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2019 DIGILAW 165 (ALL)

RAJEEV KUMAR JAIN v. VINOD KUMAR

2019-01-22

MANOJ KUMAR GUPTA

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JUDGMENT & ORDER : MANOJ KUMAR GUPTA, J. 1. Heard counsel for the parties. 2. The instant revision is directed against the judgment and decree dated 25.4.2015, whereby Judge Small Causes/Additional District Judge, Court No.1, Rampur has decreed SCC Suit No.7 of 2012 and has directed for eviction of the revisionist from the premises under his tenancy and for recovery of arrears of rent and mesne profits. 3. The suit was instituted by the plaintiff-respondents against the revisionist (hereinafter referred to as 'the defendant-tenant') with the allegation that the rent of the shop under his tenancy was Rs.725/- per month. The shop was a new construction and provisions of U.P. Act No.13 of 1972 (for short 'the Act') were not applicable. The defendant-tenant despite service of notice on 24.2.2012, had failed to pay arrears of rent nor has vacated the shop. The suit was contested by the defendant-tenant by filing a written statement contending that the provisions of the Act were applicable to the shop as it was an old construction of more than 45 years. The rent was duly tendered by money order which the plaintiffs had refused. The defendant-tenant also set up an agreement dated 5.7.2003 under which it is alleged that a sum of Rs.40,000/- was paid in advance and the intention of instituting the suit was to usurp the amount so realised. 4. The trial court framed various points for determination. While deciding issue no.1, the trial court held that the defendant-tenant failed to prove that he had paid rent from 5.11.2008 to 2012 and thus, he had defaulted in payment of rent. The court also held, while deciding issue no.2, that notice dated 21.2.2012, by which tenancy was terminated, was duly served upon the defendant-tenant and, therefore, it resulted in valid termination of the tenancy. While deciding issue no.3, the trial court held that provisions of the Act were not applicable and consequently, it also held that the benefit of Section 20 (4) of the Act would not be available to the defendant-tenant while returning finding on point no.4. 5. Learned counsel for the revisionist has challenged the finding on point no.3 relating to applicability of the Act. He submitted that the building was an old construction and in support of his case, the revisionist brought on record the assessment of the building for the period 1980-1986. 5. Learned counsel for the revisionist has challenged the finding on point no.3 relating to applicability of the Act. He submitted that the building was an old construction and in support of his case, the revisionist brought on record the assessment of the building for the period 1980-1986. According to him, the aforesaid extract from the assessment register establishes that the building was an old construction. He also submitted that the trial court has not considered the said document. He also urged that the landlord, on the other hand, did not lead any evidence to prove that the building was a new construction. 6. Learned counsel for respondent-landlord submitted that the building was constructed in the year 1990 after getting the building plan sanctioned in the year 1989. He also submitted that the first assessment of the building in the tenancy of the defendant-tenant took place in the year 2008. 7. The trial court has duly considered the extract from Municipal Assessment Register filed by the defendant-tenant. The court has observed that therein, a building bearing Municipal No.6-A situated in Mohalla Kooncha Devi Das is duly recorded in the name of Kanti Prasad, father of the plaintiff. The trial court also took into consideration the map sanctioned by the Competent Authority Regulated Area, Rampur dated 17.6.1989 and the notice issued by Nagar Palika Parishad dated 17.6.2008 to the plaintiff- Vinod Kumar. The trial court took note of the fact that the said notice proposed striking off of the name of Kanti Prasad and substitution of name of Vinod Kumar in his place. The notice also proposed enhancement of annual value of the building from Rs.820/- per annum to Rs.2400/- per annum effective from 1.4.2008. Having regard to the aforesaid evidence on record, the court held that the shop would be deemed to be a new construction made after the year 1985 and consequently, the provisions of the Act would not apply. 8. The notice also proposed enhancement of annual value of the building from Rs.820/- per annum to Rs.2400/- per annum effective from 1.4.2008. Having regard to the aforesaid evidence on record, the court held that the shop would be deemed to be a new construction made after the year 1985 and consequently, the provisions of the Act would not apply. 8. Under Explanation I to sub-section (2) of Section 2 of the Act, 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. 9. The proviso to Clause (a) of Explanation I states 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. The specific finding recorded by the trial court is that map of the tenement, which is in tenancy of the defendant-tenant was got approved from the competent authority in the year 1989. The building was constructed in the year 1990 and the Nagar Palika taking notice of the additions and alterations made in the existing building, whereby the shop in the tenancy of the defendant-tenant was constructed, by notice dated 17.6.2008 enhanced annual value of the building from Rs.820/- per annum to Rs.2400/- per annum, which is almost three times the earlier value. 10. In the considered opinion of the Court, the said notice dated 17.6.2008 issued by the local authority was the earliest available record taking notice of additions and alterations as a result of construction of the shop in the tenancy of the revisionist and it would be deemed to be the date of construction of the building in view of Explanation I. The assessment brought on record by the revisionist, admittedly does not record existence of any shop. The proviso to Clause (a) of Explanation I clarifies that there could be different dates of completion of construction in respect of different parts of a building. Thus, in the considered opinion of the Court, there is no illegality in the finding recorded by the trial court regarding date of construction of the building in the tenancy of the defendant. 11. No other point has been urged by learned counsel for the revisionist. 12. The revision lacks merit and is dismissed.