2. The Writ Petition is directed against the judgment dated 25.05.2002 passed by Revisional Court, i.e. IVth Additional District Judge in S.C.C. Revision No. 57 of 1998, filed by respondent-tenant, setting aside Trial Court's order dated 16.10.1998 on the ground that the shop in question was constructed before 1970 and, therefore, U.P. Urban Buildings (Regulations of Letting Rent & Eviction) Act, 1972 (hereinafter referred to as "Act No. 13 of 1972") would apply to the premises in question, and, hence, suit for ejectment and recovery of rent was liable to be dismissed which was filed on the pleading that Act No. 13 of 1972 had no application.
3. It appears that initially an interim order was passed by this Court on 29.08.2006 whereagainst the matter was taken before the Apex Court in S.L.P.(Civil) No. 2467 of 2007 and the Apex Court vide order dated 31.01.2007, while deferring interim order directed this Court to decide the writ petition itself expeditiously. Unfortunately, since then more than five years have lapsed and this matter has come up before this Court now. However, I proceed to decide the matter finally.
4. Sri Pramod Kumar Jain, learned Senior Advocate, contended that the Trial Court clearly recorded its finding that the shop was constructed in 1972 and suit was filed on 12.8.1980, therefore by virtue of Section 2(2) of Act No. 13 of 1972, the Act was not applicable but the Revisional Court has committed error of law while recording findings otherwise which is not based on any evidence on record.
5. Sri Pramod Kumar Jain further contended that by no stretch of imagination Act 13 of 1972 would apply to the building in question, particularly, when admittedly the suit was filed by the petitioner-landlord on 12.8.1980. The shop no. 2 (in dispute) was given to respondent Suresh Chand Agrawal and shop no. 3 was given to one Rajpal Singh. The construction was new and for ten years, Act 13 of 1972 would have no application to the aforesaid building and therefore the Revisional Court has completely erred in law by applying Act 13 of 1972 by observing that the shop was constructed before 1970. There was no evidence whatsoever to show that it was constructed in 1970. He further contended that even assuming the case set up by the respondent-tenant that for the first time the date of construction was noted by the local body namely town area by issuing notice on 20.11.1970, from that date also the ten years period would not have lapsed on the date when the suit was filed in August, 1980 and therefore also the judgment of the Revisional Court is illegal and liable to be set aside.
6. On the contrary, Sri R.K. Jain, learned Senior Advocate, stated that there was a specific averment made by respondent-tenant that the building, where the shop situated, was constructed in 1960, and onus to show that Act No.13 of 1972 was not applicable, lies upon the landlord, which he failed to discharge. Hence, Revisional Court has rightly taken the view holding that Act No. 13 of 1972 is applicable. He also submitted that Revisional Court, in order to do ultimate justice, can entertain additional evidence also and placed reliance on this Court's decision in Husain Uddin alias Munney Bhai Vs. XIIth ADJ, Agra & others 1999(1) ARC 424.
7. I have heard respective counsel for the parties and perused the record. The case set up by petitioner-landlord was that the premises in dispute is situated at Tupple Road, Khair. The counsel for the parties are in agreement before this Court, that in 1970 or in 1972 Khair was a Town Area, and, hence was a local body, under the U.P. Town Areas Act, 1914 (hereinafter referred to as "Act 1914").
8. The landlord obtained permission from the Roadside Land Control Officer, Aligarh on 9.9.1971 for construction of certain shops(including the shop in question) and thereafter the construction was completed in 1972. For the first time, the shop in question was occupied by the respondent-tenant on 1.6.1973 at the rate of Rs. 100/- per month.
9. The other facts, not disputed, and are evident from record, as also from the arguments advanced by the respective counsels, are, that a notice was issued to petitioner by Town Area, Khair on 20.11.1970, alleging unauthorised construction of shops at the site in question. Thereafter, the petitioner was issued a letter dated 9.9.1971 by the Roadside Land Control Officer, Aligarh granting permission for construction of shops at the site in question. The respondent-tenant occupied the shop in question for the first time on 1.6.1973 at the rate of Rs. 100/-. Even if it is assumed that the shop was constructed in 1970 and it was recorded by a "local authority", within whose territorial jurisdiction the shop in question situated, on 20.11.1970, as per explanation- to Sections 2, 3 of Act 13 of 1972, it would be date for commencing the ten years period. For the purpose of commencing period of ten years under Section 2(2), it is the date on which the "construction of the building is completed." As to when construction would be treated as completed, the phrase has been defined in Explanation (a) of Section 2(2), which refers to the date on which construction of the building is reported to local authority or is otherwise recorded by it having jurisdiction, and, in case of 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. It is only when none of the aforesaid dates are available, the date on which the premises is actually occupied for the first time would constitute the date on which the construction would be said to have completed.
10. The respondent-tenant claimed that earlier also there was a tenant in the shop in question but nothing has been placed on record to substantiate the aforesaid plea. This fact is not shown to have been proved before the courts below also. The earliest evidence in respect of the shop in question, at the best, is the notice given by local authority on 20.11.1970, complaining about unauthorised construction. Taking everything in favour of the respondent-tenant, this Court finds that there is no scope to treat the date of completion of the construction of the shop in question earlier to 20.11.1970 in the light of Explanation to Sections 2, 3 and if, even this date is taken to be the date of construction of the shop in question, the suit filed in August, 1980, by that time, admittedly a period of ten years had not lapsed. Hence, Act 13 of 1972 could not have been applied to the shop in question.
11. The Revisional Court in observing that the shop in question was constructed before 1970 has not referred to any evidence or material on record to reach at this finding. In a very vague manner, it has said that it was constructed before 1970 and this finding, in view of above discussion, is perverse, based on no evidence and cannot be sustained.
12. It cannot be disputed that for non-applicability of Act 13 of 1972 to the shop in question, initial burden lies upon the landlord but once initial onus is discharged, it shifted to tenant to show otherwise. In his attempt thereto, he (tenant) has not placed any material on record beyond 20.11.1970, when a notice was issued by local body to the petitioner-landlord. In view thereof the Revisional Court's order dated 25.2.2002, setting aside Trial Court's judgment dated 16.10.1998, cannot sustain.
13. The Writ petition is allowed. Revisional Court's order dated 25.02.2002 is hereby set aside. The judgment of Trial Court, dated 16.10.1998 is hereby confirmed and restored.
14. No order as to costs.