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2014 DIGILAW 2832 (ALL)

Krishna Chaddha v. Ganga Devi

2014-09-11

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal,J. Heard Sri Rahul Sahai, learned counsel for the petitioner now represented by his heirs and legal representatives and Sri S.S. Sharma, learned counsel for the respondents. All the four writ petitions are identical and similar on facts and in all of them a common controversy is involved. Therefore, with the consent of the parties all of them are being taken up together and for the sake of brevity the facts of the leading writ petition no. 15313 of 2010 are being referred to below. 2. The dispute in the present writ petition relates to two shops no. 2159/L and 2159/M which are part of property no. 1408 Mohalla-Badri Nagar, Mathura. 3. Admittedly, respondents are the owners and landlord of the said shop and the petitioner is a tenant therein. Respondents after determining tenancy of the petitioner vide notice dated 4.7.1996 instituted a suit in the court of Small Causes for eviction on the ground of default in payment of rent. The said suit has been decreed by the two courts below holding that the provisions of U.P. Act No. 13 of 1972 are not applicable. 4. The only submission of Sri Rahul Sahai, learned counsel for the petitioner is that the finding that the Act is not applicable is perverse. The Act is applicable and the petitioner is entitle to benefit of Section 20 Sub-cause (4) of the Act, in as much as, he has deposited the entire arrears of rent together with interest and cost of suit on or before the first date of hearing. 5. In view of the above the crucial question arising in this writ petition is whether the provisions of the Act are applicable to the shop in dispute. 6. Sub-section (2) of Section 2 of the Act as amended by U.P. Act No. 17 of 1985 w.e.f. 26.4.1985 provides that the Act shall not apply to a building for a period of 40 years where the date of completion of its construction is on or after 26th April 1985. 7. 6. Sub-section (2) of Section 2 of the Act as amended by U.P. Act No. 17 of 1985 w.e.f. 26.4.1985 provides that the Act shall not apply to a building for a period of 40 years where the date of completion of its construction is on or after 26th April 1985. 7. The explanation to the above sub-section 2 of Section 2 of the Act provides that the construction of the building shall be deemed to have been completed from the date on which the completion thereof is reported or otherwise recorded by the local authority and in case the building 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. In view of the above explanation the date of completion of the building has to be determined on the basis of the report of completion of building or the date on which it is so recorded by the local authority. In the event the building is assessed to tax, the date of its first assessment forms the basis of such determination. However,if neither the completion of construction is reported, recorded nor the building is assessed to tax, the actual date shall be relevant for determining its date of completion. 9. In the instant case, admittedly there is neither any report of completion of the building to the local authority nor its completion otherwise is recorded by the local authority, therefore, for ascertaining the date of completion of construction, the court has to fall upon the date of the first assessment of the building or upon its actual occupation, if necessary. 10. The case of the respondents is that the shops were assessed for the first time w.e.f. 1.4.1987 as per paper no. 49 Ga. Respondent no. 2 Nand Lal Chaturvedi has appeared as PW-1 and has categorically stated that the shops in dispute were completed in the year 1987 and they were assessed for the first time w.e.f. 1.4.1987 in respect whereof the first assessment paper no. 49 Ga is on record. 49 Ga. Respondent no. 2 Nand Lal Chaturvedi has appeared as PW-1 and has categorically stated that the shops in dispute were completed in the year 1987 and they were assessed for the first time w.e.f. 1.4.1987 in respect whereof the first assessment paper no. 49 Ga is on record. It is on the basis of the said assessment that the courts below treating it to be the first assessment of the shop held that irrespective of the date of occupation of the shops by the petitioners, the date of completion of the construction of the shop would be 1.4.1987 which as such would be outside the purview of the Act. 11. Sri Rahul Sahai, learned counsel for the petitioners submits that the aforesaid assessment of the shops w.e.f. 1.4.1987 is not the first assessment. The petitioner is occupying the shop in dispute since 1977 and the very fact that the respondents demanded house tax and water tax w.e.f. 1.4.1978 shows that the shop was assessed earlier to 1.4.1987 also. He further submits that the record prior to 1.4.1987 is not available as is evident from the reply paper no. 63 Ga of the Nagar Nigam. 12. His argument in short as such is that the assessment of shop w.e.f. 1.4.1978 is not the first assessment and simply on account of the fact that the earlier assessment is not available with the Municipal Board, the court below erred in taking the assessment of 1.4.1987 to be the first assessment. 13. The burden to prove that the provisions of the Act are not applicable to the shop in dispute is upon the person who contends the same ie. the landlord. The respondents in order to prove that the shops were assessed to tax for the first time on 1.4.1987 have brought on record the assessment paper no. 49 Ga and has proved the same by the evidence of PW-1.The respondents having discharged the above burden, the onus shifts upon the petitioners to show that the assessment of the shops as relied upon by the respondents is not the first assessment. 14. In this connection, the attention of the Court has been drawn to paper no. 63 Ga. It is a letter of the Executive Officer Nagar Nigam Parishad, Mathura dated 31.10.2005 which has been written in response to the letter of the petitioner dated 27.10.2005. 15. 14. In this connection, the attention of the Court has been drawn to paper no. 63 Ga. It is a letter of the Executive Officer Nagar Nigam Parishad, Mathura dated 31.10.2005 which has been written in response to the letter of the petitioner dated 27.10.2005. 15. A reading of the said letter reveals that it is in connection with the assessment of the year 1970 in respect of house no. 1408 situate in Mohalla-Badri Nagar, Mathura. The said letter only states that the record of the assessment for the relevant year is in a precarious condition and its certified copy can not be supplied. The said letter does not speak anything about the assessment of the shops for the period 1970 onwards till 1987. Therefore, the paper no. 63 Ga is not material and relevant to prove that the shops were assessed to tax earlier also or that the record in that regard is not available. 16. The petitioners, have not brought any evidence on record to show that the shop in dispute was assessed to tax even prior to 1.4.1987. There is no material on record which could establish that the earlier record of the shops, if any, prior to 1.4.1987 is not available and the certified copy of the same can not be provided.Thus, petitioners have failed to discharge their burden to prove that the assessment of the shops w.e.f. 14.1987 is not the first assessment. 17. It is worthy to note that in respect of the adjoining shops in the same building in a similar matter this Court in writ petition no. 22206 of 2008 and 18879 of 2009 vide judgment and order dated 10.7.2014 has already held that there is no error on part of the courts below in not applying the Act to the shops in question. 18. In view of the aforesaid facts and circumstances, I find no illegality in the judgments of the courts below, the writ petitions as such lack merit and are dismissed.