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PETITIONER: SALEEM

       Vs.

RESPONDENT: DISTRICT JUDGE, MUZAFFARNAGAR & ORS.

DATE OF JUDGMENT:       15/09/1998

BENCH: S.B.MAJMUDAR, M.JAGANNADHA RAO.,

ACT:

HEADNOTE:

JUDGMENT: JUDGMENT S.B.Majmudar. Leave granted. We have heard learned counsel for the appellant  and learned  counsel  for  respondent  No.  3  who  is  the real contesting respondent finally and  are  disposing  off  this appeal by their consent by this judgment. The  appellant  is the tenant and the respondent No. 3 is the landlord.  We will refer to tenant and landlord  in the later part of this judgment for the sake of convenience. The landlord filed a suit from which the present proceedings arise,  in  12991 on the ground that the relevant provisions of U.P.  Urban Buildings (Regulation of  Letting,  Rent  and Eviction)  Act,  1972  (Act  13  of 1972) (hereinafter to be referred to as the ’Rent Act’) did not  apply  to  the  suit premises  which  is  a  shop  occupied  by the tenant who is carrying on his profession as barber.  The rent of the  shop is Rs.   350/-  per  month.    It  is  the contention of the landlord that the disputed shop is newly constructed and  it was  first  assessed to house tax on 1.4.1982 under order of the Municipal Board, dated 20.3.1982.    The  suit  shop  is situated  in  village  Kandhala in district Muzaffarnagar in the State of Uttar Pradesh.  The contention of the  landlord was  that as the Rent Act was not applicable for a period of 10 years from the date of first assessment of the  shop  and as  the  tenant  was  in arrears of rent he was liable to be evicted.  For that purpose, he had served a  notice  to  him demanding  the rent and terminating the tenancy on 16.8.1991 which was served on him on  17.8.1991.    The  defendant  in spite  of  the  service  of the said notice neither paid the rent nor vacated the premises  and  committed  the  default. Hence the suit. The  tenant contesting the suit submitted before the Court of Civil judge, Senior Division,  Kandhala  where  the suit  was filed that he was not in arrears of rent, the rent demanded was excessive and it was not Rs.  350/-  per  month but was  only Rs.  150/- per month and that the building was an old one and he was occupying  the  same  since  1977  and therefore,  the  Rent  Act  as a whole was applicable to the suit shop.  The trial court  after  recording  the  evidence

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offered  by  the  parties  came  to  the conclusion that the tenant  was  in  arrears  of  rent  and  the   question   of applicability of the protection of the Rent Act would depend upon  the  other  question  as to when the assessment of the shop was first made  and  considering  the  said  date  i.e. 1.4.1982  it was held that on the date of filing of the suit in 1991 as 10 years had not elapsed from the date  of  first assessment   of   the  suit  shop,  the  Rent  Act  was  not applicable.   Consequently,  the  suit  for  possession  was decreed. The  tenant  unsuccessfully  carried  the  matter in revision before the District Judge,  Muzaffarnagar.    After the  revision  was dismissed he approached the High Court of Judicature at  Allahabad  invoking  its  writ  jurisdiction. Learned  judge  who  decided  the  writ petition came to the conclusion that the protection of Rent Act was not available to the suit shop in view of provisions of Explanation  I  to sub-section  (2) of Section 2 as 10 years were to be counted for the purpose of such explanation from 1.4.1982  when  the suit  shop  was  first  assessed by the Municipal authority. Rent of Rs.  350/- per month was held to be the correct rent payable by the tenant.  The writ  petition  was  accordingly dismissed.  That is how the tenant is before us on obtaining leave  to  appeal  under  Article 136 of the Constitution of India. Learned counsel for the appellant submitted that the courts below including the  High  Court  were  in  error  in taking  the view that the Rent Act was not applicable to the suit shop.  It  was  submitted  placing  reliance  on  house connection  register  extract  issued by the Municipal Board Kandhala that the construction was already existing  on  the plot    as    water    connection    was    taken   by   the respondent-landlord on 1.11.1973 for  domestic  purpose.  If that  is  so,  then  by  1991 more than 10 years had elapsed since the construction of the house  and  consequently,  the relevant  provisions  of the Rent Act cannot be said to have not applied to the suit premises. It may be mentioned that  the  landlord  has  relied upon  an  extract  of  tax  assessment  register of the same Municipality which showed that from 1972-73  upto  31.3.1982 the place where the suit shop is constructed was only a plot being 515 plot (II) and the annual value of the same was Rs. 72/- and  house  and  land tax was Rs.  2.52 paise per year. It was thus attempted to show that there was no  house  till 1982.  Therefore, the contention of the tenant that he was a tenant since 1977 in the  constructed  shop  and  therefore, more  than  10  years  had elapsed since construction of the shop was thus tried to be repelled. In our view the contention of the tenant  cannot  be accepted.   What  is  to  be  seen  is the date on which the construction can be said to have been put up by the landlord for the purpose of earning immunity  from  applicability  of the Rent  Act.    Learned  counsel for the appellant in this connection relied upon a decision of this Court in the  case of Surendra  Kumar Jain alias Sunni vs.  Shanti Swaroop Jain and others reported in 1995 Supp.  (3)  SCC  413  wherein  a Bench  of  two  judges  of  this  Court  (wherein one of us, Majmudar J.    was  a  Member)  considered  the  very   same explanation to  the  Rent Act.  It observed that in terms of Explanation I to sub-section (2) of Section 2  of  the  rent Act  construction  of  a  building  is  deemed  to have been completed  on  the  date  on  which  completion  thereof  is reported  or  otherwise  recorded  by local authority having jurisdiction  and  in  the  case  of  building  subject   to assessment,  the  date on which the first assessment thereof

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comes into effect and where the said  dates  are  different, the earliest of the said date would be relevant for deciding the question  of  date  of construction of the premises.  On the facts of that case  it  was  found  that  the  Municipal authorities had given notice of assessment on 15.11.1977 and the date  of assessment was thereafter.  It was held that in such a situation the earliest of the dates would be relevant for Explanation I to sub-section (2) of Section 2 of the Act and as that aspect was not considered by the High Court  the proceedings were  remanded for reconsideration.  We may note that after remand the High Court came to the conclusion that the construction could be said to have been  completed  when the  Municipal  authority recorded such fact of construction and gave notice for assessment of tax.   The  said  decision was  again  brought  in challenge before this Court and that decision was upheld in the case of Surendra Kumar  Jain  vs. Shanti Swarup  Jain  and  Ors.  reported in AIR 1977 SC 2291 wherein once again justice G.N.Ray speaking  for  the  Court held  that  as  the  Municipality  had  issued the letter on 30.1.1978  to  the  respondents  and   even   the   building constructed  was  inspected by the Section Head Clerk of the Municipality on 30.1.1978 the first of the  dates  on  which the  Municipality  had given such a notice would be relevant for the purpose of Explanation I. The  Rent  Act  provides  that  relevant  provisions thereof will not apply to buildings for a period of 10 years from the date of completion of their  construction.    Under the  scheme  of  Section  2  of the Rent Act, only the newly constructed buildings are given immunity from being governed by the protective provisions of the Rent Act.  This immunity is for a period of 10 years and the said period starts  from the  date of completion of the construction of the buildings concerned. This provision  is  enacted  presumably  to  give fillip to construction activities. However, for deciding the question  of  immunity  the  deemed  date of construction of building is provided in Explanation I to sub-section (2)  of Section 2 of the Rent Act. It  will  be  appropriate to refer to these relevant provisions.         "2.  Exemption from operation of Act  -  (1)         Nothing  in  this  Act shall apply to the following,         namely:-         (2)   Except as provided in sub-section  (5)         of  Section  12,  sub-section  (1-A)  of Section 21,         sub-section (2) of Section 24, Sections 24-A,  24-B,         24-C  or  sub-section  (3) of Section 29, nothing to         this Act shall apply to a building during  a  period         of ten years from the date on which its construction         is completed:         Explanation  I-  For  the  purpose  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 a 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         construction) for the first time:         Provided that there may be  different  dates

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       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: In  our  view,  the aforesaid decisions cannot be of any avail to the appellant in the facts of the present case. The reason is obvious.  No evidence is available  on  record to  show  as to whether the municipal authorities had issued any notice or it recorded construction of  the  premises  at any time  prior  to  the  date of assessment i.e.  1.4.1982. Once such evidence is absent and was not available  and  the only  evidence  available  was  the date of first assessment i.e.  1.4.1982 as per Explanation I to  sub-section  (2)  of Section  2,  the  only date which could have been taken into consideration for deciding the question whether 10 years had elapsed from the date of construction of  the  building  was the date of  assessment  i.e.  1.4.1982.  10 years had to be counted from that date. In fact, the present controversy is squarely covered against the appellant by a decision of three Judge Bench  of this court  in  the  case  of  Om  Prakash  Gupta  vs.   DIG Vijendrapal Gupta reported in (1982) 2 SCC 61.   Considering the  very  same  explanation  Justice Misra speaking for the Bench in paragraph 6 of the report observed that  a  perusal of  Explanation I makes it abundantly clear that the date of occupation would be taken to be the date  of  completion  of the  construction  only when there is no report or record of the completion of the construction or no assessment thereof. If there is an assessment, as in the present case it is,  it will  be  the  date  of  the  first assessment which will be deemed to be the date of completion of the construction  and in  that view of the matter the building had not become more than ten years’ old on the date when the revision came to be decided by the High Court.  It is also to be noted  that  in the  said  decision  the  argument was that the building was occupied prior to  the  first  date  of  assessment.    that evidence  was  not  held  to  be  relevant  for deciding the question  of  applicability  of  Explanation  I   as   prior occupation   by   the   tenant  was  not  mentioned  by  the Legislature as one of the requirements for applicability  of Explanation  I  to  sub-section (2) of Section 2 of the Rent Act. Consequently, the submission of learned counsel  for the  appellant  that  even  de  hors the explanation and the condition mentioned therein prior occupation of the premises by the tenant should be  relevant  cannot  be  countenanced. Even  that  apart reliance placed by the learned counsel for the appellant on the extract of sanction of water connection by the Municipality especially column 4 thereof wherein  the word  ’house’  is  mentioned, is of no avail to her as water connection might have been taken on 1.11.1973  but  that  by itself would not show that the construction of the suit shop had  come  into  existence on that date and on the contrary, the document relied upon by the respondent to which we  have already   referred   clearly  indicates  that  the  premises continued to be open plot till 31.3.1982.  It is  therefore, obvious  that the suit premises had come into existence some where in the beginning of the financial year 1982.  However, the date of actual construction of the shop would pale  into insignificance in view of express terminology of Explanation I to sub-section (2) of Section 2 of the Rent Act as clearly ruled  by the three Judge Bench of this Court in the case of Om Prakash Gupta (supra). In the result, the appeal fails  and  is  dismissed.

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However,   at   the  request  of  learned  counsel  for  the appellant, time to vacate the suit premises  is  granted  to the appellant till 31.3.1999 on condition that the appellant files usual undertaking within four weeks from today in this Court.   If  such  undertaking  is  not  filed or any of the conditions is committed breach of, grant of time will  stand recalled   and   the   decree  for  possession  will  become executable forthwith.  In the facts and circumstances of the case there will be no order as to costs.