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2014 DIGILAW 2265 (ALL)

Subhash Singh v. Vijay Kumar Garg

2014-07-31

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal,J. Heard Sri Ravi Kiran Jain, Senior Advocate for the petitioner and Sri Pankaj Agrawal, learned counsel for the respondent. 2. Petitioner is a tenant of shop No.13/91 Mama-Bhanja, Aligarh and respondent is the owner-landlord of the same. 3. The respondent after determining the tenancy of the petitioner vide notice dated 18.11.2006 under Section 106 of the Transfer of Properties Act, 1882 instituted SCC Suit No.2 of 2007 for eviction of the petitioner alleging that the shop for the first time was assessed by the Nagar Nigam, Aligarh w.e.f. 1.2.1987 and, as such, the provisions of the U.P. Act No.13 of 1972 are not applicable to it. The suit was contested by filing written statement admitting tenancy, relationship of land-lord and tenant and rate of rent etc. but denying the applicability of the Act on the ground that it was assessed for the first time w.e.f. 1.1.1983. The petitioner accordingly claimed the benefit of Section 20(4) of the Act as he had deposited the entire arrears of rent etc. amounting to Rs.28,000/- on or before the first date of hearing. 4. The suit was decreed on 7.6.2010 holding that the building was assessed to tax for the first time w.e.f. 1.2.1987 and, therefore, the Act is not applicable. Thus, the petitioner was denied benefit of Section 20(4) of the Act and the suit for eviction was decreed. The aforesaid decree has been upheld by the revisional court vide judgment and order dated 5.5.2011 dismissing the revision preferred by the petitioner under Section 25 of the Provincial Small Cause Court Act, 1883. 5. The aforesaid two judgments and orders of the courts below have been impugned by the petitioner in the present petition. 6. The sole question which has been raised by the parties for consideration in this writ petition is about the applicability of the Act to the shop in question which is dependent upon the date of completion of the construction, namely, its first assessment w.e.f. 1.10.1983 or 1.2.1987. 7. The argument of Sri Jain is that in order to establish that the shop for the first time was assessed to tax on 10.7.1983 a certified copy of the house tax assessment form of Nagar Nigam, Aligarh in respect of house No.13/85 was filed in evidence which shows that the said house contains four shops which were assessed to tax w.e.f. 1.10.1983. The shop in question is one of those shops. The date of completion of the construction of the shop, irrespective of its actual construction or occupancy, would be the date of its first assessment as per explanation I(a) of Section 2(2) of the Act. Any admission or any agreement refusing to accept the applicability of the Act on the shop would be against statute and would be of no avail. 8. Sri Pankaj Agarwal has defended the impugned orders by submitting that the petitioner cannot be allowed to raise the plea of applicability of the Act to the shop when he had executed a tenancy agreement accepting that the building is new and the Act is not applicable. According to him admission is the best evidence and the petitioner cannot travel beyond it. He further submits that he had adduced ample evidence to show that first assessment of the shop was w.e.f. 1.2.1987. The assessment relied upon by the petitioner is not in respect of the shop in question rather it is confined to two shops situate in the property 13/85. 9. The court of first instance instead of formulating points for determination, framed issues arising in the suit. Issue No.3 as framed was with regard to the applicability of the Act to the shop. The court records that the respondent has filed a copy of the first assessment of the shop (Paper No.27 Ga) to prove that it was assessed for the first time w.e.f. 1.2.1987. A further paper 77 Ga received by the respondent under the Right to Information Act certifies that the shop was assessed for the first time in the year 1987. The court further records that it is admitted to the parties that the rent agreement was executed between them in the year 1989 at the time of letting out of the shop and in the said agreement (Paper No.34 Ga) parties accepted that the Act is not applicable. The court disbelieved that the first assessment of the shop was made w.e.f. 1.10.1983. 10. The aforesaid are findings of fact which do not require much investigation or re-appraisal of the evidence. However, I have carefully seen the house tax assessment which has been relied upon by the petitioner and has been filed as Annexure - 9 to the petition. The said assessment is dated 10.7.1983. It is in respect of house No.13/85 Mama-Bhanja, Aligarh. The aforesaid are findings of fact which do not require much investigation or re-appraisal of the evidence. However, I have carefully seen the house tax assessment which has been relied upon by the petitioner and has been filed as Annexure - 9 to the petition. The said assessment is dated 10.7.1983. It is in respect of house No.13/85 Mama-Bhanja, Aligarh. It describes the above house as a two storied building of five rooms, two latrines, two bath-rooms and four shops. The ground floor consists of two shops; one shop under the tenancy of Mahendra Singh and another with two shutters in the tenancy of Atul Kumar along with one room with two shutters with a stair case, a bath room and a latrine in occupation of the owner/landlord. The said assessment contains a note that the entire house has been reconstructed after demolition. 11. A bare perusal of the aforesaid assessment shows that it is in connection with two shops occupied by Mahendra Singh and Atul Kumar and the house. It does not include the shop in question i.e. shop No.13/91. There is nothing on record to co-relate that the shop in dispute was part of the aforesaid assessment. 12. The respondent in paragraph 2 of the plaint has clearly mentioned that on completion of the construction of the shop it was assessed for the first time by the Nagar Nigam, Aligarh w.e.f. 1.2.1987. The plaint was allowed to be amended and the respondent was permitted to add paragraph 1A to the plaint to the effect that the respondent after demolishing house No.13/85 constructed two shops in the year 1983 on the road side beside the residential portion which in the first instance was assessed to tax w.e.f. 1.10.1983. The said two shops are in the tenancy of Mahendra Singh and Atul Kumar. Subsequently, respondent constructed three more shops in the backside of the house and the last of it was let out to the petitioner in the year 1989. These three shops were assessed to tax for the time time w.e.f. 1.2.1987 and the shop in possession of the petitioner was given number 13/91. 13. Subsequently, respondent constructed three more shops in the backside of the house and the last of it was let out to the petitioner in the year 1989. These three shops were assessed to tax for the time time w.e.f. 1.2.1987 and the shop in possession of the petitioner was given number 13/91. 13. The averments regarding construction of the shops and their assessments were replied by the petitioner in paragraph 11 of the written statement and through the additional written statement stating that the shop in dispute 13/91 was constructed in April, 1984 and was subjected to assessment w.e.f. 1.10.1983 as part of the building No.13/85-A. It is wrong to allege that it was first assessed w.e.f. 1.2.1987. 14. A bare pleadings of the parties and the above evidence on record clearly reveals that there is no authentic document on record to establish that the shop in dispute was in existence in the year 1983/1984 or that it was part of the house tax assessment dated 10.7.1983. On the contrary, paper No.27Ga and 77Ga prove that it was constructed subsequently and was assessed to house tax for the first time w.e.f. 1.2.1987. 15. The provision of Section 2(2) Explanation 1(a) of the Act is a deeming provision which creates a legal fiction to the effect that irrespective of the actual date of completion of the construction of a building or its occupation, a building shall be deemed to be completed on the date on which its completion is reported or is otherwise recorded with the local authority and in the absence of the above, the date of its first assessment as recorded with the municipality. 16. Thus, the Supreme Court in Ram Saroop Rai Vs. Smt. Lilawati 1980 ARC 466 observed that the statute makes it clear that reliance upon the municipal records rather than on the lips of the witnesses is determinative of the date of completion of the construction of the building. 17. In other words, no oral or documentary evidence except the municipal records are of any worth for determining the completion of construction on the building for the purposes of applying the provisions of the Act. 18. 17. In other words, no oral or documentary evidence except the municipal records are of any worth for determining the completion of construction on the building for the purposes of applying the provisions of the Act. 18. In view of above, it is no longer necessary for me to evaluate the impact of agreement of tenancy (paper No.34 Ga) so as to find out if the Act applies to the shop in dispute or not but as much emphasis has been led upon the said agreement, I consider it appropriate to deal with it also. 19. The tenancy agreement paper No.34 Ga is dated 4.10.1989 and is filed as Annexure - 4 to the counter affidavit. The said agreement contains a recital that the provisions of the Act are not applicable to the shop in dispute. The agreement is signed by both the parties and its execution is admitted to the petitioner. 20. The petitioner in his statement accepts the execution, signing and the contents of the agreement. Thus, it amounts to admission on the part of the petitioner that the shop is outside the purview of the Act. The petitioner is bound by his admission as it is settled law that admission is the best evidence and a fact which has been admitted requires no evidence for its proof. This is what has been laid down by the Apex Court of the country in Banarsi Das Vs. Kanshi Ram and others AIR 1963 Supreme Court 1165 that admission in so far as facts are concerned binds the maker. 21. The submission of Sri Jain, that even if the petitioner in the agreement has admitted that the Act is not applicable, such an admission would not be binding as it would be against law has no force in law. 22. The general principle is that everyone has a right to waive the advantage of any law or Rule. Thus, as a general rule any person who enters into a binding contract with any person has a right to waive the benefits which may be conferred upon him under a statute, unless such agreement waiver is shown to be contrary to public policy. A reference in this regard may be had to a decision of the Supreme Court in the case of Lachoo Mal Vs. Radhye Shyam AIR 1971 SC 2213 . 23. A reference in this regard may be had to a decision of the Supreme Court in the case of Lachoo Mal Vs. Radhye Shyam AIR 1971 SC 2213 . 23. In the instant case the petitioner by accepting that the Act is not applicable vide the aforesaid agreement waived his right which may have otherwise accrued to him under the deeming provisions of the Act in as much as such waiver is against the public policy. 24. However, the aforesaid admission is not conclusive. The said admission in the agreement that the Act is not applicable does not mean that the petitioner has accepted that the Act will never apply. The Act was not applicable at the time of the execution of the agreement but it may apply in future with the passage of time. 25. The said agreement is not an admission of fact that the date of completion of the building is 1.2.1987. If the admission in the agreement is taken in its true tenor, it would reveal that the parties accept that the building was completed in 1984 before 26th April, 1985. Therefore, the Act would not applicable to it for a period of 10 years i.e. up to 2004. The Act would apply thereafter. 26. Thus, the admission made in 1989 would not be good so as to apply even in the year 2007 when the suit was filed. Therefore, the admission made in the agreement is of no use and would not bind the petitioner in so far the instant suit is concerned. 27. Sri Ravi Kiran Jain in the end placed before the court a certified copy of the plaint of PA Case No.5 of 2012, Vijai Kumar Garg Vs. Subhash Chandra Singh alleged to have been instituted by the respondent under Section 21(1)(a) of the Act for the release of the shop in dispute. It has been shown to counsel for the respondent who has nothing to comment. I have taken the same on record as this court is a court of record. 28. Sri Jain, on its basis submits that the respondent in the release application has accepted that the Act is applicable and therefore, he cannot approbate and probate at the same time. 29. I have gone through the plaint of the above case. 30. I have taken the same on record as this court is a court of record. 28. Sri Jain, on its basis submits that the respondent in the release application has accepted that the Act is applicable and therefore, he cannot approbate and probate at the same time. 29. I have gone through the plaint of the above case. 30. In the pleadings the respondent nowhere admits that the Act is applicable to the shop in dispute. 31. He rather contends that the issue as to the applicability of the Act on the shop is under consideration before the High Court in Writ Petition No.40044 of 2011 and it is subject to the decision of the above suit. However, as the petitioner contends that the Act is applicable he is filing the release application. 32. In view of the averments in the plaint of the above case, it cannot be said that the respondent has admitted the applicability of the Act upon the shop. 33. The inference of any admission drawn on the basis of filing of the release application, if any is qualified and subject to the decision of the present writ petition. On its basis it cannot be said that the respondent is blowing hot and cold in the same breath. 34. In view of the aforesaid facts and circumstances, I find no flaw in the conclusion drawn by the courts below that the shop in dispute is free from the applicability of the Act in which case petitioner would not be able to avoid the decree of eviction by taking shelter to the provision of Section 20(4) of the Act. There is no merit in this writ petition. It is accordingly dismissed.