Important Point
In the absence of any other evidence date first assessment to tax would to be deemed to be the date of completion of construction of building for the purpose of computation of exemption under Section 2 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act; prior occupation of premises by tenant is not relevant.

Headnote:U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972-Section 2-Exempted building-Suit for eviction filed in 1991-Suit premises first assessed to municipal tax on 1.4.1982-Tenant’s plea that he was in occupation of premises since 1977 and premises being more than 10 years old, exemption not applicable-Water connection taken from municipality on 1.11.1973 for domestic purposes-Extract of tax assessment register of municipality showed it remained as a plot till 31.3.1982-No evidence to show municipal authority had issued any notice of assessment/recorded fact of construction prior to 1.4.1982-Only evidence available was first date of assessment i.e. 1.4.1982-Date of first assessment deemed to be date of completion of construction-Prior occupation of premises by tenant not relevant-Building in question exempted from application of Act.
       Held : What is to be seen is the date on which the construction can be said to have been put up the landlord for the purpose of earning immunity from applicability of the Rent Act. 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. 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. (Paras 8 & 12)
       In the instant case 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. (Para 11)
       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, (1982) 2 SCC 61. (Para 13)

Judgment

S.B. Majmudar, J.-Leave granted.

2. 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.

3. 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 1991 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.

4. 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 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.

5. 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.

6. 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 relev

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1998 Supreme(SC) 979

Cases Referred (2)