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2025 DIGILAW 101 (ALL)

Vineet Kumar Agarwal v. Vijay Kumar Gupta

2025-01-23

AJIT KUMAR

body2025
JUDGMENT : Ajit Kumar, J. 1. Heard Sri Krishna Mohan Garg, learned counsel for the petitioner and Sri Ashish Agarwal, learned counsel for the respondents. 2. Petitioner, who is tenant of the demised premises situate in a commercial complex owned by the landlord/ respondent, is aggrieved by the judgement and decree passed by the Judge, Small Causes dated 12.02.2019 in S.C.C. Case No. 56of 2007 decreeing the suit for his eviction and further payment of arrears of rent and mesne profits. This petition is also directed against the order passed in revision dated 25.11.2021 affirming the judgment and decree passed by the Judge, Small Causes as well as the order dated 24.02.2021, whereby, an application filed under Section 41 Rule 27 C.P.C. came to be allowed permitting the petitioner to file another municipal assessment receipt. 3. The sheet anchor of the arguments advanced by Sri Garg, learned counsel for the petitioner is that since the copy of the assessment register qua the shop in question was an improvement upon an already led evidence and that could not have been permitted to be led and it showed that to be an effort to create evidence and further it being within the knowledge could have been led earlier even. 4. Learned counsel for the petitioner submits that in view of the provisions as contained under Sections 141 to 149 of the MUNICIPALITIES ACT , 2016 read with Section 330 thereof, it can easily be concluded that there are certain prescribed documents, copies whereof can be issued and, therefore, the Executive officer of the municipality had no power to certify that first assessment of the building in question had been made in a particular year. 5. He further submitted that even for the argument's sake if it is accepted that the certificate issued by an authorized officer of municipality had a prima facie presumptive value but its probative value was of course questionable, more so in the circumstances when the papers of the building in question earlier filed did not mention the year of assessment. 5. He further submitted that even for the argument's sake if it is accepted that the certificate issued by an authorized officer of municipality had a prima facie presumptive value but its probative value was of course questionable, more so in the circumstances when the papers of the building in question earlier filed did not mention the year of assessment. He further submitted that serious objections since were raised regarding probative value of the certificate as well as its evidentiary value but all these aspects as argued before the trial court as well as court sitting in revision, have not been dealt with in its discussion part to justify the findings that have been arrived at by the courts below. 6. The judgment relied upon in support of the above argument is of Joseph John Peter Sandy v. Veronica Thomas Rajkumar and another , (2013) 3 SCC 801 . Paragraph nos. 19 and 20 of the judgment have been placed before the Court that run as under: "19. In State of Bihar v. Radha Krishna Singh, (1983) 3 SCC 118 : AIR 1983 SC 684 , this Court held as under: “40. ... Admissibility of a document is one thing and its probative value quite another - these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight of its probative value may be nil.... 53. ...Where a report is given by a responsible officer, which is based on evidence of witnesses and documents and has "a statutory flavour in that it is given not merely by an administrative officer but under the authority of a Statute, its probative value would indeed be very high so as to be entitled to great weight. 145. (4) The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little.” 20. Reiterating the above proposition in Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209 : AIR 2010 SC 2933 , this Court held that: "18. ... 145. (4) The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little.” 20. Reiterating the above proposition in Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209 : AIR 2010 SC 2933 , this Court held that: "18. ... a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case." (See Also : H.Siddiqui v. A. Ramalingam AIR 2011 SC 1492 ; Laxmibai v. Bhagwantbuva 2013(2) SC 362 ) Onus of proof" 7. Mr. Garg has further argued that petitioner was never in arrears of rent and if Act No.- 13 of 1972 is held applicable then the respondents were liable to be non suited in eviction suit. 8. Mr. Garg has further argued that Order 41 Rule 27 of Code of Civil Procedure, 1908 lays down certain parameters as torts which an application seeking presentation of an additional evidence must pass but the application filed by the respondent landlord to bring on record a new assessment paper which showed this time relevant year of assessment, could not succeed on those parameters as these documents were well within respondents' knowledge and hence the respondents could not have been permitted to file new document of the same year. Thus, according to Mr. Garg, the application filed under Order 41 Rule 27 was wrongly allowed. According to Mr. Garg, the revisional court has based its decision on this assessment papers. 9. Mr. Garg has placed reliance upon two authorities of the Supreme Court, one in the case of Ram Swaroop Rai v. Smt. Lilawati , ARC 1980 466 and has placed before the Court paragraphs 5, 6 and 8 thereof which are reproduced hereunder: "5. Shri J.P. Goel rightly reminds us that in the normal course the appeal must be dismissed as concluded by findings of fact. But we will probe the matter further to explore whether there is any substance in Shri A.K. Sen's argument of fundamental failure bearing on the legality of the conclusions. The anatomy of the Act is substantially the same as that of other similar legislations. But we will probe the matter further to explore whether there is any substance in Shri A.K. Sen's argument of fundamental failure bearing on the legality of the conclusions. The anatomy of the Act is substantially the same as that of other similar legislations. The most important feature we have to notice is the exemption from application of the provisions of the Act for the period of ten years in respect of new constructions. Section 2(2) is relevant in this context and runs as follows : Except as provided in Sub-section (5) of Section 12 Sub-section (1A) of Section 21, Sub-section (2) of Section 24, Sections 24A, 24B, 24C 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. xxx xxx xxx 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 constructions 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. This Sub-section and its construction is decisive of the fate of the appeal. This Sub-section and its construction is decisive of the fate of the appeal. Nothing in the rent control legislation shall apply to a building "during a period of ten years from the date on which its construction is completed." The first thing that falls to be emphasised is that in regard to all buildings the Act applies save where this exemption operates. Therefore, the landlord who seeks exemption must prove that exception. The burden is on him to make out that notwithstanding the rent control legislation, his building is out of its ambit. It is not for the tenant to prove that the building has been constructed beyond a period of ten years. But it is for the landlady to make out that the construction has been completed within ten years of the suit. This is sensible not merely because the statute expressly states so and the setting necessarily implies so, but also because it is the landlady who knows best when the building was completed, and not the tenant. As between the two, the owner of the building must tell the court when the building was constructed, and not the tenant thereof. Speaking generally, it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord, although in a small category of cases where the landlord is a purchaser from another, he will have to depend on his assignor to prove the fact. 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 other wise 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. (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) Order (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 remodeled and, if so, when exactly the completion took effect. The municipal assessment record produced in the court merely state "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 is 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." 10. Countering the submissions advanced by Mr. Garg, Mr. Ashish Agarwal, learned counsel for the respondent has argued that that the certificate qua assessment year of the building can of course be issued by the executive officer as he is the authorized person to obey the command of the municipality and since the paper No.- 38-C dated 11th November, 2005 has been issued under his signature, a lawful presumption had been rightly raised regarding its authenticity. He further submitted that once a valid presumption can be raised in law as to the admissibility of documents in evidence to prove a fact relevant to issue, the burden stands discharged and onus shifts upon other side to lead evidence in rebuttal. 11. According to the Mr. Ashish Agarwal, if the respondents were to deny this document as has been argued before this Court, it was his duty to have applied for summoning the original register to prove it otherwise and having not done so, the findings returned by trial court that tenant could not produce the document cogent enough in rebuttal to question the certificate or the municipal assessment papers are not unquestionable. It was rightly concluded, he argued, that assessment of the building for the first time took place in the year 1988. 12. Mr. Agarwal has also argued that application for sanction of map along with an affidavit was filed in the year 1986 itself which remained pending consideration before the prescribed authority under the relevant regulation of the U.P. (Regulation of Building Operations) Act, 1958 and came to be sanctioned only in the year 1991. This document has been referred to in the judgment by the trial court. He further submits that in view of the relevant provisions as contained under clause 4 of Section 7 of the Act, 1958, which clearly stipulates that pending disposal of the application seeking sanction of map constructions could be raised. He submitted that during the cross examination plaintiff not only proved the sanctioned map but also the location of the shop as identifiable in map itself as its boundaries and its size completely matched with the shop in question. He submitted that even during the cross-examination of D.W.-1 he admitted that paper No.- 143- C was the first assessment of the building in question by the concerned municipality. He, therefore, submits that in view of the admission by the D.W.-1 regarding first municipal assessment document, there remained nothing to be proved further. 13. Mr. Agarwal also argued that though not admitting but even if the application filed under Order 41 Rule 27 is taken to have been wrongly allowed, the certificate of the executive officer was sufficient to demonstrate that the first assessment of the building was done in the year 1988. 14. 13. Mr. Agarwal also argued that though not admitting but even if the application filed under Order 41 Rule 27 is taken to have been wrongly allowed, the certificate of the executive officer was sufficient to demonstrate that the first assessment of the building was done in the year 1988. 14. Having heard learned counsel for the respective parties and having perused the records, the point that I find to be arising in this case for the consideration of the court is whether there was sufficient material available on record in support of the pleadings raised by the landlord that the construction of the building was new one i.e. after 1985 so as to render the Act No. 13 of1972 inapplicable, inasmuch as, probative value of the certificate qua assessment of building issued by the Secretary of Local Municipal Body under the RTI Act, 2005. 15. From the discussion in the judgment under challenge, I find that the Judge, Small Cause Court has referred to various documents regarding construction of the shop bearing paper no. C- 37/1, the assessment register no. 709 in which the property no. 164 is registered with a first assessment close on 01.06.1988. The pleading was that construction of the market was done between 1986 and 87 and in support thereof the sanction of map bearing paper no. C-36/1 and the map C-36/2 was filed. The paper no. 36-1 which is the map sanction letter refers to the proposed map and the affidavit of the petitioner dated 01.10.1986. The map also includes the shopping complex including shop no. 1/5 with stair case on its right side. No material had been placed before me by Sri Garg to rebut this evidence although otherwise he contended that the document was forged and fraudulent one or that it was not issued by an authority authorized under the Regulation of Building Operation Act, 1958. 16. Sri Ashish Agarwal has contended that the map was sanctioned on 28.06.1991 and since it refers to the papers filed on 01.10.1986 it become relevant to refer clause 4 of Section 7 of the said Act which permits raising of construction pending disposal of application seeking sanction of map. 17. Thus, according to Mr. 16. Sri Ashish Agarwal has contended that the map was sanctioned on 28.06.1991 and since it refers to the papers filed on 01.10.1986 it become relevant to refer clause 4 of Section 7 of the said Act which permits raising of construction pending disposal of application seeking sanction of map. 17. Thus, according to Mr. Agarwal after the map was applied for sanction in the year 1986 and the construction had started and got completed in 1987 which became subject matter of assessment by the Local Municipal Body. Section 7 (4) of the Act reproduced hereunder: "(4) Where no orders are communicated within the period mentioned in sub- section (3) granting or refusing the permission, the applicant may by a written communication call the attention of the Prescribed Authority to the omission or neglect and if such omission or neglect continues for a further period of thirty days the Prescribed Authority shall be deemed to have permitted the proposed work; Provided that nothing in this sub-section shall be construed to authorize any person to act in contravention of the [regulations] issued under [this Act]." 18. From a bare perusal of aforesaid provision it is clear that a person seeking sanction of map can raise construction for deemed sanction of the proposed work. However, the construction should be legal one and not in contravention of regulations. 19. I do not find any justification to doubt the contention of Mr. Agarwal that map had been applied in 1986 and since it was sanctioned in the year 1991 only, the construction had already stood completed. This is apparent from the affidavit and papers referred to in the sanction letter itself as of 01.10.1986. It is not the case of either of the parties that the construction were raised after 1991, nor it is a case of the respondent that no construction was ever raised as per the sanctioned map. The petitioner has also not doubted the correctness and genuineness of the map sanction letter as well as the location of shop given in the map, boundaries of which fully matched with the boundaries of the shop in question with the stair case on its right side. 20. The argument that has been advanced by Mr. The petitioner has also not doubted the correctness and genuineness of the map sanction letter as well as the location of shop given in the map, boundaries of which fully matched with the boundaries of the shop in question with the stair case on its right side. 20. The argument that has been advanced by Mr. Garg that thrice assessment papers were filed dated 18.12.2008 which did not disclose the year of assessment of a stop and then on 16.09.2009 which also could not disclose but the third time when the papers were filed on 16.01.2021 it disclosed the year of assessment as from 01.04.1987 to 01.04.1989. Thus, according to Mr. Garg this document was purposely prepared for the case to support the pleadings raised by the landlord/ respondent. 21. I find this third document is signed by the officer who inspected the records, the officer who prepared the report and also the Tax Superintendent of Nagar Palika Parishad, Bijnor. If this document was fraudulent one as is being alleged by Mr. Garg prepared to create evidence, it was the duty of the tenant/ petitioner to have summoned the original assessment papers from Municipal body. 22. Upon a pointed query being made as to whether any such application was ever moved, Mr. Garg admitted that no such application was moved. 23. In the circumstances, therefore, when the third assessment records were there and only one of which refers to the year of assessment and which is signed by the authorized officer of the local body, it was liable to be accepted because it was issued by the authority who had the duty under the statute and bye-laws to issue such copy of original records. Still further, I find that in response to the query made under the RTI Act, 2005 the Executive Officer, Nagar Palika Parishad, Bijnor certified that the property no. 164 to 171 and 173 to 178 was assessed for the purposes of taxes for the first time on 01.06.1988. Still further, I find that in response to the query made under the RTI Act, 2005 the Executive Officer, Nagar Palika Parishad, Bijnor certified that the property no. 164 to 171 and 173 to 178 was assessed for the purposes of taxes for the first time on 01.06.1988. This information issued under the authority of Executive Officer, Nagar Palika Parishad, Bijnor has not been doubted but has been questioned only on the ground that an Executive Officer of Nagar Palika Parishad was not authorized to issue any such certificate because looking to the various provisions contained under Sections 141 to 149 of the Municipalities Ac, 2016 read with Section 330 thereof the authorities are assigned for a particular purpose to issue copies relating to the municipal records. In my considered view the Executive Officer has not issued any copy of the municipal records as he has only given an information. This information is to be read only for the limited purpose to test the veracity of the copies of the assessment filed. The documents in the form of three assessments that have been filed, I find refer to the same properties and so if the last of them refers to the year of assessment, its correctness cannot be doubted and for this purpose the information issued by an authorized officer who is an information officer under RTI Act, 2005 would render such a certificate of information not only admissible in evidence but also having a probative value. It is not the case of the petitioner that Executive Officer was not the information officer of the concerned municipal body. Petitioner is only questioning the information on the ground that it amounted to a certificate. In my considered view this is not a certificate but just an information and reading it down with the last assessment, it has rightly led the courts below to conclude that constructions were made after 1985. 24. Thus, the courts below have rightly concluded that Act No. 13 of 1972 is not applicable to the building in question and in such circumstances, therefore, the notice issued to the petitioner under Section 106 of Transfer of Property Act amounts to determination of tenancy and resultantly petitioner was liable to be ejected and suit deserved to be decreed accordingly. 25. 25. The judgments cited more help to the landlord in the case in hand and are of no help to petitioner both on the admissibility of municipal records and probative value of information given under Right to Information Act, 2005. 26. In view of the above, I do not find any manifest error in the orders passed by the courts below. Petition lacks merit and is accordingly dismissed 27. Cost made easy.