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Smart Summary

Judgment Summary — S.B. Mehrotra, J.

Factual and Procedural Background

The plaintiff-respondent No. 3, Parusbarthi Avas Sahkari Samiti (the Samiti), was the owner of Shop No. 17 at Railway Road, Etah. The petitioner was the tenant of that shop at a monthly rent of Rs. 15/-. The Samiti sued the petitioner in Small Causes Suit No. 43 of 1985 claiming rent arrears from 1-1-1983 to 13-2-1985 and seeking ejectment for non-payment of rent and for alleged unauthorized change of user from business to residential.

The trial court found no municipal record of completion and took the first municipal assessment date (1-4-1981) as the deemed date of construction under Explanation I(a) to sub-section (2) of section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (the Act), and held that the Act did not apply; it also held the petitioner liable for arrears and liable to be ejected, but rejected the landlord's case that the premises were originally let for business (so tenant not guilty of changing user). The revisional court (III Additional District Judge, Etah) upheld the trial court and dismissed the tenant's revision on 20-8-1991.

The petitioner filed a writ petition under Article 226 challenging the revisional court's judgment, principally on (a) the proper determination of the date of construction/completion for applicability of the Act given admissions that the building was completed prior to 1972 and was outside municipal limits when constructed, and (b) that the revisional court failed to consider the tenant's contention of non-default and entitlement to benefit under section 20(4) of the Act.

Legal Issues Presented

  1. Whether Explanation I(a) to sub-section (2) of section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 applies where the building was admittedly constructed at a time when it lay outside the jurisdiction of any local authority but was later brought within municipal limits and first assessed thereafter.
  2. Whether the date of construction/completion should be determined by municipal assessment (first assessment date) or by the actual date of construction as proved or admitted by parties when the building was constructed outside municipal jurisdiction.
  3. Whether the revisional court erred in failing to consider the petitioner's contention that he had not defaulted in payment of rent and was entitled to the benefit of section 20(4) of the Act.

Arguments of the Parties

Plaintiff-Respondent (Samiti / Landlord) — key assertions

  • The Samiti claimed ownership of the shop and alleged it was constructed such that the first municipal assessment was on 1-4-1981; accordingly, the provisions of the Act were not attracted to the shop in dispute.
  • The Samiti alleged the petitioner converted the user from business to residential without permission and defaulted in payment of rent from 1-1-1983 to 13-2-1985 (total alleged arrears Rs. 381.80 p.), despite service of notice under section 106 of the Transfer of Property Act.
  • In his statement the plaintiff admitted, however, that the shop was let to the defendant since 1974 and that the shops were constructed prior to 1972 and outside municipal limits when constructed (an admission the court quotes).

Petitioner-Tenant (Revisionist / Appellant) — key contentions

  • The petitioner admitted being tenant at Rs. 15/- per month but contended the shop was not constructed by the plaintiff and that the landlord acquired the shop earlier (circa 1960), implying the premises were constructed prior to 1972; therefore the Act should apply.
  • The petitioner contended he had been regularly paying rent up to 31-12-1984; a money order on 20-3-1985 was refused by the Samiti's secretary; he tendered arrears for part period and asserted he was not in default for the alleged periods. He also claimed entitlement to benefit under section 20(4) of the Act.
  • The petitioner claimed the premises were taken for residential purposes from the beginning with no objection from the plaintiff and alleged the suit was filed to harass him. He also lodged an affidavit by his counsel alleging that the counsel had argued in revision that the landlord admitted the construction date (1964) and that the petitioner's non-default and section 20(4) entitlement were orally advanced before the revisional court but not considered.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Hirday Narain Singh v. Maloo Lal Siivastava, 1936 (1) ARC 74 Where the landlord states a specific date of construction, that date may be accepted despite first municipal assessment being later; liberal construction of the words "is reported to" in Explanation I(a) to sub-section (2) of section 2 so as to treat the owner's averment as a report when the actual date is known. The Court discussed this authority but distinguished it: the present case involved construction when there was no municipal authority having jurisdiction, so the deeming fiction in Explanation I(a) could not be given effect merely because of subsequent assessment.
Ram Saroop Rai v. Lilavati Smt., (1980) 3 SCC 452 : AIR 1982 SC 945 Where direct testimony on time/nature of construction is not possible, municipal records and verification by municipal authorities are the best evidence to determine when a construction took effect; Supreme Court remanded for re-consideration and finding on actual completion. The Court cited the decision to illustrate that municipal records are useful where relevant, but observed that where at the time of construction there was no local authority having jurisdiction, Explanation I(a) cannot be mechanically applied based on later assessment.
Smt. Samundri Devi v. Nand Kishore Marwah, 1986 (2) ARC 428 Where a building was neither assessed nor its construction noted by the local authority but was first let on a specific later date, that date (first letting) may be treated as the date of construction for purposes of the Act; mere admission in plaint as to year of construction may not be decisive. The Court relied on the principle that absence of municipal record does not make a plaintiff's mere admission conclusively binding and reinforced the need to determine the actual date by evidence where municipal records are not available or applicable.
Aziz Ahmad, Bareilly v. Additional District Judge Bareilly, 1983 ALJ 184 Where no assessment existed and no municipal recording of completion was shown, the date of occupation (first letting/occupation) may be treated as date of completion. The Court referenced this authority in support of treating first occupation/letting as relevant when municipal records are absent, and used it to underscore that the courts below should not mechanically rely on post-facto municipal assessment where other evidence points to an earlier date.

Court's Reasoning and Analysis

The Court examined the factual admissions and the legal effect of Explanation I(a) to sub-section (2) of section 2 of the U.P. Urban Buildings Act, 1972. It emphasized these points in its step-by-step analysis:

  1. Admitted facts: the plaintiff admitted the tenant occupied the shop since 1974 and that the shop was constructed prior to 1972 and was outside the municipal limits at the time of construction. These admissions are quoted and relied upon by the Court.
  2. Scope of Explanation I(a): the Court interpreted Explanation I(a) as a deeming provision that applies where the completion of a building is reported to or recorded by the local authority having jurisdiction at the relevant time. The Court held that Explanation I(a) does not contemplate a situation where there was no local authority with jurisdiction at the time of construction.
  3. Misapplication by lower courts: the trial and revisional courts treated the first municipal assessment (1-4-1981) as the date of construction under Explanation I(a). The High Court found this to be a misapplication because the building was admittedly constructed when there was no municipal authority to report to; therefore, the deeming provision could not be invoked merely because the premises were later brought within municipal limits and assessed.
  4. Evidentiary determination required: where the building was constructed outside municipal jurisdiction, the actual date of construction must be determined on the evidence of the parties rather than by invoking the deeming clause based on a subsequent municipal assessment.
  5. Criticisms of revisional court's observations: the High Court noted the revisional court's speculative remark about possible occupancy by a supervisor or watchman was not supported by the record; the record contained an explicit admission that the tenant was let into the premises in 1974.
  6. Remedial direction: given the foregoing, the High Court concluded the revisional court's judgment erred and the matter required remand to determine when the building was actually let to the petitioner and whether the Act applied on the basis of the actual date of letting. The High Court made clear that other points, if urged by parties on remand, should also be considered.

Holding and Implications

Core Ruling: The writ petition is allowed; the judgment and order of the III Addl. District Judge, Etah dated 20-8-1991 are set aside and the matter is remanded for fresh decision.

Consequences and implications as stated by the Court:

  • The deeming provision in Explanation I(a) to sub-section (2) of section 2 of the U.P. Urban Buildings Act, 1972 cannot be applied where the building was admittedly constructed at a time when it lay outside the jurisdiction of any local authority; in such a case the actual date of construction must be determined from evidence and admissions of the parties.
  • The revisional court's use of the first municipal assessment date (1-4-1981) to determine construction/completion was an error in this factual matrix; the matter is remitted so the proper inquiry can be made into when the building was actually let to the petitioner and whether the Act is applicable on that basis.
  • On remand the revisional court (or trial court as directed) should also consider any other points urged by the parties (for example, the petitioner's assertion of non-default and entitlement under section 20(4) of the Act) and decide them afresh.
  • Costs: parties were directed to bear their own costs.

No broader precedential statements beyond the specific holding on the inapplicability of Explanation I(a) where no local authority existed at the time of construction are asserted beyond the remand directions; the Court returned the matter for factual determination rather than issuing a final determination on all contested points.

Disposition: Petition allowed; judgment of revisional court set aside; remand for fresh decision in accordance with the observations of this judgment. Parties to bear their own costs.

Show full summary ...

    Ram Sanehi v. Iiird Additional District Judge

    S.B Mehrotra, J.:— Plaintiff-respondent no. 3 Parusbarthi Avas Sahkari Samiti, Indraparl, Tahsil and distriot Etah (hereinafter referred to as the Samlti) is admittedly the owner of shop no. 17 for which Municipal Board no. 58 has been allotted sltuate at Railway Road, Etah. Admittedly the petitioner is a tenant of the aforesaid shop on a monthly rent of Rs. 15/-.

    2. Plaintiff filed a small causes suit being small causes suit no. 43 of 1985 against the present petitioner with the allegation that the plaintiff is a registered samiti which has got constructed some shop at Railway Road, Etah of which the plaintiff is the owner and landlord-The plaintiff did not give any information of the completion of the shop to Kiuncipal Board, Etah, neither the completion of the aforesaid shop was recorded in the Municipal Board, Etah. On the date of the construction, the shop was outside the limits of Municipal Board, Etah. The first assessment of the shop in dispute was made on 1st of April, 1981 as such the provisions of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P Act no. XIII of 1972) (hereinafter referred to as the Act) are not attracted for the shop in dispute. The further statement in the plaint was, that the aforesaid shop was rented out to the petitioner-tenant at the rate of Rs. 15/- per month. The shop was taken for the business purposes but the petitioner without the permision of the landlord has converted the user of the shop from business to residential purposes. It was also claimed in the plaint that the petitioner-tenant has not paid rent from 1-1-1983 to 13-2-1985 at the rate of Rs-15/- per month totalling Rs. 381.80 p. The said amount was not paid by the tenant even after serving the notice under section 106 of the Transfer of Property Act. The petitioner-tenant is defaulter in payment of rent and as such is liable for ejectment.

    3. Petitioner-tenant contested the suit and filed his written statement. In the written statement it was admitted by the petitioner-tenant that he was tenant of shop no. 17 at the rate of Rs. 15/- per month but contended that the shop was not constructed by the plaintiff and it was stated that the shop was acquired by the respondent-landlord from one Sri Devi Prasad Kapoor some time in the year 1960, as such the provisions of the Act are fully applicable to the’ shop in dispute. It was also stated in the written statement that the petitioner-tenant had been regularly paying the rent at the rate of Rs. 15/- per month. The notice has been served on the petitioner on false allegations. The entire rent has been paid to the respondent land lord upto 31st of December, 1984. Subsequent thereto a money order was sent on 20-3-1985 which has been refused to be accepted by the secretary of the respondent landlord. Therent from 1-1-1985 to 31-8-1986 is due against the petitioner tenant for which the petitioner had submitted a tender in the court It was also stated in the written statement that the petitioner tenant is in service and the shop in dispute was taken for the purposes of residence from the very beginning. The plaintiff respondent never objected to such user. The secretary of the Samiti had never been issuing receipts of rent regularly. No rent is due against the petitioner tenant. The suit has been filed to harass the petitioner. On the basis of the Evidence on record, the trial court held that the date of completion of the shop is to be determined under Explanation I (a) to sub-section (2) of section 2 of the Act. Admittendly there is no record available with regard to any report of the completion of the shop in dispute or with regard to the local authority having recorded the completion of the shop in dispute and the first assessment of the building having been made on 1-4-1981, the shop should be presumed to have been constructed on the said date and the suit having been filed in the year 1985, the shop was not within the purview of the provisions of the Act. The trial court also held that the petitioner-tenant has not paid the rent of the shop from 1-1-1983 to 13-2-1985 nor had deposited the arrears of rent on the first date of hearing of the suit, as such the petitioner-tenant Is defaulter in payment of rent and is liable to be ejected from the shop in dispute.

    4. The trial court, however, farther held that the plaintiff-landlord has failed to prove that the shop was let out for business purposes, as such the petiiioner-tenant cannot be held guilty for change in the user of the premises in question. On the basis of the aforesaid finding, the trial court decreed the suit of the plaintiff-respondent for efectment of the petitioner-tenant from the premises in dispute and also for arrears of rent from 1-1-1983 to 13-2-1985.

    5. Aggrieved by the aforesaid judgment, the petitioner-tenant preferred a revision the III Additional District Judge, Etah dismissed the petitioner's revision, vide his judgment, dated 20-8-1991.

    6. In the judgment of the revisional court it has been stated that only one point has been raised by the learned counsel for the revisionist i.e regarding application of the provisions of the U.P Act XIII of 1972 in regard to the disputed property. Endorsing the judgment of the trial court, the revisional court held that the Municipal Board, Etah never recorded the completion of the shop nor any information as such was given by the respondent-landlord in relation to completion of the shop in dispute. Therefore, the construction of the disputed shop shall be the date on which the property was assessed for the first time. The first assessment of the shop in dispute Was made on 1-4-1981, as such the said date should be deemed to be the date for the construction of the building in dispute. The revisional court dismissed the petitioner's revision upholding the Judgment of the trial court.

    7. Aggrieved by the aforesaid judgments and orders, the petitioner has filel the present writ petition under Article 226 of the Constitution of India.

    8. In the writ petition, two points have been urged. Firstly, it was urged that the plaintiff having specifically, admitted in his statement that the shop in dispute was constructed prior to 1972 and defendant is tenant in the shop since 1974 and in view of the fact that the date on which the shop was constructed it was not within the municipal limits of any local authority, the provisions of Explanation I (a) to sub-section (2) of section 2 of the Act were not attracted and the completion of the shop should have been determined bn the basis of the admission of the plaiatiff-landlord himself. The second submission made on behalf of the petitbner-tenaat is that it was specifically argued before the revisional court that the petitioner had not defaulted in payment of rent and was entitled to the benefit of section 20(4) of the Act but the revisionsl court failed to consider the said argument and wrongly observed in the judgment that the only point argued was in respect of the applicability of U.P Act No. XIII of 1972.

    9. The petitioner has filed an affidavit of his counsel who argued the petitioner's revision before the revisional court. In the aforesaid affidavit the counsel has stated that he specifically argued that the respondent had admitted the date of construction of the disputed premises to be the year 1964, as such the provisions of the Act was applicable to the shop in dispute. The affidavit further states that it was also specifically argued that the petitioner had not defaulted in payment of rent and was endtled to the benefit of section 20(4) of the Act and the revisional court did not consider the said arguments.

    10. Admittedly in the present case, the respondent-landlord in his statement had admitted that the defendant is the tenant in the shop in dispute since 1974 and the shops were constructed prior to 1972 when the shops were brought within the municipal limits. The exact words of the statement made are quoted below for convenience sare:

    Pratibadl yis dukan me san 1974 se kiraedar klraya 4-5 Mahene ka ekatta hone par bar bar mangne par diya karte the…………………………………………………………… in dukan ka nirman chungl me san 1972 me aane se pahle ka nirman hal yah Mujhhe nahi pata ki kitne pehle ka hal………………………………………………………………

    11. It is admitted case of the plaintiff-respondent that oh the date the shops were constructed the shops were not’ within the municipal limits of Municipal Board, Etah.

    12. The revisional court also went stray in observing that It cannot be said that the construction of; the shop was copmpleted as the occupant of the shop in dispute prior to that date might be living in the capacity of a supervisor or in the capacity of a watchman.” This was nobody's case that the petitioner-tenant was living as a supervisor or watchman. On the other hand, there was a categorical admission of the tespondent landlord saying that the premises in dispute was let out to the petitioner-tenant in the year 1974 and the building was completed prior to 1972.

    13. The learned counsel for the petitioned has placed rellance on a decision of this Court in Hirday Narain Singh v. Maloo Lal Siivastava, 1936 (1) ARC, 74 wherein a learned single Judge of this Court took a view that in a case where the landlord states specific date of construction of the building, it has to be accepted despite the fact that the first assessment of the building was made lateron. The learned single Judga while considering the scope of Explanation 1 to sub-section (2) of section 2 of the Act held that in a case where the date of actual construction is known and stated by the plaintiff, then irrespective of the fact that completion of the building was not reported to the local authority, the premises should be trusted to have been completed on the date the actual construction was completed. The learned single Judge held:

    “The actual date Of completion which is known to and is averred by the plaintiff will not cease to be the date of completion simply because it was not reported to the local authority. The dominent purpose of the Act, 1972 is to protect the interest of the tenants and the whole Act is to be interpreted bearing this purpose in mind…………………… In the situation of a kind that has arisen in this esse, if the fiction is given an overriding effect over the actual date of completion as averred by the plaintiff then the tenants will be deprived of the protection which the legislature sought to give to thein It my view the words “is reported to” occurring in clause (a) of Explanation 1 to sub-section (2) of Section 2 deserves a leberal construction which is consistent to the object of the Act. If the words “is reported to” are construed liberally, then in my view these words may be read meaning as is reported to or averred by the owner of a building

    14. Explanation I (a) to sub-section (2) of section 2 of the Act does not take into consideration a situation where admittedly the premises was constructed on a date when the premises was not within the purview of any local authority and after its construction the shop had been brought within the purview of the local authority. In such a situation there is no occasion for reporting or otherwise recording the completion of such premises by the local authority having jurisdiction, as on the relevant date there was no local authority having jurisdiction over the constructed premises. Explanation I fa) to sub-section (2) of section 2 of the Act will not be attracted in such a situation and merely on the bisis that after completion of the premises, the premises came within the local jurlrdictioa of the local authority and subsequent there to it was subjected to first assessment, the deeming clause of Explanation I (a) to sub-section (2) of section 2 should not be attracted. In Ram Saroop Rai v. Lilavati Smt., (1980) 3 SCC 452 : AIR 1982 SC 945, the Hon'ble Supreme Court remanded the matter back to the trial Court for re-considering the entire evidence and recording a finding as to when the building was actually completed. In the aforesaid decision, the Hon'ble Supreme Court took a view that since it was not possible for the landlady respondent or the tenant appellant to give direct testimony about the time of construction or the nature of construction, the best testimony is the municipal record about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old cons traction has been re-modelled when exactly the construction took effect.

    15. In Smt. Samundri Devi v. Nand Kishore Marwah, 1986 (2) ARC 428, a learned single Judge of this Court has taken a view that in a case where a building is neither assessed nor its construction is noted by the local authority but the building was first let out on 1st of October, 1978, the date i.e, 1st of October, 1978 will be the date of construction for purposes of the applicability of the Act. Mere admission by the landlady in the plaint that it was constructed in the year 1976 will not be decisive.

    16. In the present case, the plaintiff landlord in bis statement has dearly admitted that the defendant is the tenant in the premises since 1974. It has also been admitted by plaintiff-respondent that on the date the shop was constructed, it was outside the limits of Municipal Board, Etah. It Was brought within the limits of Municipal Board in the year 1972.

    17. In Aziz Ahmad, Bareilly v. Additional District Judge Bareilly, 1983 ALJ 184, a learned single judge of this court held

    “In the present case no assessment existed on the date of the suit. There is no evidence that the completion of the building was reported to be recorded by the local authority at any time. It is also not the case of any party that the suit was filed in respect of a building which was to be completed in natute. Consequently it cannot be said that the suit was filed in respect of a building which was incomplete. In such a case the date of completion of the building would be the date of occupation according to the underlined portion of the Explanation reproduced above……………”

    18. In the aforesaid background, the question for consideration is as to whether Explanation I (a) to sub-section (2) of section 2 of the Act will also be attracted in a case where initially on the date of completion of the building, the building is not within the jurisdiction of any local authority and lateron the building has been brought in the jurisdiction of the local authority. In such a situation, should the deeming clause be given effect to ? In the decisions referred to and relied upon by the learned counsel for the respondent-pldntlff, a stress hai beea land on the point that where a building is within the jurisdiction of a local authority, Explanation I (a) to sub-section (2) of section 2 should be given effect to and the building should be deemed to be completed on the basis of the municipal records, but in a case where at the time of construction of the building, the building was not within the purview of any local authority, and such building has been brought within the jurisdiction of local authority subsequent to the construction of the building the position will be different I am clearly of the view that in a situation where the building was admittedly constructed on a date when it was not within the purview of the local authority before which the completion of the building is required to be recorded or reported, Explanation 1(a) to sub-section (2) of section 2 will have no application and the actual date of construction will have to he determined on the basis of the evidence of the parties The courts below have misapplied the provisions of Explanation I (a) to sub-section (2) of section 2 of the Act for determining the date of construction and thereby erred in decreeing the suit on the basis of applying the provisions of the said Explanation.

    19. All these aspects require a fresh look in the matter. The judgment of the revisional court deserves to be set aside and the matter deserves to be remanded back to the revisional court for determining the question as to when the building was actually let out to the petitioner-tenant and whether U.P Act No. XIII of 1972 will be applicable to the permises in dispute on the basis of actual letting but of toe premises to the petitioner. Since the revisional court has decided the revision on this point alone, it is being made clear that if any other point is urged on behalf of the parties, the same will also be considered and decided. The writ petition is accordingly allowed. The judgment and order of the III Addl. District Judge, Etah, dated August 20, 1991 is set aside. The matter is remanded back a for fresh decision in accordance with the observations made in this judgment. Parties will bear their own costs.

    20. Petition allowed

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    Comments

    Ram Sanehi v. Iiird Additional District Judge
    (Sep 21, 1992)