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SMT. BRAHMA DEVI & OTHERS versus SRI KALI CHARAN GUPTA & OTHERS

High Court of Judicature at Allahabad

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Smt. Brahma Devi & Others v. Sri Kali Charan Gupta & Others - WRIT - A No. 50893 of 2002 [2005] RD-AH 1748 (25 July 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Reserved

Civil  Misc. Writ Petition No. 50893 of 2002

Smt. Brahma Devi and others........................Petitioner

Vs.

Kali Charan Gupta and others........................Respondent

Hon. S.P. Mehrotra, J.

The present writ petition under Article 226 of the Constitution of India has been filed by the petitioners, interalia, praying for quashing the judgment and decree dated 31.8.2000 (Annexure-10 to the writ petition) passed by the learned Judge, Small Cause Court, Agra and the judgment and order dated 5.10.2002 (Annexure-11 to the writ petition) passed by the learned Additional District Judge (Court No.10), Agra.

The dispute relates to a building, namely, Building No. 81 having Municipal no. 47-B/81 situated at Madhav Kunj, Pratapnagar within Loha Mandi Ward, Agra, the details whereof are given in the plaint of the Suit referred to hereinafter. The said building has hereinafter been referred to as "the disputed building".

A supplementary affidavit sworn on 27.11.2002 was filed on behalf of the petitioners in the writ petition. The said supplementary affidavit has hereinafter been referred to as "the first supplementary affidavit".

On 3.12.2002, an application dated 2.12.2002 alongwith an affidavit, sworn on 2.12.2002, was filed on behalf of the respondents. Further, on the said date i.e., 3.12.2002, Shri Prakash Gupta, learned counsel for the respondents made a statement that he did not propose to file counter affidavit in this case.

On 13.12.2002, a supplementary affidavit, sworn on 9.12.2002, was filed on behalf of the petitioners. The said supplementary affidavit has hereinafter been referred to as "the second supplementary affidavit".

From a perusal of the writ petition and the aforesaid affidavits, it appears that Smt. Shanti Devi, predecessor-in -interest of the respondents filed a Suit against the petitioners for a decree for ejectment, arrears of rent, mesne profits etc. in respect of the disputed building. It was, interalia, alleged in the said Suit that the said Smt. Shanti Devi (plaintiff) purchased a piece of land bearing plot No. 81 situated at Madhav Kunj, Pratapnagar, within Loha Mandi Ward, Agra by Registered Sale Deed dated 27.1.1981, and thereafter, the constructions were raised thereon, which were completed in the year 1987 and its first assessment was made on 27.3.1987 by the Municipal Corporation, Agra, and No. 47-B/81 was allotted to it; and that the said assessment came into force from 1.4.1987; and that the said building (i.e., disputed building) was described in Schedule-A to the plaint; and that the said Smt. Shanti Devi (plaintiff) was the exclusive owner and landlady of the disputed building; and that the petitioners (defendants in the said Suit) were the tenants of the disputed building since 1.3.1990 on a monthly rent of Rs. 1500/- but they had neither paid any rent to the said Smt. Shanti Devi (plaintiff) nor they executed rent note in favour of the said Smt. Shanti Devi (plaintiff).

It was, interalia, further alleged in the said Suit that the constructions of the disputed building was completed in the month of March, 1987, and its first assessment came into force from 1.4.1987, and thus, the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction ) Act, 1972 (U.P. Act No. XIII of 1972)  (in short "the Act") were not applicable to the disputed building.

It was, interalia, further alleged in the said Suit that the petitioners (defendants in the said Suit) moved an application under Section 30 of the Act in the Court of Munsif, Agra to deposit rent being Misc. Case No. 125 of 1993, styled as Smt. Brahma Devi and others Vs. Smt. Shanti Devi, in which the petitioners (defendants in the said Suit) alleged that the rate of rent was Rs. 500/- per month and they deposited rent from 1.4.1993; and that the said allegations had not been admitted by the said Smt. Shanti Devi (plaintiff), however, to avoid future complications and technical objections, the said Smt. Shanti Devi (plaintiff) was claiming in the said Suit the rent at the rate of Rs. 500/- per month from 1.4.1993 as alleged by the petitioners (defendants in the said Suit) in the aforesaid Misc. Case. It was, interalia, further alleged in the said Suit that the application for depositing rent under Section 30 of the Act was not legally maintainable and the alleged deposit of rent was also illegal and invalid and no benefit could be given to the petitioners (defendants in the said Suit).

It was, interalia, further alleged in the said Suit that the petitioners (defendants in the said Suit) were very irregular in payment of rent and they had not paid rent since 1.4.1993 in -spite of repeated demands of the said Smt. Shanti Devi (plaintiff) as well as of her son. It was, interalia, further alleged in the said Suit that the said Smt. Shanti Devi(plaintiff) sent a registered notice of demand and to quit dated 4.4.1995 under Section 106 of the Transfer of Property Act through her counsel to the petitioners (defendants in the said Suit), which was posted on 6.4.1995 and the said notice was served upon the petitioners (defendants in the said Suit) on 10.4.1995 by refusal and thus, the service of the notice upon the petitioners (defendants in the said Suit) was sufficient under law; and that the petitioners (defendants in the said Suit) neither paid the arrears of rent nor vacated the disputed building in their occupation.

The said Suit was registered as Suit No. 73 of 1995. Copy of the plaint of the said Suit has been filed as Annexure-1 to the writ petition.

The petitioners (defendants in the said Suit) contested the said Suit and filed written statement, copy whereof has been filed as Annexure-2 to the writ petition. It was, interalia, alleged in the said written statement that the allegation of the said Smt. Shanti Devi (plaintiff) that the construction of the disputed building was completed in the year 1987, was not correct; and that the correct fact was that the disputed building was built within a year of the purchase of the land; and that in case, the said Smt. Shanti Devi (plaintiff) deliberately did not get the assessment made by Nagar Mahapalika and thus also evaded tax then the said Smt. Shanti Devi (plaintiff) was not entitled to get benefit of her own wrongful acts.

It was, interalia, further alleged in the said written statement that the disputed building was taken on rent in the year 1989 by Ram Prakash, predecessor-in-interest of the petitioners (defendants in the said Suit) at a rent of Rs. 500/- per month, and thus, the tenancy was settled with the said Ram Prakash; and that the said Ram Prakash died on 4.4.1990, and on his death, the tenancy of the disputed building devolved on all his heirs; and that besides the petitioners (defendants in the said Suit), there were three daughters of the said Ram Prakash among the heirs of the said Ram Prakash.

It was, interalia, further alleged in the said written statement that the petitioners (defendants in the said Suit) were not aware that the first assessment of the disputed building was made in the year 1987; and that if the said Smt. Shanti Devi (plaintiff) had deliberately got made any such assessment in the year 1987, then the same amounted to committing fraud on Nagar Mahapalika also and the said Smt. Shanti Devi (plaintiff) was not entitled to take benefit of her own wrongful acts.

It was, interalia, further alleged in the said written statement that on the refusal by the said Smt. Shanti Devi (plaintiff) to accept the rent, the Money-Order was sent and on refusal to accept the Money-Order, the rent was deposited under Section 30 of the Act in the Court of Munsif, Agra. It was, interalia, further alleged in the said written statement that merely because the petitioners (defendants in the said Suit) as some of the tenants deposited the rent, it did not mean that other heirs of the said Ram Prakash were not the tenants; and that the other heirs of the said Ram Prakash were also tenants of the disputed building.

It was, interalia, further alleged in the said written statement that no notice sent by the said Smt. Shanti Devi (plaintiff) was ever received by any of the petitioners (defendants in the said Suit). It was, interalia, further alleged in the said written statement that as per the own showing of the said Smt. Shanti Devi (plaintiff), notice was not sent to all the heirs of the said Ram Prakash, and their tenancy was never determined.

Both the parties led oral and documentary evidence in support of their respective cases.

It further appears that during the pendency of the said Suit, the said Smt. Shanti Devi (plaintiff) expired, and the respondent nos. 1 to 4 herein, being the sons and  daughters of the said Smt. Shanti Devi (plaintiff), were substituted as the plaintiffs in the said Suit.

The learned Judge, Small Cause Court, Agra by his judgment and order dated 31.8.2000 (Annexure-10 to the writ petition) decreed the said Suit. It was, interalia, held in the said judgment and order dated 31.8.2000 in deciding Point no.1 that the first assessment of the disputed building was effective with effect from 1.4.1987, and, therefore, the construction of the disputed building would be deemed to have been completed on 1.4.1987; and that in view of the amendment made in Section 2(2) of the Act with effect from 26.4.1985, the disputed building would not be covered under the Act for 40 years with effect from 1.4.1987.

It was, interalia, held in the said judgment and order dated 31.8.2000 in deciding Point no. 2 that there was no positive and reliable documentary evidence on the record to the effect that the disputed building had been taken on rent by the said Ram Pakash, and therefore, in the absence of evidence it could not be accepted that the disputed building had been taken on rent by the said Ram Prakash; and that even if the version of the petitioners (defendants in the said Suit) that the disputed building had been taken on rent by the said Ram Prakash, was accepted for the sake of argument, still on the death of the said Ram Prakash, all his legal heirs including his daughters became joint tenants of the disputed building; and that in case of joint tenants, it was not necessary to give notice to all the joint tenants nor was it necessary to implead all the joint tenants as parties in the Suit for eviction; and that the notice dated 4.4.1995 was legal; and that the service on the petitioners (defendants in the said Suit) by refusal was sufficient.

It was, interalia, further held in the said judgment and order dated 31.8.2000 in deciding Point no.3 that on the date of notice, the rent for the period from 1.4.1993 to 31.3.1995 was due against the petitioners (defendants in the said Suit); and that thus, rent of more than 4 months was due against the petitioners (defendants in the said Suit) which was not paid by the petitioners (defendants in the said Suit) within one month of the service of notice, which proved that the petitioners (defendants in the said Suit) committed default in payment of rent.

It was, interalia, further held in the said judgment and order dated 31.8.2000 in deciding Point nos.4 and 5 that as the provisions of the Act were not applicable to the disputed building, the petitioners (defendants in the said Suit) were not entitled to the benefit of Section 20(4) of the Act; and that even if the provisions of the Act were applicable to the disputed building, the petitioners (defendants in the said Suit) were not entitled to the benefit of Section 20(4) of the Act as they did not deposit the entire amount required to be deposited as per the provisions of Section 20(4) of the Act; and that the tenancy of the petitioners (defendants in the said Suit) was determined by notice under Section 106 of the Transfer of Property Act, and the provisions of Section 114 of the Transfer of Property Act, were not attracted to the present case and consequently, the petitioners (defendants in the said Suit) were not entitled to the benefit of Section 114 of the Transfer of Property Act.

The petitioners (defendants in the said Suit) thereupon, filed a revision under Section 25 of the Provincial Small Cause Courts Act against the said judgment and order dated 31.8 2000 passed by the learned Judge, Small Cause Court, Agra. The said revision was registered as SCC Revision No. 6 of 2001.

By the judgment and order dated 5.10.2002 (Annexure-11 to the writ petition), the learned Additional District Judge (Court No.10), Agra dismissed the said SCC Revision No. 6 of 2001, and confirmed the said judgment and decree dated 31.8.2000 passed by the learned Judge, Small Cause Court, Agra.

It was, interalia, held in the said judgment and order dated 5.10.2002 that on the basis of the evidence available on record, it was fully established that the construction of the disputed building would be deemed to have been completed in the year 1987 as provided under Section 2(2) of the Act, and the finding recorded by the learned Judge, Small Cause Court, Agra on the said point did not suffer from any illegality or jurisdictional error.

It was, interalia, further held in the said judgment and order dated 5.10.2002 that on the basis of the evidence on record, it was not established that the said Ram Prakash had taken the disputed building on rent; and that even if it be assumed that the tenant of the disputed building was Ram Prakash, still on his death, all his heirs would inherit the tenancy right as joint tenants, and in the circumstances, there would be no illegality in determination of tenancy of some of the joint tenants by notice and thereafter filing Suit for eviction against them.

It was, interalia, further held in the said judgment and order dated 5.10.2002 that the service of notice on the petitioners (defendants in the said Suit) would be deemed to be sufficient; and that no jurisdictional error or illegality had been committed by the learned Judge, Small Cause Court, Agra in holding that the tenancy of the petitioners (defendants in the said Suit) had been determined by valid notice under Section 106 of the Transfer of Property Act.

It was, interalia, further held in the said judgment and order dated 5.10.2002 that till the date of giving of notice, the petitioners (defendants in the said Suit) had not tendered or paid the arrears of rent to the plaintiff; and that the learned Judge Small Cause Court, Agra did not commit any error in recording findings on point no.3 regarding default committed by the petitioners (defendants in the said Suit) in payment of rent. It was, interalia, further held in the said judgment and order dated 5.10.2002 that as the provisions of the Act were not applicable to the disputed building, the petitioners (defendants in the said Suit) were not entitled to the benefit of Section 20(4) of the Act on the basis of the amount deposited by them, particularly when the said amount was less than the amount required to be deposited as per the provisions of Section 20(4) of the Act.

It was, interalia, further held in the said judgment and order dated 5.10.2002 that the present case was not a case of forfeiture of lease under Section 111(g) of the Transfer of Property Act, but was a case of determination of lease under Section 106 of the Transfer of Property Act; and that, therefore, the provisions of Section 114 of the Transfer of Property Act were not attracted to the present case; and that the amount required to be deposited under Section 114 of the Transfer of Property Act was more than that required to be deposited under Section 20(4) of the Act; and that as the amount deposited in the present case was less than that required to be deposited under Section 20(4) of the Act, the said amount would evidently be less than that required to be deposited under Section 114 of the Transfer of Property Act; and that no error or illegality or irregularity was found in the conclusion derived by the learned Judge, Small Cause Court, Agra in this regard.

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

I have heard Shri Madhav Jain, learned counsel for the petitioners and Shri Prakash Gupta, learned counsel for the respondents at length.

Shri Madhav Jain, learned counsel for the petitioners has made the following submissions:

1. In view of the provisions of sub-section (2) of Section 1 of the Act, the Act extends to the whole of Uttar Pradesh, while in view of sub-section (3) of Section 1 of the Act, the Act has been made applicable to every city, municipality, notified area and town area. Section 2 of the Act provides for the circumstances in which the building shall be exempted from the operation of the Act. Hence, the Act applies to all buildings in the city, municipality, notified area and town area within the territory of the State of Uttar Pradesh, and the inapplicability of the Act is subject to exemptions as embodied in Section 2 of the Act.

It is submitted that the person who seeks benefit of exemption from the applicability of the Act to any particular building must prove the exemption that the said building is out of the periphery of the Act. Hence, it was for the respondents (plaintiffs) who were claiming exemption from the applicability of the Act to establish the said fact.

It is further submitted that sub-section (2) of Section 2 of the Act provides that nothing in the Act would apply to a building during the period mentioned in the said provision as counted from the date of completion of its construction. With a view to provide definite date on which construction of the building would be deemed to have been completed for attracting the exemption provided under Section 2, Explanation-1 to Section 2 has  laid down various dates.

It is further submitted that the respondents (plaintiffs in the said Suit) claim exemption from the applicability of the Act in respect of the disputed building on the ground of its first assessment having been made by the order dated 27.3.1987, which, according to them, came into effect from 1.4.1987. In this regard, the respondents (plaintiffs in the said Suit) have relied upon the extract of municipal assessment for the period 1987-92. It is submitted that a perusal of the said municipal assessment makes it apparent that the disputed building was originally assessed at an annual rental  of Rs. 600/- per annum. The order dated 27.3.1987 referred to in the said municipal assessment relate to the order passed in Corporation Appeal No. 6745/87-92 and pursuant to the decision in the said appeal, the assessed annual value of the disputed building was reduced to Rs. 420/-by the order dated 27.3.1987 as is evident from column no.8 of the said municipal assessment.

It is submitted that a bare perusal of the said municipal assessment did not establish as to whether the same was first assessment of the disputed building and as to what was the date of the first assessment of the disputed building. No other cogent and admissible evidence having been brought on record by the respondents (plaintiffs), the respondents (plaintiffs) failed to discharge their burden of proving the said facts.

It is submitted that before subjecting any building to assessment for the first time, the municipal authority is under obligation to serve notice under Section 209 of the Nagar Mahapalika Adhiniam and is required to make endorsement on the final list as to the date on which it shall come into effect. No such evidence having been brought on record, the courts below acted illegally in recording finding about the non-applicability of the Act on the basis of the said extract of municipal assessment.

Reliance in this regard is placed by the learned counsel for the petitioners on the following decisions:

1. Ram Sarup Rai Vs. Smt. Leelawati, AIR 1982 SC 945 (paragraphs 5 and 10) = 1980 All L J 651.

2. Smt. Samundri Devi and Etc. Vs. Nand Kishore Marwah and others, 1987 All L J 255 (paragraphs 17,23 and 24).

3. Nand Ram Goel Vs. Abhay Singh, 1994 (2) ARC 319.

4. Surendra Kumar Jain alais Sunni Vs. Shanti Swarup Jain and others, 1995 AWC 1477 (paragraphs 14,15,16 and 17)

2. Misc. Case under Section 30 of the Act, which was dismissed in default, was subsequently restored, and the same is pending for consideration before the Court concerned. This is evident from a perusal of the judgment and order dated 5.10.2002 passed by the learned Additional District Judge (Court No.10), Agra (Revisional Court). Reference is made to page 75 of the paper book of the writ petition in this regard. Reference is also made to a photostat copy of the questionnaire filed as Annexure-SA-1 to the first supplementary affidavit filed on behalf of the petitioners.

It is submitted that in the circumstances, the deposit of Rs. 2000/- made by the petitioners at the time of filing of the application under Section 30 of the Act ought to have been taken into consideration for deciding as to whether the petitioners were entitled to the benefit of Section 20 (4) of the Act. Reference in this regard is made to a photostat copy of the tender annexed as Annexure-SA-2 to the first supplementary affidavit.

It is also pointed out by the learned counsel for the petitioners that the respondents (plaintiffs) have admitted the fact of deposit having been made by the petitioners under Section 30 of the Act in paragraph 5 of the plaint of the Suit (Annexure-1 to the writ petition) as well as in paragraph 3 of the notice of demand and to quit (Annexrue-4A to the writ petition).

Reference in this regard is craved to the decisions of the Apex Court in Kailash Chandra and another Vs. Mukundi Lal and others, 2002 (1) ARC 342 (paragraph 14).

In reply, Shri Prakash Gupta, learned counsel for the respondents has made the following submissions:

1. Admittedly, the relationship of landlord and tenant existed between the parties.  The said Suit was filed by the said Smt. Shanti Devi, predecessor-in-interest of the respondents, interalia, asserting that the construction of the disputed building was completed in the year 1987 and its first assessment was made on 27.3.1987 by the Municipal Corporation, Agra, and the same came into force from 1.4.1987. The assertions made in this regard in paragraphs 1 and 4 of the plaint of the said Suit (Annexure-1 to the writ petition) were not specifically denied in paragraphs 1 and 4 of the written statement (Annexure-2 to the writ petition). In order to establish that the first assessment of the disputed building was made with effect from 1.4.1987, the municipal assessment for the year 1987-92 was filed on the record as paper no. 34C.

It is further submitted that Smt. Malti Gupta (respondent no.4) was examined as P.W.-1 on behalf of the respondents (Annexure-5 to the Writ Petition), and she specifically stated in her statement that the disputed building was completed in January, 1987, and its first assessment was made in March, 1987, and that paper no. 34C was the copy of the said assessment. No cross-examination in regard to the said specific assertions made by P.W.-1 was made on behalf of the petitioners while cross-examining the said P.W.-1. It is further submitted that the statement of Chandra Prakash (petitioner no.2) given to the Rent Control Inspector was filed alongwith the report of the Rent Control Inspector. In the said statement, the said Chandra Prakash admitted that the first assessment of the disputed building was made in quinquennial assessment 1987-92. It is further submitted that Brij Mohan Agrawal (petitioner no.3), who was examined as D.W.-1 on behalf of the petitioners (Annexure-9 to the Writ Petition), admitted in his statement that the report of the Rent Control Inspector alongwith the said statement of the said Chandra Prakash were filed on behalf of the petitioners as paper No. 95C, and that the said statement was given in writing by the said Chandra Prakash to the Rent Control Inspector. A copy of the said report of the Rent Control Inspector alongwith the statement of the said Chandra Prakash (petitioner no.2) have been filed as Annexure-1 to the said affidavit, sworn on 2.12.2002, filed on behalf of the respondents.

It is submitted by Shri Gupta, learned counsel for the respondents that both the courts below on a consideration of the pleadings and evidence on record, particularly municipal assessment for the period 1987-92 (paper no. 34C) have concurrently recorded finding of fact that the first assessment was made on 1.4.1987. It is submitted that no interference is called for with the said finding of fact by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India.

Reliance in this regard is placed by the learned counsel for the respondents on the following decisions:

1. Vijai Laxmi Jain Vs. Rameshwar Dayal Gupta, 2001 (1) ARC 514 (paragraphs 6 to 10).

2. Ashok Kumar Bhatia Vs. 13th Additional District Judge, Kanpur Nagar and another, 2001 (1) ARC 481(paragraphs 10 to 17).

3. Lal Chand and another Vs. District Judge, Agra and others, 1999 (2) ARC 678 (S.C.) (paragraph 9)

2. Learned Judge, Small Cause Court, Agra in his judgment and order dated 31.8.2000 framed six points, and taking into consideration the entire evidence, oral and documentary, recorded the findings on the said points. The Revisional Court in its judgment and order dated 5.10.2002 has considered the findings recorded by the learned Judge, Small Cause Court, Agra on each point, and has affirmed the same after considering the material on record. It is submitted that the petitioners are attempting to challenge in the writ petition the findings of facts recorded by the courts below, and such findings cannot be disturbed in writ jurisdiction.

3. As the provisions of the Act are not applicable to the disputed building, the question as to whether the petitioners were entitled to the benefit of Section 20(4) of the Act, or as to whether the alleged deposit under Section 30 of the Act could be taken into consideration for the purposes of Section 20(4) of the Act, are not relevant in the present case. Even otherwise, the submission proceeds, the deposit under Section 30(1) of the Act has not as yet been accepted by the concerned court, and the application in this regard, as per the own showing of the petitioners, is still pending after restoration of the said Misc. Case No. 125 of 1993.

It is further submitted that the Revisional Court in its judgment and order dated 5.10.2002 has held that it was established on the evidence on record that till the date of giving of notice, the petitioners (defendants of the said Suit) had not tendered or paid rent to the landlord. In view of the said finding, it is apparent that the pre-requisite for making deposit under Section 30(1) of the Act was not satisfied in the present case and the alleged deposit made by the petitioners under Section 30(1) of the Act was not a valid deposit, and the same could not be taken into consideration for the purposes of Section 20(4) of the Act.

It is further submitted that the petitioners were not entitled to the benefit of Section 20(4) of the Act, as the deposit made by the petitioners under Section 20(4) of the Act was less than that required as per the provisions of the said Section 20(4) of the Act.

4. As the present case was not a case of forfeiture of lease under Section 111(g) of the Transfer of Property Act, but a case of the determination of lease under Section 106 of the Transfer of Property Act, therefore, the provisions of Section 114 of the Transfer of Property Act were not attracted to the present case. The conclusions of the courts below in this regard were fully correct.

In rejoinder, Shri Madhav Jain, learned counsel for the petitioners has reiterated the submissions made by him earlier.

I have considered the submissions made by the learned counsel for the parties and perused the record.

Let us consider the first submission made by the learned counsel for the petitioners, namely, regarding the applicability or otherwise of the Act to the disputed building.

In order to appreciate the submissions made by the learned counsel for the parties, it is necessary to refer to the provisions of Section 2(2) of the Act and Explanation-I thereto. The said Section 2(2) of the Act, alongwith Explanations thereto, is quoted below :

       "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 parts 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.];"

A perusal of sub-section(2) of  Section 2 of the Act shows that a building is exempt from the provisions of the Act (except the provisions of the Act as are specifically mentioned in sub-section (2) of Section 2 of the Act), during the period of ten years from the date on which the construction of the building is completed. Second proviso to Section 2(2) of the Act lays down that where construction of a building is completed on or after April 26, 1985 then the said period of ten years, mentioned in Section 2(2) of the Act, would be deemed to be 40 years from the date on which the construction of the building is completed.

Clause (a) of Explanation-1 to Section 2(2) of the Act makes deeming provision for determination of the date on which the construction of the building would be deemed to have been completed. Analysis of the said Clause (a) is as follows :

(1) (i) The construction of a building  shall be deemed to have been completed on the date on which completion thereof is reported to the local authority having jurisdiction.

(ii)  The  construction of a building shall be deemed to have been completed on the date on which completion thereof is otherwise recorded by the local authority having jurisdiction.  

(2) In the case of a building subject to assessment, the construction of such building shall be deemed to have been completed on the date on which the first assessment thereof comes into effect.

(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 the date on which  the construction of the building shall be deemed to have been completed.

  (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), the date on which the building is actually occupied for the first time will be the date on which construction of the building shall be deemed to been have completed. Such occupation should not be merely for the purposes of supervising the construction or guarding the building under construction.

It is thus evident that the date on which the construction of the building is completed is to be determined on the basis of the aforesaid deeming provision. Such determination is to be done on the basis of the date of report/record or assessment as mentioned in the said provision or the earliest of such dates if the dates are different. However, in case, there is no such report or record or assessment, then the date of actual occupation of the building for the first time will be the date on which the construction of the building shall be deemed to have been completed. It follows, therefore, that the date of actual occupation of a building would be relevant only when there is no report, record or assessment as 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.

The provisions of sub-section (2) of Section 2 of the Act and Explanation-1 thereto have been the subject-matter of various judicial decisions.

In Ram Saroop Rai case (supra), relied upon by the learned counsel for the petitioners, their Lordships of the Supreme Court laid down as follows (paragraphs 5,6,8, and 10 of the said AIR).

"5. Shri J.P. Goel rightly reminds us that in the normal course the appeal must be dismissed as concluded by findings of fact. But we will probe the matter further to explore whether there is any substance in Shri A.K. Sen's argument of fundamental failure bearing on the legality of the conclusions. The anatomy of the Act is substantially the same as that of other similar legislations. The most  important feature we have to notice is the exemption from application of the provisions of the Act for the period of ten years in respect of new constructions. S.2(2) is relevant in this context and runs as follows:

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.

XX XX XX

Explanation I.- For the purposes of the 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:

Provided that there may be different dates of completion of construction in respect of different parts 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 constructions 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.

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 on 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 statute expressly 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.

6. Firstly, therefore, we must examine whether the respondent has made out her case for exemption from the operation of the Act based on the vital fact that the building has been completed only within ten years of the Suit. The second thing we have to remember is Explanation I quoted above. When is a building deemed to have been completed?

An analysis of Explanation I to S.2(2) of the U.P. Act indicates:

(1) Where a building has not been assessed, it is the date on which the completion was reported to, or otherwise recorded by, the local authority having jurisdiction.

(2) Where a building has been assessed, it is the date on which the first assessment comes into effect:

Provided that if the date on which the completion was reported to, otherwise recorded by, the local authority is earlier than the date of the first assessment, the date of completion will be such earlier date.

(3) Where there is no report, record or assessment, it is the date of actual occupation for the first time (not being an occupation for the purpose of supervising the construction or guarding the building under construction).

8. Unfortunately, it is not possible for the purchaser-respondent or the tenant-appellant to give direct testimony about the time of the construction or the nature of the construction vis-à-vis Explanation (b) or (c). The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been remodelled and if so, when exactly the completion took effect. The municipal assessment record produced in the court merely states "increased assessment". It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed a new assessment was made which was more than the previous assessment, therefore, was described as increased assessment. The oral evidence in the case, apart from what we have set out, is inconsequential, being secondhand testimony. Even the recital in the rent deed that there was a new construction in 1965-66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction. Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute.

10. We do not want to dwell on the evidence in greater detail because we propose to remit the case to the trial court (Court of the First Additional District Judge, Jhansi). It is quite conceivable that the municipal records bearing on the completion of the construction may throw conclusive light whatever might have been the original proposal in the plan submitted. It is perfectly possible that on a view of the earlier construction, vis-à-vis the completed new building, the former may form but a small part. It may also be that the implication of the expression "increased assessment" may be explained with reference to earlier assessment records in the municipality. Moreover, whenever a new building is completed, a report has statutorily to be made and only on a completion survey and certificate, occupation is ordinarily permitted. These records must also be available in the office of the local authority. The statute makes it clear that reliance upon the municipal records, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction. This statutory guideline has been wholly overlooked and the burden lying on the landlord has not been appreciated. The result is that the eviction order has to be demolished."

Thus, the decision of the Apex Court in Ram Saroop Rai case (supra) lays down that speaking generally, the onus of establishing the date of construction of the building lies on the landlord. Further, the best evidence for proving such date is the municipal record and not oral evidence.

It follows from the said decision of the Apex Court in Ram Saroop Rai case (supra) that if "report, record or assessment" mentioned in Clause (a)  of Explanation-1 is available, that will constitute  the best evidence for establishing the date of construction of the building, and the oral evidence in such cases will not be material. However, in case, no such "report, record or assessment" is available then the date on which the building is actually occupied becomes relevant, and such date can be proved by other evidence including oral evidence.

In Smt. Samundri Devi case (supra), relied upon by the learned counsel for the petitioners, a learned Single Judge of this Court laid down as follows (paragraphs 11,14,16,17,24,25,27,28 and 29):

"11. Explanation (1) to S.2(2) which has been read earlier contains a ''deeming' clause. It creates a legal fiction. The rule about a legal fiction was stated by Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) AC 109 (b) in the following words:

"If you are bidden to treat an imaginary state of affairs as real, you must surely unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it...........The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it  comes to the inevitable corrolaries of that state of affairs."

14. The mere fact that the deeming provision is expressed to be an explanation will not alter its basic character nor limit it to a mere explanation of substantive provision. A substantive provision may be given the nomenclature of an explanation. The Legislature has its own way of describing a provision. To quote the words of the Supreme Court in D.G. Mahajan v. State of Maharashtra, AIR 1977 SC 915.

"It is true that the orthodox function of an explanation is to explain the meaning and effect of the main provision to which it is an explanation and to clear up any doubt or ambiguity in it. But ultimately it is the intention of the Legislature which is paramount and mere use of a label cannot control or deflect such intention. It must be remembered that the legislature has different ways of expressing itself and in the last analysis the words used by the legislature alone are  the true repository of the intent of the legislature and they must be construed having regard to the context and setting in which they occur. Therefore, even though the provision in question has been called in Explanation, we must construe it according to its plain language and not on any a priori considerations............".

16. The language in which Explanation (1)(a) is couched is clear. In effect, it says that for purposes of sub-sec. (2) of S. 2 of the Act, the construction of a building shall be deemed to have been completed:

(a) On the date on which its completion is reported to or otherwise recorded by the local Authority; and,

(b) In case of a building subject to assessment the date on which the first assessment thereof comes in effect.

of these the earlier of the two dates.

(C) And, where there is no report, record or assessment, the date on which it is actually occupied.

17. This is the sequence in which the date of completion of construction is to be ''deemed' for purposes of S.2(2). The Legislature, having regard to the fact that the building was to be kept out of the purview of the provisions of the Act for a specified period from the date of completion of its construction wished to ensure that the said date should be known with definiteness and, in order to achieve this it engrafted a legal fiction in respect of the said date. In other words, irrespective of what the actual date of completion of construction may be, the date, for purposes of S.2(2), would be the one determined with reference to the deeming provisions contained in the Explanation. That is the preponderant judicial view in the matter. Hari Swarup, J. observed in Tilak Raj v. Sardar Devendra Singh, (1976) 2 All LR 721 : (AIR 1977 NOC 184) that for the purpose of the case "a building is to be deemed to be constructed if it is subjected to assessment on the date with effect from which the first assessment is made. It is immaterial whether the building is constructed actually prior to that date or it has come into occupation prior to that date.........." M.P. Mehrotra, J. opined in Hirday Ram v. H.S. Kochar, (1977) 3 All LR 518 : (AIR 1977 NOC 357) that :

"It is significant that in the Explanation the actual date of construction has not been laid down to be the date on which the building is to be deemed to be completed. In other words, irrespective of the actual date of such construction, that date shall be deemed to be the date of completion which satisfies the criteria laid down in the aforesaid Explanation............when law has interposed to lay down a fiction, it is not open to fall back on the reality or the factual aspect of the matter were to be considered, then that course will be in the teeth, of the deeming provision..........".

24. Where, irrespective of the reality, the Legislature has unmistakably provided for assumption of the date of completion of the construction of a building in Expln. I to S.2(2) of the Act it is immaterial whether the landlord admits or avers to a date of completion of construction of the building different from the one contemplated by the fiction. Normally an admission may be binding upon the person making it except where he is able to explain it away. But that principle will be wholly inapplicable to a case in which the Legislature, acting within its competence, mandates through a legal fiction assumption of a fact different from the reality. Judged in this context the submission founded upon the statement of the principle that a legal fiction cannot be taken into account if truth is known  mentioned in M.C. Desai's Law Lexicon (Vol. II at page 778), nor the observations of the Division Bench of the Gujarat High Court in Ambalal Vallavbhai v.  Mangalbhai Dhulabhai Bhoj, AIR 1978 Guj 208 (in para 10) to which  a reference was made by Sri G.P. Bhargava, leading the arguments on behalf of the tenants can be of assistance. In that case S.4 of the Bombay Tenancy and Agricultural Lands Act, 1948 was up for consideration. It provided for a person lawfully cultivating any land belonging to another person to be deemed to be a tenant of such land in certain circumstances. A learned single Judge of the Court took a view that S.4 did not create an artificial class of deemed tenants. The Division Bench, which heard the matter, after referring to the provisions of the Statute and various decisions came to the ultimate conclusion that the language in which S.4 was enacted could not be said to give rise to irrevocable fiction. The observations which it made in para 10 of the Report were these:-

"Now let us see the distinction between a presumption and a legal fiction. In our opinion, a legal fiction is one which is not an actual reality but which the law requires the Court to accept it as a reality. Therefore, in case of legal fiction, the Court believes something to exist which, in reality, does not exist. In other words, it is nothing but a presumption of the existence of a State of affairs which in actual reality is non-existent. When viewed from this context, there is not much difference between a legal fiction and a presumption. However, it cannot be said that legal fiction and a presumption are wholly identical in all respects. A presumption may be conclusive or it may be rebuttable. A presumption gives rise to a legal fiction. It is conclusive if no evidence can be permitted to be led to deny it. In case of a presumption which is rebuttable, unless the contrary is established, a fictitious state of affairs is presumed to exist as if it is an actual reality..........".

25. These observations themselves answer the submission made on behalf of the tenants because having regard to the language in which Expln. I to S.2(2) is couched, it is not possible to say that it permits any freedom to assume a date of completion of construction for purposes of S.2(2) in a manner other than that contemplated by the Explanation.

27. As noticed earlier, the object of S.2(2), inter alia, was to ensure a period of holiday for the landlord to encourage building activity. There is nothing in the scheme of U.P. Act No. 13 of 1972, particularly having regard to the twin objects with which it has been enacted and which have been noticed earlier, to suggest that assumption of a date of completion of construction, different from the one provided for in Expln. I to S.2 (2)  would subserve the objects of the Act or that in fixing the date of completion of the construction of a building in terms of Expln. I would, in any manner, defeat the objects of the Act.

28. The decisions of the Supreme Court in Nathoo Lal v. Durga Prasad, AIR 1954 SC 355 and N.B. Gosavi Balajiwale v. G.V. Gosavi, AIR 1960 SC 100 which lay down that admissions, even if they are not in pleadings, are bindings can also not be pressed into aid, as was attempted to be done on behalf of the tenants, for the plea that it was open to a landlord to aver to a date other than the one contemplated by the Explanation to be the date of completion of construction. It may also be mentioned that in Civil Revision No. 390 of 1986 the statement that the construction of the house was completed in the beginning of December, 1974 was accompanied with the statement that house tax was assessed much thereafter and that the provisions of U.P. Act No. 13 of 1972 were not applicable to it. There was, thus, no unequivocal admission on the part of the plaintiff.

29. In Civil Revision No. 448 of 1986, the claim of the tenant was that the house was constructed in the year 1974 while of the landlord that it was constructed in September, 1976 and its first assessment was made in the year 1977. In Civil Revision No. 83 of 1986, the plea of the landlord was that the building in question was constructed in October, 1976 and was assessed to House Tax on October 1, so that U.P. Act No. 13 of 1972 was not applicable. The case of the tenant was that it had been constructed earlier and that an admission had been made by the landlord before the I.T.O. regarding the construction  of the building on Aug. 31, 1975 so that the Act was applicable. In each of these three case, therefore, the fact that the provisions of the Act were not applicable, having regard to the date of assessment to tax by the local authority was asserted by the landlords. In neither of these cases had the landlords pleaded unequivocally that having regard to the actual date of construction (without reference to Explanation I of S.2(2)) the provisions of the Act were attracted. Clearly, thus, they had all sought exemption from the applicability of the provisions of the Act for the period of holiday contemplated by S.2(2) with reference to the date of completion of construction provided for by the Legislature in Expln.I."

It follows from the decision in Samundri Devi case (supra) that normally an admission may be binding upon the person making it except where he is able to explain it away. However, the said principle will be wholly inapplicable to a case in which the Legislature creates a legal fiction providing for assumption of a fact different from the reality. In Explanation-1 to Section 2 (2) of the Act, the Legislature has unmistakably provided for assumption of the date of completion of the construction of a building, and as such, any admission or averment of the landlord to a date of completion of construction of the building different from the one contemplated by the fiction would be immaterial.

In Nand Ram Goel case (supra), relied upon by the learned counsel for the petitioners, a learned Single Judge of this Court laid down as follows (paragraph 8 of the said ARC) :  

"8. Learned counsel for the defendant-appellant has, however, urged that the Court below has not taken into consideration the admission made by the plaintiff, opposite-party in his statement that the first assessment was of the year 1972. I have considered the statement of the plaintiff. If the same is read as a whole and in reference to the context, it cannot be said that there was a clear admission of the plaintiff that the first assessment was of the year 1972. That apart, assuming that there has been some admission made by the plaintiff in his statement with regards to the first assessment, in such cases, as held by the Supreme Court in the case of Ram Swarup Rai v. Leelawati, reported in 1980 ARC 466, the oral evidence is inconsequential as the statute makes it clear that reliance upon the Municipal records rather than on the lips of witnesses  is indicated to determine the date of completion and the nature of the constructions. The submission made by the learned counsel, therefore, cannot be sustained. Further, I do not find any perversity in the findings given by the Court below. Even if two inferences are possible to be drawn from any evidence and the trial Court has accepted one of them, this Court will not interfere. I am, therefore, unable to accept the first submission made by the defendant-applicant."

It follows from the decision in Nand Ram Goel case (supra) that in case some admission is made by the plaintiff/landlord with regard to the first assessment of the building, which is contrary to the actual date of first assessment as borne out from the municipal records, then such admission by the plaintiff/landlord would not be material, and the date of first assessment as borne out from the municipal records would be relied upon.

In Surendra Kumar Jain alias Sunni case (supra), relied upon by the learned counsel for the petitioners, a learned Single Judge of this Court opined as follows (paragraphs 11,12,13,14,15,16,17,18 and 19 of the said AWC):

"11. This Court in its decision in the case of Raj Kumar Sharma v. District Judge, Haridwar, 1993 (2) ARC 103, had clarified after taking into consideration various decisions of the Apex Court that in the presence of the first assessment, the date of occupation of the building  during the period anterior to the first assessments is of no significance. It was also emphasized in the aforesaid decision that the date of first assessment of the building has to be taken as the date furnishing the starting point for computing the period of exemption contemplated under Section 2(2) of the Act. A perusal of Explanation 1 to Section 2(2) of the Act, however, indicates that in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect will be the date on which the construction of a building shall be deemed to have been completed. It is, therefore, obvious that it is not the order of first assessment which has to be taken to be the relevant factor but it is the date on which the assessment comes into effect which has been made the governing factor furnishing the starting point for computing the period contemplated under Section 2(2) of the Act.

12. The learned counsel for the petitioner has, however,  urged that in the present case, the assessment in question ought to have been taken to be finalized on 2nd February, 1978 and, therefore, it is this date on which the order for assessment will be deemed to have been passed which date ought to be taken as the date furnishing the starting point from which the period contemplated under Section 2(2) has to be computed for the purposes of determining as to whether the building in question is or is not exempt from the provisions of the Act.

13. The learned counsel for the contesting landlord respondents has, however, urged that the date of the order finalizing an assessment is wholly immaterial as the provisions contained in Explanation to Section 2(2) of the Act lay emphasis on the date on which the assessment becomes effective. The contention is that the aforesaid words used in the statute cannot be deemed to be a mere surplusage and  have to be given due weight while construing the said provisions. It has been emphasized that the legislative intent appears to be clear that it is not merely the order or year of assessment but the date from which the said order is made effective which is relevant.

14. A perusal of the provisions contained in Section 144 of the U.P. Municipalities Act, 1916 shows that when all objections contemplated under Section 143 of the Act have been disposed of and all amendments required by sub-section (3) of that section have been made in the assessment list, the said list shall be authenticated in the manner prescribed thereunder. However, the provisions contained in Section 144 (2) of the Act stipulate that the list so authenticated shall be deposited in the municipal offices and shall thereupon be declared by public notice to be open for inspection.

15. In the circumstances, therefore, it seems to me that mere order of assessment which may amount to authentication as contemplated under the provisions of Section 144 of the Act cannot be deemed to be a date furnishing the starting point for computing the period of ten years' contemplated under Section 2(2) of the Act. In the present case, according to the tenant's own witness, the assessment of the new building constructed subsequent to the year 1970 was made effective from 1.4.1981. The claim of the defendant that the building as it stood in the year 1970 continued to remain in existence thereafter and was never demolished was disbelieved by the trial court. The case of the defendant-plaintiff that after demolition of the old building a new building was constructed and assessment has been found to be correct. In his deposition the D.W.2 Jagdish Singh had categorically admitted that the assessment of the newly constructed building had been assessed for the first time in the year 1978 which assessment had become effective only from 1.4.1978.

16. The scheme underlying the provisions contained in Sections 141 to 145 of the U.P. Municipalities Act appears to be that the assessment list prepared under Section 141 of the Act contains only tentative assessment. This list is required to be published as provided for in Section 142 of the Act inviting objections to the entries contained in the list which have to be disposed of as provided under Section 143(2) of the Act. It is thereafter when the objections are disposed of and the requisite amendments have been made in the list that the said list is authenticated by the competent authority. Thereafter as contemplated under Section 144(2) of the Act, the list so authenticated is deposited in the Municipal office and thereupon declared by public notice to be open for inspection.

17. In the aforesaid circumstances, it is obvious that an order disposing of an objection is anterior to the authentication of the list contemplated under Section 144 (1) of the Act and is also anterior to the declaration contemplated under Section 144 (2) of the said Act. Moreover, the assessment list is made valid from the date on which the list takes effect in the Municipality and until 1st of April next following the completion of a new list. It is so provided in Section 145 (2) of the Act. The aforesaid provision clearly indicates that even after the declaration contemplated under Section 145(2) of the Act the Municipality concerned has to specify a date from which the list is to take effect. It may be the date of publication contemplated under Section 145(2) of the Act or any later date. But in no case it can be a date anterior to the aforesaid publication and in any case, the order disposing of the objection, such as the order dated 2.2.1978 in the present case, can be deemed to be the date from which the assessment takes effect.

18. As has already been noticed above, it was apparent from the statement of D.W.2 Jagdish Singh that the first assessment of the newly constructed building was to be effective from 1.4.1978. When an allegation of fact is admitted or must be deemed to be admitted, there is no need to prove what is admitted or deemed to be admitted but there may be cases in which having regard to the nature of the circumstances, the court may insist upon proof independent of such admission by non-traverse or otherwise.

19. In this connection, it may further be noticed that as observed by this Court in its decision in the case of Salek Chand v. IInd Additional District Judge and others, 1983 (2) ARC 462 that no exception can be taken to a finding in regard to the date of construction based on material on record within the narrow ambit of the jurisdiction of this Court contemplated under Article 226 of the Constitution of India. In the present case, the conclusions in regard to the first assessment of the building in dispute holding it to be newly constructed, the first assessment whereof became effective from 1.4.1981 have been arrived at on the basis of the consideration of evidence and materials on record. The learned counsel for the petitioner has not been able to demonstrate that the said finding is vitiated by any error much less manifest error of law."

It follows from the decision in Surendra Kumar Jain  alias Sunni case (supra) that the date on which the first assessment comes into effect is the governing factor furnishing the starting point for computing the period contemplated under Section 2(2) of the Act. Referring to the deposition of D.W.-2 that the first assessment of the newly constructed building had become effective from 1.4.1978, it was held that "when an allegation of fact is admitted or must be deemed to be admitted, there is no need to prove what is admitted or deemed to be admitted but there may be cases in which having regard to the nature of the circumstances, the court may insist upon proof independent of such admission by non-traverse or otherwise".

In Vijai Laxmi Jain case (supra), relied upon by the learned counsel for the petitioners, a learned Single Judge of this Court held as follows (paragraphs 4,5,6,7,8 and 10 of the said ARC):

"4. The parties would swim or sink with the finding on the crucial question whether or not the provisions of the Act No. XIII of 1972 are applicable to the disputed accommodation. Sri Rajesh Tandon, learned senior Advocate appearing on behalf of the tenant, vehemently argued that the evidence on record would itself indicate that the landlord has himself admitted that the premises are covered by the provisions of the Act No.XIII of 1972 as having been constructed in the year 1970. He founded his submission on the admission made by the landlord in P.A. Case No. 31 of 1992 filed by him against the tenant under Section 21(1)(a) of the Act No. XIII of 1972 for release of the tenanted accommodation for his personal need. In that application, a copy  of which is Annexure-A-3 to the revision application, the landlord  has, in unambiguous terms, admitted that the tenanted accommodation came into being in the year 1970. Sri Lalta Prasad Garg, who happened to be the Advocate for the landlord also made a statement before the Prescribed Authority, a copy whereof is Annexure A-4 to the revision application, that the provisions of the Act No. XIII of 1972 applied to the accommodation in respect of which the petition for release had been filed. The landlord-Rameshwar Dayal Gupta filed his own affidavit in the case, aforesaid, a copy of which is Annexure-5, deposing that the tenanted accommodation was built in the year 1970. The release petition was ultimately decided ex-parte in favour of the landlord who was successful in dispossessing the tenant. The tenant took steps  to set aside the order dated 7.11.1999? by which the tenanted accommodation was released. Consequent upon the setting aside of the order of release, the tenant was put back in possession and occupation of the tenanted premises. The landlord filed Civil  Misc. Writ No. 435 of 1993 which was partly allowed by order dated 8.3.1994 with the observation that the landlord shall not interfere with the possession of the tenant and in her taking the connection for water and electricity supply. Shri R.N. Bhalla, learned Senior Advocate for the landlord was not in a position to assail the admission with regard to the age of the tenanted accommodation made by the landlord in the release petition but took the forceful stand that the admission of the landlord in proceedings for release of the tenanted accommodation is of no relevance and consequence and the  trial Court unmindful of the admission of the landlord, has to decide, as a fact on the basis of the evidence available on record, as to when the premises came into existence. It was maintained that the plea of estoppel in such a matter is not attracted. To support his contention, Sri Bhalla placed reliance on the decision of this Court in Smt. Padmini Bala Rai v. District Judge, Dehradun, 1983 (1) ARC 159, in which the effect of the plea regarding non-applicability of the Act No. XIII of 1972, was thrashed out. In that case, the landlady had applied for release of certain flats. On behalf of the tenants, it was pleaded that the flats were new constructions. It was held that whether the disputed flats are new constructions within the meaning of Section 2(2) of the Act No. XIII of 1972 is a question which goes to the root of the jurisdiction of the Rent Control Authorities and where such is the case, plea of estoppel cannot come in the way of landlady from contending that the Rent Control Authorities have no jurisdiction to pass orders in respect of the buildings which are exempt from the operation of the Act No. XIII of 1972, by virtue of Section 2(2) of the said Act. A reference was also made to the decision of this Court in Smt. Samundari Devi and another v. Nand Kishore Marwa and others, 1987 Alld. L.J. 255 : 1986 (2) ARC 442, in which again the provisions of Section 2(2) of the Act No. XIII of 1972 came to be interpreted.

5. Before embarking upon the discussion on the issue and sifting of the decisions, aforesaid, it would be proper for clear understanding to quote, in extenso, the provisions of Section 2(2) of the Act No. XIII of 1972, which run as follows :

"(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 parts 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".

The object of the aforesaid provision, it was held in Samundri Devi's case (supra), is to ensure a period of holiday for the landlord to encourage building activity. There is nothing in the scheme of the Act No. XIII of 1972, particularly, having regard to the objects with which it has been enacted to suggest that assumption of a date of completion of construction, different from the one provided for in Explanation 1 to Section 2(2) of the Act No. XIII of 1972 would sub-serve  the objects of the Act or that fixing in date of completion  of the construction of a building in terms of Explanation 1 would, in any manner, defeat the object of the Act. Moreover, the mere fact that the deeming provision is expressed to be an explanation, will not alter its basic character nor limit it to a mere Explanation of substantive provision. It was further observed that the Explanation 1 to Section 2(2) contains a deeming clause. It creates a legal fiction. The language in which Explanation 1(a) is couched is clear. In effect, it says that for purposes of sub-section (2) of Section 2, the construction of a building shall be deemed to have been completed (a) on the date on which its completion is reported to or otherwise recorded by the Local Authority; and (b) in case of a building subject to assessment the date on which the first assessment thereof comes in effect, (c) and, where there is no report, record or assessment, the date on which it is actually occupied. This is the sequence in which the date of completion of construction is to be deemed for the purposes of Section 2(2). The legislature having regard to the fact that the building was to be kept out of the purview of the provisions of the Act No. XIII of 1972 for a specified period from the date of completion of its construction wished to ensure that the said date should be known with definiteness and, in order to achieve this it engrafted a legal fiction in respect of the said date. In other words, irrespective of what the actual date of completion of construction may be, the date for purposes of Section 2(2), would be the one determined with reference to the deeming provisions contained in the Explanation. Where, irrespective of the reality, the Legislature has unmistakably provided for assumption of the date of completion of the construction of a building in Explanation 1 to Section 2(2) of the Act No. XIII of 1972., it is immaterial whether the landlord admits or avers to a date of completion of construction of the building different from the one contemplated by the fiction. Normally an admission may be binding upon the person making it except where he is able to explain it away that principle will be wholly inapplicable to a case in which the legislature, acting within its competence, mandates through a legal fiction assumption of a fact different from the reality. Though in the instant case, the landlord in the release proceeding under Section 21(1)(a) of the Act No. XIII of 1972, asserted in unerring terms that the tenanted accommodation came into being in the year 1970 the controversy whether the Act No. XIII of 1972, applies or not is to be determined with reference to the parameters laid down in Section 2(2) read with Explanation 1. The admission or assertion of either of the parties would hardly be of any consequence.

6. There has been some controversy with regard to the burden of proof, whether it is initially on the landlord or the tenant. In Durga Prasad v. IIIrd Additional District Judge, Kanpur and another 1985 (1) ARC 398, it was held by this Court that the burden to prove the fact that the provisions of the Act No. XIII of 1972, are attracted to the tenanted accommodation or not, lies on the landlord but where both the parties have led evidence to prove or disprove this fact, the Revisional Court has jurisdiction to record a finding on this jurisdiction fact and consequently the burden of proof looses its importance. There have been some conflicting decisions of this Court as divergent views were expressed on the point (See Ram Pal Singh v. VI Additional District Judge, and others, 1983 (2) ARC 7). It is not necessary to refer all such cases as the whole controversy came to be quelled by an authoritative pronouncement of the Apex Court in Ram Swaroop Rai v. Smt. Leelawati, 1980 ARC 466, in which taking note of the fact that the provisions of the Act No. XIII of 1972, apply to all buildings except where the exemption operates, it was laid down that the landlord, who seeks exemption  must prove that exemption. The burden is on him to make out that notwithstanding the  Rent Control legislation, his building is out of its ambit. I am not for the tenant to prove that the building has been constructed  beyond a period of ten years, but it is for the landlord / landlady to make out that the construction has been completed  within ten years of the Suit. In the same decision, it was further noticed that the statute makes it clear that reliance upon the municipal records, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction. The oral evidence in the case is inconsequential being second-hand testimony. Even the recital in the rend deed that there was a new construction by the tenant and the landlady neither of whom has any direct knowledge about the construction  because the landlady had purchased that building. It was further observed that of course, an admission by the tenant is admission against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid down by the Statute.

7. In the subsequent  decision in Suresh Kumar Jain v. Shanti Swarup Jain and others, 1997 (1) ARC 640, the Apex Court has further dwelt over the same point and observed as follows:

"There is not dispute 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  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 1 and proviso to such Explanation 1. The outer limit of the period of exemption in respect of newly constructed building is ten years. Such outer limit of the period of exemption has been introduced for balancing  the equities between the landlord and 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 provided for in Explanation 1 to sub-section (2) of the U.P. Rent Act. The four different dates for the purpose of exemption 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 local authority;

(ii) the date on which the completion of the building is otherwise reported 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."

From a close reading of the decisions of the Apex Court  in Ram Saroop Rai (supra) and Suresh Kumar Jain (supra), it follows that it is not for the tenant to prove that the buildings has been constructed beyond a period of ten years but it is for the landlord to make out that the construction  has been completed  within ten years of the Suit. This is sensible not merely because the Statute expressly states  so and the setting necessarily implies so but also because it is the landlord 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.

8. In the instant case, now let us examine whether the landlord has been able to satisfy the requirement of Section 2(2) read with Explanation 1 of the Act No. XIII of 1972 for determining the question about the age of the tenanted accommodation. In the present case, there is absolutely no document on record filed either by the landlord or the tenant  to establish when the tenanted accommodation, or for that matter, house No. 88, Sadar Bazar Road, Cannt., Mathura came into being. There is only parol testimony of the parties. What the landlord has asserted has been repelled by the tenant and her another witness. The property, in question, is situate within the limits of the Cantonment of Mathura. The statute makes it clear that reliance upon municipal records, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of construction. The Court below has failed to approach the question of age of the tenanted accommodation from a right angle and has misdirected itself in determining the same by adopting a totally wrong approach. The statutory guideline, as adumbrated under Section 2(2) read with explanation 1 of the Act No. XIII of 1972 has been wholly overlooked and legal position that the burden which lay on the landlord has not been appreciated. The finding recorded by the trial Court is not only speculative in nature but scrappy and jumpy. Even otherwise, the tenant-revisionist  did take steps to bring on record the extract from the municipal assessment register. She applied for a certified copy of the relevant extract from the municipal assessment register but it was not supplied to her on the ground that such a copy can be issued only to the landlord. The tenant-revisionist then moved an application before the trial Court with the prayer that the original assessment register may be summoned from the Cantonment Board. This application is dated 27.9.1995 on the record of the Lower Court. The relevant document which was highly germane for the determination of the controversy was not summoned by the trial Court. It appears that the trial Court was swayed away with the consideration that the question of the age of the tenanted accommodation may be gauged or decided with reference to the oral evidence of the parties. The ipsi dixit approach adopted by the trial Court cannot but be condemned. The approach adopted by the Court below is wholly against the statutory provisions and in violation of the guidelines laid down by the Apex Court as well as this Court with regard to the burden of proof of the fact as to when the tenanted accommodation came into existence. At the cost of tautology, it may be made clear that the burden of proof clearly lay on the landlord to establish that the provisions of the Act No. XIII of 1972 are not applicable to the accommodation, in question and consequently, he is not required to establish one or more of the grounds contained under Section 20(2) of the Act No. XIII of 1972. The landlord could discharge the burden or establish the fact by bringing on record the municipal assessment extract or to lead other evidence as is contemplated under Section 2(2) read with Explanation 1 of the Act No. XIII of 1972. It was not difficult for him to have obtained the copy of the assessment register if he was sure enough that he will get the benefit of the exemption from the provisions of Act No. XIII of 1972. Since I am going to remit the case of taking evidence on the point and to decide the controversy afresh, I would do better to refrain from making any further comments on the point, lest either of the parties may unnecessarily be prejudiced by the observations of this Court.

10. The controversy whether a particular accommodation is to be governed by the provisions of Act No. XIII of 1972 or it is excepted from the operation of the said Act is a mixed question of law and facts. As stated above, the basic question with regard to the applicability of the Act has to be determined with reference to the provisions of Section 2(2) read with Explanation 1 of the U.P. Act No. XIII of 1972 and no amount of oral evidence or admission of either of the parties would be sufficient to displace the entry made in the municipal record with regard to the tenanted accommodation. In the instant case, the tenanted accommodation is located within the cantonment area and surely there must be a record of the first assessment of the house in question. The crucial question could be determined by taking on record the entries made in the assessment register maintained by the Cantonment Board. The trial Court has palpably committed a serious error by not requiring the landlord to produce the copy of the assessment register or by summoning the said document, if for certain reasons, copy thereof was not available. The landlord also did not take any steps in this regard in spite of the fact that the burden of proof lay squarely on him to establish that the disputed construction came into being within a period of ten years reckoned from before the date of the institution of the Suit. It is, therefore, not the question of appraising or re-appraising by the Revisional Court the evidence recorded by the Court   below. As noticed above, the Revisional Court is duty-bound to correct the apparent and glaring mistake committed by the Court below and if the decision of the trial Court is apparently against the law, or say, not according to law, in that event, the Revisional Court has to set aside the order. Therefore, the contention of Sri R.N. Bhalla, Senior Advocate that this Court exercising revisional powers cannot interfere with the finding of fact recorded by the Court below does not go too far. The decision is required to be set aside as it is not according to law."

It follows from the decision in Vijai Laxmi Jain case (supra) that the controversy whether the Act applies or not is to be determined with reference to the parameters laid down in Section 2(2) read with Explanation-I of the Act, and the admission or assertion of either of the parties would hardly be of any consequence. The onus of establishing the date of construction of the building is on the landlord. An admission by the tenant regarding the date of construction of the building is an admission against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid down by the statute.

It further follows from the said decision in Vijai Laxmi Jain case (supra) that the landlord could discharge the burden of establishing the date of construction of the building by bringing on record the municipal assessment extract or leading other evidence as contemplated under Section 2(2) read with Explanation-I of the Act. It was pointed out that the crucial question with regard to the date of construction of the building could be determined by taking on record the entries made in the assessment register maintained by the Cantonment Board, and the landlord was required to obtain the copy of the assessment register and produce the same in the Suit. In case, copy of the assessment register was not available, the said document could be summoned in the Suit.

In Ashok Kumar Bhatia case (supra), relied upon by the learned counsel for the respondents, a learned Single Judge of this Court laid down as under (paragraphs 8,9,10,11,12,13,14,16 and 17 of the said ARC):

"8. The sole point raised by learned counsel for the petitioner in this petition was that the first assessment of the premises in question was done by the Nagar Maha Palika Authorities on 21.3.1979, which could be presumed date of completion of construction of the premises in question, if not, any date earlier to it, and Suit was filed on 30.3.1989 and therefore, provisions of the Act were fully applicable on the premises in question and Suit was not maintainable, as none of the grounds enumerated in Section 20  of the Act existed and tenant was entitled to the protection under the Act. On the other hand learned Counsel for respondent No.2 contended that the Nagar Maha Palika Authorities resolved that the first assessment of the premises in question would come into effect with effect from 1.4.1979 and there was no evidence from the side of petitioner to prove the date of completion of construction of the premises in question prior to coming into effect the first assessment and therefore, provisions of Act were not applicable to the premises in question, Suit was maintainable and tenancy of petitioner stood terminated on service of notice under Section 106 of Transfer of Property Act. Therefore, the sole question, which arises for determination in this writ petition is whether the provisions of Act were applicable to the premises in question on the date of Suit i.e. 30.3.1989.

The relevant portion of Section 2(2) of the Act is as follows:

"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....................

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 parts 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".

9. As it is evident from the above wordings of Section 2(2) of the Act 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 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. As held by this Court in the case of Raj Kumar Sharma v. District Judge, Haridwar and others, 1993 (2)ARC 103, the word ''deemed' is normally used to create a statutory fiction. While interpreting a provision creating a legal fiction it has to be ascertained as to for what purpose a fiction is created and it is only after ascertaining this all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction have to be assumed. As pointed out by the Apex Court in the case of Commissioner of Income Tax, Delhi v. S. Teja Singh, AIR 1959 SC 352, it is well settled that in construing the scope of legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate.

10. The Explanation 1 to Section 2(2) was also considered by the Apex Court in the case of Gopal Krishna Andely v. Vth Additional District Judge, Kanpur and others, 1982 (1) ARC 391(SC) and the Apex Court took the following view:

"A perusal of Explanation 1 makes it abundantly clear that the date of 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 in that 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."

11. The learned counsel for the petitioner further contended that as per wordings of Explanation 1 to Section 2(2) of the Act, if there are two dates of completion of the building reported to or otherwise recorded by the Local Authority having jurisdiction and the date on which the first assessment thereof comes into effect and where the said dates are different, the earliest of the said dates would be material for purposes of operation of the Act. He further pointed out that in the extract of assessment shows the assessment was done on 21.3.1979 and it means the construction of the building completed on or before the said date and therefore, the above date was material for the purposes of computation of 10 years  for operation of the provisions of the Act. But having gone through the extract of quinquennial assessment, (Annexure 4 to the writ petition) I find no force in the above contention. It has no where been mentioned in the above document that completion of construction of building was reported to or otherwise recorded by Local Authority  on 21.3.1979. It simply shows that by the resolution of the committee dated 21.3.1979 the assessment would come into effect from 1.4.1979. Parties had not filed any other document before the trial Court or the Revisional Court to show that the completion of construction of building was reported to or otherwise recorded by the Local Authority on any prior date and virtually there is no evidence to show the date of completion of the construction of the building, reported to or otherwise  recorded by the Local Authority. Therefore, the only date on which the first assessment came into effect was before the Courts below to ascertain the applicability of provisions of Act. There being no other earlier date, the Courts below were justified in taking into consideration the date on which the first assessment came into effect for purposes of Explanation 1 to Section 2 (2) of the Act.

12. The learned counsel for the petitioner placed reliance on Apex Court decision in Suresh Kumar Jain v. Shanti Swarup Jain, 1997 (1) ARC, 640. In the said case both the dates namely 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 January 30, 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 first floor had been rented at R. 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 January 30, 1978 to the respondent landlord that the date of hearing of the objection to the assessment of house tax was fixed  at 11 A.M. on February 1, 1978. Held that such notice as a consequential action about the report of the Head Clerk only indicated that the Municipality had also noted the factum of completion of the building at least from the date of receipt of the said report. 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 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 Municipalities Act.

13. No such report or notice or any evidence otherwise to this effect have been adduced in the instant case and therefore, the above case law is of no help to the petitioner.

14. Further reliance was placed on Apex Court  decision in the case of Surendra Kumar Jain @ Sunni v. Shanti Swaroop Jain and others, 1996 (1) ARC 316. It was held in the said case law that it appears that in terms of Explanation 1 (1) (a) the construction is deemed to have been completed on the date  on which the completion thereof is reported to or otherwise recorded by Local Authority having jurisdiction, if such reporting or recording happens to be on the earliest point of time vis-à-vis various dates referred to hereinbefore. It was contended in the said case that Municipal Authority  having given notice for assessment on 15.11.1977, such date should be held to be the date when the Municipal Authority had already taken note of the construction of the building. Since that date is the earliest of the dates as referred in Explanation 1(a), that date becomes relevant for the purpose of considering deemed date of construction. No such date has been shown or proved in this case and therefore, this case also does not help the petitioner.

16. The learned counsel for the petitioner further contended that undisputedly  Nagar Maha Palika, Kanpur made the assessment prior to 1.4.1979 and therefore, the date of  completion of building was available and if the parties could not file any document regarding the date of completion of construction of reporting to or recorded by Local Authority, it was the duty of the Court to have summoned the said record. Reliance was also placed in this regard on cases Mangat Singh v. Sunder Lal, 1985 (1) ARC, 47, Mulkraj v. District Judge, Dehradun and others, 1982 (2) ARC 547, Mohammaed Hanif Khan v. VIIth A.D.J. Bulandshahar and others, 1991 (1) ARC 161 and Ayodhya v. Special Additional District Judge, Jaunpur and another, 1988 (2) ARC 176. But it is not disputed that the petitioner had not made by attempt for filing the date of completion of construction reported or otherwise recorded by Nagar Maha Palika, nor moved any application for summoning record of Nagar Maha Palika in this regard and therefore, at this stage this exercise is not permitted.

17. In view of what has been discussed above, the only date available in this case was date from which the first assessment of the building in question came into effect and therefore in the absence of any other date, the Courts below were justified in accepting that date for purposes of Explanation 1 to Section 2(2) and rightly concluded that provisions of the Act were not applicable to the premises in question on the date of Suit."

It follows from the decision in Ashok Kumar Bhatia case (supra) that in case the only date available on the record was the date from which the first assessment of the building in question came into effect, and the defendant/tenant made no attempt for filing the date of completion of construction reported to or otherwise recorded by Nagar Mahapalika, nor moved any application for summoning the record of Nagar Mahapalika in this regard, then the courts below were justified in accepting the date from which the first assessment of the building in question came into effect as the date of completion of the construction of the building in question for the purposes of Explanation -I to Section 2(2) of the Act.

In Lal Chand case (supra), relied upon by the learned counsel for the respondents, their Lordships of the Supreme Court laid down as follows (paragraph 9 of the said ARC):

"9. The trial Court as well as the High Court have held that this is a case in which there is no evidence as to when the landlord reported the date of completion of the reconstruction to the local authority. Therefore, the first part of the clause (a) of the Explanation-1 to Section 2(2) of the 1972 Act is not applicable and under the second part of the Explanation, the relevant date of reconstruction is the date of first assessment and ten years have to be counted from the date of the first assessment. The evidence shows that the first assessment is on 1.10.1972. The Courts have found therefore, that the building is exempt from the provisions of new Act for a period of 10 years from 1.10.1972 and that therefore, notice under Section 106 of the Transfer of Property Act could be given on 2.8.1976 and the suit could be filed for eviction in 1976 in as much as the building was exempt from the provisions of the Act as on 1976. This view, in our opinion, is correct."

It follows from the decision in Lal Chand case (supra) that in case there is no evidence as to when the landlord reported the date of completion of the construction to the local authority, the relevant date would be the date of first assessment.

Keeping in view the principles laid down in the aforesaid judicial decisions, let us examine the facts of the present case.

In paragraph 1 of the plaint of the said SCC Suit No. 73 of 1995 (Annexure-1 to the writ petition), it was averred by the said Smt. Shanti Devi (plaintiff) as follows :

"1. That the plaintiff purchased a piece of land bearing plot no. 81 situated at Madhav Kunj, Pratap Nagar within Lohamandi Ward, Agra, by registered sale deed dated 27.1.1981 and thereafter the constructions were raised thereon which were  completed in the year 1987 and its first assessment was made on 27.3.1987 by the municipal corporation, Agra and no. 47-B/81 was allotted to it. This assessment came into force from 1.4.1987. This building is more particularly described in Schedule ''a' to the plaint and it shall be referred to as the building hereinafter."

The averments made in the said paragraph 1 of the plaint were replied to by the petitioners (defendants in the said Suit) in paragraph 1 of the written statement (Annexure-2 to the writ petition) as follows:

"1. Yah ki wad patra ki dhara 1 swikar nahin hai. Wadi ko apne abhikathno ko sidh karne ka dayitva hai. Wadi ka yah kathan sahi nahin hai ki ukt makan ka nirman san 1987 men pure huye. Satya tathya yah hai ki ukt nirman jamin kharidne ke sal bhar ke andar hi nirmit ho gaya tha. Yadi wadi dwara janboojhkar uska assessment nagar mahapalika men nahin karaya aur is prakar  usne kar ki bhi chori ki atah wadini khud ke galat karyon ke labh uthane ki adhikarni nahin hai."

In paragraph 4 of the plaint of the said Suit, the said Smt. Shanti Devi (plaintiff) made the following averments:

"4. That the constructions of the building was completed in the month of March, 1987, and its first assessment came into force from 1.4.1987 and thus the provisions of U.P. Urban Buildings (Regulations of Letting, Rent & Eviction ) Act No. XIII of 1972 are not applicable to the building."

Reply to the averments made in paragraph 4 of the plaint was given in paragraph 4 of the written statement, which is quoted below:

"4. Yah ki wad patra ki dhara 4 galat hai aur swikar nahin hai. Yah kahna asatya hoga ki vivadit bhawan March 1987 men bankar taiyar huwa. Pratiwadigano ki jankari men  yah bhi nahin hai ki uska pratham assessment san 1987 men huwa. Yadi aisa koi assessment wadi dwara janboojhkar san 87 se karaya hai to wah unki or se nagar mahapalika ko bhi dhokha dene ki sreni men aata hai aur wadi apne hi galat karyon ka fayda uthane ki adhikarni nahin hai."

From a perusal of the aforesaid pleadings, it is evident that the petitioners (defendants in the said Suit) did not specifically deny that the first assessment of the disputed building came into force with effect from 1.4.1987. Copy of the municipal assessment for the period 1987-92 was filed on behalf of the respondents (plaintiffs in the said Suit) as paper no. 34C in order to establish that the first assessment of the disputed building came into force with effect from 1.4.1987.

Smt. Malti Gupta (respondent no.4), who was examined as P.W.-1, in her examination-in-chief, interalia, stated that the construction of the disputed building was completed in January, 1987, and it was assessed for the first time in March, 1987, and that the copy of the assessment was paper no. 34C. While cross-examining the said Smt. Malti Gupta, (P.W.-1), no cross-examination was made with regard to her said statement that the municipal assessment for the first time took place in March, 1987, and the copy of the assessment was paper no.34C.

Copy of the report of the Rent Control Inspector dated 28.6.1993 alongwith copy of the statement given by Chandra Prakash Agrawal (petitioner no.2) in writing before the Rent Control Inspector was filed as paper no. 95C (Annexure-1 to the affidavit, sworn on 2.12.2002, filed on behalf of the respondents). In the said statement before the Rent Control Inspector, the said Chandra Prakash Agrawal (petitioner no.2), interalia, stated that the first statement of the disputed building was made by the Nagar Mahapalika for the period 1987-92.

Brij Mohan Agrawal (petitioner no.3), who was examined as D.W.-1 on behalf of the respondents, in his statement, interalia, stated that the Rent Control Inspector had come for inspection of the disputed building, and his brother Chandra Prakash Agrawal had given statement in writing to the said Rent Control Inspector, and that copy of the said statement alongwith the report had been filed as paper no.95 Ga wherein it was written that the first assessment of the disputed building was made by the Nagar Mahapalika for the year 1987-92.

It will thus be seen that the respondents (plaintiffs in the said Suit) filed copy of the assessment for the period 1987-92. Smt. Malti Gupta (respondent no.4) in her statement as P.W.1 proved the said copy of the assessment (paper no.34C), and pointed out that the first assessment of the disputed building took place in March, 1987. No cross-examination was made on behalf of the petitioners with regard to the said statement made by Smt. Malti Gupta (P.W.-1). In my opinion, the copy of the municipal assessment (paper no.34C) for the period 1987-92 coupled with the statement made by P.W.-1 showed that the assessment for the period 1987 -92 was the first assessment of the disputed building.

The said conclusion is further fortified by the fact that the averments made in paragraphs 1 and 4 of the plaint of the said Suit regarding the first assessment having been made with effect from 1.4.1987 were not specifically denied by the petitioners (defendants in the said Suit) in the written statement. It is further noteworthy that in his statement made to the Rent Control Inspector, filed as paper no.95 Ga on the record, the said Chandra Prakash Agrawal (petitioner no.2) stated that the first assessment of the disputed building was made for the period 1987-92. The fact that the said statement was made by Chandra Prakash Agrawal (petitioner no.2) was admitted by the said Brij Mohan Agrawal (petitioner no.3) in his statement as D.W.-1.

In view of the aforesaid, I am of the view that the submission made by the learned counsel for the petitioners that it was not established that the copy of the assessment for the period 1987-92, filed as paper no.34Ga on the record, was the first assessment, cannot be accepted.

The said document, paper no.34Ga, having been brought on record on behalf of the respondents (plaintiffs in the said Suit), and the same having been duly proved by the statement of P.W.-1, and P.W.-1 not having been cross-examined with regard to the said statement, it was not necessary for the respondents (plaintiffs in the said Suit) to have brought on record any other document, such as, notice under Section 209 of the Nagar Mahapalika Adhiniam, particularly when the petitioners (defendants in the said Suit) in their written statement did not specifically dispute the averments made in the plaint in regard to the first assessment of the disputed building having been made with effect from 1.4.1987.

It is pertinent to refer, in this regard, to the provisions of Order VIII, Rule 5, Sub-Rule (1), Code of Civil Procedure, 1908, as well as to the provisions of Section 58 of the Indian Evidence Act, 1872.

Order VIII, Rule 5, Sub-Rule (1) of the Code of Civil Procedure provides as follows:

"5. Specific denial.-[(1)]   Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

[(2) to (4)].................................................."

Section 58 of the Indian Evidence Act lays down as under:

"58. Facts admitted need not be proved.-  No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."

Further, as noted above, in Surendra Kumar Jain alias Sunni case (supra), it was held that "when an allegation of fact is admitted or must be deemed to be admitted, there is no need to prove what is admitted or deemed to be admitted but there may be cases in which having regard to the nature of the circumstances, the Court may insist upon proof independent of such admission by non-traverse or otherwise".

In view of the provisions of Order VIII, Rule 5, Sub-Rule (1) of the Code of Civil Procedure and Section 58 of the Indian Evidence Act, as well as in view of the said decision in Surendra Kumar Jain alias Sunni Case (supra), it is evident that once the petitioners (defendants in the said Suit) in their written statement did not specifically deny the averments made in the plaint with regard to the first assessment having been made with effect from 1.4.1987, there was no need to prove what was admitted or deemed to be admitted. Moreover, in the present case, as noted above, the copy of the municipal assessment for the period 1987-92 was brought on record which was duly proved by P.W.-1, who also stated that the first assessment of the disputed building was made in March, 1987.

It is noteworthy that in Vijai Laxmi Jain case (supra) it was held that the landlord could discharge the burden of proving the date of construction of the building by bringing on record the municipal assessment extract. In the present case, the respondents (plaintiffs in the said Suit) brought on record the municipal assessment for the period 1987-92. It is further noteworthy that the said Brij Mohan Agrawal (D.W.-1), interalia, stated that no effort was made by the petitioners (defendants in the said Suit) to find out regarding any assessment of the disputed building prior to 1987. Evidently, therefore, the respondents (plaintiffs in the said Suit) discharged their burden by bringing on record the copy of the municipal assessment for the period 1987-92 as paper no. 34Ga and duly proving the same by the statement of P.W.-1, while the petitioners (defendants in the said Suit) did not bring on record any material to show that any assessment of the disputed building was made prior to the said assessment for the period 1987-92.

In the present case, while the respondents (plaintiffs in the said Suit) discharged their burden by filing copy of the said municipal assessment for the period 1987-92 as paper no.34C and duly proving the same by the evidence of P.W.-1 , who also stated that the first assessment took place in March, 1987, the petitioners (defendants in the said Suit) did not bring on record any report or record by municipal authority recording completion of construction prior to the municipal assessment for 1987-92, nor did they bring on record any assessment of the disputed building prior to the said assessment for 1987-92.

Therefore, the courts below rightly relied upon the said municipal assessment for the period 1987-92 in deciding that the first assessment of the disputed building took place with effect from 1.4.1987.

As regards the submission made by the learned counsel for the petitioners that no reliance can be placed on oral evidence or admission in view of the pronouncement of the Supreme Court in Ram Saroop Rai case (supra), it is noteworthy that in the present case, the respondents (plaintiffs in the said Suit) brought on record the municipal assessment for the period 1987-92 (paper no.34C). The Supreme Court in Ram Saroop Rai case (supra) held that municipal record should be produced to establish the date of completion of the construction, and this was done by the respondents (plaintiffs in the said Suit) by filing copy of the municipal assessment for the period 1987-92 as Paper No.34C.

The oral evidence in the present case was referred to by the courts below merely to substantiate what was evident from the copy of the municipal assessment for the period 1987-92 (paper no.34C). Therefore, the submission of the learned counsel for the petitioners in this regard cannot be accepted.

As regards the submission made by the learned counsel for the petitioners that admission cannot be relied upon to prove the date of completion of construction in view of the decisions in Samundri Devi case (supra) and Surendra Kumar Jain alias Sunni case (supra), it is noteworthy that admissions were only referred to by the courts below in order to substantiate what was evident from the copy of the municipal assessment for the period 1987-92 (paper no.34C). In the present case, the admissions were not inconsistent with municipal assessment. Therefore, reliance on admissions to substantiate the conclusion derived from the municipal assessment was, in my opinion, permissible.

In Samundri Devi case (supra) as well as in Surendra Kumar Jain alias Sunni case (supra), admissions were contrary to the municipal record. Therefore, it was held that admissions could not be relied upon. The said decisions in Samundri Devi case (supra) and Surendra Kumar Jain alias Sunni case (supra), are, in my view, not applicable to the present case.

As regards the submission made by the learned counsel for the petitioners that the respondents (plaintiffs in the said Suit) ought to have brought on record notice under Section 209 of the Nagar Mahapalika Adhiniam in order to substantiate that the municipal assessment for the period 1987-92, relied upon by the respondents (plaintiffs in the said Suit), was the first assessment, and the respondents (plaintiffs in the said Suit) having failed to do so, adverse inference should be drawn against the respondents (plaintiffs in the said Suit) in view of the decision of the Apex Court in Gopal Krishnaji Ketkar Vs. Mohammad Haji Latif and others, AIR 1968 Supreme Court 1413, I am of the opinion that the submission made by the learned counsel for the petitioners cannot be accepted. The respondents (plaintiffs in the said Suit) brought on record copy of the municipal assessment for the period 1987-92, and there was sufficient evidence on record to establish that the same was the first assessment in respect of the disputed building. In the circumstances, merely because the alleged notice under Section 209 of the Nagar Mahapalika Adhiniam was not brought on record, no adverse inference, in my opinion, can be drawn against the respondents (plaintiffs in the said Suit). The decision in Gopal Krishnaji Ketkar case (supra) is not, in my opinion, applicable to the present case.

In view of the aforesaid, it is evident that the construction of the disputed building would be deemed to have been completed on 1.4.1987. Therefore, in view of the second proviso to sub-section (2) of Section 2 of the Act, the disputed building would remain exempt from the provisions of the Act for a period of 40 years with effect from 1.4.1987. The said Suit, as noted earlier, was filed in 1995. Evidently, the provisions of the Act were not applicable to the present case.

Coming now to the submission made by the learned counsel for the petitioners that the deposit under Section 30(1) of the Act ought to have been considered by the courts below for deciding the question as to whether the petitioners (defendants in the said Suit) were entitled to the benefit of Section 20(4) of the Act, it is noteworthy that as the provisions of the Act were not applicable to the disputed building, the question of giving benefit of Section 20(4) of the Act to the petitioners (defendants in the said Suit) did not arise in the present case. There was thus no occasion to consider the alleged deposit made under Section 30(1) of the Act. The conclusions of the courts below in this regard, in my opinion, were correct.

Reference in this regard may be made to the following decisions:

(i) In Ishtiaq Hussain Vs. Ashfaq Hussain, 1985 (1)ARC 377, a learned Single Judge of this Court held as follows (paragraph 8 of the said ARC):

"8 The submission for the revisionist is that he made deposit under Section 30(1) of U.P. Act 13 of 1972 and hence he should have been given the  benefit thereof. This is devoid of force for two reasons. In the first place the U.P. Act 13 of 1972 is inapplicable. In accordance with the proviso to Section 2(2) where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or U.P. Avas Evam Vikas Parishad, and the period of repayment of such loan exceeds the aforesaid period of ten years, then in that event the period of ten years for the purpose of making the Act applicable is to 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 including interest, whichever is shorter. The revisionist-judgment debtor did not dispute the plaint averment that because of this proviso the Act did not apply. In fact this was agreed upon plainly between the parties as is manifest from paragraph 1 of the compromise forming part of the decree. For the same reason Section 30(1) of the Act could not be invoked. Consequently, in order that the revisionist could made out his bonafides even otherwise, he had to make out as a fact that he made deposit of the rent for October and November, 1982 and onwards. His claim in regard to this has also remained unestablished as discussed above, the reliance for that being exclusively upon the photostat which do not constitute certified copies. Due to the default incurred in payment of rent for two succeeding months and more the revisionist became liable to eviction in execution of the decree."

(ii) In Prem Chand and another Vs. District Judge, Ghazipur and others, 1985(1) ARC 500, a learned Single Judge of this Court laid down as follows (paragraph 9 of the said ARC):

"9. The revisional Court has found that the premises in question was constructed some time in the end of April 1974. Accordingly, prior to that, the premises in question fell out side the purview of the Act  and any deposit purported to have been made by the tenant under Section 30 of the Act before April 1984  would be without jurisdiction. Learned Counsel for the petitioners admitted that from out of sum of Rs. 2,040 a sum of Rs. 1,445 had been deposited by him prior to 1-4-1984.  That much amount, therefore, was deposited at a time when Section 30 of the Act was not applicable to the accommodation in question and as such it cannot be treated either as deposit or payment of rent made under Section 30 of the Act. It certainly was not, as contemplated by Section 39 of the Act, a deposit made in the court before which the suit for eviction was pending. Once this amount of Rs. 1,445 is ignored it becomes clear that the entire rent that was due from the tenant upto the date on which the Act became applicable to the accommodation in question did not stand deposit within one month of the relevant date."

(iii) In Rama Kant Gupta Vs. Rameshwar Das, 1992 (2) ARC 110, a learned Single Judge of this Court opined as follows (paragraphs 18 and 19 of the said ARC):

"18. The learned Counsel for the appellant has further submitted that the amount was deposited under Section 30 of U.P. Act No. 13 of 1972. Both the Courts below have held that provisions of Act No. 13 of 1972 are not applicable to the premises in dispute. Elaborate reasons have been recorded for the same. Respondent's Counsel also placed reliance on an unreported judgment of Division Bench of this Court which has specifically held that the provisions of Act No. 13 of 1972 will not be applicable to such property known as Khandsar which was intended to be used for industrial and manufacturing purposes. The provisions of Sections 2(1) (c) and (d) both shall apply and the property is exempted from the operation of the Act. The Division Bench judgment is in respect of Second Appeal No. 67 of 1974, Har Govind and others v. Ram Bharose Lal Tandon, decided on 17-2-1978.

19. Thus without going into the controversy as to whether the amount deposited by the appellant under Section 30 of the U.P. Act No. 13 of 1972 was on the first date of hearing or not and whether it was withdrawn by the defendant-appellant, I am of the opinion that he cannot claim any benefit on the basis of the said deposit as provisions of Section 30 were not at all applicable."

The above decisions thus show that the question of considering deposit made under Section 30(1) of the Act would arise only if the Act is applicable to the building in question. In case the Act is not applicable to the building in question, the provisions of Section 30(1) of the Act would not be attracted, and no benefit can be given in respect of any deposit made under Section 30(1) of the Act.

Even otherwise, as per the averments made in the Supplementary Affidavit, sworn on 20.11.2002, filed on behalf of the petitioners, deposit under Section 30(1) of the Act was allegedly made on 26.7.1993 in Misc. Case No. 125 of 1993. It is further evident from the findings recorded by the Courts below that a notice of demand and to quit dated 4.4.1995 was given by the plaintiff to the petitioners (defendants in the said Suit) which was served on the petitioners by refusal. The learned Additional District Judge (Court No.10), Agra (Revisional Court) in his judgment and order dated 5.10.2002 has held that on the basis of the evidence available on record, it was established that till the date of giving of the notice, the petitioners (defendants in the said Suit) had not tendered or paid the arrears of rent to the plaintiff. In view of the said finding, it is evident that there was no tender of rent by the petitioners (defendants in the said Suit) to the plaintiff prior to making the alleged deposit under

Section 30(1) of the Act. As there was no tender of rent to the plaintiff, there was no occasion for refusal thereof by the plaintiff. Therefore, it was not open to the petitioners (defendants in the said Suit) to make deposit under Section 30(1) of the Act.  In case, any such deposit was allegedly made by the petitioners (defendants in the said Suit) on 26.7.1993, the same was not valid deposit and could not be considered for the purposes of Section 20(4) of the Act. In this regard, it is relevant to refer to the provisions of Section 30 of the Act, which is quoted below :

"30. Deposit of rent in court in certain circumstances.- (1)  If any person  claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it.

(2) Where any bonafide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of any building, the tenant may likewise deposit the rent stating the circumstances under which such deposit is made and may, until such doubt has been removed or such dispute has been settled by the decision of any competent court or by settlement between the parties, continue to deposit the rent that may subsequently become due in respect of such building.

(3). The deposit referred to in sub-section (1), or sub-section (2) shall be made in the Court of the Munsif having jurisdiction.

(4). On any deposit being made under sub-section (1), the Court shall cause a notice of the deposit to be served on the alleged landlord, and the amount of deposit may be withdrawn by that person on application made by him to the court in that behalf.

(5). On a deposit being made under sub-section (2), the court shall cause notice of the deposit to be served on the person or persons concerned and hold the amount of the deposit for the benefit of the person who may be found entitled to it by any competent court or by a settlement between the parties, and the same shall be payable to such person.

(6). In respect of a deposit made as aforesaid, it shall be deemed that the person depositing it has paid it on the date of such deposit to the person in whose favour it is deposited in the case referred to in sub-section (1) or to the landlord in the case referred to in sub-section (2)."

A perusal of sub-section (1) of Section 30 of the Act shows that the pre-condition for making any deposit under the said provision is that the person claiming to be a tenant of a building must have tendered the amount as rent in respect of the building to its alleged landlord and the alleged landlord must have refused to accept the same. Unless the said pre-condition is fulfilled in a case, it is not open to a person claiming to be a tenant of a building to make deposit under sub-section (1) of Section 30 of the Act. In case, any deposit is made without fulfillment of the said pre-condition, such deposit will not be a valid deposit, and the same will not be taken into account for deciding the question of giving benefit of Section 20(4) of the Act. Reference in this regard may be made to certain judicial decisions:

In Hameed alias Hamid Vs. Radhey Lal and others, 1983 (1) ARC 401, a learned Single Judge of this Court opined as follows (paragraph 8 of the said ARC):

"8. Learned counsel has referred to a Full Bench decision of this Court in the case of Smt. Indrasini v. Din Ali, 1968 AWR 167 (F.B.). It was held there that where the tenant remits by money order and the amount remitted covers the rent due and the landlord refuses the same, the tenant cannot be said to be in arrears of rent in respect of that month within the meaning of Section 2(1) of the Old Act. There can be no quarrel with this proposition, but in my humble opinion this principle is not at all attracted to the facts of the present case. In the present case, the question is whether the deposit made by the tenant under Section 30(1) of the Act would save his tenancy under the provisions of Section 20(4) of the Act. A deposit made under Section 30(1) would be a good deposit provided it is made after complying with the requirement of the said sub-section. Where it is held that the landlord had not refused to accept the rent, the tenant does not get any right to make any such deposit. Since it was not a valid deposit, the amount could not be taken into consideration while deposing of the matter under Section 20(4) of the Act. The courts below have taken correct view of law. I do not find any merit in this petition."

In M/s S. Chand & Co. Vs. IInd Additional District Judge and others, 1985(1) ARC 251, a learned Single Judge of this Court held as follows (paragraph 8 of the said ARC):

"8. According to Sub-section (3) of Section 30, the deposit is to be made in the Court of Munsif having jurisdiction. The word "Court of the Munsif" and the further words "having jurisdiction" clearly indicate a regular court contemplated by the Bengal, Agra and Assam Civil Courts Act. A perusal of Sub-section(1) of Section 30 further indicates that under Sub-section (1) rent can be deposited in court on its being refused by the landlord. The following conditions are contemplated to exist before the rent can be deposited in court.

(i) There should be a building contemplated and governed by the provisions of the Act.

(ii) The rent should be in respect of the said building.

(iii) It should have been tendered to the landlord; and

(iv) The landlord should have refused to accept the rent during the continuance or subsistence of the tenancy."

In Satish Chandra Nigam Vs. The District Judge, Kanpur and others, 1984(2) ARC 324, a learned Single Judge of this Court opined as follows (paragraph 6 of the said ARC):

"6. On 16th August, 1977, the tenders were submitted only in respect to two items mentioned above. So far as the rent is concerned, the petitioner's case was that as he had deposited rent under Section 30 of U.P. Act No. XIII of 1972 on 2-7-1977, the same was required to be taken into account for conferring upon him the benefit of Section 20(4). Under Section 30 deposit of rent can be made by a tenant only when the landlord has refused to accept the rent offered to him. In the instant case, the two courts concurrently found that the plaintiff landlords were justified in refusing to accept the money order of Rs. 340/-. Refusal was held justified as the same was remitted after one month of service of notice of demand effected on the petitioner on 5-3-1977. Refusal, in the circumstances, was fully justified and the petitioner could not avail Section 30 for depositing the amount on 2-7-1977. As this amount also cannot be considered as valid deposit, the courts below rightly ignored the same".

In Smt. Mridula Dayal Vs. VIth Additional District Judge, Allahabad and others, 1986(2) ARC 132 (D.B.), following question was referred  for opinion to a Larger Bench:

"Whether a tenant can claim deduction of invalid deposit made under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for taking advantage of sub-section (4) of Section 20 of the said Act."

Answering the said question in the negative, a Division Bench of this Court held as follows (paragraphs 9,10,11,12 and 14 of the said ARC):

"9. The rationae behind the provision contained in Section 20(4) of the Act permitting the tenant to deduct the amount deposited by him under sub-section(1) of Section 30, from out of the rent, interest and costs payable by him is to be found in sub-section(6) of Section 30, which creates a fiction to the effect that deposits made under sub-section(1) of Section 30, are deemed to be payments made to the concerned person. The fiction under sub-section (6) of Section 30, arises where the deposits have been made by the tenant in the circumstances enumerated in sub-section(1) or sub-section (2) of Section 30 and not otherwise. Sub-section(1) of Section 30, countenances deposits being made by a person in the prescribed manner-

(i) if such person claims to be a tenant of the building,

(ii) he tenders any amount as rent in respect of that building to the alleged landlord, and

(iii) the alleged landlord refused to accept the same.

The section envisages that there may be a controversy between the person claiming to be a tenant and the person whom he alleged to be his landlord with regards either to their relationship of being landlord and tenant or about the rate of rent payable by the person claiming to be the tenant or even about the actual amount of rent may due from such person. The person alleging himself to be the tenant can deposit the amount which was tendered by him as rent to the person whom the claims to be his landlord, and such person had refused to accept the same irrespective of whether the refusal of the landlord in accepting the said amount was justified or not. Any deposit so made by the person claiming to be a tenant is, as laid down in sub-section(6) of Section 30, deemed to be the amount of rent paid to be the person in whose favour it had been made. Accordingly whenever a question regarding extent of the amount of rent paid to the landlord arises, the amount deposited in accordance with the provisions of sub-section(1) of Section 30 of the Act has to be taken into consideration and accounted for. The fiction does not come into play where the deposit has been made by a person in circumstances not covered by sub-section(1) of Section 30 (we are  omitting from consideration the provisions of sub-section (2) of Section 30, as they are not relevant for our purposes).

10. Coming now to the question referred to us for opinion, we find that we are called upon to decide whether an invalid deposit made under Section 30 of the Act can be taken into account for claiming advantage of sub-section (4) of Section 20 of the same. The expression "invalid deposit made under Section 30 of the Act" appears to be incongruous. If the deposit has been made in circumstances covered by sub-section (1) of Section 30 and in the prescribed manner, it would be a valid deposit made under that provision, and it obviously would enure towards claiming of benefit of sub-section (4) of Section 20. If, on the other hand, the deposit has either not been made in the circumstances contemplated by sub-section (1) of Section 30 or not in the prescribed manner, it is not a deposit under sub-section (1) of Section 30 at all and no question of taking such deposits into consideration while considering the question whether or not the person claiming to be a tenant is entitled to be relieved of his liability as laid down in Section 20(4) of the Act, would arise. In the context the expression "invalid deposit made under Section 30 of the Act" used in the question referred to us for opinion does not appear to be happy.

11. We take it that while using the said expression what the learned Judge meant was as to whether a deposit purporting to have been made under Section 30, in circumstances other than those enumerated therein, can be taken advantage of for purposes of sub-section (4) of Section 20 of the Act. If that be so, we have no hesitation in saying that a deposit made by a tenant in circumstances not contemplated under sub-section (1) of Section 30, cannot be deemed to be payment made to the landlord as provided by sub-section (6) of Section 30, consequently it cannot be taken advantage of for claiming benefit of sub-section (4) of Section 20 of the Act."

12. If, however, by using the words "invalid deposit made under Section 30 of the Act" in the question referred, the learned Judge meant to convey a deposit which otherwise complied with the conditions laid down in sub-section (1) of Section 30, but then the landlord was, for some reason justified in refusing to accept the same, our answer would be that despite the validity or justification for such refusal by the landlord, such deposit would still be available to the alleged tenant for taking advantage of sub-section (4) of Section 20 of the Act.

14. We have no quarrel with the proposition that under Section 30, deposit of rent can be made by a tenant only when the landlord has refused to accept the amount offered to him as rent, but then we are not able to subscribe to the view that in a case where the landlord refuses to accept the same and the refusal was, in the circumstances, justified, the person claiming to be the tenant cannot deposit the same ;under Section 30(1) and that such deposit would be invalid and would not enure for the purposes of sub-section (4) of Section 20."

In Ghulam Sabir Vs. District Judge, Lucknow and another, 1992 (2) ARC 198, a learned Single Judge of this Court held as follows (paragraphs 14 and 15 of the said ARC):

"14. From the emphasized word in this clause it would appear that right to deposit is acquired only when there is refusal on the part of the landlord to accept the rent. There is no general right available to the tenant to deposit rent in Court. Sub-section (4) requires notice to be issued to the landlord when rent is deposited under sub-section (1). Sub-section (6) reads as follows:

"In respect of a deposit made as aforesaid, it shall be deemed that the person depositing it has paid it on the date of such deposit to the person in whose favour it is deposited in the case referred to in sub-section (1) or to the landlord in the case referred to in sub-section (2)."

        (Emphasis supplied).

This is a deeming clause. This clause applies when deposit has been made in accordance with the preceding clauses of Section 30. This is apparent from the use of the words "deposit made as aforesaid". Although when deposit is made in Court the money does not come in the hands of the landlord. This clause creates the fiction of payment to the landlord, but this fiction will be attracted only when the deposit has been made "as aforesaid". Thus for the fiction available under this clause, a deposit referable to sub-section (1) must be made when rent has been tendered to the landlord and he has refused to accept the same. If there has been no tender of rent and no refusal the deposit will not be referable to sub-section (1) and the fiction created by sub-section (6) will not be available to the tenant. When deposit is made on fulfillment of the conditions prescribed in sub-section (1) two fictions arise (1) payment has been made to the person in whose favour the deposit has been made, and (2) the payment has been made on the date the amount has been deposit in Court. In view of this position it has to be seen whether the deposit asserted by the petitioner was made on existence of the conditions prescribed in sub-section (1) so as to attract the fiction created under sub-section (6).

15. According to the finding of fact recorded by the revisional Court there was no tender of rent by the petitioner to the landlord and there was no refusal of rent by the latter. Accordingly the conditions for deposit prescribed in sub-section (1) were not satisfied. Therefore, the fiction created under sub-section (6) will also not be attracted."

As regards Section 114 of the Transfer of Property Act, the learned Judge, Small Cause Court, Agra, in the said judgment and order dated 31.8.2000, interalia, held that the tenancy of the petitioners (defendants in the said Suit) was  determined under Section 106 of the Transfer of Property Act, and the provisions of Section 114 of the Transfer of Property Act, were not attracted to the present case and consequently, the petitioners (defendants in the said Suit) were not entitled to the benefit of Section 114 of the Transfer of Property Act.

Further, the learned Additional District Judge (Court No.10), Agra (Revisional Court), in the said judgment and order dated 5.10.2002, interalia, held that that the present case was not a case of forfeiture of lease under Section 111(g) of the Transfer of Property Act, but was a case of determination of lease under Section 106 of the Transfer of Property Act; and that, therefore, the provisions of Section 114 of the Transfer of Property Act were not attracted to the present case; and that the amount required to be deposited under Section 114 of the Transfer of Property Act was more than that required to be deposited under Section 20(4) of the Act; and that as the amount deposited in the present case was less than that required to be deposited under Section 20(4) of the Act, the said amount would evidently be less than that required to be deposited under Section 114 of the Transfer of Property Act; and that no error or illegality or irregularity was found in the conclusion derived by the learned Judge, Small Cause Court, Agra in this regard.

I am in agreement with the above conclusions of the Courts below. A perusal of notice of demand and to quit dated 4.4.1995 (Annexure-4A to the Writ Petition) shows that the same was a notice to quit simpliciter under Section 111(h) read with Section 106 of the Transfer of Property Act, and not a notice under Section 111(g) of the Transfer of Property Act on the ground of forfeiture of lease. Section 114 of the Transfer of Property Act was, therefore, not applicable to the present case.

Reference in this regard may be made to certain judicial decisions:

In Geetabai Namdeo Daf vs. B.D. Manjrekar, AIR 1984 Bombay 400, it was laid down as follows (paragraph 3 of the said AIR):

"3.  I am somewhat unhappy that the law relating to forfeiture of tenancy has been misunderstood by both the Courts below. I have no objection to the courts' committing mistakes. We all of us do so at one time or the other; but the question which I am dealing with should normally have been regarded as one of elementary principle. I am not happy that mistakes are committed by confusion of elementary principles.

    The legal position to be noted is that there is a world of difference between liability of the tenant for eviction on the ground of forfeiture of tenancy and his liability on the ground of termination of the tenancy by a notice of termination simpliciter. The law relating to determination of tenancy is incorporated in S. 111 of the Transfer of Property Act. There are various reasons for determining the tenancy and there exist various modes by which the tenancy comes to an end. If the tenancy is to come to an end by virtue of the principle of forfeiture, what is required under the law is that the tenancy should be for a particular period and the lease deed must contain a clause of forfeiture on the ground of breach of certain conditions of the tenancy. If the breach is committed, the tenancy becomes liable for forfeiture even before the expiry of the agreed period of the tenancy. When the tenant incurs forfeiture, there is a further thing required to be done by the landlord, namely, that the landlord must exercise his right of forfeiture either expressly or by necessary implication. If he exercises the right of forfeiture, then the tenancy comes to an end even before the agreed period of tenancy. In such a case no question of notice of termination of tenancy as provided by S. 106 of the Transfer of Property Act arises, although, in certain cases, some kind of notice indicating exercise of the right of forfeiture by the landlord may be advisable. On the other hand, when the lease is not for a particular fixed period but is only a periodical lease like a yearly lease or a monthly lease and if the agreement of tenancy provides that the lease can be terminated by notice of termination as contemplated by S. 106 of the Transfer of Property Act, no question of forfeiture as such arises. The tenant might happen to be a paragon of virtue and he might have been paying every single farthing of the rent with strict punctuality and might have been performing every term of the tenancy with enviable devotion; still, if the tenancy is terminated by the notice to quit provided for expressly or impliedly by the agreement of tenancy, the conduct of the tenant and absence of breach of termination (condition) to tenancy on his part are irrelevant factors.

This is the position in the Transfer of Property Act. The legislature had found that sometimes this position was abused by some of the rapacious landlords, and that is the reason why the various Rent legislations were enacted. At the places where the Rent Act applies, the tenants are relieved to some extent, of this inexorable position under the Transfer of Property Act mentioned above; but for the premises which are not governed by the Rent Act, the position under the Transfer of Property Act continues to subsist. If the lease is capable of being terminated by a notice of termination under S. 106 of the Transfer of Property Act, the legal position is not that the tenancy is terminated by forfeiture. Termination of tenancy on account of forfeiture is an entirely different concept, and the court must bear in mind that the concept of termination of tenancy on account of forfeiture and the concept of termination of tenancy by a notice to quit under S. 106 of the Transfer of Property Act are two distinct and independent concepts. In the instant case no doubt the plaintiff-landlady had a grievance against the defendant that he had innate reluctance to pay the rent. It may be also true that the motive behind terminating the tenancy was the tenant's reluctance to pay the rent; but still when the tenant remained in arrears of rent, no such thing as forfeiture was incurred by him, because the tenancy was not for any fixed period, and hence there was no question of there being any forfeiture clause in the agreement. Further, when the landlady terminated the defendant's tenancy on account of her dissatisfaction about him, no forfeiture was enforced by her, once again because there existed no forfeiture clause in the agreement of tenancy. The fact that the tenant had been guilty of non-payment of rent is just one of the historical facts having no relevance whatsoever with the landlady's right to terminate the tenancy.

I will explain the position further. If there existed a forfeiture clause to the effect that on account of breach of certain conditions of tenancy the landlady would be entitled to forfeit the tenancy, any number of notices she might give and still the tenancy would remain unaffected, if no breach of any of the conditions of the tenancy was committed by the tenant. On the other hand, if there existed no forfeiture clause but the landlady was entitled to terminate the tenancy, the tenancy being a monthly tenancy, the notice of termination will be effective in law, even if no breach whatsoever was committed by the tenant. This is the position in law resulting directly from the provisions of S. 111 of the Transfer of Property Act. If this is the position also in the present case, S. 114 of the Transfer of Property Act does not come into play at all. The fallacy in the reasoning of the lower Court lies in the fact that merely because there exists section 114 in the Transfer of Property Act, the Court volunteers to give the benefit of the same to the tenant, forgetting that S. 114 does not come into play unless the forfeiture is incurred by the tenant in pursuance of a forfeiture clause contained in the agreement of lease. When there is no such clause in the agreement, S. 114 does not come into play at all. The position of law is as simple as that."

(Emphasis supplied)

In Shiv Shankar Vs. Additional District Judge, Court No.8, Agra and others, 2002 (1) ARC 13, a learned Single Judge of this Court held as follows (paragraphs 4, 6 and 14 of the said ARC):

"4. Section 114, Transfer of Property Act quoted above, gave an option to a tenant to make deposits contemplated therein within the prescribed period mentioned in the Section. In the case of forfeiture only the expression, used in the said Section 114, Transfer of Property Act" whether a lease of immovable property has been determined by forfeiture.................." leaves no doubt that right of lessee to avoid suit for ejectment can be resorted to only in a case where a lease of immovable property determines by forfeiture and not otherwise. Consequently, defendant-petitioner cannot take advantage of the aforesaid Section 114, Transfer of Property Act in a case where lease of a transferee determine only itself or to quit the property leased, duly given by one party to the other; as contemplated under Section 111(h) of Transfer of Property Act.

6. A perusal of the said unregistered rent deed clearly shows that tenancy was month to month only after expiry of initial three years period of lease not having been extended specifically, it shall be deemed that the tenancy in question became a monthly tenancy. The defence of the defendant-petitioner on this score, thus has no merit.

14. Having given my considered thought, to the expression used in the notice of the present case (Annexure-S A-3), in the light of ratio laid down in the aforementioned Division Bench judgment, it will be clear that expression ''terminated' used in Form E of the reported judgment or the expression ''terminates' used in the notice of the present, are not determinative of the fact whether the notice is in present or not? Reading the notice, in the present case, as a whole, one can gather intention of the notice giver, and that is to determine tenancy on the expiry of 30 days as required under Section 106, Transfer of Property Act and not in present and reading the notice as given above, under Section 106, Transfer of Property Act in the present, cannot be said to be a invalid notice."

(Emphasis supplied)

In Ram Bali Pandey (Since Deceased) through his Legal Representatives Vs. IInd Additional Judge, Kanpur and others, 1998 (2) ARC 362, a learned Single Judge of this Court laid down as follows (paragraph 23 of the said ARC):

"23.       Smt. Poonam Srivastava, learned counsel for the respondents further argued that no decree of eviction could be passed against the tenants as on account of the deposit made by them in Court, they were entitled to the protection of Section 114 of the Transfer of Property Act. It may be suffice to mention here that it had never been pleaded either by the original tenant or the substituted heirs in the Courts below that they were entitled to claim the benefit under the aforesaid provision. In any view of the matter Section 114 of the Transfer of Property Act has no application to the facts of the present case as it was not a case of forfeiture of tenancy for non-payment of rent. The tenancy was terminated under Section 106 of the Transfer of Property Act simpliciter. For the applicability of Section 114, existence of an agreement containing a stipulation empowering the landlord to re-enter in the demised premises in case of breach of a condition regarding payment of rent is essential. In the present case there was no such agreement and as U.P. Act No. 3/47 was not applicable to the premises, there was simpliciter termination of tenancy under Section 106 of the Transfer of Property Act serving a notice thereunder. The mere fact that the notice stated about non-payment of rent also besides termination of monthly tenancy and demand of vacant possession it would not be a case of forfeiture under clause (g) but one of determination of tenancy by exercising power under clause (h) of Section 111 of the Transfer of Property Act. No authority is required for the proposition that where there is simpliciter termination of tenancy under Section 106 of the Transfer of Property Act and not under Section 111(g) of the Transfer of Property Act then provision of Section 114 of the T.P. Act cannot be attracted. This argument of respondent's counsel also does not appeal to the Court and has to be rejected."

          (Emphasis supplied)

In Sabir Hussain Vs. Allahtala Owner Waqf Alal Aulad and another, 2005(1) ARC 273, this Court held as follows (paragraphs 44,46 and 47 of the said ARC):

44. A perusal of the said notice quoted above shows that the same was a notice to quit under Section 111 (h) read with Section 106 of the Transfer of Property Act. No doubt, there is demand for arrears of rent to be paid within one month of the receipt of the notice, but the same is not the ground for determination of lease. There does not appear to be anything in the said notice suggesting that the lease is being determined by forfeiture under Section 111(g) of the Transfer of Property Act in exercise of any alleged right to re-enter in view of breach of any alleged express condition which gives any right of re-entry. The said notice dated 21st October, 1997 is a notice to quit simpliciter under Section 111(h) read with Section 106 of the Transfer of Property Act.

46. Since the said notice dated 21st October, 1997, as noted above, is not a notice under Section 111(g) of the Transfer of Property Act on the ground of forfeiture of lease, Section 114 or Section 114-A of the said Act has no application to the present case.

47. Therefore, the petitioner is not entitled to the benefit of Section 114 of the Transfer of Property Act. The submission made by the learned counsel for the petitioner in this regard cannot, in my view, be accepted.

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

Dated : 25.7.2005

safi


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