The judgment establishes the importance of interpreting and applying the exemption provisions of the Act, specifically defining 'construction' and 'new construction' as provided in Explanation I, to determine the applicability of the Act and its impact on eviction proceedings.

JUDGMENT

S.B. SINHA, J :

1.Leave granted.

2.Relationship between the parties is landlord and tenant. Appellant herein was inducted as a tenant in a shop premises which is a part of House No. 177-E, Abu Lane, Meerut Cantt., Meerut (U.P.). Respondent purchased the said house in the year 1969. The shop, in question, was newly constructed.

3.Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter called and referred to as the "said Act") contains an exemption provision in Section 2(2) in regard to applicability thereof which reads as under:-

"Sec. 2(2) 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 sub-

section (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."

Explanation I appended to the said provision defines as to what is meant by the term "construction" in the following terms:-

"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 ;

a."construction" includes any new construction in place of an existing building which has been wholly or substantially demolished.

(b)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."

4.A notice under Section 106 of the Transfer of Property Act was served on the appellant asking him to quit and vacate the said tenanted premises. As he did not comply with the said demand, respondent filed a suit for eviction of the appellant on the premise that Section 2(2) of the Act was applicable stating:-

"3. That the said accommodation was constructed in the year 1975, but after construction the building was first assessed on new constructions since 1-4-1978 only and the U.P. Act 13 of 1972 is made applicable to Meerut Cantonment area, is not applicable to the said construction and according to law it is a new construction."

5.Appellant traversed the said allegation in his written statement in the following terms :

"That contents of para 3 of the plaint are denied. The allegation that the shop in dispute was constructed in the year 1975 is false. Similarly it is denied that the said shop was for the first time assessed to house tax on 1-4-78. It is further denied that U.P. Act XIII of 1972 is not applicable to the shop in dispute or that the said shop is a new construction within the meaning of U.P. Act XIII of 1972 as applicable to the Cantonment."

6.No objection was raised that the said pleading was insufficient for attracting the exemption provisions contained in the said Act. Parties went to trial, knowing the issues arising in the suit. One of the issues which was framed in the said suit was as under:-

"[1] Whether the property in question is a newly constructed and the U.P. Act No. 13 of 1972 is not applicable? If yes then effect?"

7.The learned Trial Judge having regard to the ev