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2016 DIGILAW 133 (ALL)

Mohammad Farman v. Gaumat Trust of India

2016-01-11

SURYA PRAKASH KESARWANI

body2016
JUDGMENT Surya Prakash Kesarwani,J. 1. Heard Sri Mohit Kumar, learned counsel for the defendant- revisionist and Sri B.K. Slanki, learned counsel for the plaintiff- respondent. 2. Since facts and controversy involved in both the revisions are similar and as such with the consent of learned counsel for the parties, both the revisions are being heard together. 3. Learned counsel for the defendant revisionist submits as under: I The building was constructed and assessed before the cut of date i.e. 26.4.1985 under Section 2(2) of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as 'the Act'). Thus the Act was applicable but the court below has committed manifest error of law to record a finding that the Act is not applicable. II The new construction or the new building can be treated as new only if it is assessed separately or subsequently. It is evident on record that no fresh assessment took place and as such the exemption from applicability of the Act shall not be available to the plaintiff-respondent. III Copies of khasra of the municipal corporation as filed in evidence records certain new construction, which is wholly meaningless since no fresh assessment was made subsequent to the first assessment. IV Since there was dispute as to the date of construction, hence the court below should have determined it on the basis of assessment. 4. In support of his submissions learned counsel for the defendant-revisionist relied upon decision of Uttarkhand High Court, in the case of Harvinder Singh Vs. Bhagwant Singh and another 2011(2) ARC 416, para 4, judgment of this Court in the case of Riyaz Fatma (Smt.) Vs.Special Judge/Additional District Judge, Bijnor & others, 2005(1) ARC 850 , para 15 and 16 and the judgment in the case of Mohammad Aslam Vs. Om Prakash Dwivedi, 2006(2) ARC 722 , para 15 and 16. 5. Sri B.K.Solanki, learned counsel for the plaintiff-respondent submits that undisputedly the defendant-revisionist is a defaulter inasmuch he has not paid rent since the order 2013. The finding of fact has been recorded in the impugned judgment that the first assessment of the building was made in the year 1986-1991. The copies of record of Municipal Corporation filed in the evidence clearly indicated that the tenanted shops were constructed in the year 2001 and the same were let out to the defendant-revisionist in the year 2004. The finding of fact has been recorded in the impugned judgment that the first assessment of the building was made in the year 1986-1991. The copies of record of Municipal Corporation filed in the evidence clearly indicated that the tenanted shops were constructed in the year 2001 and the same were let out to the defendant-revisionist in the year 2004. He further submits that the findings recorded in the impugned judgment are findings of fact based on consideration of relevant material on record and, therefore, it can not be interfered. 6. I have carefully considered the submissions of the learned counsel for the parties. 7. Briefly stated the facts of the present case are that the plaintiff-respondent is a trust and is owner and landlord of an immovable property being situate in Mohalla Raj Babu Road, Bulandshahar. Two shops were let out by the plaintiff-respondent to the defendant-revisionist on 8.4.2004 under a written agreement on monthly rent of Rs.600/-. Findings have been recorded by the court below while deciding the issue no.1 that the defendant-revisionist was a tenant on rent of Rs.600/- per month under rent agreement dated 8.4.2004 and had not paid the rent to the plaintiff-respondent since November 2013. While deciding issue no.2, the court below has recorded a finding of fact that five shops were constructed and were assessed for the first time during the assessment year 1986-1991 and thus it is established that shops in question were constructed after the cut of date i.e. 26.4.1985 under Section 2 (2) of the Act which according to the plaintiff-respondent were constructed in the year 2001-2002. It is undisputed that certified copies of khasra being municipal records, were filed as paper No.31-C/1, 31-C/2, 31-C/3, 31-C/4, 31-C/5. The copies of these papers have been filed as Annexure 4 to the affidavit to this revision. 8. Perusal of copy of khasra of the period 1980-1985 shows that the property in question was not assessed to tax. Perusal of copy of khasra of the period 1986-1991 shows that it contains description of certain construction and was assessed at annual income of Rs.12,000/- and tax of Rs.750/-. As per copy of khasra of the period 1991-1996 the annual income remained the same but tax was assessed Rs.1200/-. This khasra contains the constructed portion as was recorded in the earlier khasra. As per copy of khasra of the period 1991-1996 the annual income remained the same but tax was assessed Rs.1200/-. This khasra contains the constructed portion as was recorded in the earlier khasra. In the copy of the khasra of the year 1996-2001, substantial new construction was recorded. The annual income is shown as Rs.8,400/- and tax of Rs.840/-. In the khasra of year 2002-2007 certain more constructions are recorded as new constructions and the annual income is shown as Rs.1,700/- and tax of Rs.170/-. 9. The findings of fact recorded in the impugned judgment that the assessment to tax was made for the first time between the year 1986-1991, is supported by the evidence on record i.e. the copy of khasra of the period 1986-1991 in which the construction is shown as four rooms, store and five shops. The khasra of the period 2002-2007 records that six rooms, store, five shops, one big hall etc. There is no dispute that there are seven shops. There is also no dispute that the defendant-revisionist took the shop on rent under rent agreement dated 8.4.2004 on a monthly rent of Rs.600/-. Thus, I find no infirmity in the findings of fact recorded by the court below that even the five shops were assessed to tax for the first time in the assessment year 1986-1991 which is subsequent to the cut of date i.e. 26.4.1985. 10. Thus, I find no infirmity in the findings of fact recorded by the court below that even the five shops were assessed to tax for the first time in the assessment year 1986-1991 which is subsequent to the cut of date i.e. 26.4.1985. 10. The provisions of Section 2(2) of the Act provides as under : (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 I.-- [For the purposes of this section],-- (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 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: Provided that there may be different dates of completion of Construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants; (b) "construction" includes any new construction in place on an existing building which has been wholly or substantially demolished; (c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition; [Explanation II.--The expression "bank" means-- (i) a banking company, as defined in the Banking Regulation Act, 1949; (ii) the State Bank of India constituted under the State Bank of India Act, 1955; (iii) a subsidiary bank, as defined in the State Bank of India (Subsidiary Banks) Act, 1959; (iv) a corresponding new bank constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970; (v) a financing bank or Central Bank (as defined in the Uttar Pradesh Co-operative Societies Act, 1965), not being a Land Development Bank; and (vi) any other financial institution notified by the State Government in the Gazette as a bank for the purpose of this Act. Explanation III.--A building shall be deemed to be constructed substantially out of funds obtained from sources mentioned in the proviso, if the funds obtained from sources mentioned in the proviso, if the funds obtained from one or more of such sources, account for more than one-half of the cost of construction.] (3) 14 [* * *] 11. The finding of fact with regard to the date of construction of the shops in the light of the deeming provisions of Section 2(2) of the Act clearly shows that since the construction took place after the cut of date i.e. 26.4.1985 and as such the building in question was outside the scope of the Act. 12. The judgment of Uttarkhand High Court in the case Harvinder Singh (supra) as relied by the learned counsel for the defendant- revisionist has no application on the facts of the present case inasmuch as in the said judgment it was held that addition of one room can not become substantial addition which would take it outside the purview of U.P. Act. The judgment in the case of Riyaz Fatma (supra) also does not support the case of the defendant-revisionist, inasmuch as this judgment has merely explained the deeming provision of Section 2(2) of the Act. In this judgment, it was further held that the court below committed illegality in relying on the oral evidence of the parties instead of placing reliance of the copy of the assessment list filed by the landlord. The facts of the present case clearly shows that the court below has relied upon the documentary evidence i.e. the copies of the khasra. The judgment in the case of Mohammad Aslam (supra) also does not support the case of the defendant-revisionist, inasmuch as in this judgment, it has been held that if there is assessment, the date of first assessment shall be deemed to be the date of completion of building and in that case the respondent-landlord did not produce the municipal record relating to the first assessment of the building but instead filed irrelevant document and, therefore, the court below wrongly and illegally relied upon those documents and recorded a finding that the date of completion of the building was 1989 and consequently, it was outside the purview of the Act. 13. The findings of fact, recorded in the impugned judgment are not in conflict with the copies of municipal records. 14. 13. The findings of fact, recorded in the impugned judgment are not in conflict with the copies of municipal records. 14. In view of the above discussions, I find no merit in this revision. 15. The revision fails and is hereby dismissed.