AI Structured Summary
Not yet generated for this judgment
Judgment
S.P. Mehrotra, J.—This writ petition has been filed by the petitioner under Article 226 of the Constitution of India, interalia, challenging the order dated 752002 (Annexure No. 1 to the writ petition) passed by the learned Additional District Judge, Court No. 8, Shahjahanpur (respondent No. 1) in S.C.C. Revision No. 7 of 2001.
From the allegations made in the writ petition, it appears that the dispute relates to oneroom accommodation which is part of house situated in Mohalla Khalil Sarki, Shahjahanpur. The said accommodation has, hereinafter, been referred to as �the disputed accommodation.�
It appears that the respondent No. 2 filed a suit against the petitioner for eviction, arrears of rent etc. in respect of the disputed accommodation. The said suit was registered as S.C.C. Suit No. 7 of 1996. It was, interalia, alleged by the respondent No. 2 (Plaintiff) that the house in question was constructed in 1985.
It further appears that the petitioner contested the said suit and filed his written statement. It was, interalia, alleged that the property in question was an old construction.
By the judgment and order dated 741998, the said suit was dismissed by the Court of Judge Small Cause, Shahjahanpur. Thereupon, the respondent No. 2 filed a revision being S.C.C. Revision No. 37 of 1998, under Section 25 of the Provincial Small Cause Courts Act.
The learned Second Additional District Judge, Shahjahanpur by the judgment and order dated 3151999 allowed the said revision, set aside the said judgment and order dated 741998 and remanded the matter to the Court of Judge Small Cause.
After remand, the learned Judge Small Cause Court, Shahjahanpur/Civil Judge, (Senior Division), Shahjahanpur decreed the said S.C.C. Suit No. 7 of 1996 by the judgment and order dated 312001. It was, interalia, held in the said judgment and order dated 312001 that the first assessment of the disputed accommodation was made on 141986, as such, the disputed accommodation would be deemed to have been constructed on 141986; and that the provisions of the U.P. Act No. 13 of 1972 would not apply to the disputed accommodation; and that the petitioner could be ejected from the disputed accommodation after giving notice under Section 106 of the Transfer of Property Act.
Thereafter, the petitioner filed a revision under Section 25 of the Provincial Small Cause Courts Act which was registered as S.C.C. Revision No. 7 of 2001.
During the pendency of the said revision, the petitioner moved an application dated 2642001 for issuance of commission for inspection of the house in question. A copy of the said application has been filed as Annexure 4 to the writ petition.
Objections dated 1652001 were filed on behalf of the respondent No. 2 against the said application for issuance of commission. A copy of the said objections dated 1652001 has been filed as Annexure 5 to the writ petition.
The learned Additional District Judge, Court No. 8, Shahjahanpur by the said order dated 752002 rejected the said application (15C) for issuance of commission for inspection filed on behalf of the petitioner. It has, interalia, been held in the impugned order dated 752002 that it was not necessary to issue commission for finding out the age of construction, and the same was to be decided on the basis of the municipal assessment and other documents.
Thereafter, the petitioner has filed the present writ petition challenging the said order dated 752002.
I have heard Sri B.B. Jauhari, learned Counsel for the petitioner.
Sri Jauhari submits that one of the main questions to be decided in this case was the applicability of the U.P. Act No. 13 of 1972, and this question could be decided only after deciding the date of construction of the disputed accommodation. Therefore, the contention proceeds, issuance of commission for inspection was necessary so as to find out the age of construction of the disputed accommodation.
Having considered the submissions made by the learned Counsel for the petitioner, I am unable to agree with the same. Section 2, subsection (2) of the U.P. Act No. 13 of 1972 and Explanations thereto provide as follows:
�2. Exemptions from operation of Act. (1) ..........
(2) [Except as provided in subsection (5) of Section 12, sub Section (1A) of Section 21, subsection (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 that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a Bank or a Cooperative Society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid period of ten years then the reference in this subsection to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest), whichever is shorter]:
[Provided further that where construction of a building is completed on or after April 26, 1985 then the reference in this subsection 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 I. 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 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 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 that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition.
[Explanation II. The expression �bank� means
(i) a banking company, as defined in the Banking Regulation Act, 1949;
(ii) the State Bank of India constituted under the State Bank of India Act, 1955;
(iii) a subsidiary bank, as defined in the State Bank of India (Subsidiary Banks) Act, 1959
(iv) a corresponding new bank constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970;
(v) a financing bank or Central Bank (as defined in the Uttar Pradesh Cooperative Societies Act, 1965), not being a Land Development Bank; and
(vi) any other financial institution notified by the State Government in the Gazette as a bank for the purpose of this Act;
Explanation III. A building shall be deemed to be constructed substantially out of funds obtained from sources mentioned in the proviso, if the funds obtained from one or more of such sources account for more than onehalf of the cost of construction].�
Clause (a) of Explanation 1 to Section 2, subsection (2) makes a deeming provision for determination of the date of completion of construction of a building. Analysis of the said Clause (a) shows that the date of completion of construction of a building is to be decided on the basis of the following dates:
(1) (i) The date on which the completion is reported of a building to the local authority having jurisdiction will be deemed to be the date of completion of construction of such building.
(ii) The date on which the completion of a building recorded is otherwise by the local authority having jurisdiction will be deemed to be the date of completion of construction of such building.
(2) In the case of a building subject to assessment, the date on which the first assessment thereof comes into effect will be deemed to be the date of completion of construction of such building.
(3) If in respect of a building the above dates, namely, the date on which the completion of the building is reported to the local authority having jurisdiction (mentioned in head 1 (i) above) the date on which the completion of the building is otherwise recorded by the local authority having jurisdiction (mentioned in head 1 (ii) above), and the date on which the first assessment of the building comes into effect (mentioned in head 2 above), are different, then the earliest of the said dates will be deemed to be the date of completion of construction of such building.
(4) In the absence of any such report (mentioned in head 1(i) above), or record (mentioned in head 1 (ii) above), or assessment (mentioned in head 2 above) in respect of a building, the date on which such building is actually occupied for the first time will be deemed to be the date of completion of such building.
It is thus, evident that the date of completion of the construction of a building is to be determined on the basis of the aforesaid deeming provision. Such determination is to be done on the basis of report/record, or assessment as mentioned in the said provision, or the earliest of such dates if the dates are different. However, in case, there is no such report or record or assessment, then the date of actual occupation of the building for the first time will be deemed to be the date of completion of construction of such building.
Thus, one of the dates mentioned in the aforesaid provision is the date of first assessment of the building in question. In the present case, the learned Judge Small Cause Court has recorded a finding that the first assessment of the disputed accommodation took place on 141986. Thus, the evidence with regard to the first assessment of the disputed accommodation is available on the record of the case.
In my opinion, issuance of commission is not necessary for determining the date of construction of a building as the same is to be determined in accordance with clause (a) of Explanation I to Section 2, subsection (2) of the U.P. Act No. 13 of 1972. The dates mentioned in the said clause (a) of Explanation I can be established from the documentary evidence, and no commission is required for determining the same.
Sri B.B. Jauhari, learned Counsel for the petitioner relied upon the provisions of Clause (c) of Explanation I to Section 2, subsection (2). A perusal of the said Clause (c) shows that the same deals with the question of applicability of the U.P. Act No. 13 of 1972 to an existing building if such existing building becomes only a minor part after substantial addition is made thereto. In such a situation, Clause (c) provides that the whole of the building including existing building would be deemed to be constructed on the date of completion of the said addition. It is noteworthy that so far as the addition made to the existing building is concerned, the same is not covered by the provisions of the U.P. Act No. 13 of 1972. However, the existing building, if it is a minor part as a result of substantial addition will also go out of the purview of the U.P. Act No. 13 of 1972 in view of the said Clause (c) of Explanation I to Section 2, subsection (2). This Clause (c) only deals with the applicability of the U.P. Act No. 13 of 1972 to the existing building. It has nothing to do with the applicability of the U.P. Act No. 13 of 1972 to a newly constructed building, which will evidently not be covered under the said Act for the period mentioned in Section 2 (2) or the 2nd Proviso thereto computed from the date of completion of the construction of such building as determined in accordance with the provisions of clause (a) of Explanation I to Section 2, subsection (2).
In view of the aforesaid discussion, this writ petition lacks merit and the same is liable to be dismissed. The writ petition is accordingly dismissed.