JUDGMENT R.H. Zaidi, J.
1. Present revision has been filed under Section 25, of the Provincial Small Causes Court's Act, by defendant-tenant against the judgment and decree dated 30.5.90 passed by IVth Addl. District Judge. Barabankl, acting as Judge, Small Causes Court, decreeing the plaintiff's suit (S.C.C. No. 3/84), for ejectment of the applicant from shop No. G/1282-A, Mohalla Kanoongoyan, Nawabganj, Barabanki (for short the 'shop in dispute') and for recovery of a sum of Rs. 1,550 as arrears of rent.
2. Plaintiff-respondent filed aforesaid suit for ejectment of the defendant-appellant from the shop in dispute and for recovery of amount of arrears of rent, pleading that the shop tn dispute was constructed in the year 1979 and provisions of U. P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act. 1972 (hereinafter called for short "the Act') had no application over the same.
3. It was pleaded that shop in dispute was let out to the defendant-applicant on a monthly rent of Rs. 300 and that tenancy of the defendant-applicant was terminated by notice dated 26.3.1984, but the defendant-applicant did not vacate the shop and did not pay the arrears of rent, hence the suit for the relief noted above.
4. Defendant-applicant filed written statement, denying the claim of the plaintiff-respondent that the shop in dispute was a new construction. It was pleaded that the shop in dispute was an old construction and that provisions of the Act had full application over it. Rate of rent and other facts pleaded by the plaintiff were not disputed. It was, however, asserted that the defendant-applicant was not liable to ejectment from the shop in dispute as there existed no ground for his ejectment.
5. On the basis of the pleadings of the parties. Court below has framed necessary issues in the case. Parties produced evidence oral and documentary in support of their cases. The Court below, after going through evidence on record, held that the shop in dispute was new construction and that provisions of the Act had no application over it. Findings on other relevant issue were also recorded in favour of the plaintiff-respondent and the suit was ultimately decreed by the Court below by its judgment and decree dated 30.5.1990. Challenging the validity of the judgment and decree passed by the Court below, present revision has been filed by the defendant-applicant as stated above.
6. Learned counsel appearing for the applicant vehemently urged that the Court below has acted illegally and with material irregularity in completely ignoring the provisions of sub-section (1) of Section 2 of the Act, and erred in law in recording findings on issue No. 1, regarding age of construction, on the basis of evidence produced by the plaintiff-respondent, which according to him, was wholly irrelevant for the purposes of present case. It was further submitted that the question relating to the age of construction has to be decided with reference to the provisions of Section 2, of the Act and not otherwise. In support of the submissions, learned counsel for the applicant referred to and relied upon the decision of Apex Court in Vindhyachal Prasad Jaiswal v. Vllth Additional District Judge, Varanasi and others, 1995 (1) ARC 318 (SC).
7. On the other hand, learned counsel for the contesting respondent supported validity of the judgment and decree passed by the Court below. It was urged that the findings recorded by the Court below, are based on relevant evidence on record, and do not suffer from any illegality or infirmity. Therefore, the revision filed by the applicant was liable to be dismissed.
8. I have considered rival submissions made by learned counsel for the parties, and also perused the record.
9. Section 2 of the Act, was substituted by U. P. Act No. 17 of 1985. Relevant portion of the said section is quoted below :
Section 2. Exemptions from operation of the Act.--(1) Nothing in this Act shall apply to the following namely :
(a) .....
(b) .....
(c) .....
(d) .....
(e) .....
(f) .....
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 subsection (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.
Provided .....
Provided further that where construction of a building is completed on or after April 26, 1985, then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of forty years from the date on which its construction is completed.
Explanation 1.--For the purposes of this 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 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 construe tion), 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 construction in place of an existing building which has been wholly or substantially demolished.'
(c) where such substantial addition is made to an existing building becomes only a minor part thereof the whole of the buiiding including the existing building shall be deemed to be constructed on the date of completion of the said addition.
10. From the provisions of Explanation I, referred to above, it is evident that construction of a building is to be deemed to have been completed on the date on which completion thereof is reported to or recorded by local authority having jurisdiction and in case of a building, subject to the assessment, the date on which first assessment thereof comes into effect, and where said dates are different, earliest of the said dates and in the absence of any such report, record or assessment, the date on which it is actually occupied, for the first time by any person.
11. Thus, completion of the construction of the shop in dispute had to be determined in the light of the aforesaid statutory provisions and not otherwise. In Vindhyachal Prasad Jaiswal v. VIIth Additional District Judge. Varanasi and others (supra). It was ruled by the Apex Court as under :
"A reading of these provisions clearly indicates that nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed. Explanation 1. specifies as to when the building for the purpose of Section 2 is completed. It postulates. firstly, that where there is a report of completion of the construction of the building the period of ten years shall start from the date on which the report was made. Equally. If recorded in the records of the local authority from the date of such recording. In its absence, the second method of computation of the period is the assessment or the building to property tax under the Municipal Law. The date on which the firat assessment thereof came into effect would be the crucial date. If there are different assessments on different dates in that behalf, then earliest date is the date for the computation of the period of ten years. In the absence of either of these three methods, the last method is the date on which the building was actually occupied. If there are different dates of completion of construction of different portions or parts of a building by operation of the proviso and if separately occupied the computation would be in the aforesaid manner. If the building is wholly or substantially demolished and reconstructed, it would be a new construction. If a substantial addition was made to an existing one, being minor, part of the building shall be deemed to be constructed on the date of the completion of the said addition."
12. In the present case, Court below has simply referred to and relied upon the building plan, cash memos. bills, and the report of the Amin and, has held that the building in question was not an old construction. The Court below has totally ignored the provisions of Section 2 of the Act, referred to above. The findings recorded by the Court below on the question of age of the construction is thus, manifestly erroneous and illegal and Is liable to be quashed. Since the question relating to the age of construction is to be decided, in accordance with the provisions of Section 2, of the Act, the case is bound to be remitted to the Court below for decision afresh.
13. In view of the aforesaid discussions, this revision succeeds and is allowed with costs. Judgment and decree dated 30.5.1990 passed by the Court below are quashed. The case is remanded to the Court below for decision afresh in the light of observations made above. As the matter Is pending disposal since 1984, it Is desired that the Court below shall decide the case expeditlously, preferably within a period of three months from the date a certified copy of this order is communicated to it.