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2017 DIGILAW 2533 (ALL)

Amreek Singh v. Shambhoo Dayal

2017-11-03

VIVEK KUMAR BIRLA

body2017
JUDGMENT : Vivek Kumar Birla, J. Heard Smt. Rama Goel Bansal, learned counsel appearing for the tenant-petitioner (hereinafter referred to as the tenant) and Sri Kamlesh Kumar Tiwari, learned counsel appearing for the landlord - respondent (hereinafter referred to as the landlord). 2. Present writ petition has been filed for setting aside the judgment and order dated 20.7.2017 passed by the Additional District Judge, Court No. 7, Jhansi in SCC Revision No. 77 of 2013 as well as judgment and order dated 6.9.2013 passed by the Judge, Small Causes Court, Jhansi in SCC Suit No. 14 of 2010. 3. Landlord filed SCC Suit No. 14 of 2010 seeking decree of eviction against the tenant from the shop in question alleging therein that the defendant is tenant in shop no.947 which is constructed on plot no. 318/5 situated at Jhokanbagh Civil Lines, Jhansi; that the rate of rent is Rs. 1217/- per month and that the shop was constructed in the year 1990-91 and as such the provisions of Act 13 of 1972 are not applicable. A notice dated 9.2.2010 for vacating the shop was given to the tenant terminating the tenancy but the same was returned with refusal by the tenant and therefore, the service was sufficient and thereafter the suit was filed. It was also alleged that the tenant is in arrears of rent since 1.12.2009. 4. The suit was contested by the tenant on the ground that there had been no default in making payment of rent. No notice was served on the tenant and a false report has been obtained from the Postman and that the shop in dispute is on a perpetual lease. At the time of execution of rent a sum of Rs. 75,000/- was given to the landlord with a condition that this amount will be returned to the tenant at the time of termination of tenancy. 5. Evidence was given by both sides. The plaintiff has placed on record service by refusal, first assessment order and the sale deed by which the property was purchased. On the other hand, the tenant has also placed on record certain documents including the tender receipt depositing rent, letter from the Nagar Nigam and a copy of assessment. 6. Six issues were framed by the trial court. 7. On the other hand, the tenant has also placed on record certain documents including the tender receipt depositing rent, letter from the Nagar Nigam and a copy of assessment. 6. Six issues were framed by the trial court. 7. Present writ petition has been argued on the ground that U.P. Act 13 of 1972 is not applicable, as such, I am concerned with only first issue framed by the trial court which is to the effect as to whether Act 13 of 1972 is applicable or not. The aforesaid issue was decided against the tenant by the trial court and was also affirmed by the revisional court after consideration of various documents on record. However, it may also be noticed that Issue no. 2 regarding sufficiency of service of notice was also decided against the tenant by the trial court and the same was also affirmed by the revisional court. Issue no. 3 was regarding validity of notice. Issue no. 4 was regarding default in payment of rent. Issue no. 5 was as to whether benefit of Section 20 (4) of the Act can be extended to the tenant or not and Issue no. 6 was to the effect as to what relief the tenant is entitled to. All such issues were also decided against the tenant by the trial court and were affirmed in revision filed by the tenant. 8. Learned counsel for the petitioner has challenged the same on the ground that U.P. Act 13 of 1972 is not applicable. She has drawn attention of this Court to the plaint, to the sale deed by which the landlord has purchased the property and to the map to highlight the difference in the area of the property purchased by the landlord and the area for which the map was sanctioned. In support of her argument attention was also drawn to the decision in partition suit to submit that in fact the shop in dispute is an old construction and as such Act 13 of 1972 would be applicable. In so far as the rent deed executed by the tenant himself is concerned it was submitted that it was an unregistered document and it cannot be placed reliance on. In so far as the rent deed executed by the tenant himself is concerned it was submitted that it was an unregistered document and it cannot be placed reliance on. It was also submitted that since the rent was to be enhanced at the rate of 15% after every five years therefore, the lease was perpetual in nature and the rent agreement deed being an unregistered document was not admissible in evidence and even if the tenant has admitted in the rent deed that the construction is new and the Rent Control Act would not apply, the same cannot be looked into by the courts below as the document itself is inadmissible in evidence. However, during course of argument it was not disputed that the same can be considered only for collateral purposes to look into the fact of possession. It was strongly argued that the assessment order was not the first assessment. Learned counsel for the petitioner has placed reliance on a judgment of the Hon'ble Apex Court in the case of Ram Swaroop Rai v. Smt. Lilawati 1980 ARC 466 (SC) in reference to her argument on Section 2 (2) of the Act to contend that only municipal record can be seen and no other oral evidence can be seen. She has also placed reliance on a judgment of the Hon'ble Apex Court in the case of M/s Bajaj Auto Ltd v. Behari Lal, 1989 SCFBRC 438 to contend that unregistered rent deed is not admissible in evidence. She further placed reliance on a judgment of the Hon'ble Apex Court in the case of M/s K.B. Saha v. M/s Development Consultants 2008 SCFBRC 42 the document not registered under Sections 49 and 17 can be looked into for collateral purposes. 9. Per-contra, learned counsel appearing for the respondent has drawn attention to the first assessment which is of the year 1991-92 which clearly states that the old number of the property is 318/5 and the new number is 987/5 and in column no. 5 the name of Diwan Tyres, the tenant herein appears and the date of first assessment is given as 28.11.1991. 5 the name of Diwan Tyres, the tenant herein appears and the date of first assessment is given as 28.11.1991. He submits that much stress has been given on the date of purchase of the property, the area of the property, the place of residence of the landlord and the area for which the map was submitted by the tenant and that the rent deed was admittedly executed by the tenant himself but now it is being contended that even admission of the tenant cannot be looked into. Although challenge to the first assessment was raised but no documentary evidence to the contrary was given. He further submitted that even if the document is not registered, in her statement the petitioner has admitted that the rent deed was executed by the tenant and she had admitted the contents thereof also. Submission is that in such view of the matter, the same may be seen. Once the first assessment is available on record the rent deed can be seen to the extent that the tenant came in possession of the shop which was newly constructed and his tenancy started from 1st June, 1991 only and even if his admission to the effect to that Act 13 of 1972 is not applicable, at least, the fact of date of possession is admitted and its admissibility can be seen to that extent. 10. I have considered the rival submissions and have perused the record. 11. There is no quarrel with the law cited by learned counsel for the petitioner but as to whether the courts below have decided against the settled law that has to be tested by this Court. 12. Perusal of record indicates that concurrent findings have been recorded by both the courts below. The date of first assessment is 28.11.1991. Although the tenant tried to demolish this document however, except by trying to draw attention to various other previous documents including sale deed and the map, the date of first assessment could not be demolished by the tenant. Perusal of record indicates that concurrent findings have been recorded by both the courts below. The date of first assessment is 28.11.1991. Although the tenant tried to demolish this document however, except by trying to draw attention to various other previous documents including sale deed and the map, the date of first assessment could not be demolished by the tenant. Once the first assessment is available on record it is settled law that it is not the requirement of law to look into other documents that too previous documents, more so, the date of possession which is 1st June, 1991 is admitted in the rent deed can be taken into consideration in the light of affidavit of the tenant even if the same is not admissible in evidence. Admission is the best piece of evidence. The first date of assessment being 28.11.1991 and the date of possession being 1st June, 1991 and there being no documentary evidence to the contrary, no other conclusion as drawn by the courts below in so far as the applicability of Act 13 of 1972, can be drawn in the present case. 13. I have considered the question regarding first date of assessment earlier also in the case of Pramod Kumar v. Shreyans Kumar Jain 2016 (1) ARC 460 , paragraphs 14, 15, 18 and 19 of which are quoted as under: "14. A perusal of the aforesaid judgment clearly indicates that once the building is subject to assessment, only date of first assessment is relevant unless the date on which completion was reported or otherwise recorded by the local authority having jurisdiction is prior to the date of first assessment and any other date of completion not so recorded by the local authority and when there is assessment of building, the date of occupancy is of no consequence. In paragraph 8 of the said judgment, it was clearly observed by the Hon'ble Apex Court that oral evidence in such case or even the recital in the rent deed that the new construction was of earlier date, is of no consequence or, in other words, in the light of the municipal record, is inconsequential. 15. Sri Vishnu Sahai has further relied on a decision of the Division Bench of this Court rendered in the case of Om Prakash Gupta v. Digvigendra Pal Gupta, 1979 ARC 469. 15. Sri Vishnu Sahai has further relied on a decision of the Division Bench of this Court rendered in the case of Om Prakash Gupta v. Digvigendra Pal Gupta, 1979 ARC 469. Paragraphs 5, 6, 10 and 15 of the said judgment are quoted as under: "5. On receipt of the said finding the matter was again heard by Hon'ble Ojha, J. It was urged for the defendant-applicant that the shop had admittedly been occupied by him in June 1967; that there was evidence to indicate that another tenant was in occupation thereof for about a month and a half before the date of his occupation and that it was the date of occupation which the construction of the shop should be deemed to have been completed within the meaning of Explanation I (a) of section 2(2) of the Act and not the date of its first assessment. The plaintiff-opposite party supported the finding returned by the trial court and relied upon the decision, among others, in Tilak Raj v. Sardar Devendra Singh (supra). 6. It has not been disputed before us that the shop in suit was occupied by the defendant-applicant in June 1967 and that it was first assessed to municipal tax with effect from April 1, 1968. The date of the trial court's decree is January 2, 1976, and that of the district court on decree revision under section 25 is August 27, 1976. On both these dates, in either view of the matter, the provisions of the Act could not be said to be applicable to the shop in suit; but in case the date of occupation is taken to be the date of completion of construction, the provisions of the Act became applicable to it during June 19, 7, or may be some times in April or May 1977, but if the date of its first assessment taken to be the date of the Act will not become applicable to the shop in suit until after March 31, 1978. The defendant-applicant moved an application under section 39 of the Act in this Court and in support of the position that the date of the commencement of the Act for the purposes of that provision in relation to the shop in suit, would be the date of expiry of ten years from the completion of its construction, reliance has been placed upon a Division Bench decision of this Court in R.D. Ram Nath Co. v. Girdhari Lal another, 1975 ALJ 1 and it is urged on his behalf that having made the necessary deposit during the pendency of the revision in this court, within time, as prescribed by section 39 read with section 40 of the Act, he is entitled to the benefit thereof, or in other words, an order setting aside the decree of ejectment from the shop in suit that has been passed against him. 10. There are two objections to such a construction being placed on language of clause (a) Explanation 1. Firstly, the words "an in the case of a building subject to assessment" are ignored altogether. According to rules of construction one cannot omit to give effect to the said words. Mr Sudhir Chandra says that there can be a date on which the first assessment of a building comes into force only in the case of a building subject to assessment and, therefore, the words "and in the case of a building subject to assessment" are wholly redundant. Again, according to the rules of construction of statutes, one cannot omit to read any words in a statutory provision unless the doing so leads to absurd results; and here in this case it is only an assumption to say that the said words are redundant. It is true that there can be a date on which the first assessment of a building is made, only in the case of a building subject to assessment. It is true that there can be a date on which the first assessment of a building is made, only in the case of a building subject to assessment. Similarly, there can be a date on which the completion of a building is reported to, or is recorded by a local authority, only in a case of a building subject to assessment, for under the laws governing the local authorities like a Nagar Mahapalika or a Municipality, the only purpose for which the completion of a building is required to be reported to or recorded by a local authority is to make an assessment of its letting value for the purpose of levying house and water tax thereon which is laviable from the date of the completion of the building. But that does not, in our opinion, render the words "and in the case of a building subject to assessment" as used in clause (a) of explanation 1, redundant. The clear object and purpose of placing these words in the said clause appears to be to classify buildings into those of two kinds, namely, (1) those subject to assessment and (2) those not subject to assessment. We say this because a report of the completion of a building to, or record thereof, or assessment of its letting value by a local authority can be normally absent only in the case of a building not subject to assessment. 15. We have, therefore, no hesitation in holding that the date on which the first assessment of the building in suit became effective, viz. April 1, 1968, must be deemed to be the date of the completion of its construction, and that being so, the Act if no yet applicable to the building in suit." (Emphasis supplied) 18. A reference may also be made to a judgment of this Court in Laxman Prasad v. Vth Addl. District Judge, Ballia and others, 1999 (2) AWC 1444 . Paragraphs 8 and 9 of the aforesaid judgment are quoted as under: "8. The construction of a building can be proved by oral as well as documentary evidence. Explanation 1 (a) of Section 2 (2) of the Act provides a deeming clause as to when the building shall be deemed to have been completed. It is a statutory fiction in regard to date of completion. The construction of a building can be proved by oral as well as documentary evidence. Explanation 1 (a) of Section 2 (2) of the Act provides a deeming clause as to when the building shall be deemed to have been completed. It is a statutory fiction in regard to date of completion. The building might have been constructed earlier and occupied by the tenant but in case there is assessment of the building and such assessment record is produced, the date of completion of the building shall be taken the date of fist assessment, where the completion of the building is recorded or otherwise recorded by the local authority having jurisdiction, it is the date of reporting or recording by the local authority and in absence of any such report, record or assessment, the date on which it is actually occupied for the first time. 9. The Hon'ble Supreme Court in Om Prakash Gupta v. Dig Vijendra Pal Gupta, 1982 (8) ALR 242 (SC), held that Explanation 1 makes it abundantly clear that the date of occupation would be taken to the date of completion of construction only when there is no report or record of the completion of construction or no assessment thereof. If there is an assessment, it will be the date of first assessment, which will be deemed to be the date of completion of construction. This view was reaffirmed by their Lordships of the Supreme Court in Salim v. District Judge, Muzaifarnagar and others, 1998 (2) ARC 617." (Emphasis supplied) 19. The same view was reiterated by this Court in the case of Rajiv Nath Agarwal v. Ankur Agarwal, 2004 (2) ARC 693 and in the case of Rajendra Baboo v. Additional District Judge III Bareilly and others, 2008 (70) ALR 200 and in the case of Madan Mohan Sharma v. Ashok Kumar Kaushi, 2013 (96) ALR 350 and in the case of Vinesh Chandra Trivedi v. VIIIth Addl. District Judge, Rai Bareilly and others, 2014 (102) ALR 116." Under such circumstances, I do not find any legal infirmity or jurisdiction error in the findings recorded by the courts below so as to attract re-appreciation of evidence and each and every document that was placed reliance of in the shape of sale deed, map, partition deed etc. Both the courts below have considered each and every document in detail and thereafter findings were recorded. Both the courts below have considered each and every document in detail and thereafter findings were recorded. A reference may be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. It is also settled law that jurisdiction under Article 227 of the Constitution of India is akin to revisional jurisdiction and the scope of interference in the findings of fact is also very limited. 14. No other point is pressed. This writ petition is devoid of merit and is, accordingly, dismissed. 15. At this stage learned counsel for the petitioner prays that some time may be granted to the petitioner for vacating the shop in question. 16. Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that: (1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.4.2018. (2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order; (3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order; (4) The tenant-petitioner shall pay damages at the current rate by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.4.2018 or till the date he vacates the premises whichever is earlier and the landlord is at liberty to withdraw the said amount; (5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute; (6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period; (7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically. (8) In case the shop is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.