Sibghat Ullah Khan,J.

Heard Sri G.S. Nigam, learned counsel for tenant petitioner and Sri D.C. Mukharji, learned counsel for landlady respondent No.3, Smt. Kalawati.

2. This writ petition arises out of S.C.C. Suit No.3 of 1989, Smt. Kalawati Vs. Surendra Nath Mishra. Property in dispute is a shop, rent of which is Rs.175/- per month. It was asserted in the plaint that U.P. Act No.13 of 1972 was not applicable to the shop in dispute. J.S.C.C., Unnao decreed the suit for eviction on 26.02.1993 holding that the Act was not applicable to the building in dispute.

3. It was also alleged in the plaint that tenant was defaulter. However, tenant deposited the entire rent, interest and cost on the first date of hearing under Section 20(4) of U.P. Act No.13 of 1972. The J.S.C.C. permitted the landlady to withdraw the amount deposited by the tenant. Against the judgment and decree passed by the trial court, tenant petitioner filed S.C.C. Revision No.9 of 1993. III A.D.J. Unnao substantially dismissed the revision through judgment and order dated 05.10.1995. The only modification made in the judgment of the trial court was that the amount of Rs.1000/- held to have been paid by the tenant to the landlady was directed to be adjusted towards arrears of rent.

4. The only point argued and to be decided in this writ petition is regarding applicability of U.P. Act No.13 of 1972.

5. The shop in dispute was assessed for the first time for house tax w.e.f. 01.04.1979. Notice in that regard by Nagarpalika was given on 14.11.1978, copy of which is Anenxure-3-E to the writ petition. It was mentioned in the said notice that if the owner landlord had any objection to the proposed house tax, he could file objections by 16.12.1978. According to the learned counsel for tenant petitioner giving of notice meant that Nagarpalika had come to know about the construction and it amounted to recording of the fact of construction, hence it was the date of first hearing. The suit was filed on 12.02.1989, i.e. within ten years from 01.04.1979 but beyond ten years from 14.11.1978. Section 2(2) of the Act deals with the applicability of the Act. The relevant part of the said section along with explanation-I is quoted below:

"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.- 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 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."

6. Some of the authorities of the Supreme Court interpreting the above provision are reported in Lal Chand and Anr. v. District Judge, Agra and Ors, AIR 2000 SC 141 and Om Prkash Vs. Dig. Vijendra Pal, AIR 1982 SC 1230 and "Suresh Kumar Jain v. Shanti Swarup Jain", AIR 1997 SC 2291.

7. Learned counsel for petitioner has cited the authority of Allahabad High Court reported in 1995 (1) ARC 254, Surendra Kumar Jain Vs. Shanti Swaroop Jain (C.M.W.P. No.1558 of 1995). The said case was ultimately decided by the Supreme Court through judgment reported in AIR 1997 SC 2291 (supra).

8. In AIR 2000 SC 141, it was found that substantial reconstruction was made in 1970 but house tax was enhanced w.e.f. 01.10.1972. It was held that 01.10.1972 would be deemed to be date of construc

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