Vs. District Judge, Muzaffarnagar & Ors  INSC 475 (15 September 1998)
M.Jagannadha Rao., S.B.Majmudar.
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.
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
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.
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 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.
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.
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.
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.
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.
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.
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.
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 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.
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.
will be appropriate to refer to these relevant provisions.
Exemption from operation of Act –
Nothing in this Act shall apply to the following, namely:-
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
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:
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:
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
view, the aforesaid decisions cannot be of any avail to the appellant in the
facts of the present case.
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.
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.
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.
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.
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.
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).
result, the appeal fails and is dismissed.
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.