This writ petition has been filed for quashing the order dated 9.4.2007 passed by Judge Small Cause Court in Suit No.35 of 2001 and order dated 7.12.2009 passed in Revision No. 19 of 2007.
The respondent being a landlord filed a suit for ejectment against the respondent for arrears of rent. The petitioner is a tenant of Shop no. 14/1232- A situate in Mohalla Kishanpura, district-Saharanpur since 1998 on the monthly rent of Rs.750/-. It was pleaded in the plaint that the shop in question was constructed in the year 1990, therefore, the provisions of Act No. XIII of 1972 are not applicable to the shop in dispute. The tenant petitioner has not paid rent since 1.9.2000 in spite of the demand, therefore, a notice under Section 106 of the Transfer of Property Act was given on 31.3.2001. The notice was refused and it was received back. Inspite of the aforesaid fact the rent was not paid. Then a suit was filed which was numbered as Suit No. 35 of 2001. A written statement was filed by the petitioner tenant and denied the factum regarding construction of the shop in the year 1990. It was stated that the shop in dispute is a part of big residential building owned by the landlord and is in existence from the time of the construction of the residential building. Therefore, the provisions of the Act are applicable and as the tenant has deposited the arrears of rent under Section 20 of the Act and no notice as alleged have been received, therefore, the suit is liable to be dismissed.
The Judge Small Cause Court framed various issues and after consideration of the evidence on record after recording a finding that from the sanction of the map which is of 1990, it is clear that it has been constructed after the sanction of the map and first time it was assessed in the year 1996, therefore, Act No. XIII of 1972 is not applicable and as such the deposit made, if any, by the tenant-defendant, no benefit can be given to the tenant as Act is not applicable. The Judge Small Cause Court vide its judgment and order dated 9.4.2007 has decreed the suit for arrears of rent and ejectment. The petitioner filed a revision. The revisional court too has dismissed the revision vide its judgment and order dated 7.12.2009. Hence, the present writ petition.
Sri N.C. Rajvanshi Senior Advocate assisted by Sri Manoj Kumar Rajvanshi has submitted before this Court that the presumption drawn by the court regarding construction in the year 1990 is not correct as it was proved from the evidence on record that the shop in question was in the tenancy of one Vijai Kumar since 1975 and an assessment was made prior to 1991. As it was constructed in the year 1975, therefore, it cannot be treated to be a new construction and if it has been remodelled or renovated, that cannot be said to be a new construction. The case of the landlord was that the shop in dispute was reconstructed in the year 1990, therefore, it was necessary on the part of the landlord to plead that when the shop in question was actually constructed, the landlord cannot take the advantage of concealing the material facts by not disclosing the necessary facts for the disposal of the case. There is no evidence on record that what is the date of completion of the shop in question in the records of the municipal authority. There is no mention in the column 10 of the assessment list relating to the shop in dispute for the year 1991 to 1997 regarding any demolition/reconstruction of the shop in dispute. This clearly goes to show that the shop in question is an old construction and will be governed by the provisions of the Act. As Act No. XIII of 1972 , therefore, the petitioner is benefited by the fact that he has deposited the rent under Section 20 Sub-Clause 4 of the Act.
Learned counsel for the petitioner has also brought to the notice of the Court various orders of assessment annexed to the writ petition and wanted to submit that the shop in question is old one and the finding to this effect recorded by the courts below is not correct and is liable to be set aside. Learned counsel for the petitioner has placed reliance upon a judgement of the Apex` Court in the case of Ram Saroop Rai Vs. Smt. Lilawati reported in 1980 ARC Page 466 and has placed reliance upon para 10 of the said judgment which is being quoted below:
"10.We do not want to dwell on the evidence in greater detail because we propose to remit the case to the trial Court (Court of the First Additional District Judge, Jhansi). It is quite conceivable that the municipal records bearing on the completion of the construction may throw conclusive light whatever might have been the original proposal in the plan submitted. It is perfectly possible hat on a view of the earlier construction, vis-a- vis the completed new building, the former may form but a small part. It may also be that the implication of the expression "increased assessment" may be explained with reference to earlier assessment records in the municipality. Moreover whenever a new building is completed, a report has statutorily to be made and on a completion survey and certificate, occupation is ordinarily permitted. These records must also be available in the office of the local authority. The statute makes it clear that reliance upon the municipal records, rather than the lips of witnesses, is indicated to determine the date of completion and the nature of the construction. This statutory guideline has been wholly overlooked and the burden lying on the landlord has not been appreciated. The result is that the eviction order has to be demolished."
On the other hand, Sri M.K. Gupta, learned counsel for the respondent submits that the findings recorded by the Judge Small Cause Court and the map annexed to the writ petition clearly goes to show that a specific averment has been made that there were two shops existing which was in the tenancy of one Raseed Nai and one Vijai Bali and now there are four shops, taking into consideration all these circumstances a finding has been recorded that it is a 4 new shop constructed subsequently. Further a document was submitted before the Court as 23 Ga which shows that there are 2 parts of the house in question of the respondent-landlord, one is southern and another is north. From the perusal of the sanctioned map, it is clear that it was sanctioned in the year 1990 and it was assessed first time in the year 1991. Therefore, in view of the provisions of the Act, it is exempted from the purview of the Act. Further learned counsel for the respondent submits that from the perusal of the statement of the respondent itself, she has admitted that in the year 1986 there were two shops and now there are 9 shops existing, which supports the case of the respondent-landlord that the construction has been made subsequently. Sri M.K. Gupta, learned counsel for the respondent submits that now it is well settled in law that for the purpose of verifying the fact regarding the date of construction, the assessment year will be treated to be the date of construction. No other inference can be drawn if there is a document to show that a particular building has been assessed in a particular year. The revisional court has also considered all these aspects of the matter and has held that the finding recorded by the trial court is based on evidence and cannot be held to be against the evidence on record.
I have considered the submissions made on behalf of the parties and have perused the record. A specific case was taken up by the respondent- landlord that the shop in question was constructed on the basis of sanctioned map in the year 1990 and subsequently it has been given on the rent. From the record it has also been proved that earlier there were only 2 shops in the tenancy of two persons but subsequently it has been constructed as 4 shops which is clear from the admission of the petitioner's husband Sri Anurag Goel. The petitioner herself has admitted this fact that earlier in the year 1980-86 there were 2 shops and now there are 9 shops in existence. In such a situation the court below has recorded a finding that in view of Section 2 of the Act new construction will be treated which includes the major portion after demolition. From the record it is clear that after demolition of the the total portion, new construction has been made. The petitioner is not able to show 5 from the various documents annexed to the writ petition regarding assessment that this is the only shop which was in existence prior to 1991. In 1980 ALJ Page 229 Jagdish Prasad Vs. District Judge, Ghaziabad this Court has held that in case there was a big room and 3 walls have been constructed and separate shutters have been installed converting into three shops, then it will be treated to be a new construction. A finding of fact has been recorded by the court below that from the evidence on record, it is proved that the northern portion has been demolished and after due sanction of the map, it was constructed and the said shop in question is one of the same construction, therefore, it cannot be said that it is an old construction and the Act is applicable. From the document of assessment, it is also clear that first time it was assessed in the year 1991. The revisional court has also considered the said aspect of the matter and has recorded a specific finding that as the petitioner has failed to prove from the record that the shop in question was in existence prior to 1990, therefore, no benefit can be given to the petitioner and it is well settled in law that the date of assessment by the competent authority will be treated to be the date of construction of the building.
As regards the reliance placed by the learned counsel for the petitioner upon the judgment of the Apex Court in Ram Swaroop Rai (Supra) from the perusal of para 10 of the said judgment, it is clear that the Apex Court has held that the statute makes it clear that reliance upon the municipal record rather than the lips of the witness, is indicated to determine the date of completion and the nature of construction. This statutory guidelines have been wholly overlooked and the burden lying on the landlord has not been appreciated. In such circumstances the Apex Court has held that it is obligation on the part of the Court to place reliance upon the municipal record unless until proved otherwise and an oral statement regarding the date of construction by any witness cannot be taken into consideration, if there is a document to that effect. In my opinion, the case relied upon by the learned counsel counsel for the petitioner does not help him rather helping the respondent-landlord.
In view of the aforesaid fact and the finding recorded by the courts below, in my opinion, the findings are findings of fact based on relevant evidence and documents and need no interference while exercising powers under Article 226 of the Constitution of India.
The writ petition is devoid of merit and is hereby dismissed.
No order is passed as to costs.
Jan. 5, 2010 V.Sri/-