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2017 DIGILAW 669 (ALL)

JITENDRA KUMAR v. AMIT KUMAR

2017-03-02

MANOJ MISRA

body2017
JUDGMENT Hon’ble Manoj Misra, J.—Heard learned counsel for the petitioner; Sri Rajesh Gupta for the plaintiff-respondent; and perused the record. 2. The present petition has been filed against the orders dated 24.5.2016 and 7.1.2017 passed by the Judge Small Causes Court, Saharanpur in SCC Suit No. 3 of 2012 and the Additional District Judge, Court No. 1, Saharanpur in SCC Revision No. 7 of 2016 respectively. 3. The facts giving rise to this petition are as follows: An SCC Suit No. 3 of 2012 was instituted by the plaintiff-respondent for eviction of the petitioner from a second floor accommodation of house bearing municipal No. 183 at Deoband Bazaar, Saharanpur. The plaint case was that the accommodation in suit was constructed in the year 2005 and, therefore, the U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) was not applicable; that the defendant had been in arrears since 1.8.2009; and that by a notice dated 8.12.2011, which was served on 12.12.2011, the tenancy of the defendant was terminated. 4. The defendant-petitioner contested the suit on various grounds. The main ground, on which the present petition has been pressed, is that the Act was applicable to the premises because it was an old construction. In paragraphs 15 and 16 of the written statement, the defendant-petitioner took a plea that on the request of landlord the petitioner had handed over possession of the first floor portion of his tenancy to the plaintiff and retained only the second floor portion of his tenancy in the building of which disputed accommodation was a part. 5. During the course of the proceeding both sides filed municipal assessment records to establish their respective case. The defendant filed municipal quinquennial assessment extracts of 1997 to 2002; 2002 to 2007; and 2007 to 2012. Extract of 1997-2002 disclosed that house No. 211 was recorded as Chaubara disclosing plaintiff and Gopal (predecessor-in-interest of the plaintiff) as tax payer whereas the petitioner as tenant. Extract of 2002-2007 discloses new number 212 (old No. 211) with plaintiff as owner and petitioner as tenant. Extract of 2007-2012 discloses new number 183 (old No. 212) with plaintiff as owner and the petitioner as tenant. 6. In response, the plaintiff filed municipal quinquennial assessment extract of 2012 to 2017 which disclosed shop No. 183 as “Dukan Chaubara - Teen Manzila - Nav Nirman” (i.e. shop chaubara - three floors- new construction). Extract of 2007-2012 discloses new number 183 (old No. 212) with plaintiff as owner and the petitioner as tenant. 6. In response, the plaintiff filed municipal quinquennial assessment extract of 2012 to 2017 which disclosed shop No. 183 as “Dukan Chaubara - Teen Manzila - Nav Nirman” (i.e. shop chaubara - three floors- new construction). In column No. 6 the plaintiff’s name was disclosed as tax payer and in column 7 the plaintiff was shown to be in possession of the ground floor and the first floor whereas the tenant-petitioner was shown to be in possession as tenant of the 2nd Floor on a rent of Rs. 450/- p.m. 7. The oral evidence led by the plaintiff landlord (i.e. in paragraph 22 of the affidavit, at page 34 of the paper book) was to the effect that when he had purchased the property from Gopal Das there was no roofed structure on the second floor. The same was built in the year 2005 and was let out to the defendant on 1.2.2005 @ Rs. 300/- p.m. which was later enhanced to Rs. 450 per month. It was stated that initially it was not recorded in the municipal records. It was first noticed and assessed in the year 2012 which was reflected in quinquennial assessment record of 2012 - 2017. In paragraph 24 of the affidavit it was stated that the second floor construction was raised for the first time in the year 2005 after the building was purchased by the plaintiff. 8. The evidence of the defendant was to the effect that since before, the building was a triple floor building and he was tenant of the first as well as second floor. But later, he gave the first floor to the plaintiff and retained the second floor. As the building was an old construction, the Act was applicable. 9. The trial Court decreed the suit by returning a finding that the Act was not applicable on the disputed accommodation, inasmuch as from the documents brought on record it was established that the disputed accommodation was constructed after 26th April, 1985 and therefore was exempt from the Act for a period of 40 years. The trial Court further, on the basis of rent receipt, found that the rent was payable @ Rs. 450/- p.m. with additional 10% towards water tax. The trial Court further, on the basis of rent receipt, found that the rent was payable @ Rs. 450/- p.m. with additional 10% towards water tax. It found that defendant had been a defaulter since 1.8.2009; that notice terminating tenancy was duly served on the defendant, consequently the tenancy was duly terminated; and that as the Act was not applicable, the tenant was not entitled to the benefit of Section 20 (4) of the Act. The revisional Court affirmed the findings and dismissed the revision preferred by the petitioner. While dismissing the revision, it was observed that admittedly the defendant was tenant of the second floor (i.e. the third floor of the building when counted from ground), which came to be assessed for the first time in the year 2012 to 2017 and, therefore, the accommodation in dispute was deemed completed after 26th April 1985, as a result the Act was not applicable to it. 10. Learned counsel for the petitioner has assailed the impugned orders on the ground that both the Courts below have erred in law by holding that the Act was not applicable to the premises in question. It was strenuously argued that to establish that a building is not within the purview of the Act, the burden is on the landlord and since the landlord took a specific case, in paragraph 2 of his plaint, that the building in dispute was constructed in the year 2005 but failed to prove the same, inasmuch as from the documents brought on record it was established that the building had been assessed to municipal taxes from before 2005, the Court below ought to have dismissed the suit by holding that the plaintiff had failed to prove that the premises was out of the purview of the Act. It was urged that the evidence led by the petitioner disclosed that the building was an old construction and only certain additions were made thereon, accordingly, it was obligatory on the Court to return a finding as to whether the new constructions raised were substantial in nature so as to render the existing portion minor in comparison to the whole, thereby making the entire building out of the purview of the Act. It has been urged that since no such finding has been returned by the Court below, the order passed by the Court below holding that the Act was not applicable on the premises is vitiated in law and so is the decree of eviction, inasmuch as, because of erroneous finding on the applicability of the Act, the petitioner has been denied the benefit of Section 20 (4) of the Act. 11. Sri Rajesh Gupta, who appeared on behalf of plaintiff-respondent, submitted that the landlord had taken a specific plea that the accommodation in dispute (i.e. the second floor of the existing building) was a new construction, constructed in the year 2005 and to prove the aforesaid plea, the landlord had brought on record the assessment record of the year 2012-17 to demonstrate that the second floor of the building, of which the petitioner was a tenant, was first assessed in the year 2012, therefore no fault can be found with the finding that the Act was not applicable to the accommodation in dispute. It has been submitted that if the accommodation in dispute came to be assessed for the first time after 26th April, 1985 then, by legal fiction, as created by Explanation 1 to sub-section (2) of Section 2 of the Act read with the second proviso to sub-section (2) of Section 2 of the Act, the accommodation in dispute would not be covered by the Act on the date of the institution of the suit. 12. I have considered the submissions of the learned counsel for the parties and have perused the record. 13. Before dealing with the submissions of the learned counsel for the parties it would be apposite to notice the relevant provisions of the Act culling out the principles by which the date of completion of construction of a building is to be ascertained for the purpose of determining whether a building is within the purview of the Act or not. Before dealing with the submissions of the learned counsel for the parties it would be apposite to notice the relevant provisions of the Act culling out the principles by which the date of completion of construction of a building is to be ascertained for the purpose of determining whether a building is within the purview of the Act or not. Sub-section (2) of Section 2 of the Act provides that nothing in the Act shall apply to a building during a period of ten years from the date on which its construction is completed: provided that where construction of a building is completed on or after April 26th April 1985 then the reference to the period of ten years shall be deemed to be a reference to a period of forty years from the date on which construction is completed. Explanation I of sub-section (2) of Section 2 of the Act provides for the deemed date of completion of construction of a building. Explanation I is reproduced herein below: “Explanation I.—For the purposes of this sub-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 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: 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 of 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.” 14. In the present case, the Courts below have apparently given the benefit of the proviso to clause (a) of Explanation I of sub-section (2) of Section 2 of the Act to the plaintiff-landlord while coming to the conclusion that the Act would not be applicable to the accommodation in question which was situated on the second floor of the building and was assessed for the first time in the year 2012 as evident from the quinquennial assessment record of 2012-2017. 15. The submission of the learned counsel for the petitioner is that since the building was already assessed to municipal tax and there was no record of its first assessment, therefore, in the event of there being any addition to the existing building, whether that made the building go out of the purview of the Act was required to be ascertained in accordance with the test laid in clause (c) of Explanation I of sub-section (2) of Section 2 of the Act. But since the Courts below have not applied the said test, the judgment of the Courts below stand vitiated. 16. I have given thoughtful consideration to the submission of the learned counsel for the petitioner. This Court is of the view that in the facts of the present case, clause (c) of Explanation I has no application because clause (c) of Explanation I would come into play when the landlord builds up a case that the existing building has gone out of the purview of the Act on account of substantial addition to the existing building thereby rendering the existing portion minor in comparison to the whole building. Here, in this case, the plaintiff has brought suit in respect of the second floor of the building which, according to him, was earlier non existent and came into existence in the year 2005 and was occupied by the defendant-tenant. The records proved that it was first assessed in the year 2012. Admittedly, the petitioner did not continue to be tenant of the 1st floor of the existing building because, according to his own case, the petitioner surrendered possession of the first floor though retained possession of the second floor of the building. The records proved that it was first assessed in the year 2012. Admittedly, the petitioner did not continue to be tenant of the 1st floor of the existing building because, according to his own case, the petitioner surrendered possession of the first floor though retained possession of the second floor of the building. Therefore, once it was proved from the quinquennial assessment record that the second floor of the building (i.e. the third floor if ground floor is counted as first) was a new construction, which was noticed and assessed for the first time in the year 2012, and was separately possessed by the tenant-petitioner in contrast to the other two floors which were separately occupied by the landlord-owner, the accommodation in dispute was out of the purview of the Act by virtue of the proviso to clause (a) of Explanation I of sub-section (2) of Section 2 of the Act. Under the circumstances, the test laid in clause (c) of Explanation I was not required to be applied. Accordingly, the findings returned by the Courts below that the accommodation in dispute was not within the purview of the Act as it was constructed after 26th April 1985, cannot be faulted. As no other point has been pressed to assail the judgment and decree passed by Courts below, the petition is dismissed. There is no order as to costs.