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2010 DIGILAW 2266 (ALL)

BANKE LAL AGARWAL v. PRADEEP KUMAR JAIN

2010-07-30

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Hon’ble Devendra Pratap Singh, J.—Heard learned counsel for the parties. 2. This petition is directed against concurrent orders dated 3.3.1993 and 30.1.2006 by which the eviction suit filed by the petitioner-landlord has been dismissed by both the Courts below. 3. The petitioner-landlord instituted SCC Suit No. 36 of 1989 against the respondent-tenant inter alia with the allegation that he was inducted as a tenant of the disputed premises on 10.6.1982 at Rs.220/- per month apart from house tax @ Rs.30-00 and a due rent deed was also executed for a period of five years with a provision for enhancement to Rs.300/-. It was further alleged that the tenant defaulted in payment of rent with effect from 1.12.1988 and tax w.e.f. 1.4.1988 and despite notice, he did not pay the rent or vacated the premises and since the premises was newly constructed in the year 1982 and was assessed to house tax for the first time with effect from 1.10.1982, U.P. Act No. XIII of 1972 (here-in-after referred to as the Act) was not applicable and therefore he was entitled to eviction and arrears of rent. The suit was contested by the respondent-tenant admitting tenancy and payment of rent uptill November 1988 and both the parties led their evidence. 4. The trial Court after holding that the survey report brought on record by an employee of the Municipal Board had not been proved and that the property was already assessed to tax in 1975 and therefore it was not a new construction and was amenable to the provisions of the Act and with these findings, it dismissed the suit. The revisional Court refused to rely upon the documents produced by the employee of the Municipal Board raising doubt of its authenticity and went on to hold that the petitioner had added constructions resulting in enhancement of the tax as such it is a case of renewal and not of reconstruction and the provisions of Rent Control Act are applicable and dismissed the revision. 5. Learned counsel for the petitioner has firstly urged that both the Courts below have illegally disbelieved the documentary evidence produced by the employee of the Municipal Board which clinches the issue in his favour. 6. 5. Learned counsel for the petitioner has firstly urged that both the Courts below have illegally disbelieved the documentary evidence produced by the employee of the Municipal Board which clinches the issue in his favour. 6. The petitioner had filed several documents including assessment orders to prove that the building was newly constructed and to disprove it, the tenant-respondent summoned the clerk of the Municipal Board alongwith record to show that the building was old construction. Bangali Prasad appeared as DW1 alongwith available record and he stated before the Court on the basis of the documents that the existing building was demolished and in its place a new double storeyed construction was made and which was assessed to tax with effect from 1.10.1982. Neither the respondent-tenant nor the Court cross-examined the said witness. However, the trial Court simply ignored his testimony on the ground that the documents produced by him were never proved. The revisional Court did not advert to the statement made by the DW1 but it raised a doubt about the authenticity of the record produced by him on the ground that two inks were used in preparation of the report. The statement of Bangali Prasad is part of the record and it shows that he had stated in his statement that according to the survey report the existing constructions were demolished and new constructions were raised which was re-assessed for tax with effect from 1.10.1982. The original was submitted in the Court. The survey report which was produced by the defence witness was a public document in view of Section 330 of U.P. Municipalities Act, 1916 and there was presumption of its correctness. Neither the tenant nor the Court questioned the witness about its authenticity or asked him to explain the difference in writing. A photocopy of the report is also on record and it’s perusal does not show that it is a manufactured document. Though it appears that a note made in the said document appears to be in different ink but the witness was never confronted or asked to explain. It could be that the report was finalized after noting by various officers because otherwise also the second note shows that in fact the construction during the time of inspection in August, 1982 was still continuing on the first floor. It could be that the report was finalized after noting by various officers because otherwise also the second note shows that in fact the construction during the time of inspection in August, 1982 was still continuing on the first floor. Thus even ignoring the note which is in different ink, yet the document shows that the constructions were erected in 1982. Both the Courts below have erred in law in disbelieving the public document which throws considerable light and goes to the root of the entire dispute. 7. The issue can be examined from another angle. Assuming that new additions were made to the existing construction, what would be the effect in the present case. 8. The assessment list for the period 1.4.1975 to 30.9.1982 and for the period 1.10.1982 to 31.9.1987 which were filed before the Courts below and are also part of the record of this petition. A perusal of the assessment list relating to the period 1.4.1975 to 30.9.1982 shows that the value of the building was assessed at that time at Rs.165/- and the tax assessed thereon was Rs.10.37. Subsequent assessment for the period 1.10.1982 to 31.9.1987, i.e., subsequent to the constructions, annual value of the building has been fixed at Rs.4800/- while the tax assessed is shown as Rs.600/-. This shows that large scale constructions were made dwarfing the earlier constructions. Assuming that it was a case of addition to the earlier constructions, the assessment order itself shows that substantial additions were made to the existing building. Sub Clause (c) of explanation 1 to Section 2 (2) provides as under : Explanation 1— (a) * * * * * (b) * * * * * (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. It is thus apparent that even if there is substantial addition to an existing building like in the present case, the whole of the building shall be deemed to be constructed on the date of completion of the said addition. The Apex Court also in the case of Smt. Mundri Lal v. Smt. Sushila Rani, 2007(69) ALR 477, has held that substantial addition to an existing construction would tantamount to new construction. The Apex Court also in the case of Smt. Mundri Lal v. Smt. Sushila Rani, 2007(69) ALR 477, has held that substantial addition to an existing construction would tantamount to new construction. Therefore, also it is evident from the record that the building was a new construction and as such was beyond the purview of the Act. 10. Learned counsel for the respondent has laid considerable stress on the issue that the petitioner has not come out with the exact date of starting or completion of construction which was in violation of Section 148 of U.P. Municipalities Act. No doubt, it is so, but that by itself would not amount that the constructions were old. A learned Single Judge of this Court in the case of Hirday Ram v. Harbhajan Singh Kochar, 1977 AWC 355, has held that at best in such a situation the owner-landlord may be liable for punishment under Section 148 of the Municipalities Act. 11. In view of the finding recorded hereinabove, the other questions need not to be considered by this Court. 12. For the reasons above, this petition succeeds and is allowed and the revisional order 30.1.2006 is hereby quashed and the matter is remanded to the revisional Court to decide the revision afresh keeping in mind the observations and findings rendered hereinabove. Since it is a very old case, the revisional Court shall decide the revision within a period of three months from the date of submission of a certified copy of the order. 13. In the circumstances of the case, no order as to cost. ————