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2015 DIGILAW 456 (UTT)

Meera Devi v. IIIrd FTC/Additional D. J. Haridwar

2015-09-16

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. Heard Mr. V.K. Kohli, Senior Advocate, assisted by Mr. Pradeep Kumar Chauhan, Advocate, for the petitioner and Mr. Nikhil Singhal, Advocate, for the respondent no. 2 at great length. 2. This is a tenant’s writ petition, whereby order dated 11.12.1997 passed by Judge, Small Cause Court/Civil Judge (J.D.) Haridwar as well as order dated 25.11.2004 passed by the revisional court are under challenged. 3. A notice was given by the landlord/respondent no. 2, under Section 106 of the Transfer of Property Act to the tenant who is the present petitioner before this Court thereby terminating his tenancy. The notice was admittedly received by the tenant. Nevertheless, since she was not vacating the building, the landlord had no option but to file a suit for rent and ejectment against the tenant before the Judge, Small Cause Court, Haridwar. An objection was raised in the Written Statement by the tenant stating that the building in question is a building which is covered under the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (from hereinafter referred to as U.P. Act No. XIII of 1972) and consequently the eviction, if at all, can only be made under the provisions of U.P. Act No. XIII of 1972 and the forum chosen by the landlord is not the correct forum. Considering the objection raised regarding the jurisdiction of the court, the court has to decide as to whether the provisions of U.P. Act No. XIII of 1972 is applicable to the concerned building or not. The courts below have rejected this plea of the tenant. 4. Admittedly, the U.P. Act No. XIII of 1972 is applicable in the State of Uttarakhand. It is again an admitted fact when the proceedings were initiated at Haridwar which is now a part of the State of Uttarakhand which was the part of erstwhile State of Uttar Pradesh in which the U.P. Act No. XIII of 1972 is applicable. The U.P. Act No. XIII of 1972 is applicable to all urban buildings which are under the territory of the State of Uttarakhand. Section 2 of the U.P. Act No. XIII of 1972, however, creates certain exemptions. In case, building comes under these exemptions it would not be covered under U.P. Act No. XIII of 1972. The U.P. Act No. XIII of 1972 is applicable to all urban buildings which are under the territory of the State of Uttarakhand. Section 2 of the U.P. Act No. XIII of 1972, however, creates certain exemptions. In case, building comes under these exemptions it would not be covered under U.P. Act No. XIII of 1972. Both the landlord as well as tenant relied upon Clause 2 of the Section 2 of U.P. Act No. XIII of 1972 which reads as under:- “2. Exemptions from Operation of Act:- (1) …………………… (2) Except as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21, sub-section (2) of Section 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 the 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.” 5. A notice under Section 106 of the Transfer of Property Act was given by the landlord to tenant on 14.09.1992. This Court has to see whether on the said date the building was covered under the U.P. Act No. XIII of 1972. The case of the tenant before the courts below was that she is the tenant of the building since 1980. Broadly for our purposes, the relevant factors for consideration would be whether the premises in question were constructed prior to April 26, 1985 or after that date. 6. The case of the tenant before the courts below was that she is the tenant of the building since 1980. Broadly for our purposes, the relevant factors for consideration would be whether the premises in question were constructed prior to April 26, 1985 or after that date. 6. As per the tenant, she is the tenant of the said building since 1980 and therefore the construction precedes 26, April 1985 and after 1980 the building comes within the purview of U.P. Act No. XIII of 1972 and therefore proceedings for eviction can be initiated under U.P. Act No. XIII of 1972. On the other hand, learned counsel for the landlord states that the first assessment of the building is of April, 1988 and therefore, when the notice was given for eviction in the year 1992, the building was outside the purview of U.P. Act No. XIII of 1972. Both the courts below have given categorical finding that the construction of the building would be of April, 1988 and it would hence outside the purview of U.P. Act No. XIII of 1972 on the date when the notice of eviction was given and therefore the objections of the tenant were rejected. The suit for eviction was decreed on 11.12.1997, an order which has been upheld in revision. The crucial provision of the law which has to be examined by this Court as per the explanation (I) (a) (b) and (c) as to whether the date of construction has been explained. 7. The perusal of the aforesaid provisions show that the building would be deemed to have been completed on the date on which completion thereof is reported to or otherwise recorded by the local authority having jurisdiction and in case of building subject to the assessment, the date on which such 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 the construction of guarding the building under construction) for the first time. 8. The records which have been placed before the courts below by the landlord pertaining to local authority i.e. Nagar Palika Parishad, Haridwar show that the first date of assessment of the building is of April, 1988. 8. The records which have been placed before the courts below by the landlord pertaining to local authority i.e. Nagar Palika Parishad, Haridwar show that the first date of assessment of the building is of April, 1988. The tenant has not filed any proof before the courts below for other assessments prior to 1988, nor has been able to prove that the completion of the building was reported by the local authority or otherwise recorded by the local authority in any manner. In fact, in the Written Statement also the tenant has admitted in paragraph no.2 of the writ petition that the first assessment was of the year April, 1988. Consequently thereof, conclusion arrived by the courts below that the completion of the building would be deemed to be from April, 1988 this cannot be faulted with. Hence is absolutely no occasion to interfere in the matter. 9. The writ petition has absolutely no merit and is hereby dismissed. It is further directed that in this matter the case is pending since 2004 before this Court, where the suit for eviction is of 1992 which was decreed and the revision against it was also dismissed. The writ petition filed before this Court in which an interim order was granted by this Court vide its order dated 23.12.2004 is still continuing. The interim order dated 23.12.2004 stands vacated. 10. However, the petitioner shall handover the peaceful possession of the property to the respondent no. 2/landlord within a period of one month from the issue of certified copy of this order. 11. The entire decretal amount shall be deposited within one month from the date of production of a certified copy of this order. Over and above that an amount of Rs. 1,000/- (Rupees One Thousand Only) per month as mesne profits, for the period the writ petition remained pending before this Court shall also be given by the tenant to the landlord within one month from the date of production of a certified copy of this order.