Research › Search › Judgment

Uttarakhand High Court · body

2015 DIGILAW 518 (UTT)

C. P. MANDAL v. RAM PRAKASH SHARMA

2015-11-03

SUDHANSHU DHULIA

body2015
JUDGMENT : Hon’ble Sudhanshu Dhulia, J. (Oral) 1. The two writ petitions before this Court being WPMS No. 96 of 2012 and WPMS No. 97 of 2012 arise out of a proceedings in a SCC Suit Nos. 9 of 2007 and 10 of 2010 whereby the Judge SCC/Civil Judge (S.D.), Haridwar dismissed the suit of the petitioner/landlord vide judgments and orders dated 14.09.2010. Aggrieved by the said order, the petitioner preferred a revision being SCC Revision Nos. 31 of 2010 and 32 of 2010, which was ultimately dismissed vide orders dated 17.10.2011. Hence these present writ petitions before this Court. 2. In the above revision before this Court being SCC Revision No. 6 of 2015, which has been filed by the tenant – C.P. Mandal against the judgment and order dated 10.12.2014 passed by the IInd Additional District Judge/Judge SCC, Haridwar in SCC Suit No. 14 of 2009 by which the revisionist was directed to vacate the possession of the shop in question. 3. The landlord in all the three cases is the same person, namely, Ram Prakash Sharma, though the tenants are different. Another factor which is common in all these cases are that the building is also the same although it is divided into various shops, which were then let out by the landlord to different tenants, who are also before this Court. 4. The petitioners in writ petition (WPMS Nos. 96 of 2012) being the landlord had filed the suit for eviction of his tenant in question to a shop. This was before the Judge SCC. The shop was let out to respondent – Ashwani Kumar Joshi. The preliminary question which was raised by the defendant/respondent was that the construction of the shop is prior to 26.04.1985 and consequently in view of the provision of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (from hereinafter referred to as “Act No. 13 of 1972”) it is within the purview of Act No. 13 of 1972 and hence he cannot be evicted by means of institution of a suit, and proceedings can only be initiated against him on limited grounds under Act No. 13 of 1972. The same question was raised in another matter (WPSS No. 97 of 2012) filed by the landlord before the authority concerned (which is apart from the SCC Revision), where again the defence taken by the tenant was that the construction of the premises is prior to 26.04.1985 and hence it is within the purview of Act No. 13 of 1972 and the suit is not maintainable. 5. In order to properly appreciate this aspect, certain provisions of Act No. 13 of 1972 are necessary to be gone into. The Act No. 13 of 1972 came into force on 15.07.1972. The objects and reasons of the Act No. 13 of 1972 are as under:- “The United Provinces (Temporary) control of Rent and Eviction Act, 1947, was passed as a temporary Act, with a view mainly to continuing in force provisions relating to control of letting and rent of accommodation similar to those contained in orders which had been issued under Defence of India Rules, 1939. It was expected that the situation of shortage of accommodation would be tided over after a short period, and accordingly an Ordinance was promulgated in 1946, and it was replaced by a temporary Act in 1947. In view, however, of the continuing increase in the urban population and the relatively slow pace of house building activity due, mainly, to shortage of materials, the problem of shortage of accommodation has become chronic, and the life of the Act has had to be extended from time to time. Various amendments were also made in its provisions as and when problems arose. Some of the provisions attracted criticisms on various grounds in courts of law and also criticism by informed public opinion. Government gave an assurance to the Legislature that they would soon replace the Act by a new comprehensive legislation, and accordingly, this Bill has been prepared.” 6. In the Act, the entire mechanism has been given as to how the landlord can evict and on what grounds a tenant can be evicted, etc. Section 2 (2) of the Act No. 13 of 1972 exempts certain buildings from the purview of Act No. 13 of 1972. Under Section 2 (2) read with proviso Explanation (1) of Act No. 13 of 1972 a building which has been constructed after 26.04.1985 shall not be covered under the Act No. 13 of 1972 for a period of forty years. Under Section 2 (2) read with proviso Explanation (1) of Act No. 13 of 1972 a building which has been constructed after 26.04.1985 shall not be covered under the Act No. 13 of 1972 for a period of forty years. The building which has been constructed prior to 26.04.1985 shall be covered, if the construction 10 years old. Section 2 (2) read with provision Explanation (1) of the Act No. 13 of 1972 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, Sections 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. Explanation (1) (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first 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 or guarding the building under construction for the first time.” 7. In view of the above provision, the word “construction” has a very important bearing as the date of construction would be important in order to place a particular building within the purview of Act No. 13 of 1972 or to keep it outside the purview of Act No. 13 of 1972. The Legislature in its wisdom, therefore, had given a definite and a clear cut provision regarding “construction” which is given in Explanation (1) to the proviso of Section 2 (2) of Act No. 13 of 1972 which has already referred above. 8. A bare reading of the aforesaid provision (referred above) shows that the date of construction of a building shall be the date on which its completion is reported or otherwise recorded by the local authority having jurisdiction. But in case of a building is subject to assessment then the date of the first assessment would be the date of completion of the building. 9. In the present case, the date of construction has not been reported by the landlord to the concerned authority i.e. concerned Nagar Palika and there is no such date on record, however, the date which is available on record is the date of “first assessment”. The record which was shown by the Officer of the Nagar Palika, Roorkee, District Haridwar before the court below is a “register” which shows that the buildings the details of which have been given in the register have been assessed between 01.04.1985 to 31.03.1988. In other words, it is the register which pertains to different buildings which have been assessed during the aforesaid three year. In other words, it is the register which pertains to different buildings which have been assessed during the aforesaid three year. It would not mean that the building itself has been assessed on 01.04.1985 but the actual date of assessment would be the date when assessment orders have been passed which would be anywhere between 01.04.1985 to 31.03.1988. 10. The trial court has done a total misreading in the matter and has come to the conclusion that since the “register” pertains to a period between 01.04.1985 to 31.03.1988, it will be deemed that the assessment is from 01.04.1985 and since this date precedes 26.04.1985 he has come to the conclusion that the building was constructed prior to 26.04.1985 and therefore after ten years i.e. after 26.04.1985 it would come under the purview of Act No. 13 of 1972. Based on this logic he has dismissed the suit of the landlord. It has further been stated that the proper remedy for him to take recourse to provision of Act No. 13 of 1972 in case he wants to evict the respondent/tenant. In the second case, revisional court actually re-appreciated the evidence and came to the conclusion that the actual date of construction is the date of assessment which is 15.06.1986. On the contrary it is borne from the records, as well as from the evidence of Clerk of Nagar Palika, who was the witness and gave a statement that before 1986 the concerned property was not even registered in the Nagar Palika. 11. In other words, there is no record which shows that prior to 1986 there was any assessment of the said property. In view thereof, the revision No. 6 of 2015 is hereby dismissed. 12. As far as writ petitions (WPMS Nos. 96 of 2012 and 97 of 2012) are concerned the impugned orders dated 14.09.2010 passed by Judge SCC/Civil Judge (S.D.), Haridwar as well as orders dated 17.10.2011 passed by District Judge, Haridwar are a total misreading of the evidence and they are hereby set aside. Accordingly, these writ petitions are allowed. 13. It is further made clear that the tenants/respondents (in WPMS Nos. 96 of 2012 and 97 of 2012) shall vacate the property in dispute within a period of six months from today and handover the peaceful possession of the property to the landlord.