1. Heard Sri Akhilesh Chandra Shukla, learned counsel for the revisionist (hereinafter referred to as the 'tenant') and Sri Vishnu Sahai, learned counsel for the opposite party (hereinafter referred to as the 'landlord') and perused the record.
2. The present revision has been filed challenging the impugned order dated 19.10.2015 passed by the Judge, Small Causes/Additional District Judge, Court No. 2 in SCC No. 10 of 2011.
3. The SCC No. 10 of 2011 was filed by the landlord on the ground that he is the owner and landlord of the shop in dispute, which was let out to the tenant on a rent at the rate of Rs. 711/- per month; the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ' UP Act 13 of 1972') is not applicable in the present case; the tenant has committed default in payment of rent, however, since the rent prior to 24.5.2008 has become time barred, therefore, the rent from 24.5.2008 to 7.5.2011 is being claimed from the tenant; a registered notice dated 5.4.2011 was sent to the tenant terminating his tenancy and demanding possession and arrears of rent from 24.5.2008, which was admittedly received by the tenant on 7.4.2011 and the same was replied by him on incorrect facts.
4. Regarding non-applicability of the UP Act 13 of 1972, the case of the landlord was that the shop in question is a new shop, which was re-constructed in the year 2000 alongwith other shops and all the shops were raised above ground level and a common lintel of all shops was put simultaneously and it was also claimed that tax on new shop was assessed from 1.10.2002 and after construction of new shops, the rent was fixed at the rate of Rs. 711/- per month, whereas the old shop was rented out at the rate of Rs. 600/- per month. Even the first assessment of the old shop was made on 1.4.1986 and as such, the UP Act 13 of 1972 is not applicable in the present case.
5. In reply, the tenant admitted the plaintiff as his landlord and that the shop was rented out to him at the rate of Rs. 711/- per month; receiving of the registered notice dated 5.4.2011 given by the landlord was admitted but it was claimed that the notice was based on incorrect facts and as such, the reply of the aforesaid notice was also sent through Advocate; the money orders for arrears of rent were sent to the landlord on 2.5.2011, which he refused to accept; since the rent was tendered by the tenant to the landlord but he did not receive the same and the same was deposited in the Court, as such, there was sufficient compliance of Section 20(4) of the UP Act 13 of 1972; the provisions of UP Act 13 of 1972 are applicable as the shop in question was constructed in the year 1982.
6. Four issues were framed by the learned Court below. The first issue was as to whether the provisions of UP Act 13 of 1972 are applicable or not in the present case. The second issue was as to whether the tenant was entitled for benefit of Section 20 (4) of the UP Act 13 of 1972 or not. The third issue was as to whether the tenant had committed any default in making payment of rent and the fourth issue was as to whether the landlord is entitled to relief, if any.
7. All the four issues were decided against the tenant. The main controversy involved in the present case is as to whether UP Act 13 of 1972 is applicable in the present case or not?
8. On this issue, it was claimed by the landlord that initially the shop in dispute was assessed for the first time on 1.4.1986 and as such, UP Act 13 of 1972 is not applicable. It was also claimed that in the year 2000 the shop in dispute was newly constructed after demolishing the old shop alongwith adjoining shops and the ground level of all the shops was raised above road level and a new lintel was put at the same height alongwith all other shops and tax on new shop was levied w.e.f. 1.10.2002. Thus, the UP Act 13 of 1972 was not applicable in the present case. In support of this issue, PW-1 Shriyansh Kumar (landlord) and PW-2 Dhan Kumar Jain appeared. In his support, the landlord also filed documentary evidence in the shape of assessment for the years 1986 to 1991, paper no. 22-Ga. Paper no. 23-Ga/1 and paper no. 23-Ga/2 were also produced.
9. In reply, the tenant appeared as DW-1 and in support of his case; he also produced a registered rent deed dated 30.9.1983 (paper no. 19-Ga) to contend that the aforesaid registered rent deed was executed between Pramod Kumar s/o Jadoram (brother of the tenant) and Smt. Shanti Devi w/o Sri Dhan Kumar Jain (mother of the landlord Sri Shriyansh Kumar Jain) for a period of two months from 28.9.1983 to 27.11.2983 at the rate of Rs. 400/- per month. In Clause 8 of the said registered rent deed, it was specifically mentioned that the shop in question was constructed in December, 1982 and is a new construction and as such, Rent Control Act is not applicable on the present shop. On the strength of the aforesaid rent deed, it was claimed by the tenant that since the admitted case of the landlord was that the shop was constructed in December, 1982 and it was also given in occupation of the tenant on 28.9.1983, therefore, the UP Act 13 of 1972 is applicable. It was submitted that the tax was not assessed w.e.f. 1.4.1986. It was also submitted that in in any case since the building was completed in December, 1982 and it has come in occupation of the tenant in the year 1983, therefore, the date of first assessment cannot be taken as the date of construction of building and the UP Act 13 of 1972 is applicable in the present case and the building is not exempted from operation of the Section 2 (2) of the Act No. 13 of 1972.
10. The learned Court below after considering the statement of the witnesses PW-1, PW-2 and DW-1 and the documentary evidence on record in the shape of assessment order paper no. 22-Ga, which indicated that the shop in dispute was assessed for the first time on 1.4.1986. The learned Court below also considered the registered rent deed dated 30.9.1983 and specifically considered Clause 8 thereto, which indicated that the shop was constructed in the year 1982 and was a new construction and that the Rent Control Act was not applicable to the same. The learned Court below held that all the conditions of the Rent Control Act have to be read harmoniously. The evidence is to be considered in toto and not in part. All the conditions of the registered rent deed has to be taken into account. The learned Court below after considering the provisions of Section 2 (2) Explanation I held that since the shop in dispute was assessed for the first time w.e.f. 1.4.1986, therefore, the construction of the building is taken as having been completed after April 26, 1985 and as such, the shop in dispute was exempted from operation of the Act.
11. The Court below after considering the rulings cited by both the parties held that in absence of completion of construction of building having been reported to the local body or otherwise recorded by the local body having jurisdiction, the date of assessment will the date of construction for this purpose and as per the record available the building was assessed for the first time w.e.f. 1.4.1986 and as such, in view of the documentary evidence in the shape of paper no. 22-Ga and 23-Ga, the UP Act 13 of 1972 is not applicable.
12. The aforesaid finding is being challenged by the tenant on the ground that in view of Section 2 (2) Explanation I (a) of the Act of 1972, since it was admitted case of the landlord that the shop in dispute was constructed in December, 1982 and was also let out w.e.f. 28.9.1983 at the rate of Rs. 400/- per month, the date of first assessment become immaterial as prior to this, date of completion of the construction of building is on record. Insofar as the demolition of the shop and re-construction of the same alongwith other shops in the year 2000 is concerned, he submits that there is no evidence on record to indicate that any such activity was carried out by the landlord and tax on new shop was levied w.e.f. 1.10.2002, therefore, he submits that the said date is incorrect and in such view of the matter, it is immaterial.
13. Per contra, supporting the impugned judgement 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 judgement 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.
(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." (Emphasis supplied)
14. A perusal of the aforesaid judgement 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 judgement, 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 judgement 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. 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. 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 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."
(Emphasis supplied)
16. In the aforesaid judgement, it was submitted that the shop was admittedly occupied by the tenant in June, 1967 and as such, it was the date of occupation of building and construction of shop should be deemed to have been completed within the meaning of Explanation I (a) of Section 2 (2) of the UP Act of 1972 and not the date of its first assessment. Such submissions were considered in detail and it was categorically held that the date on which first assessment of the building in suit became effective on April 1, 1968, must be deemed to be a date of the completion of its construction, the Act is not applicable on the building in suit.
17. It may be mentioned that the aforesaid judgement was delivered on a reference made by Hon'ble Division Bench and the matter was referred to a larger Bench by Hon'ble Single Judge. Thus, in view of the aforesaid, in the present case also it can safely be concluded that the date of first assessment i.e. 1.4.1986, which was relevant date for the purpose of taking the construction of the building deemed to have been completed and, therefore, this being much subsequent to April 1, 1985, the relevant date for the purpose of exemption of building from operation of Act.
18. A reference may also be made to a judgement 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 judgement 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."
(Emphasis supplied)
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.
20. In such view of the matter, I do not find any legal infirmity in the conclusion arrived at by the learned Court below that UP Act 13 of 1972 is not applicable in the present case.
21. Insofar as the issue no. 2 as to whether the tenant is entitled for benefit of Section 20(4) of the UP Act 13 of 1972 is concerned, since it was held that the aforesaid Act is not applicable in the present case, therefore, the aforesaid issue was decided against the tenant and the benefit of Section 20 (4) of the UP Act 13 of 1972 was rightly denied by the learned Court below.
22. Insofar as the issue no. 3 as to whether the tenant has committed default in making payment is concerned, since the UP Act 13 of 1972 was not applicable in the present case and the finding of fact was recorded by the Court below that the money orders were sent to the tenant but there was nothing on record to indicate that the amount was actually paid to the landlord and since UP Act 13 of 1972 is not applicable, therefore, the benefit of deposit made under Section 20 (4) of the aforesaid Act cannot be extended to the tenant.
23. It was also observed that the registered notice sent to the tenant under Section 106 of the Transfer of Properties Act was validly given, receipt whereof was admitted by the tenant and he had also replied the same, therefore, service of the aforesaid notice in the present case was sufficient and no benefit can be extended even if he has deposited the rent. I do not find any legal infirmity in the view taken by the Court below.
24. Consequently, the issue no. 4 relating to relief, if any, was also rightly decided in favour of the landlord by holding that the landlord was entitled for eviction of the tenant and is also liable to arrears of rent w.e.f. 24.5.2008 at the rate of Rs. 711/- per month.
25. All finding of facts as well as law were recorded against the revisionist. Consequential and other issues were also decided by the court below in favour of the landlord.
26. All these finding of facts, it cannot be re-appreciated by this Court in the light of the decision of Hon'ble Apex Court in Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh, 2014 (9) SCC 78.
27. In such view of the matter, I do not find any good ground to interfere in the impugned judgment and order of the Court below in the present revision and the same is accordingly dismissed.
28. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the revisionist-tenant before the Court below, it is provided that:
(1) The tenant-revisionist shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.8.2016.
(2) The tenant-revisionist 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-revisionist 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-revisionist shall pay damages @ Rs. 2,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below and the landlord is at liberty to withdraw the said amount;
(5) In the undertaking the tenant-revisionist 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-revisionist 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.
29. There shall be no order as to costs.
Order Date :- 14/01/2016 Abhishek