Allahabad High Court
Aero India Travels vs Mohan Lal Khatri And Anr. on 1 May, 2008
Author: Dilip Gupta
Bench: Dilip Gupta
JUDGMENT Dilip Gupta, J.
1. The defendant of SCC Suit No. 46 of 1988 has filed this petition for setting aside the Judgment and order dated 24th May 2007 by which the Suit was decreed and the defendant was directed to handover vacant possession of the premises to the plaintiff within one month and also to pay Rs. 5030/- towards the arrears of rent. The petitioner has also sought the quashing of the Judgment and order dated 3rd April 2008 by which the Revision filed by it under Section 25 of Provincial Small Cause Courts Act, 1887 for setting aside the Judgment was dismissed.
2. The said SCC Suit No. 46 of 1988 had been filed by Mohan Lal Khatri who has been arrayed as respondent No. 1 in this petition. During the pendency of the Suit, he sold the disputed house to Satya Narain Singh by a registered sale deed dated 6th September 2006 and Satya Narain Singh was subsequently impleaded as plaintiff No. 2. It was averred in the Plaint that the plaintiff was the absolute owner of House No. 135-A, Rama Devi Chauraha G.T. Road, Kanpur; that the defendant was a tenant of a portion of House No. 135-A consisting of one shop (privately numbered as Shop No. 1) measuring 12 ft X 8 ft situate on the ground floor on a monthly rent of Rs. 150/- excluding Water Tax and Sewer Tax; that the building was exempted from the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) in view of the provisions of Section 2(2) of the Act as the Suit had been filed within ten years from the date on which the construction of the building was completed; that a notice dated 27th November 1987 was sent by the Plaintiff to the defendant for termination of tenancy and for payment of arrears of rent and though this notice was served upon the defendant on 2nd December 1987 but the defendant did not pay the arrears of rent and nor did he handover the vacant possession of the premises.
3. The defendant filed a Written Statement mentioning therein that it was a tenant in a portion of House No. 135-A on a monthly rent of Rs. 100/- and the portion under its tenancy consisted of two rooms, two verandahs and Sehan on the ground floor and the plaintiff was not correct in asserting that the defendant was a tenant of only one room or that the rent was Rs. 150/- per month and that the building was not exempted from the operation of the Act. Number of documents were filed by the parties including Paper No. 51 Ga by the Plaintiff and Paper No. 166 Ga by the defendant. Paper No. 51 Ga was the Municipal Assessment showing assessment of tax w.e.f. 1st October 1978 while Paper No. 166 Ga showed the assessment of tax w.e.f. 1st April 1978.
4. Plaintiff No. 1 Mohan Lal appeared as P.W.1 and stated that he had given the shop, which consisted of one room measuring 8 ft X 12 ft, on monthly rent of Rs. 150/-. He further stated that there was verandah on the front side of the shop and that the first assessment of the building was made on 1st October 1978 and a copy of the same had been filed as Paper No. 51 Ga. On behalf of the defendant Smt. Gyanwati Mishra appeared as D.W.1 and stated that she was the owner of M/s Aero India Travels and the premises were been taken on rent in the year 1977 for office purposes. She further stated that initially two rooms and two verandahs on the front and back portion were given but subsequently the plaintiff took forcible possession of one room and one verandah.
5. Learned Judge, Small Cause Courts framed three points for determination, namely:
(1) Whether the notice sent by the plaintiff for termination of the tenancy was valid ?
(2) Whether the building was exempted from the operation of the Act ?
(3) To what relief was the plaintiff entitled
6. The first point for determination was decided by learned Judge, Small Cause Courts in favour of the plaintiff that the tenancy was terminated by a valid notice. The second point for determination was also decided in favour of the plaintiff. The Court found that even according to Paper No. 166 Ga filed by the defendant, the construction of the building shall be deemed to have been completed on 1st April 1978 on which date the first assessment of the building came into effect, and since the Suit was instituted on 15th March 1988 within ten years from this date, it was exempted from the operation of the Act. The third point for determination was accordingly decided in favour of the plaintiff and the plaintiff was held entitled to the reliefs claimed.
7. Feeling aggrieved, the defendant filed a Revision, which was dismissed by the Judgment and order dated 3rd April 2008.
8. The Revisional Court considered whether it was a case of partial termination of tenancy since according to the defendant the tenancy of the front verandah which had also been let out to it had not been determined. The Revisional Court, therefore, examined whether one room and the front verandah was let out to the defendant or only one room had been let out. On the basis of the evidence on record, the Revisional Court came to the conclusion that only one room had been let out and, therefore, did not agree with the contention of the defendant that it was a case of partial termination of tenancy.
9. The Revisional Court also affirmed the finding of the Judge, Small Cause Courts that the building was exempted from the operation of the Act since the first assessment of the building came into effect from 1st April 1978. In this connection the Revisional Court also examined the notice dated 6th September 1977 (Paper No. 16-Ga) said to have been sent by the Kanpur Nagar Mahapalika, Kanpur to Chandra Mani under Section 213(1) of the U.P. Nagar Mahapalika Adhiniyam, 1959 (hereinafter referred to as the Adhiniyam) which notice had been filed as additional evidence by the defendant-Revisionist during the pendency of the Revision. The said notice was not proved by the Revisionist and, therefore, the Court rejected the contention of the Revisionist that the date of completion of construction of the building should be taken as 6th September 1977.
10. I have heard Sri P.N. Saxena learned Senior Counsel for the petitioner and Sri M.D. Singh Shekhar learned Senior Counsel appearing for the respondents.
11. Learned Senior Counsel for the petitioner submitted that the petitioner was a tenant of one room and the front verandah but as the tenancy of only one room was determined by the notice, the suit on the basis of such a notice was not maintainable and in support of his contention he has relied upon the decision of the Supreme Court in Chiman Lal v. Misri Lal 1985(1) ARC 90 and the decision of this Court in Smt. Bitta Devi v. Bimal Kumar 1978 ARC 338. He further contended that the building was not exempted from the operation of the Act as the suit was instituted after ten years from the date of completion of construction of the building which, in the present case, shall be deemed to be 6th September 1977, as on this date the notice under Section 213(1) of the Adhiniyam was sent. In support of this contention, learned Senior Counsel for the petitioner has relied upon the decision of the Supreme Court in Surendra Kumar Jain alias Sunni v. Shanti Swaroop Jain and Ors. 1996(1) ARC 316.
12. Learned Senior Counsel for the respondents, however, submitted that the Judge Small Cause Courts as well as the Revisional Court have, on proper appraisal of the evidence on record, concluded that only one room had been let out to the defendant and, therefore, the contention of the learned Senior Counsel for the petitioner that it was a case of partial eviction is not correct. He further submitted that there is no error in the finding recorded by the Courts below that the construction of the building shall be deemed to have been completed on 1st April 1978 as on this date the first assessment of the building came into effect.
13. The first contention of the learned Senior Counsel for the petitioner is that one room and the front verandah had been let out to the defendant. The defendant did not file any documentary evidence to show that the front verandah was also included in the tenancy. There is no written contract of tenancy between the parties. In reply to the notice sent by the plaintiff, the defendant did not take any plea about partial termination of tenancy and nor was such a plea taken in the Written Statement. The Revisional Court has observed that generally the verandah in front of a shop is a common passage which is utilized for the benefit of the customers. In the absence of any documentary evidence to the contrary, this finding cannot be said to be perverse. It is, therefore, not possible to accept the contention of learned Senior Counsel for the petitioner that the suit was not maintainable since the front verandah had also been let out but its tenancy was not determined.
14. The second submission advanced by the learned Senior Counsel for the petitioner is that the building was not exempted from the operation of the Act. He submitted that Section 2(2) of the Act provides that the Act shall not apply to a building during a period of ten years from the date on which its construction is completed and to determine this date the deeming provisions contained in Explanation I (a) have to be taken into consideration. In the present case this date shall be the date on which the completion of the construction of the building was recorded by the local authority and this date should be taken as 6th September 1977 which would make the institution of the suit after a period of ten years.
15. Learned Senior Counsel for the respondents urged that the notice dated 6th September 1977 which had been filed as additional evidence at the Revisional stage was not proved by the defendant and even otherwise the defendant had not filed any document of the Nagar Mahapalika, Kanpur regarding the completion of the construction of the building. He therefore, submitted that in such circumstances, the construction of the building shall be deemed to have been completed on the date on which the first assessment came into effect and if this date is taken into consideration then the building would be exempted from the operation of the Act since the suit was filed within ten years.
16. In order to appreciate the contentions advanced by the learned Counsel for the parties, it would be necessary to refer to Section 2(2) of the Act with Explanation I (a) and the same is as follows:
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 purpose 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:
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.
(b) ...
17. The Legislature was conscious of the fact that difficulties may arise in ascertaining the exact date on which the construction of the building is completed. It has therefore, added Explanation I to Sub-section (2) of Section 2 of the Act. Clause (a) of the Explanation I provides for the deeming of the date of completion of construction of a building. This date will be either: (1) the date on which the completion of the building is reported or otherwise recorded by the local authority having jurisdiction, or (2) the date on which the first assessment of the building comes into effect, or (3) where the dates of completion of construction of building reported or otherwise recorded by the local authority and the date of first assessment are different the earliest of the said dates, or (4) in the absence of any report, record, or assessment, the date on which it is actually occupied for the first time.
18. For the purposes of the Act a building is deemed to be constructed in the manner provided in Explanation I (a) to Sub-section (2) of Section 2 and it is immaterial whether the building was actually constructed prior to that date. Therefore, completion of the building is to be determined in the light of the provisions of the Act and not on the basis of the factual position.
19. The documents on record clearly establish that the date on which the first assessment of the building came into effect was 1st April 1978. The dispute is as to whether the local authority had recorded the completion of the construction of the building. According to the learned Senior Counsel for the petitioner such date is available on the record in the form of the notice dated 6th September 1977 and since the earliest of the dates is to be taken into consideration, this date should be taken as the date on which the construction of the building was completed.
20. In the present case, there is nothing on the record to show that the completion of the building was reported to the authority. It has, therefore, to be seen whether the completion of the construction of the building was recorded by the local authority and if so then on what date and whether the building was assessed and if so the date on which the first assessment came into effect. If both these two dates are available, then the earliest of the said dates would be the relevant date.
21. Learned Senior Counsel for the petitioner has placed reliance upon the notice dated 6th September 1977 said to have been sent by the Nagar Mahapalika, Kanpur to Chandra Mani under Section 213(1) of the Adhiniyam.
22. This notice was not filed by the defendant before the Judge Small Cause Courts. It was filed by way of additional evidence at the Revisional stage. The Suit was initially instituted by Mohan Lal Khatri plaintiff No. 1. The registered sale deed dated 6th September 2006 executed by Mohan Lal in favour of plaintiff No. 2 Satya Narain Singh, is on the record. A perusal of this sale deed indicates that Mohan Lal became owner of the property on the basis of the registered sale deed dated 15th February 1974 executed by Chandra Mani. The alleged notice dated 6th September 1977 is not addressed to Mohan Lal even though it was sent after 15th February 1974 but is addressed to Chandra Mani. This notice which purports to be under Section 213(1) of the Adhiniyam merely mentions the amount of tentative tax to be levied and invites objections from the owner of the building. The records indicate that the Sub-Committee constituted by the Nagar Mahapalika met on 31st March 1978 and imposed the tax w.e.f. 1st April 1978.
23. The person who sent the said notice nor the person who received the notice have been examined and nor affidavits have been filed by them to prove this notice. It was merely stated by the Revisionist that they obtained the notice with the assistance of some family members of Chandra Mani. It also needs to be pointed out that Chandra Mani had sold the property in 1974 to Mohan Lal and she was not residing in the house.
24. The Supreme Court in Bareilly Electricity Supply Co. Ltd. v. The workmen and Ors. , pointed out that if a document is filed it has to be proved and the relevant observations are:
But the application of principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the question that naturally arises is, is it a genuine document, what are its contents and are the statements contained therein true. When the Appellant produced the balance-sheet and profit and loss account of the Company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the Appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be procured. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognised and admit of no doubt. (emphasis supplied)
25. In such circumstances, it was necessary for the defendant/revisionist to have proved the notice or to have filed the certified copy of the document from the Nagar Mahapalika, Kanpur and proved it, in case it wanted to rely upon it. This notice cannot, therefore, be taken into consideration for the purposes of determining the date of completion of construction of the building.
26. There is, therefore, no error in the finding recorded by the Courts below that 1st April 1978 which was the date of first assessment of the building, shall be the date of completion of the construction of the building.
27. This apart, what is relevant is the recording of the date of completion of construction of the building by the local authority. Such a date has not been recorded in the alleged notice and nor has any document been filed by the defendant which mentions such a date.
28. Learned Senior Counsel for the petitioner placed reliance upon the decision of the Supreme Court in Surendra Kumar Jain alias Sunni v. Shanti Swaroop Jain and Ors. 1996(1) ARC 316. A perusal of the Judgment indicates that the Judgment of the High Court was set aside and the matter was remitted to the High Court for disposal on merits. The High Court, thereafter decided the matter on 21st December 1995.
29. This decision of the High Court was again assailed before the Supreme Court and the decision of the Supreme Court is reported in Suresh Kumar Jain v. Shanti Swarup Jain and Ors. . The Supreme Court noticed that the Executive Officer, Municipal Committee, Etah had sent a notice dated 15th November 1977 to the owner landlord Shanti Swarup Jain under Section 143 of U.P. Municipalities Act, 1916 requiring the owner to file objections against the fixation of the House Tax. Subsequently, on 30th January 1978 the building was inspected by the Section Head Clerk of the Municipality and a report was filed by the said Head Clerk mentioning that the shop had been fully constructed. Ultimately the assessment was made which came into effect from 1st April 1981. The suit was instituted on 19th December 1990 for eviction of the tenant from the suit premises. The question that arose for consideration was whether 1st April 1981 (on which date the first assessment of the building came into effect) or 30th January 1978 (on which date the Section Head Clerk of the Municipality reported that the shop was well constructed) should be taken to be the date on which the construction of the building was completed. The Supreme Court took 30th January 1978 as the date of completion of the building since on that date the Section Head Clerk of the Municipality made a report that the shop was well constructed.
30. Thus, though a notice similar to the alleged notice dated 6th September 1977 involved in the present case, was issued by the Municipal Committee on 15th November 1977 requiring the owner to file objections but this notice was not even considered for the purposes of determining the date of completion of the construction of the building.
31. The alleged notice dated 6th September 1977, therefore, even otherwise does not help the petitioner as it does not record the completion of the construction of the building and consequently cannot be considered for computing the date on which the construction of the building was completed.
32. There is, therefore, no merit in any of the contentions advanced by learned Senior Counsel for the petitioner. The writ petition is, accordingly, dismissed. No order as to costs.
33. After the Judgment was pronounced learned Counsel for the petitioner prayed that some reasonable time may be given to the petitioner to vacate the premises in dispute.
34. The petitioner shall not be ejected from the premises in dispute for a period of three months from today provided the petitioner gives the following undertaking before the Court below within three weeks from today.
1. That the petitioner shall pay damages at the rate of Rs. 500/- per month beginning from the month of May 2008 up to the date he hands-over the possession of the premises to the landlord.
2. That the petitioner shall not induct any other person in the premises in dispute.
3. That the petitioner shall handover peaceful possession of the premises in dispute to the landlord on or before the expiry of three months.
35. It is made clear that in the event the petitioner fails to give the undertaking within the aforesaid period or fails to comply with any of the terms of the undertaking, then in that case, it will be open to the landlord to get the decree executed.