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Allahabad High Court · body

2018 DIGILAW 2248 (ALL)

Madan Pal Singh v. District Judge Bijnor

2018-10-30

VIVEK KUMAR BIRLA

body2018
JUDGMENT : 1. Heard Mrs. Rama Goel Bansal, learned counsel for the defendant-petitioner and Sri K.M. Garg, learned counsel appearing for the plaintiff-respondent no. 3. 2. Present petition has been filed for setting aside the order dated 5.4.2018 passed by the District Judge, Bijnor as well as order dated 27.9.2017 passed by JSCC, Bijnor in JSCC Suit No. 24 of 2013. 3. Shorn of details the relevant facts are that the suit was filed by the plaintiff-respondent no. 3 (landlord) against the defendant-petitioner (tenant) on the grounds that the petitioner is tenant in the shop from 5.8.2005 @ rent payable Rs. 550/-; he is not paying rent since the very beginning; a registered notice dated 6.5.2013 was given to the defendant-petitioner, which was duly received and replied by him vide reply dated 25.5.2013; and the shop in dispute was constructed in the year 1996, therefore, the provisions of the U.P. Act 13 of 1972 (hereinafter referred to as the Act) are not applicable in the present case. The suit was contested by the defendant-petitioner on the grounds that the shop is an old construction and was constructed in the year 1982; he is tenant in the shop since 8.9.1988 from the period of the earlier owner of the shop late Ram Pal Singh; previously one cycle mechanic was also tenant in the shop in question and as such the provisions of the Act are applicable in the present case. 4. Three issues were framed by the trial court. On issue no. 1 it was found that map of the shop was sanctioned by the Prescribed Authority on 8.9.1996 and the construction is a new construction and as such the provisions of the Act are not applicable. On issue no. 2 it was found that the notice was duly served on the defendant-petitioner. On issue no. 3 it was found that since the Act is not applicable in the present case, the tenant cannot be extended benefit of the deposit made under Section 20(4) of the Act and as such it was found that the plaintiff-respondent is entitled to the relief as claimed. Revision filed against the same was dismissed upholding the findings recorded by the trial court. 5. Revision filed against the same was dismissed upholding the findings recorded by the trial court. 5. In the present petition this Court is concerned with the issue of the applicability of the Act as the arguments have been advanced by the learned counsel for the petitioner only on this issue disputing the date of construction on various grounds. 6. Submission of learned counsel for the petitioner is that burden to prove that the shop is a new construction was on the plaintiff-respondent, which he failed to discharge; the plaintiff-respondent has withheld the best piece of evidence by not producing the former landlord, who could have given the date of construction; in his statement the landlord has stated that he has no knowledge about the date of construction and as such it cannot be said that the construction was a new construction hence, the Act is not applicable; prior to him one cycle mechanic was occupying the shop in question; if the plaintiff-respondent has failed to prove his case regarding construction made in the year 1996 the suit should have been dismissed; there is no alternative plea that the defendant-petitioner is in possession since 1988; in paragraph 5 of the plaint year of construction has been stated to be 1996, whereas it is a categorical case of the defendant-petitioner that he is occupying the shop in dispute since 8.9.1988 and the construction of the shop was completed in the year 1982; and it was lastly submitted that highly disputed question of facts were involved and the matter should have been remanded back to the trial court by the revisional court and the revisional court has committed mistake in dismissing the revision. 7. Learned counsel for the petitioner has placed reliance on judgments in the cases of Vijai Laxmi Jain vs. Rameshwar Dayal Gupta 2001 (1) ARC 514, Smt. Chameli Devi vs. The District Judge, Fatehpur and others 1984 (2) ARC 149, Ram Swaroop Rai vs. Lilavati 1980 (3) SCC 452 and Suresh Kumar Jain vs. Shanti Swarup Jain and others (Civil Appeal No. 2131 of 1995) decided on 21.11.1996. 8. 8. Per contra, learned counsel for the respondent submitted that the plaintiff-respondent is a subsequent purchaser; first tenancy can only be certified by the previous owner; the plaintiff-respondent can have information only regarding current tenancy; the map of the shop in dispute was sanctioned by the Prescribed Authority on 8.9.1996 and as such the the first date available for the purpose of applicability of the Act on the shop in question is 1996; the contention that the petitioner is in occupation since 1988 is incorrect in view of the fact that the map of the shop in dispute was sanctioned in the year 1996; in his statement the defendant-petitioner had stated that he is doing business in the Zila Parishad shop since 1993 and his registration is of the year 1994; the contention that earlier one cycle mechanic was tenant in the year 1982 is patently incorrect and the defendant-petitioner never prove this fact by leading any evidence; in the injunction suit filed by the defendant-petitioner there is no plea that cycle mechanic was previously in occupation of the shop in question and this was never claimed by the defendant-petitioner even in his reply to the notice and it is only for the first time this plea was taken in the written statement, which was clearly an afterthought and is incorrect; without disclosing the name of the cycle mechanic, the assertion so made is completely vague; the findings recorded by the revisional court that the cycle mechanic was not the first occupant is not under challenge; and it was lastly submitted that in under Article 227 of the Constitution of India no interference is warranted in the concurrent findings recorded by the courts below. 9. In support of his argument learned counsel for the respondent has placed reliance on judgments in the cases of Shalini Shyam Shetty and another vs. Rajendra Shankar Patil 2010 (8) SCC 329 , Kanhaiya Lal Sharma vs. Dr. 9. In support of his argument learned counsel for the respondent has placed reliance on judgments in the cases of Shalini Shyam Shetty and another vs. Rajendra Shankar Patil 2010 (8) SCC 329 , Kanhaiya Lal Sharma vs. Dr. Sushil Kumar 2015 (6) AWC 5512 , Tika Khawan vs. Pasupati Nath AIR 1986 Sikkim 6, Braham Prakash vs. Manbir Singh AIR 1963 SC 1607 , Shri H.D. Vashishta vs. M/s Glaxo Laboratories (L) (P) Ltd. AIR 1979 SC 134 , Sohan Veer Singh vs. Smt. Rehti Devi and others 2009 (3) ARC 174, Laxman Prasad vs. Vth Additional District Judge, Ballia and others 1999 (2) ARC 47, Ram Krishna and others vs. Jhaman Das 1986 (1) ARC 276, Suresh Chand vs. Gulam Chisti 1982 ARC 392 and Ram Saroop Rai vs. Smt. Lilawati 1980 ARC 466. 10. I have considered the rival submissions and have perused the record. 11. The main controversy involved in the present case is whether UP Act Number 13 of 1972 is applicable in the present case or not? 12. Claim of the landlord is that the map of the shop was sanctioned in the year 1996 and therefore the shop in question is a new construction and the defendant is tenant on the shop in question since 5.8.2005, therefore, in view of provision of Section 2 (2) Explanation 1 (a) the shop is exempted from applicability of the Act. 13. Case of the tenant is that the provisions of the Act are applicable. Case of the tenant is that he is in occupation of the shop in question since 8 September 1988. His further claim is that construction of the shop was completed in the year 1982 and it has been claimed that the earlier to his occupation of the shop in question one cycle mechanic was the tenant in the shop in question and therefore in the facts and circumstances of the case the landlord has failed to prove his case regarding new construction. 14. 14. From the assertions as noticed in the preceding paragraphs it is clear that the from the side of the landlord specific documentary evidence in the shape of sanction of map by the prescribed authority on 8.9.1996 has been given whereas from the side of the tenant only oral assertion regarding construction of shop having been done in the year 1982 and occupation of one cycle mechanic (without giving his name ever) before the occupation of the tenant-petitioner in the year 1988 has been made. 15. Learned counsel appearing for both the parties have relied on various judgments. It is interesting to note that both the counsels have relied on judgment of Hon'ble Apex Court in the case of Ram Swaroop Rai (supra) in support of their arguments. I have considered the said judgment extensively alongwith other judgments in the case of Pramod Kumar and another vs. Shreyans Kumar Jain 2016 (1) ARC 460 paragraph 13, 14, 15, 18 and 19 whereof our quoted as under: - "13. Per contra, supporting the impugned judgment and order dated 19.10.2015 passed by the Court below, Sri Vishnu Sahai, learned counsel appearing for the landlord has placed reliance on a decision of the Hon'ble Apex Court in the case of Ram Swaroop Rai vs. Smt. Lilawati, 1980 ARC 466. The relevant paragraphs 6 and 8 of the aforesaid judgment are quoted as under: "6. Firstly, therefore, we must examine whether the respondent has made out her case for exemption from the operation of the Act based on the vital fact that the building has been completed only within ten years of the suit. The second thing we have to remember is Explanation 1 quoted above. When is a building deemed to have been completed? An analysis of Explanation 1 to Section 2 (2) of the U.P. Act indicates: (1) Where a building has not been assessed, it is the date on which the completion was reported to, or otherwise recorded by the local authority having jurisdiction. When is a building deemed to have been completed? An analysis of Explanation 1 to Section 2 (2) of the U.P. Act indicates: (1) Where a building has not been assessed, it is the date on which the completion was reported to, or otherwise recorded by the local authority having jurisdiction. (2) Where a building has been assessed, it is the date on which the first assessment comes into effect: Provided that if the date on which the completion was reported to, or otherwise recorded by, the local authority is earlier than the date of the first assessment, the date of completion will be such earlier date." (3) Where there is no report, record or assessment, it is the date of actual occupation for the first time (not being an occupation for the purpose of supervising the construction or guarding the building under construction). 8. Unfortunately, it is not possible for the purchaser-respondent or the tenant appellant to give direct testimony about the time of the construction or the nature of the construction vis-a-vis Explanation (b) or (c). The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been remodelled and, if so when exactly the completion took effect. The municipal assessment record produced in the Court merely states "increased assessment". It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed a new assessment was made which was more than the previous assessment and, therefore, was described as increased assessment. The oral evidence in the case, apart from what we have set out, is inconsequential, being second-hand testimony. Even the recital in the rent deed that there was a new construction in 1965-66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction. Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute." 14. Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute." 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 vs. 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. 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 A.L.J. 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. 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. 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 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." 18. A reference may also be made to a judgment of this Court in Laxman Prasad vs. 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 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. DigVijendra 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." 19. 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." 19. The same view was reiterated by this Court in the case of Rajiv Nath Agarwal vs. Anuku Agarwal, 2004 (2) ARC 693 and in the case of Rajendra Baboo vs. Additional District Judge III Bareilly and others, 2008 (70) ALR 200 and in the case of Madan Mohan Sharma vs. Ashok Kumar Kaushi, 2013 (96) ALR 350 and in the case of Vinesh Chandra Trivedi vs. VIIIth Addl. District Judge, Rai Bareilly and others, 2014 (102) ALR 116." 16. I have gone through the judgments cited by learned counsel for the parties. There is no quarrel with the law. As per the law as discussed above it is very clear that if the date of first assessment is available then that is the final date for the purpose of deciding the applicability of the Act. However, the other dates, regarding construction is to be seen when the completion was reported or when there is no report record or assessment it is the date of actual occupation for the first time. In the present case only documentary evidence is the sanction of map by the prescribed authority on 8.9.1996. All other assertions are supported by oral evidence only. The pleading in the written statement is only with regard to the occupancy of the shop in question since 1988 and without any reference to any specific date. Other assertion is that prior to this occupation by the present tenant-defendant, the same was in occupation of one cycle mechanic without giving any name, date or duration of his occupation, in other words, no evidence is support of this assertion was given by the tenant-defendant, thus, he failed to discharge his burden of proof to prove this assertion. Therefore, once in the documentary evidence of the date of sanction of map of the shop in question is available, any other oral assertion was rightly rejected by the courts below in absence of any other supporting evidence. 17. Therefore, once in the documentary evidence of the date of sanction of map of the shop in question is available, any other oral assertion was rightly rejected by the courts below in absence of any other supporting evidence. 17. In such facts and circumstances of the case I find no legal infirmity or jurisdictional error in the judgments and orders impugned here in so as to attract interference under article 227 of the Constitution of India. 18. A reference may also be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. Vs. 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. 19. The petition is devoid of merit and accordingly dismissed. 20. However, 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 30.4.2019; (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 @ Rs. 6,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.4.2019 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 premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt. 21. There shall be no order as to costs.