Aziz Ahmad v. Additional District Judge — 1982 DIGILAW 1388 (ALL)

JUDGMENT K.M. Dayal, J. - The present petition has been filed by the Defendant-tenant against the judgment and decree passed against him for his ejectment by the Small Causes Court and the Revisional Authority. 2. The brief facts of the case are that suit No. 215 of 1976 was instituted by the Respondent No. 3 against the Petitioner on 30th March, 1976. In para 4 of the plaint it is mentioned that the building in dispute was constructed in the year 1968. The U.P. Act No. 13 of 1972 was not applicable to it. The suit was filed after terminating the tenancy of the Petitioner by giving notice u/s 106 of the Transfer of Property Act. A written statement was filed which is Annexure 1' to the writ petition. It was contended that the disputed shop was 15 years old and the provisions of Rent Control Laws applied to the same. Some deposits of rent made in Court were also pleaded. In para 3 it was pleaded that the Defendant had deposited rent up to 21st December, 1977 and further redeposited the dues along with the expenses and costs of the suit from 2J--4-1975 to 1-3-1978. Thus, the rent was deposited twice for some period. An issue was framed by the Court of Small Causes about the applicability of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and about the benefit of Section 39 of that Act being available to the tenant. That Act is hereinafter referred to as the Act. 3. Both the courts below have come to a finding that on the date of suit the building was not assessed by the local authorities. It was assessed for the first time with effect from 1st April, 1977. Both the Courts below, relying upon the Explanation (1)(a) of the proviso to Sub-section (2) of Section 2 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, held 'that as the building was assessed on 1st April, l977 it will be deemed to have been constructed on that date. Consequently the building would not be governed by the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Consequently the building would not be governed by the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The Petitioner's second contention is that the building having been admitted to be construction of the year 1968 (in para 4 of the plaint), the Defendant was entitled to benefit of Section 39 of the Act in the year 1978 when ten years were completed after its construction. According to the Petitioner the double deposit of rent and costs etc. covered the entire dues required to be deposited u/s 39 including the interest if any payable. 4. The main question involved in the present petition is : What would be the date of construction of the building in a case where there was no assessment in existence on the date of the suit ? It has been pleaded in para. 4 of the plaint that the building was constructed in year 1968. As stated earlier, in the present case the building was assessed by the local authorities till 30th March, 1976, the date of filing of the suit. The Courts below have relied upon the first portion of the Explanation (1) (a) to the proviso, but ignored the effect of the remaining portion of the same. Explanation I (a) to the proviso to sub-section (2) of Section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, reads as under : (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, recorded 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. (Emphasis Mine) In the present case no assessment existed on the date of the suit. There is no evidence that the completion of the building was reported to be recorded by the local authority at any time. (Emphasis Mine) In the present case no assessment existed on the date of the suit. There is no evidence that the completion of the building was reported to be recorded by the local authority at any time. It is also not the case of any party that the suit was filed in respect of a building which was to be completed in nature. Consequently it cannot be said that the suit was filed in respect of a building which was incomplete. In such a case the date of completion of the building would be the date of occupation according to the italicised portion of the Explanation reproduced above. Both the courts below have thus fallen into an error of law in holding that the building was completed on 1-4-1977 subsequent to the filing of the suit though it was admitted between the parties that the building was constructed in the year 1968. This is a case where there was no report or assessment in existence on the date of occupation and on the date of the suit. It would lead us to absurdity if it is held that the suit was filed in respect of a building which would be deemed to have come into existence for the purposes of the Act after the filing of the suit. I thus hold that in the instant case the completion of the building should be deemed to be in the year 1968 as pleaded by the plaintiff. 5. Coming to the next point whether the petitioner would be entitled to the benefit of section 39 of the Act, it may be noted that the section applied to cases which were pending on the date of commencement of the Act. Clause (1) of section 39 of the Act reads as under : In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of the commencement of this Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever is later, deposits in the court.... 6. The Section is unambiguous and specifically refers to the date of the commencement of the Act. For finding out what would be the date of commencement of the Act we have to refer to sub-section (4) of section 1. 6. The Section is unambiguous and specifically refers to the date of the commencement of the Act. For finding out what would be the date of commencement of the Act we have to refer to sub-section (4) of section 1. Sub-section (4) of section 1 reads as under : It shall come into force on such date as the State Government may by notification in the Gazette, appoint. 7. By notification No. 3409/XXIX-E-59-72 dated 27th June, 1972, published in U. P. Gazette Extraordinary dated 1st July, 1972, page 1 the Governor appointed 15th July, 1972, as the date for the coming into force of the Act. Under the circumstances there can be no doubt that the Act commenced on 15th July, 1972, appointed by the Governor by the notification mentioned above in whole of Uttar Pradesh. The learned counsel for the petitioner relied upon a Division Bench case of this CourtR.D. Ramnath & Co. v. Girdhari Lal, reported in 1975 All. W. C. 139, where it was held that the date of commencement of the Act for the purposes of Section 39 of Act would be the date on which the provisions of the Act become applicable to the building in respect of which the suit for ejectment is pending. The matter came up for consideration before the Supreme Court in the case of Om Prakash v. Dig Vijendra Pat, reported in 1982 All. W. C. 226 SC. The Supreme Court after considering the scheme of section 39 held : Further, in order to attract section 39 the suit must be pending on the date of commencement of the Act which is 15th July, 1972, but the suit giving rise to the present appeal was filed on 23rd March, 1974, long after the commencement of the Act. The Supreme Court further held : Considered from any angle the Act has no application to the present case and the appellant could not be given the benefit of section 39. The suit has, therefore, been rightly decreed by the courts below. 8. I am in respectful agreement and I am bound by the Supreme Court aforesaid. Section 2 of the Act relates to exemptions from the operation of the Act. After commencement of the Act certain buildings were sought to be exempted from operation of the Act as mentioned in sub-section (1) of that section. 8. I am in respectful agreement and I am bound by the Supreme Court aforesaid. Section 2 of the Act relates to exemptions from the operation of the Act. After commencement of the Act certain buildings were sought to be exempted from operation of the Act as mentioned in sub-section (1) of that section. In sub-section (2) of Sec. 2a holiday of 10 years was given to the buildings after their completion during which period the provisions of the Act were not made applicable to that building. It is true that the Act would be applicable to the building after 10 years of its completion. That does not mean that the commencement of the Act as such was postponed. It only meant that the Act was in force. The exemption from application of the Act was in respect of building constructed recently. The holiday of 10 years from application of the Act was given to encourage new constructions. On expiry of that period the building would automatically come under the Act, which was already in force. The Act would not commence at different points of time, again and again as the date of commencement had to be appointed once by the Governor. It is also not provided that different dates may be fixed for commencement of the Act in respect of different areas or buildings. Had the legislature intended the Act to commence on different dates it could have made a provision to that effect in the Act itself. The UP ZA and LR Act 1950 (U. P. Act No. 1 of 1951) was intended to be enforced in different parts of the State on different dates. There it was specifically provided in Sections 1 and 2 of the Act. Similar provision has been made in sub-section (3) of Section 1 of the U. P. Consolidation of Holdings Act 1953. It, therefore, cannot be accepted that for the purposes of Section 39 the Act would commence after 10 years completion of any building. 9. The Act commenced on 15th July 1972. Similar provision has been made in sub-section (3) of Section 1 of the U. P. Consolidation of Holdings Act 1953. It, therefore, cannot be accepted that for the purposes of Section 39 the Act would commence after 10 years completion of any building. 9. The Act commenced on 15th July 1972. The benefit of Section 39 of the Act could be available to such tenants whose buildings were not governed by the provisions of U. P. (Temporary Control of Rent and Eviction) Act, 1947, and which were covered by the provisions of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 on the date of its commencement i.e. 15th July, 1972. 10. The intention of Section 39 appears to be to save the defendants against whom suits were filed and they were pending, in appeal or in revision on the date of commencement of the Act. Such defendants were given an opportunity to save ejectment as in the case of all buildings constructed after 1st January, 1951 there was no protection to the tenants. The provisions of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, did not apply to any building which was constructed or completed after 31st December, 1950. During this period several suits were filed for ejectment of the tenants who had no protection of the Act. This section was incorporated in order to protect such tenants who were being evicted in the absence of any permission or grounds mentioned in section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947. The grounds mentioned in Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 were more or less adopted in Section 20 of the present Act, i. e. the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act. In order to give protection to such tenants who were being evicted in absence of any legal protection, the Section 39 was enacted. Had the Act come to force earlier, such tenants would have been protected by the provisions of the Act. 11. There is yet another reason for holding that the benefit of Section 39 could not be available to tenants against whom the action was not pending on the date of commencement of the Act. Had the Act come to force earlier, such tenants would have been protected by the provisions of the Act. 11. There is yet another reason for holding that the benefit of Section 39 could not be available to tenants against whom the action was not pending on the date of commencement of the Act. It is a settled principle of law that the rights and obligations of the parties should be determined as on the date of suit, it would certainly be highly unjust in the absence of any saving clause that the suits filed lawfully could be defeated on mere completion of 10 years of the building. If such tenants were to be saved the legislature could have used the words, "pending in respect of buildings to which the Act did not apply earlier" instead of the words "the dale of commencement of the Act". Similarly instead of ''one month from such commencement" words one month from the date of application" should have been used. 12. Under these circumstances I hold that the Defendant-Petitioner will not be entitled to the benefit of Section 39 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The ejectment of the Defendant cannot be avoided inspite of the fact that the building would be deemed to have been completed earlier. 13. The petition fails and is dismissed. As no one has appeared for the side of the Respondents there will be no order as to costs. The Petitioner, however, is granted six months' time to vacate the premises.