 to the writ petition. It was, interalia, alleged by the petitioner in the said written statement that the disputed shop was 10 years old and was covered under the provisions of the Act.

         Both the sides led oral and documentary evidence in the said Suit.                          The learned Judge, Small Cause Court, Saharanpur by the judgment and order dated 28.8.1998 ( Annexure no. 11 to the writ Petition ) decreed the said Suit filed by the respondent. It was , interalia, held in the said judgment and order dated 28.8.1998 that the first assessment of the disputed shop was made in the year 1986, and on the date of filing of the said Suit , the period of 10 years had not elapsed ; and  that the provisions of the U.P. Act No. XIII of 1972 were not applicable to the disputed shop; and that the notice given by the respondent to the petitioner was valid.

Against the said judgment and order dated 28.8.1998 , the petitioner filed Revision under Section 25 of the Provincial Small Cause Courts Act which was registered as S.C.C. Revision No. 68 of 1998.

By the judgment and order 13.2.2003, the learned Additional District Judge, Court No. 7 , Saharanpur dismissed the said Revision filed by the petitioner. It was , interalia, held in the said judgment dated 13.2.2003 that the findings recorded by the learned Judge, Small Cause Court, Saharanpur that the first assessment of the disputed shop was made in the year 1986 and the period of 10 years had not elapsed on the date of filing of the said Suit , were correct. It was , interalia, further held that the conclusion drawn by the learned Judge , Small Cause Court, Saharanpur that the provisions of the  Act were not applicable to the disputed shop,   was correct.

Thereafter, the petitioner filed the present writ petition seeking  the reliefs mentioned above.

I have  Sri Mohd Arif , learned counsel for the petitioner at length.

It is submitted by Sri Mohd Arif , learned counsel for the petitioner that the disputed shop was let out to the petitioner in February, 1982 and therefore, the period of 10 years had expired on the date of filing of the said Suit i.e. on 30th November, 1992. Therefore, it is submitted , the provisions of the Act were applicable to the disputed shop, and the conclusions drawn by the Courts below to the contrary are illegal. It is further submitted that as the disputed shop had already been let out to the petitioner in Feb., 1982, the first assessment of the disputed shop was not relevant for deciding the date of  construction of the disputed shop.

It is further submitted by Sri Arif , learned counsel for the petitioner that the first assessment of the building had been made in the year 1982, and therefore, the findings recorded by the Courts below that the first assessment took place in 1986 are not correct.

I have considered the submission made by the learned counsel for the petitioner, and I find myself unable to accept the same.

As regards the submission made by the learned counsel for the petitioner that the first assessment was made in the year 1982,the said aspect was examined by the learned Judge, Small Cause Court in his  judgment and order dated 28.8.1998. It was , interalia, observed in the said judgment and order dated 28.8.1998 that the first assessment  made in the year 1982 did not mention any shop; and that the first assessment in respect of the disputed shop was made in the year 1986. In this regard, it is noteworthy that the petitioner in his statement as D.W.1 , interalia, stated that the first assessment of the disputed shop was made in the year 1986 on the complaint of the petitioner.

In view of  the said admission made by the petitioner as D.W.1 , it is evident that the findings of  the Courts below regarding the first assessment of the disputed shop are correct.

As regards the submission made by the learned counsel for the petitioner that the disputed shop was let to the petitioner in Feb., 1982 , the said aspect was examined by the learned Additional District Judge, Court no. 7, Saharanpur in the said  judgment and order dated 13.2.2003 . It was, interalia, noticed that the petitioner did not file any documentary evidence regarding his tenancy for the period from 1982 to 1986, and therefore, it was concluded that the petitioner failed to establish that the disputed shop was let out to the petitioner in the year 1982. In view of the said finding recorded  on a consideration of  the material on record, I find myself unable to accept the submission made by the learned counsel for the petitioner.

Even otherwise, the date of first assessment of the disputed shop would be relevant date for determining the date of construction of the disputed shop.  It is evident from  a perusal of  Explanation I to Sub -Section (2) of Section 2 of the Act .

Section 2, sub-section (2) of the U.P. Act No. 13 of 1972 and Explanation thereto provide as follows:

"2.  Exemptions from operation of Act.- (1) .......................

(2) [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.]:

[Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a bank or a co-operative society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid period of ten years then the reference in this sub-section to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest), whichever is shorter.];

[Provided further that where construction of a building is completed on or after April 26, 1985 then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of [forty years] from the date on which its construction is completed].

Explanation I.- For the purposes of this 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:

Provided that there may be different dates of completion of construction in respect of different party of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants ;

(b)   "construction" includes any new construction in place of an existing building which has been wholly or substantially demolished.

(c)     where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition.

[Explanation II.--The expression "bank" means--

(i)a banking company, as defined in the Banking Regulation Act, 1949 ;

(ii)the State Bank of India constituted under the State Bank of India Act, 1955 ;

(iii)a subsidiary bank, as defined in the State Bank of India (Subsidiary Banks) Act, 1959 ''

(iv)a corresponding  new bank constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 ;

(v)a financing bank or Central Bank (as defined in the Uttar Pradesh Co-operative Societies Act, 1965), not being a Land Development Bank ; and

(vi)any other financial institution notified by the State Government in the Gazette as a bank for the purpose of this Act ;

Explanation III.--A building shall be deemed to be constructed substantially out of funds obtained from sources mentioned in the proviso, if the funds obtained from one or more of such sources account for more than one-half of the cost of construction];"

From a  perusal of Sub- Section (2) of  Section 2 of the Act, it is evident that the provisions of the Act( except those mentioned in Sub-Section (2) of Section 2) would not apply to a building  for a period  of 10 years from the date on which its construction is completed.

Second proviso to Sub-Section (2) of Section 2 of the Act provides that where the  construction of a building is completed on or after April 26, 1985, reference  to the aforesaid period of 10 years shall be deemed to be a reference to a period of forty years from the date on which its construction is completed. Therefore, if a building is completed on or after April 26, 1985 then the provisions of the Act ( except those mentioned in Sub-Section (2) of Section 2) would not apply to such a building for a period of forty years from the date on which its construction is completed.

Clause (a) of Explanation 1 to Section 2 sub-section (2) makes a deeming provision for determination of the date of completion of construction of a building Analysis of the said Clause (a) shows that the date of completion of construction of a building is to be decided on the basis of  the following dates :

1.(i) The date on which the completion of a building is reported to the local authority having jurisdiction will be  deemed to be the date of completion of construction of such building.

(ii) The date on which the completion of a building is otherwise recorded by the local authority having jurisdiction will be deemed to be the date of completion of construction of such building.

2.In the case of a building subject to assessment, the date on which the first assessment thereof comes into effect will be deemed to be the date of completion of construction of such building.

3.If in respect of a building, the above dates, namely, the date on which the completion of the building is reported to the local authority having jurisdiction (mentioned in head 1(i), above),the date on which the completion of the building is otherwise recorded by the local authority having jurisdiction (mentioned in head 1 (ii) above), and the date on which the first assessment of the building comes into effect (mentioned in head 2 above), are different, then the earliest of the said dates will be deemed to be the date of completion of construction of such building.

4.In the absence of any such report (mentioned in head 1(i) above), or record (mentioned in head 1 (ii) above), or assessment (mentioned in head 2 above) in respect of a building, the date on which such building is actually occupied for the first time will be deemed to be the date of completion of such building.

        Above analysis of  clause (q) of Explanation I to Sub-Section (2) of Section 2 shows that the date of actual occupation of a building would be relevant only when there is no report, record or assessment mentioned in the said Clause (a) . In case, such report , record or assessment is available , the date of actual occupation of a building would not be  relevant for deciding the date of completion of construction of a building.

As noted above, the first assessment of the disputed shop took place in the year 1986, therefore, in view of the  provisions of Clause (a) of Explanation I to Sub- Section (2) of Section 2 of the Act, the construction of the disputed shop would be deemed to have been completed in the year 1986. The submission made on behalf of the petitioner regarding occupation of the disputed shop since February 1982 would not be relevant in view of the provisions of the said Clause (a) of  Explanation I to Sub-Section(2) of Section 2 of the Act.

As noted above, the said suit was filed on 30.11.1992, therefore, the period of 10 years from the date of completion of construction of the disputed shop had not expired on the date of filing of the said Suit. Therefore, the provisions of the Act were not applicable to the disputed shop, and the conclusion drawn by the Courts below in this regard , in my opinion, was correct.

In Saleem    Vs. District Judge, Muzaffernagar and others, (1998) 7 Supreme Court Cases 242, their Lordships of the Supreme Court laid down as follows (Paragraph No. 12 and 13 of the said S.C.C.):-

"12  In fact, the present controversy is squarely covered against the appellant by a decision of a three - Judge Bench of this Court in the case of Om Prakash Gupta Vs. Dig Vijendrapal Gupta .Considering the very same explanation, Justice Mishra speaking for the Bench in para 6 of the Report observed that a perusal of Explanation I makes it abundantly clear that the occupation would be taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment thereof. If there is an assessment, as in the present case, it is, it will be  the date of the first assessment which will be deemed to be the date of completion of the construction and that in view of the matter, the building had not become more than ten years' old on the date when the revision came to be decided by the High Court. It is also to be noted that in the said decision, the argument was that the building was occupied prior to the first assessment. That evidence was not held to be relevant for deciding the question of applicability of Explanation 1 as prior occupation by the tenant was not mentioned by the legislature as one of the requirements for applicability of Explanation 1 to Sub- Section(2) of Section 2 of the Rent Act.

13 .   Consequently, the submission of the learned counsel for the appellant that even dehors the explanation and the conditions mentioned therein, prior occupation of the premises by the tenant should be relevant cannot be countenanced . Even that apart, reliance placed by the learned counsel for the appellant on the extract of sanction of water connection by the Municipality, especially column 4 thereof wherein the word " house" is mentioned, is of no avail to her as water connection might have been taken on 1.11.1973 but that by itself would not show that the construction of the suit shop had come into existence on that date and on the contrary, the document relied upon by the respondent to which we have already referred clearly indicates that the premises continued to be an open plot till 31.3.1982. It is therefore, obvious that the suit premises had come into existence somewhere in the beginning of Financial Year 1982. However, the date of actual construction of the shop would pale into insignificant in view of the express terminology of Explanation 1 to Sub- Section (2) of Section 2 of the Rent Act as  clearly ruled by the three - Judge Bench of this Court in the case of Om Prakash Gupta".

In view of the aforesaid decision, it is evident that if the first assessment is available , the date of actual construction or the date of actual occupation of the building would not be relevant for determining the date of completion of the construction of the building.

Sri Arif , learned counsel for the petitioner places reliance on a decision of the Apex Court in Suresh Kumar Jain Vs. Shanti Swarup Jain and others, 1997(9) SCC 298. Learned counsel for the petitioner has placed reliance on paragraphs no. 29, 30 and 31 of the said decision of the Apex Court which are quoted below:-

"29.    After giving our careful consideration to the facts and circumstances of the case and the submissions for the respective parties, it appears to us that the Premises Tenancy Act is a beneficial legislation intended to protect the tenant from being evicted by the landlord at his will or on flimsy ground. The pleasure doctrine implicit in the Transfer of Property Act, 1882 entitles the landlord to evict his tenant by determining the tenancy by appropriate notice . For such eviction, the landlord does not owe any explanation to the tenant. The action for eviction is basically actuated by the desire to evict the tenant. The U.P. Urban Buildings  (Regulation of Letting, Rent and Eviction ) Act, 1972 like other Rent Acts also envisages protection of the tenant governed by the Rent Act from being evicted from the tenanted premises except on specified grounds for such eviction and on conditions for such eviction being fully complied with.

30. There is no disputed that the defendant appellant is a monthly tenant covered by the provisions of the said Rent Act. It is apparent that for mitigating the hardship likely to be meted out to a landlord who has made new construction by incurring substantial expenses, the landlord , in case of tenancy in a newly constructed building has been favoured with exemption of the rigours of the Tenancy Act in the matter of evicting  a tenant inducted in such newly constructed premises. But such exemption is not unfettered but controlled by the provisions of Section 2(2) of the said Rent Act read with Explanation I with proviso to such Explanation 1. The outer limit of the period of exemption in respect of newly constructed building is ten years. Such 0uter limit of the period of exemption has been introduced for balancing the equities between the landlord and the tenant. In order to ensure that such exemption in favour of the landlord is not extended indefinitely , the legislature has provided a mechanism for determining the date with reference to which the building in question will be deemed to have been constructed by indicating four distinct alternatives. As such four dates are likely to be different . Legislature , in its anxiety to ensure that the period of exemption is not unjustly extended beyond the period intended, has indicated that such period of exemption is to be reckoned from the date which is on the earliest point of time amongst four different deemed dates as provided for in Explanation 1 to sub-section (2) of Section (2) of the U.P. Rent Act. The four different dates for the purpose of compensation as to whether a newly constructed building is ten years' old or not are as follows:

(i) the date on which completion of the building is reported to the local authority.

(ii) the date on which the completion of the building is otherwise recorded by the local authority having jurisdiction.

(iii) the date on which the assessment of property tax is first made.

(iv) in the absence of any such report, record or assessment, the date on which the building was actually occupied.

31. In our view , in the facts of the case, both the dates , namely , the date on which the completion of the building is reported to the local authority and the date on which the completion of the building is otherwise recorded by the local authority having jurisdiction, are available . On 30.1.1978, the building constructed by the respondent landlord was inspected by the Section Head Clerk of the Etah Municipality and a report was filed by the said Head Clerk recording that the ground floor and the first floor had been rented at Rs. 75 and Rs.60 per month respectively and the second floor of the building was in possession of the respondent owner. In the said report it was also indicated that the shop was well constructed. The Etah Municipality thereafter issued a letter on 30.1.1978 to the respondent landlord that the date of hearing the objection to the assessment of the house tax was fixed at 11.00 a.m. on 1.2.1978. Such notice as a consequently action on the report of the Head Clerk only indicates that the Municipality has also noted the factum of completion of the building at least from the date of receipt of the said report. In our view, Dr. Singhvi has rightly contended that the import of the expression " otherwise recorded" used in the Explanation 1 to Section 2(2) of the Rent Act should be construed in a broad based manner having wide amplitude, keeping in mind the beneficial purpose of the U.P. Rent Act for protecting the interest of tenants covered by the said Rent Act. We may also indicate here that such recording of the date of completion of the tenanted premises in question fully satisfies the recording  of deemed date of construction under Section 2(2) of the U.P. Rent Act and it is not necessary to investigate whether for the purpose of assessment of rates and taxes of a building , inspection of the building had been done strictly in accordance with the Municipality Act".

A perusal of the aforesaid paragraphs of the decision of the Apex Court ,shows that in the said case, the date on which  the completion of the building was reported to the local authority and the date on which the completion of the building  was otherwise recorded by the local authority having jurisdiction, were available on the record. In the circumstances, it was held that the date of first assessment which  took place subsequently was not relevant.

Thus, the facts of Suresh Kumar Jain( Supra ) were different from the facts of the present case. In the present case, no report or record as mentioned  in Clause (a) of Explanation I to sub-Section (2) of Section 2 of the Act has been brought on record . Therefore, the date of first assessment would be  the relevant date for determining the completion of the construction of the disputed shop.

In view of the aforesaid discussion, I am of the opinion that this writ petition lacks merits and is liable to be dismissed. The writ petition is accordingly dismissed.

Sri Arif, learned counsel for the petitioner then submits that some reasonable time be granted to the petitioner for vacating the disputed shop.

Having considered the submission made by the learned counsel for the petitioner, the petitioner is granted time upto 30.9.2003 for  vacating the disputed shop provided the petitioner gives an undertaking on his personal affidavit before the leaned Judge, Small Cause Court, Saharanpur within a period of eight weeks from today incorporating the following conditions:-

1. The petitioner will vacate the dispute shop on or before 30.9.2003.

2. The petitioner will deposit the entire decreetal amount with rent / damages up to April, 2003  at the decreed rate of rent within a period eight  weeks from today. The said deposit will be made after adjusting any amount already deposited by the petitioner in the suit.

3. The petitioner will continue to deposit  rent /damages with effect from May, 2003 in advance by 7th of each month till the date of vacating the disputed shop.

4. The amount so deposited by the petitioner may be withdrawn by the respondent without furnishing any security .

    In case,   the aforesaid undertaking is not given within the time granted or any  of the conditions incorporated in the undertaking is violated, this order granting time to the petitioner for vacating the disputed shop will stand automatically vacated and it will become open to the respondent to execute the  decree forthwith.

Dated 5.3.2003

Aks.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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