P. Gopinathan v. Smt. Rama Srinivasa Rao — 1999 DIGILAW 577 (MAD)

Judgment :- Tenant in R.C.O.P. No. 1617 of 1998. on the file of XII Judge, Court of Small Causes, (Rent Controller) Madras, is the revision petitioner. The Revision is filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act. 2. Petitioner herein moved an application before the Rent Controller under Section 17 (2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, alleging that the landlord has withheld certain amenities and prayed for restoration of the same. It was his case that he became a tenant of the respondent as per lease deed dated 3.9.1993 and the same was being renewed from time to time on expiry of the term. It is further said that the respondent had all on a sudden cut off electricity and water supply with effect from 4.6.1998. The electricity charges are to be paid only once in two months, and on getting the bill from landlord, he used to pay the same. The landlord did not issue the bill, and in fact, the electricity bill is payable only by July 1998. According to tenant, petitioner herein, the action of the landlord is only to forcibly evict the tenant from the demised premises. Petitioner wants restoration of the amenities immediately. 3. The main contention raised by learned counsel for respondent was that the subject matter of the building was newly constructed, and he was exempted from the provisions of the Rent Control Act. According to him, construction of the building was completed only in August 1993, and, on the date when the application was filed, it had not completed five years. It was also alleged that even before the application was filed, the landlord had terminated the tenancy and he has also filed a suit for recovery of possession. The allegation, regarding withholding of amenities was also denied. It was alleged that the tenant has not paid the electricity and water charges in time and it was after notice the same was disconnected. 4. The Rent Controller, as per order dt. 25.9.1998, dismissed the petition. He came to the conclusion that the building is less than five years old. The matter was taken in appeal without success in R..C.A. No. 710 of 1998. The concurrent findings of the Authorities below are challenged in this Revision. 5. 4. The Rent Controller, as per order dt. 25.9.1998, dismissed the petition. He came to the conclusion that the building is less than five years old. The matter was taken in appeal without success in R..C.A. No. 710 of 1998. The concurrent findings of the Authorities below are challenged in this Revision. 5. Learned Counsel for petitioners contended that the Orders of the Authorities below are irregular and illegal and, therefore, the same is liable to be revised. 6. Since caveat was entered, the entire revision was heard on merits at the admission stage itself. 7. The only question that requires consideration is, whether the findings of the Authorities below that the building is less than five years old is correct or not. 8. Before going to the facts of the case, let us consider the provision of law. 9. Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act says, “Nothing contained in this Act shall apply to (i) any building for a period of five years from the date on which construction is completed and notified to the local authority concerned; (rest omitted as unnecessary).” 10. According to learned counsel for petitioner/tenant, it is for the landlord to prove that the building is newly constructed and, therefore, the Act has no application. Reliance was placed on the decision reported in AIR 1982 SC 945 {Ram Saroop Rai v. Smt. Lilavati ), for the said purpose. Learned counsel laid emphasis on paragraph 5 of the judgment. After extracting the relevant portion of Section 2(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act (13 of 1972). Their Lordships have held thus:— “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 emphasised 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. 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 land lord is a purchaser from another, he will have to depend his assignor to prove the fact.” It was argued by teamed counsel that no evidence was let in by landlord as to when the construction was over, and when it was notified to the Local Authority. It was further submitted that there had been prior proceedings (though the petitioner was not a party therein) which would show that the building was constructed atleast in the year 1990. It was argued that the Authorities below relied on the assessment of the Local Authority, marked as Ex. B-1 and that it was not proper. When a person claims exemption from the Rent Control Act, certain conditions will have to be fully satisfied, which the Authorities below have taken into consideration. 11. As against this, learned counsel for respondent submitted that there was a dispute in respect of an under-tenant, and at that time, only the ground-floor portion was completed. Regarding the building which is the subject matter of this litigation, it is not the ground floor, but the first floor. For constructing the first floor portion, he had submitted planning permission and got approval only in the month of August 1992 and the same was completed only by the end of August 1993. Regarding the building which is the subject matter of this litigation, it is not the ground floor, but the first floor. For constructing the first floor portion, he had submitted planning permission and got approval only in the month of August 1992 and the same was completed only by the end of August 1993. It was further submitted that even the lease deed in favour of petitioner shows that it is a new construction and the tenant has also agreed that he will not put forward a claim under the Rent Control Act since it is a new building. It was further submitted that on the basis of the decision of the Supreme Court, the decision of the Authorities below regarding the age of construction of the building does not call for any interference. He prayed for dismissal of the Revision. 12. The only question that requires consideration is, whether on the date of petition the building was not more than five years old and, therefore, exempted from the purview of the Rent Control Act. 13. The Rent Control Petition was filed on 20.7.98. According to the landlord, the construction was completed only in August 1993. If that contention is accepted, the rent Control Petition is not maintainable, in view of the exemption. In other words, the Orders of the Authorities below are not liable to be revised. 14. In 1982 (2) SCC 61 ( Om Prakash Gupta v. Dig Vijendrapal Gupta ), similar question came for consideration under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Of course, the relevant section that came for consideration before the Honourable Supreme Court reads thus:— “Except as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21. sub-section (2) of Section 24, Section 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: ExplanationI.— For the purpose of this subsection. — (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 purpose of supervising the construction or guarding the building under construction) for the first time: In that case a contention was taken that the date of occupation must be relevant date for consideration of the date of completion. While considering the said contention, Their Lordships said thus in paragraph 6 of the Judgment: — “ Explanation I provides that the 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 for the first time. A perusal of Explanation I 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, and therefore there was no question of giving the benefit of Section 39 of the Act to the Appellant.” 15. In (1997) 9 SCC 298 ( Suresh Kumar Jain v. Shanti Swarup Jain and others ), the very same section again came for interpretation, and, on the facts of the case, it was found that since the tenant has occupied the building before the first assessment, it must be deemed to have been completed on the date of occupation and, therefore, more than ten years old. 16. The very same Section again came for consideration in the decision reported in (1998) 7 SCC 242 =1999-1-L.W. 748 ( Saleem v. District Judge, Mazaffarnagar ). 16. The very same Section again came for consideration in the decision reported in (1998) 7 SCC 242 =1999-1-L.W. 748 ( Saleem v. District Judge, Mazaffarnagar ). After following the decision in Om Prakash Gupta (supra), it was held thus:— “In fact, the present controversy is squarely covered against the appellant by a decision of a three-Judge Bench of this Court in this case of Om Prakash Gupta v. Dig Vijendrapal Gupta . Considering the very same explanation, Justice Misra speaking for the Bench in para 6 of the Report observed that a perusal of Explanation I 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. It is also to be noted that in the said decision, the argument was that the building was occupied prior to the first date of assessment. That evidence was not held to be relevant for deciding the question of applicability of Explanation I as prior occupation by the tenant was not mentioned by the legislature as one of the requirements for an applicability of Explanation I to sub-section (2) of Section 2 of the Rent Act.” (emphasis supplied) 17. In view of the above decisions, I do not think that the petitioner can succeed in this Revision. In view of the above decisions, I do not think that the petitioner can succeed in this Revision. Xerox copy of the lease deed dated 1.9.99 and the Preamble of the lease deed itself says thus :— “Whereas the lessor is the absolute owner of entire premises at No. 1; Trust Square, Ramalingapuram Madras — 12, including the newly constructed first floor portion thereon (more fully described in the Schedule hereunder).” (Emphasis supplied) In paragraph 16 of the lease deed, it further reads thus:— “The lease shall be terminated by either party giving 30 days notice in writing to the other side, The leasee hereby agrees that he will not invoke the provisions under Tamil Nadu Buildings (Lease and Rent Control) Act for a period of five years since the Schedule premises is a newly constructed one.” (emphasis supplied) Apart from the same, we have also Ex. B-1 in the case. It is a notice of assessment issued to the petitioner on 19.1.1994. The notice shows that regarding the existing building, there are earlier tenants (ground floor), and so far as the Schedule premises is concerned, it has been additionally assessed. The occupants name is also mentioned in the notice as Gopinath, who is none other than the petitioner herein. Taking into consideration the lease deed as well as Ex. B-1 notice of assessment, it is clear that the first floor of the building would have been completed only by the end of August 1993, as contended by respondents counsel. That is why the tenant also agrees that he will not invoke the provisions of the Rent Control Act for a period of five years. 18. It was argued by learned Counsel for petitioner that there was a prior proceeding in regard to the very same floor, and the landlord has admitted that the construction was in the year 1990. I do not find any merit in the said contention. It was the specific case of the landlord that the subject matter in the earlier proceeding was only the ground floor of the building, and that alone was completed at that time. In fact, at that time, the landlord had only planning permission for constructing the ground floor and the first floor was constructed only after obtaining planning permission dated 26.8.92 as per planning permit in P.P.A. No. 5283/92. Taking into consideration the assessment under Ex. In fact, at that time, the landlord had only planning permission for constructing the ground floor and the first floor was constructed only after obtaining planning permission dated 26.8.92 as per planning permit in P.P.A. No. 5283/92. Taking into consideration the assessment under Ex. B-1, I do not think that the argument of learned counsel for petitioner can stand. When the petitioner has admitted in the lease deed of the year 1993 that it was a new construction, it is too much for him now to contend that the statement made therein is not correct. It is an admission on the part of the tenant that a new building was constructed and he came into occupation only in the newly built construction. An argument was taken by learned counsel that there was no evidence to show that the same was notified to the Local Authority. The argument was that when the Statute states that the age of a building has to be calculated in a particular manner, no other mode is possible to prove the same. In view of the decisions of the Honourable Supreme Court, the submission of learned Counsel cannot be accepted. In this case, the landlord has proved by evidence that the building came into existence only in August 1993. On merits also, I do not think that the Authorities below have gone wrong in recording a finding against the petitioner. There is nothing to show that the tenant has paid electricity charges after 1.3.1998. The reason for disconnecting the water supply is also explained by the landlord, and the Authorities below have concurrently found that the explanation offered is reasonable and could be accepted. I do not find any merit in the Revision and consequently the same is dismissed, however, without any order as to costs. Connected C.M.P. is also dismissed.