Ved Prakash vs Sushil Kumar and Others

Shishir Kumar, J.—Heard Sri Anil Sharma, learned Counsel for the petitioner and Sri K.M. Garg, learned Counsel for the respondent.

This writ petition has been filed for quashing the order dated 7.9.2007 (Annexure-2 to the writ petition) passed by respondent No. 2 and order dated 28.7.2004 (annexure No. 1 to the writ petition) passed by respondent No. 3.

3.The petitioner being landlord initiated a proceeding against the respondent-tenant for release of the said accommodation u/s 21(1)(a) of Act No. 13 of 1972 with the allegation that the petitioner is the owner of the shop in question situated at Station Road, Nagina, district Binjor which is a part of the house of the petitioner on a monthly rent of Rs. 275/- per month excluding taxes. A notice was given to the respondent on 31.7.1987 u/s 106 of the Transfer of Property Act stating therein that the construction of the building was done in the later period of 1977. The respondent replied the notice and in para 6 of the notice it has been admitted that the construction is about 11 years old. The Prescribed Authority taking into consideration that the building in question has been constructed in the month of December 1977, therefore, the application u/s 21 of the Act is not maintainable in view of the Section 2 (2) of the U.P. Act No. 13 of 1972. The petitioner filed an appeal against this order. The appeal too has been dismissed holding therein that as in view of the various judgment of the Hon''ble Apex Court if upon building the Act No. 13 of 1972 is not applicable, the application u/s 21 (1) (a) of the Act is not maintainable. Holding this finding the appeal has been dismissed.

Sri Anil Sharma, learned Counsel for the petitioner has submitted that as no specific date was mentioned in the notice dated 31.7.87 , therefore, inference drawn by the Court that the building in question has been constructed in December,1977 appears to be incorrect finding. Further in para 6 of the reply of the notice the respondent tenant has admitted this fact that the building is of 11 years old, in such circumstances if the court was not satisfied he should have directed the parties to lead better evidence like date of assessment and other relevant documents to establish the fact regarding the date of construction of the building. Further petitioner has brought to the notice of the court regarding having an alternative accommodation which has been purchased by the respondent. A copy of sale deed has been annexed with the writ petition. Taking support of the Judgment of the Hon''ble Apex Court Sri Anil Sharma, learned Counsel for the petitioner submitted that in view of the judgment reported in 2004 (7) Supreme 362, Kedar Nath Agrawal v. Dhanraji Devi that the subsequent event can be taken into consideration by the Court in the interest of justice and reliance has been placed in para 14. The same has been quoted below:

" 14. In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the is well settled on the point , and it is this: The basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceedings and the suit/ action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequent events inter alia in the following circumstances.

(i) The relief claimed originally has by reason of subsequent change of circumstances become in appropriate; or

(ii) It is necessary to take notice of subsequent events in order to shorten litigation; or

(iii) It is necessary to do so in order to do complete justice between the parties.

On the other hand Sri K.M. Garg , learned Counsel for the respondent submitted that there is not dispute in law that in case the date of construction is not proved by the landlord and it has been proved in view of the statement of landlord himself that the building in question does not come under the definition of Act No. 13 of 1972 then it will be outside the purview of rent control Act and application itself will not applicable. Sri Garg has further submitted that burden regarding proving the date of construction of building is upon the landlord. No other person can be the best person to show regarding the date of construction of a particular building. As the petitioner was not able to prove regarding the date of construction and in view of the admission made in the notice inference can be drawn that the building in question has been constructed in the later part of year 1977, therefore, the court has taken a view that as 10 years have lapsed , therefore, the application itself is not applicable. Mr. Garg has further submitted that adjacent shop belonging to the petitioner has been vacated by the tenant that is still in possession of the petitioner. To this Mr. Sharma has submitted that the petitioner''s son is doing the business and he has no concerned with it..

After hearing learned Counsel for the parties and after perusal of the record. I am of the view that the Prescribed Authority as well as the Appellate Authority has committed an error which is apparent in the face of record that no particular date was mentioned in the notice of 106 of Transfer of property Act sent by the petitioner to the respondent as to from where the Prescribed Authority has inferred. the date of construction of December 1977 is not known to this Court. Further the respondent- tenant has admitted in para 6 of the reply of the notice that the building in question has been constructed about 11 years back. In such a situation if there was any doubt in the mind of the court below then the parties should have been directed to lead on evidence. Without giving an opportunity to the parties regarding establishing the date of construction actual date of construction, I am of the opinion that the prescribed authority was not justified in holding otherwise that the date of construction is December,1977, therefore, as the application has been filed in the month of September, 1987 and ten years have not been completed , therefore, the building in question is not covered under the Act No. 13 of 1972. The Appellate Authority has also not touch this issue and only on the ground that it is out side the purview of the Act taking view of the Apex Court has dismissed the appeal filed by the petitioner.

In view of the aforesaid facts and circumstances, I am of the opinion that matter needs reconsideration. As admittedly now the Act No. 13 of 1972 is applicable, therefore, the application u/s 21(1) (a) of the Act can be decided on the subsequent events on merits after considering the bonafide needs and requirements of the parties and keeping in view the subsequent events which has happened during the pendency of the application and the present petition filed before this Court.

In view of the aforesaid facts, the writ petition is allowed. The order passed by the respondent is hereby quashed. The matter is remanded back to the prescribed Authority to decide the matter afresh on the basis of the observations made above as well as after affording full opportunity to the parties on the basis of relevant documents within a period of six months from the date of production of a certified copy of this order.

No order as to costs.