Allahabad High Court
Vinesh Chandra Trivedi vs Viith Addl. Rae Bareli And 3 Ors on 29 November, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH (Judgment reserved on 20.11.2013) (Judgment delivered on 29.11.2013) Court No. - 21 Case :- RENT CONTROL No. - 114 of 2003 Petitioner :- Vinesh Chandra Trivedi Respondent :- Viith Addl. Rae Bareli And 3 Ors Counsel for Petitioner :- Mohd. Arif Khan Counsel for Respondent :- C.S.C,U.K. Srivastava Hon'ble Sibghat Ullah Khan,J.
Heard Sri M.A. Khan, learned counsel for petitioner and Sri V.K. Srivastava, learned counsel for respondents No.3 & 4.
This writ petition arises out of S.C.C. Suit No.4 of 1987, Rai Chandi Dayal since deceased and survived by legal representatives Vs. Vinesh Chandra Chaturvedi. The suit was filed by the landlord against the tenant petitioner for his eviction from the accommodation in dispute consisting of two shops. It was asserted in the plaint that the accommodation in dispute would be deemed to have been constructed in the year 1979, hence when suit was filed (20.01.1987), U.P. Act No.13 of 1972 was not applicable thereupon; tenant had made material alteration in the accommodation in dispute and he was also defaulter as rent (at the rate of Rs.150/- per month) since 01.05.1986 had not been paid. Suit was filed after serving notice of termination of tenancy under Section 106, Transfer of Property Act. J.S.C.C./ Civil Judge (J.D.), Rai Bareilly decreed the suit for eviction and for recovery of arrears of rent on 20.02.2001. Against the said decree, petitioner tenant filed S.C.C. Revision No.36 of 2001. VI A.D.J., Rai Bareilly dismissed the revision on 27.05.2003, hence this writ petition.
The point of material alteration was decided by both the courts below in favour of the tenant holding that he had not made any material alteration. Accordingly, the said point does not survive.
As far as question of applicability of the Act (issue No.3) is concerned, it was stated in para-3A of the plaint, copy of which is Annexure-1 to the writ petition that the building in dispute was assessed for house tax for the first time in the year 1979 by Nagarpalika, Rai Bareilly.
The plaintiff in his oral statement stated that the shop in dispute was constructed in the year 1975 and was given on rent to the defendant in the same year but it was assessed by the Nagarpalika for house tax for the first time in 1979. The courts below held that by virtue of Explanation to Section 2(2) of the Act the date of first assessment would be deemed to be the date of construction. For that reliance was placed upon the Supreme Court authority reported in Om Prkash Gupta Vs. Dig Vjendrapal, AIR 1982 SC 1230. Regarding validity of notice, it was argued that the property in dispute belonged to the father of the original plaintiff and he had not impleaded his sisters either in the notice or in the suit. In the following authorities, the Supreme Court has held that one of the joint owners can terminate tenancy and file suit for eviction.
(i) "India Umbrella Manufacturing Co., M/s. v. Bhagabandei Agarwalla" AIR 2004 SC 1321
(ii) P.K. Jaiswal Vs. Bibi Husnbano, AIR 2005 SC 2857
(iii) Mohinder Prasad Jain v. Manohar Lal Jain, AIR 2006 SC 1471 The main point to be decided in this case is regarding applicability of the Act.
In the aforesaid authority of Om Prkash Gupta Vs. Dig Vjendrapal, AIR 1982 SC 1230 also the position was the same. Admittedly the tenant against whom suit was filed was occupying the building since June, 1967 and prior to him there had been another tenant occupying the building for about a month and a half. However, first assessment took place on 01.04.1968. Supreme Court held that 01.04.1968 would be the date of construction and not 16.06.1967 since when the tenant in question was admittedly occupying the building in dispute. Paragraphs-4 & 6 of the said authority are quoted below:
"4. There is no dispute that the first assessment of the shop took place on 1st of April, 1968. It is also not in dispute that the shop in question was occupied by the defendant on 16 of June, 1967, arid prior to his occupation the shop was in occupation of another tenant for about a month and a half. The appellant sought the benefit of Section 39 of the Act on the ground that if the date of occupation was taken to be the date of the completion of the construction of the shop, then ten years having elapsed during the pendency of the revision before the High Court, the Act would be applicable. The Division Bench, however, over-ruled the contention of the appellant and held that the construction of the shop in question would be deemed to have been completed on 1st of April 1968 and, therefore, the Act would not be applicable to the building till the date of the decision of the revision on March 23, 1978. The defendant undaunted by the failure came to this Court to challenge the judgment of the High Court.
6. As a second limb to the first argument, it is contended that the building will be deemed to have been constructed on the date of occupation on 16th of June, 1967 and not on the date of the first assessment, and that if this be so, the appellant would be entitled to the benefit of Section 39 of the Act on the date when the revision came to be decided by the High Court on 23rd of March, 1978. In order to appreciate this argument it will be expedient to refer to Explanation I to Sub-section (2) of Section 2 which has already been extracted. Explanation 1 provides that the building shall be deemed to have been completed on the date on which completion thereof is reported to or otherwise recorded by the local authorities having jurisdiction, and in 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... for the first time. A perusal of Explanation I makes it abundantly clear that 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 and in that view of the matter the building had not become more than ten years old on the date when the revision came to be decided by the High Court, and therefore there was no question of giving the benefit of Section 39 of the Act to the appellant."
Accordingly, I do not find any error in the impugned judgment, decree and order. Writ Petition is dismissed.
Tenant-petitioner is granted six months time to vacate provided that:-
1. Within one month from today tenant files an undertaking before the J.S.C.C. to the effect that on or before the expiry of aforesaid period of six months he will willingly vacate and handover possession of the property in dispute to the landlords-respondents.
2. For this period of six months, which has been granted to the tenant-petitioner to vacate, he is required to pay Rs.12000/-( at the rate of Rs.2000/- per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the J.S.C.C. and shall immediately be paid to the landlords-respondents.
3. Within one month from today tenant shall deposit entire decreetal amount due till date (after adjusting any amount already deposited) before the J.S.C.C. for immediate payment to landlords-respondents.
In case of default in compliance of any of these conditions tenant-petitioner shall be evicted through process of Court after one month and shall also be liable to pay damages at the rate of Rs.3000/- per month since after one month till the date of actual vacation.
Similarly, if after filing the aforesaid undertaking and depositing decreetal amount and Rs.12000/- the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs.3000/- per month since after six months till actual vacation. It is needless to add that this direction is in addition to the right of the landlords to file contempt petition for violation of undertaking and execution application.
Order Date :- 29.11.2013 NLY