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2007 DIGILAW 312 (UTT)

RAJEEV BHATNAGAR v. RAJPAL SINGH NEGI

2007-06-01

RAJESH TANDON

body2007
JUDGMENT Hon’ble Rajesh Tandon, J. Heared Sri Rajendra Dobhal counsel for the revisionist and Sri Arvind Vashist counsel for the respondent. 2. Present revision has been preferred against the judgment dated 17.2.2007 passed by the Additional District Judge, Dehradun in S.C.C. appeal no. 19 of 2005. 3. Briefly stated a suit was filed by the plaintiff for a decree of ejectment in respect of shop no. 5 Ballupur Chawk, Chakrauta Road, Dehradun and for the realization of Rs. 54,000/- on account of arrears of rent and for the realization of pendente lite and future mesne profit at the rate of Rs. 1400/- per month from the date of filing of the suit. 4. According to the revisionist the first assessment was made in the year 1988-89 and as such the provisions of U.P. Act No. 13 of 1972 are not applicable to the building in dispute. The plaintiff has sent a notice on 21.10.2001 calling upon the defendant to pay rent, water tax and electricity tax which was served on 5.11.2001 and the tenancy stands terminated on 5.12.2001. 5. In paragraph 9 of the plaint the plaintiff has given the details of the amount due from the defendant. The tenancy was terminated after the expiry of the period of 30 days from the date of service of notice. Inspite of the notice to the defendant. 6. The defendant has filed the Written statement. In paragraph no. 2 it has been stated that when the plaintiff has refused to accept the rent, he has deposited the rent under section 30 of U.P. Act No. 13 of 1972 till September, 2005. 7. The plaintiff has filed his own affidavit and he has proved that the building was constructed in the year 1988-89. For the first time completion was recorded by the District Board in the year 1988-89. In his cross-examination he has stated that he got the map sanction from M.D.D.A. The plaintiff has also proved that first assessment made by Zila Panchayat, Dehradun. The same is quoted below : dk;kZy; ftyk iapk;r nsgjknwu izekf.kr fd;k tkrk gS fd Jh jktiky flag usxh fuoklh cYywiqj pkSd dh cYywiqj pkSd ij fLFkr lEifÙk ¼vkenuh fdjk;k nqdkukr½ ij o’kZ 1988&89 lEifÙk ,oa foHko dj yxk;k x;k FkkA dk;Z vf/kdkjh dj fu/kkZj.k vf/kdkjh ftyk iapk;r nsgjknwu 8. Similar is paper no. 24-C. The M.D.D.A. has sanctioned the map which is evident from paper no. Similar is paper no. 24-C. The M.D.D.A. has sanctioned the map which is evident from paper no. 33-C : udy vkns”k 24-3-87 Hkou ekufp= izkf/kdj.k }kjk LohÑr gSA vr% okn lekIr djus dh laLrqfr dh tkrh gSA g- lgk- vfHk;Urk 9. Counsel for the applicant has submitted that he has deposited the amount in proceedings under section 30(1) of U.P. Act No. 13 of 1972 A perusal of the record shows that the application by the defendant under section 30(1) of U.P. Act No. 13 of 1972 was rejected vide order 16.7.2005 as will appear from paper no. 25-C. 10. On the other hand the defendant has filed his own affidavit and has stated with regard to the first assessment in the year 1987-88. The revisionist has also filed an application before the District Magistrate, Dehradun for taking electricity connection. The said application dated 20.6.00 is paper no. 8-C. 11. Counsel for the revisionist Rajeev Bhatnagar has submitted that the revisionist has obtained information under Right to Information Act, where it has been mentioned that Gajendra Pal Singh obtained sanction on 21.3.1987 and M.D.D.A. has sanctioned the map on 21.3.1967. M.D.D.A. has sent the information in case no. 101 of 1987. Case No., 101 of 1987 only relates to the plaintiff Rajpal Singh and not Gajendra Pal Singh. 12. Sri Rajendra Dobhal counsel for the revisionist has submitted that since the tenant has occupied the premises in the year 1985, the provisions of U.P. Act No. 13 of 1972 are applicable to the building in question. In this case the evidence adduced by the plaintiff clearly shows that the building was completed in the year 1988. However, it may be possible that the shop may have been occupied by the defendant prior to its completion but that will not confer any right in pursuance of the first assessment in view of the deeming provision contained under section 2(2) of U.P. Act No. 13 of 1972. However, it may be possible that the shop may have been occupied by the defendant prior to its completion but that will not confer any right in pursuance of the first assessment in view of the deeming provision contained under section 2(2) of U.P. Act No. 13 of 1972. Section 2(2) of the U.P. Act No. 13 of 1972 reads as under : “(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 thue 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 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 or guarding the building under the construction) for the first time : (b) “construction” includes any new construction in place of an existing building which has been wholly or substantially demolished; (c) where such substantial any new construction in place of an existing building that the existing building becomes only a minor part thereof the whole of the 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.” 13. In Sudha Rani Garg (Smt.) Vs. Sri Jagdish Kumar (Dead) and others [2004 SCFBRC 449], the Apex Court has observed as under : “7. The Explanation provides for four different dates for determining the date of completion of building. The dates are : (1) When the completion of the building is reported to the local authority. (2) When the completion of the building is otherwise recorded by the local authority. (3) When the first assessment of the building comes into effect. (4) When it is actually occupied. 14. The Explanation further provides that in case for the first three categories the dates are available then the earliest of the three dates will be the date of completion of the building and in case the first three dates are not available, then the fourth date will be the date on which construction of the building shall be taken to have been completed. 15. The Explanation I is a deeming provision. The word ‘deemed’ is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. 15. The Explanation I is a deeming provision. The word ‘deemed’ is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible”. (per Lord radcliffe in St. Aubyn (L.M.) v. A.G. (No. 2) (1951) 2 ALL E.R. 473 (HL).” 16. There is no dispute regarding relationship of landlord and tenant, there is no dispute that the plaintiff is not the owner of the premises. Record also shows that U.P. Act No. 13 of 1972 is not applicable to the building in dispute, therefore, the defendant is liable to be evicted from the premises in dispute simplicitor. 17. Relying upon the judgment of Om Prakash Gupta Vs. DIG Vijendrapal Gupta (1982) 2 SCC 61 in Saleem Vs. District Judge, Muzaffarnagar and others 1998(2) ARC 617, it has been held that Explanation I makes it abundantly clear that the date of occupation would be taken to be the date of completion of the construction. Relevant portion of the judgment is quoted below : “12. In fact, the present controversy is squarely covered against the appellant by a decision of three judge Bench of this Court in the case of Om Prakash Gupta v. Dig Vijendra Pal Gupta (1982) 2 SCC 61 : 1982 (1) ARC 391 (SC). Considering the very same explanation Justice Misra speaking for the Bench in paragraph 6 of the report observed that 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 first assessment which will be deemed to be 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 1 as prior occupation by the tenant was not mentioned by the Legislature as one of the requirements for applicability of Explanation 1 to sub-section (2) of Section 2 of the Rent Act. 18. In view of above, the Judge, Small Cause Court has rightly decreed the suit of the plaintiff. I find no illegality or infirmity in the judgment of the Court below. The revision lacks merit in the judgment of the Court below. The revision lacks merit and deserves to be dismissed. 19. Counsel for the revisionist has submitted that the defendant has deposited rent in the Court under Section 30 of U.P. Act no. 13 of 1872. Any amount deposited in the Court shall be given due credit. 20. Accordingly, the revision is dismissed. No order as to costs.