Bibhunath v. Shri Krishna Purwar — 1981 DIGILAW 726 (ALL)

JUDGMENT N.N. Mithal, J. - This is a landlords revision in a suit for ejectment filed by him. One of the questions involved in this revision is whether the disputed house was constructed in the year 1966 or in 1964. Other allied question with which we are concerned in this revision is as to whether the defendant tenant has deposited the amount as required under section 39 of the U.P. Act No. XIII of 1972 within the time and for that reason was he entitled to relief against eviction. 2. The court below has come to the conclusion that the building was constructed on 25.8.65 on the basis of the resolution passed by the Board imposing house tax. An application under section 39 of the Act was moved on 22.8.75 in which it was stated that the rent for the period ending 31st July, 75 had already been deposited and as regards costs and the interest, the same was being deposited alongwith the application. In this application however, the tenant also pleaded that he was not liable for costs. 3. Shri S.M. Dayal, learned counsel appearing for the revisionist has submitted that the findings of the court below are based on misreading of evidence. According to him, the copy of the house tax assessment register clearly shows that although the resolution was passed on 7.8.65, the assessment was made effective with effect from 1.4.65. The entry is dated 25.8.65. He contended that the court below was not entitled to take 25.8 65 as the date of construction of the building in view of the provisions contained in section 2(2) of U. P. Act No. XIII of 1972. The entry is dated 25.8.65. He contended that the court below was not entitled to take 25.8 65 as the date of construction of the building in view of the provisions contained in section 2(2) of U. P. Act No. XIII of 1972. There is an explanation to this sub-section which is in the following terms :- "Explanation (1) For the purpose 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 of assessment the date on which it is actually occupied (not including occupation merely for the purpose of supervising the construction or guarding the building under construction) for the first time. Provided ......................................" According to this provision, the date of construction of a building can be fixed on the basis of any of the following criteria :- (i) When the date of completion is reported or otherwise recorded by the local authority, (ii) If the property being subject to assessment of house tax, the date from which the assessment (becomes effective). (iii) The date of occupation of the building if there is absence of any of the grounds (i) and (ii) mentioned above. It follows from this that primarily the date of completion is either when the completion of the construction is recorded or reported to the local authority and if the building is such as would attract the imposition of house tax then the date from which the first house tax assessment becomes effective Admittedly, in this case, there was no material before the court below about reporting of the completion of the building or recording of such completion by the local authority. The plaintiff had filed copy of the house tax assessment register which according to him was first assessment made in respect of the building in question. The plaintiff had filed copy of the house tax assessment register which according to him was first assessment made in respect of the building in question. Shri Dayal urges that this document should therefore be considered for the purposes of section 2 (2) of the Act to be the document by which it can be seen as to from what date, the assessment became effective. According to him the court below has completely ignored the words' comes into effect' and has relied the assessment. While deciding issue No. 1, the court has ignored the words 'comes into effect' occurring in Section 2(2) of the Act and in its place the court has used the words when the assessment was made. It may at once be said that this is not correct approach to the problem. The assessment may be made on any date, but it is the date from which such assessment becomes effective which will be relevant date for the purposes of Section 2(2) of the Act. There is, however, a slight dispute as to whether the assessment in question had, in fact, been made effective from 1.4.65. In Ext. 9, the certified copy of the assessment register, the language used is as follows : "Makan ban raha hai. File No. 106/64 - 65 Up Samiti No. 1 Fratab No. 38 Taarikh 7.8.65 Takhshish 480/- jo 1.4.65 se lagu hua raba hai." Sd/- 25.8.65" Dr. Dwivedi learned counsel appearing for the respondent has, however, filed a certified copy of the resolution No 38 dated 7.8.65 in which the words to the effect that the assessment would be effective from 1.4.65 are not to be found. According to him, since the entry in the assessment register has been made on the basis of this resolution, there was no justification for adding these words in the house tax register. In revision it is not possible to consider as to whether the words "effective from 1.4.65" had been subsequently added or what was the basis of adding these words in the register and this has to be gone into by the trial court. One thing is certain that if this assessment was really effective from 1.4.65, then this would be deemed to be the date of completion of the construction in question. 4. One thing is certain that if this assessment was really effective from 1.4.65, then this would be deemed to be the date of completion of the construction in question. 4. Even assuming that 25.8.65, when the assessment order was recorded in the register of the Municipal Board, according to Shri Dayal, there was still default on the part of the opposite party. According to him by means of the application moved under section 39 of the Act, the tenant has merely stated that earlier amount has already been deposited and only interest amount and the costs of the suit remained to be deposited which he had deposited in court along with the application. The argument was that even if this be taken as true yet on 25.8.65 admittedly the defendant had not deposited any amount representing rent or damages for use and occupation for the period from 1.8.65 to 25.8.65 and to this extant, there was default on the part of the tenant opposite party. In this respect, there are two other provisions in the Act which are similar in nature. Section 20(4) also allows a tenant to save his tenancy if he deposits the amount of rent etc. due against him as claimed in the plaint. However, sub-clause (4) premises the tenant to deduct from the deposit any amount which he had deposited under section 30 of the Act. Similarly a provision has been made in the Code of Civil Procedure under Order 15 Rule 5 C.P.C. There also the tenant is liable to deposit the entire amount of rent or compensation for use and occupation but he has been permitted to deduct from it taxes, if any, paid by him, to the local authority in respect of the building in question on behalf of the lessor and such other amount as he may have deposited under section 30 of the Act. There is also one more difference that the rate at which the rent is to be deposited is not what may be claimed by the plaintiff but what is admitted by the tenant to be the agreed rate. In Section 39 of the Act, however, there is no such provision from making any deduction of any other amount. There is also one more difference that the rate at which the rent is to be deposited is not what may be claimed by the plaintiff but what is admitted by the tenant to be the agreed rate. In Section 39 of the Act, however, there is no such provision from making any deduction of any other amount. The words used therein require the deposit of the entire amount of rent and damages for use and occupation along with interest at 9 percent and costs of the suit. Tire entire rent, therefore, would mean entire rent due when the benefit is sought. Dr. Dwivedi, however, contends that in his application under section 39 of tine Act, he had clearly stated that some amount in excess was being deposited by him. If that was the position, there would be no default on the part of the tenant and as such he would be entitled to the benefit of Section 39 of the Act. He has also relied upon the case. (1979 Allahabad Rent Cases 349) where this Court refused to enter into the calculations in order to find out whether compliance of Section 39 of the Act has been made or not and as such the proper course was to remand the case to the trial court. Agreeing with the said view, I also find that in the case, it will be better if the matter is sent back to the court below with the direction that it shall record a finding as to whether the assessment of house tax of the disputed building was effective from 1.4.65 or from some other date. It shall also record a finding whether the tenant had deposited the entire amount as required under section 39 of the Act and whether he was entitled to take the benefit of the said Section. The court below shall decide the suit according to the findings on these two points. 5. Costs of this revision will abide ultimate result of the suit. 6. I order accordingly.