JUDGMENT
1. Heard the learned counsel for the petitioner and Shri Bharatji Agrawal, learned counsel for the landlord respondent No. 1.
2. Perused the record.
3. Feeling aggrieved by a decree of his eviction from the premises in dispute and recovery of arrears of rent and damages for the use and occupation pendehte lite and future passed by the Judge Smalt Cause Court, the petitioner tenant filed a revision under S. 25 of the Provincial Small Cause Courts Act which has been dismissed by the Revisional Court, he has now approached this Court for redress seeking the quashing of the same.
4. It appears from the record that the landlord respondent had filed the suit seeking ejectment of the petitioner tenant from the premises in dispute asserting that the building of which the premises in suit formed a part was constructed a new in the year 1973 after demolishing the old constructions and was assessed for the first time by the Nagar Palika, Etah in the year 1981. The assessment being effective from 1-4-1981. The suit having been filed on 19th December, 1990, the first assessment of the newly constructed building being effective from 1st April, 1981, it was claimed that the provisions of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act') were not at all attracted and in view of the ten years period stipulated in the proviso to S. 2(2) of the aforesaid Act having not expired by the date of the filing of the suit, the building from which the eviction of the petitioner tenant was sought fell clearly out of the purview of the said Act. The claim of the plaintiff in regard to the exemption of the building in question from the operation of the Act was denied by the defendant petitioner who asserted that the building as it stood in the year 1972 was never demolished and continued to remain in existence without any alteration and further that it could not be deemed to have been exempted as claimed.
5. In his deposition before the trial court, the plaintiff stated that after obtaining a decree of eviction of the sitting tenant in the old building in original suit No. 441 of 1969, the said building was completely demolished and erased a new building was reconstructed in its place after getting the requisite building plan sanctioned from the Nagar Palika. It was further stated that "the newly constructed building was assessed to house tax with effect from 1-4-1981. In support of his submission about reconstruction of the building, the plaintiff brought on record the sanctioned building plan for the construction of the new building and other relevant documents. The plaintiff also stated that the reconstruction of the building was completed by March, 1973.
6. The tenant petitioner in support of his case besides examining himself, examined Jagadish Singh, a clerk Of the Nagar Palika, Etah. In his deposition, the defendant claimed to be the tenant of the premises in dispute since 1970. In his cross examination, he had stated that to his knowledge, the building in question had never been assessed by the Nagar Palika. He also stated that he was not at all aware of any decree of eviction of Asharfi Lal, his uncle and as to whether he was ever evicted in execution of the decree as claimed by the plaintiff. He further stated that the premises in dispute was more than 10 years old and was continuing as it existed in the year 1970. Sri Jagadish Singh, who was examined as a defendant witness No. 2 by the petitioner tenant, stated that the first assessment of all the buildings which had been newly constructed subsequent to the year 1970 within the limits of Nagar Palika, Etah was made effective from 1st April, 1981, He also stated that the assessment which had been finalised during the period 1976 to 1978 was made effective from 1st April, 1981.
7. The order passed by the Assessing Authority dated 2-2-1978. was brought on record showing that the assessment in respect of the premises-in dispute was finalised in that year.
8. The trial Court after an appraisal of evidence on record, came to the conclusion that from the materials placed by the plaintiff landlord on record, his claim that the building of which the premises in dispute forms a part was constructed a new after obtaining the requisite sanction from the Nagar Palika, Etah, was acceptable and his statement was reliable, The trial Court also came to the conclusion that the first assessment in respect of the newly constructed building had become effective from 1st April, 1981. The trial Court also took into account various other evidences and materials on record and held that the plaintiff's case in regard to execution of the decree of eviction of Asharfi Lal and recovery of thee possession of the old building appeared to be reliable and assertions in this regard stood proved to be correct. Having come to the conclusion that the first assessment In respect of the newly constructed building had become effective from 1st April, 1981, the trial court held that the said building stood exempted from the operation of the Act and fell out side its purview.
9. The revisional Court endorsed the findings recorded by the trial Court and taking into consideration, the effect of the admissions of Jagadish Singh, defendant witness No. 2 examined as witness by the defendant petitioner, the revisional Court also came to the conclusion that the date of the first assessment of the building in question was rightly treated to be 1st April, 1981 and the building stood exempted from the operation of the Act. Consequently it was held that since 10 years period had not elapsed by the date of the filing of the suit, the provisions of U.P. Act No. 13 of 1972 could not be held to be applicable to the building in question and the termination of his tenancy being in accordance with the provisions of S. 106 of the Transfer of Property Act there could be no impediment in the grant of the decree for eviction as claimed.
10. The learned counsel for the petitioner has strenuously tried to assail the concurrent findings recorded by both the courts below in regard to the applicability of the provisions of the U.P. Act No. 13 of 1972 to the building in question. The contention is that the courts below have manifestly erred in treating first April, 1981 instead of 2-2-1978 as the date from which the building in question was to be taken as having been first assessed for the purposes of the Explanation 1 to S. 2(2) of the said Act.
11. This Court in its decision in the case of Raj Kumar Sharma v. District Judge, Hari-dwar, reported in 1993 (2) ARC 103, had clarified after taking into consideration various decisions of the Apex Court that in the presence of the first assessment, the date of occupation of the building during the period anterior to the first assessment is of no significance. It was also emphasised in the aforesaid decision that the date of first assessment of the building has to be taken as the date furnishing the starting point for computing the period of exemption contemplated under S. 2(2) of the Act. A perusal of Explanation 1 to S. 2(2) of the Act however, indicates that in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect will be the date on which the construction of a building shall be deemed to have been completed. It is, therefore, obvious that it is not the order of first assessment which has to be taken to be the relevant factor but it is the date on which the assessment comes into effect which has been made the governing factor furnishing the starting point for computing the period contemplated under S. 2(2) of the Act.
12. The learned counsel for the petitioner has, however, urged that in the present case, the assessment in question ought to haveheen taken to be finalised on 2nd February, 1978 and therefore, it is this date on which the order for assessment will be deemed to have been passed which date ought to be taken as the date furnishing the starting point from which the period contemplated under S. 2(2) has to be computed for the purposes of determining as to whether the building in question is or is not exempt from the provisions of the Act.
13. The learned counsel for the contesting landlord respondents has however, urged that the date of the order finalising an assessment is wholly immaterial as the provisions contained in Explanation to S. 2(2) of the Act lay emphasis on the date on which the assessment becomes effective. The contention is that the aforesaid words used in the Statute cannot be deemed to be a mere surplusage and have to be given due weight while construing the said provisions. It has been emphasised that the legislative intent appears to be clear that it is not merely the order or year of assessment but the date from which the said order is made effective which is relevant.
14. A perusal of the provisions contain-:;1 in S. 144 of the U.P. Municipalities Act, 1916 shows that when all objections contemplated under S. 143 of the Act have been disposed of and all amendments required by sub-sec. (3) of that section have been made in the assessment list, the said list shall be authenticated in the manner prescribed thereunder. However, the provisions contained in S. 144(2) of the Act stipulate that the list so authenticated shall be deposited in the municipal offices and shall thereupon be declared by public notice to be open for inspection.
15. In the circumstances, therefore, it seems to me that mere order of assessment which may amount to authentication as contemplated under the provisions of Section 144 of the Act cannot be deemed to be a date furnishing the starting point for computing the period of ten years contemplated under Section 2(2) of the Act. In the present case according to the tenant's own witness, the assessment of the new building constructed subsequent to the year 1970 was made effective from 1-4-1981. The claim of the defendant that the building as it stood in the year 1970 continued to remain in existence thereafter and was never demolished was disbelieved by the trial Court, The case of the defendant plaintiff that after demolition of the old building a new building was constructed and assessed has been found to be correct. In his deposition the defendant witness 2 Jagdish Singh had categorically admitted that the assessment of newly constructed building had been assessed for the first time in the year 1978 which assessment had become effective only from 1-4-1978.
16. The scheme underlying the provisions contained in Secs. 141 to 145 of the U. P. Municipalities Act appears to be that the assessment list prepared under Sec. 141 of the Act contains only tentative assessment. This list is required to be published as provided for in Sec. 142 of the Act inviting objections to the entries contained in the list which have to be disposed of as provided under Sec. 143(2) of the Act. It is thereafter when the objections are disposed of and the requisite amendments have been made in the list that the said list is authenticated by the competent authority. Thereafter as contemplated under Sec. 144(2) of the Act, the list so authenticated is deposted in the Municipal office and thereupon declared by public notice to be open for inspection.
17. In the aforesaid circumstances, it is obvious that an order disposing of an objection is anterior to the authentication of the list contemplated under Sec. 144(1) of the Act and is also anterior to the declaration con templated under Sec. 144(2) of the said Act.
Moreover, the assessment list is made valid from the date on which the list takes effect in the Municipality and until 1st of April next following the completion of a new list. It is so provided in Sec. 145(2) of the Act. The aforesaid provision clearly, indicates, that even after the declaration contemplated under Sec. 145(2) of the Act the Municipality concerned has to specify a date from which the list is to take effect. It may be the date of publication contemplated under Sec. 145(2) of the Act or any later date. But in no case it can be a date anterior to the aforesaid publication and in any case, the order disposing of the objection, such as the order dated 2-2-1978 in the present case, can be deemed to be the date from which the assessment takes effect.
18. As has already been noticed above, it was apparent from the statement of DW-2 Jagdish Singh that the first assessment of the newly constructed building was to be effective from 1-4-1978. When an allegation of fact is admitted or must be deemed to be admitted there is no need to prove what is admitted of deemed to be admitted but there may be cases in which having regard to the nature of the circumstances, the court may insist upon proof independent of such admission by non traverse or otherwise.
19. In this connection, it may further be noticed that as observed by this Court in its decision in the case of Salek Chand v. IInd Additional District Judge, reported in 1983 (2) ARC 402, that no exception can be taken to a finding in regard to, the date of construction based on material on record within the narrow ambit of the jurisdiction of this Court contemplated under Art. 226 of the Constitution of India. In the present case, the conclusions in regard to the first assessment of the building in dispute holding it to be newly constructed, the first assessment whereof became effective from 1-4-1981 have been arrived at on the basis of the consideration of evidence and materials on record. The learned counsel for the petitioner has not been able to demonstrate that the said finding is vitiated by any error much less manifest error of law.
20. In view of my conclusions indicated hereinabove, no juistificable ground is made out for any interference by this Court, in the impugned concurrent decree and the writ petition is liable to be and is hereby dismissed.
There shall, however, be no order as to costs.
21. Petition dismissed.