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2014 DIGILAW 1917 (ALL)

Om Prakash Dwivedi v. Istakhar Ahmad

2014-07-02

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal, J. List has been revised. 2. Heard Sri Deepak Gaur, learned counsel for the petitioner. 3. No one appears for the respondents. No counter affidavit has also been filed despite the petition being pending since 2008. 4. The suit of the petitioner for arrears of rent and eviction has been dismissed by the courts below holding that according to the petitioner's own version the shop was in existence since 1981-82 and, therefore, the provisions of U.P. Act No.13 of 1972 are applicable. 5. The only submission of learned counsel for the petitioner is that the provisions of the aforesaid Act are not applicable inasmuch as the construction of the shop was of the year 1991. 6. There is no dispute that the provisions of the Act are not applicable for a period of 40 years to a building completed on or after 26th April, 1985 otherwise the holiday available is only for ten years. 7. Explanation 1(a) to Section 2(2) of the Act provides that the construction of a building shall be deemed to have been completed on the date the completion thereof is reported to or otherwise recorded by the local authority or in case it is subject to assessment the date on which the first assessment thereof comes into effect and in the absence of any such report, record or assessment, the date on which it is actually occupied for the first time. 8. A plain reading of the above explanation points out to three things which are relevant for determining the date of completion of the building, namely, (i) the date on which the completion is reported or is otherwise recorded by the local authority; (ii) in case of building subject to assessment, the date on which the first assessment comes into effect; and (iii) in the absence of report, record or assessment, the date on which it is actually occupied for the first time. 9. In the instance case, there is no report or record of the local authority regarding the date of competition of the building. The building is subject to assessment and has admittedly been assessed to tax for the first time in the year 1989-90. Thus, the date of first assessment shall be deemed to be the date of completion of the building and the third condition would not be applicable. The building is subject to assessment and has admittedly been assessed to tax for the first time in the year 1989-90. Thus, the date of first assessment shall be deemed to be the date of completion of the building and the third condition would not be applicable. It comes into operation only if either of the first two conditions are not applicable. 10. The courts below despite the first assessment of the building of the year 1989-90 have held that the building was completed in the year 1981-82 as the petitioner himself admits that it was let out to one of the tenants in the said year. The letting out or the actual occupancy of the building is not relevant or material for determining the date of completion of the building when the building is subject to assessment and its first assessment is of the year 1989-90. 11. In view of the above, the date of completion of the building would be 1989-90 and the provisions of the Act would not be applicable to it for a period of 40 years. 12. Accordingly, the impugned orders dated 12.12.2007 and 15.5.2007 are quashed and the matter is remanded to the court of first instance for deciding the suit on merits. 13. The writ petition is allowed.