Uttarakhand High Court
Dr. Jagdish Kumar Luniyal S/O Jamnadas ... vs Addl. District Judge, F.T.C. I. And Smt. ... on 30 March, 2007
Author: Rajesh Tandon
Bench: Rajesh Tandon
JUDGMENT Rajesh Tandon, J.
1. Both the revisions have been filed against the judgment and decree dated 08.08.2003 passed by the Add1 District Judge/Fast Track Court-I, Haridwar in Small Cause case No. 4/95 Swarna Lata v. Jagdish Kumar by which the suit of the plaintiff has been decree along with 20% of the enhanced rent from 1st August, 1995 up to the date of delivery of possession. The landlord as well as tenant both have preferred revisions.
2. Civil Revision No. 66 of 2003 was filed by Sri Som Lata-plaintiff by which the counter claim filed by the respondents has been allowed whereas by way of revision No. 57 of 2003 Dr. Jagdish Kumar Uniyal-the defendant-tenant has sought the relief for setting aside the order dated 8th August, 2003 by which the decree for eviction has been passed.
3. Briefly stated, a suit was filed by Smt. Somlata being S.C.C. Suit No. 4 of 1995 stating therein that she is the owner-landlord of the premises known as Shops situate at Adarsh Nagar, Jwalapur, District-Haridwar of which the defendant is a month to month tenant. The premises is newly constructed and the first assessment was made in the year, 1987 and the provisions of U.P. Act No. 13 of 1972 are not applicable to the building in dispute.
4. According to the plaintiff-Smt Swarn Lata, the premises was let out on 1st January, 1990 for a period of eleven: months and it was agreed between the parties that if the defendant-Dr. Jagdish Kumar Uniyal wants to continue hi tenancy for a period of one year, there will be an increase c 10% and thereafter there will be an increase of 20% towards the rent. The rent is due from December, 1993 at the rate of Rs. 1330.88 and from 1st January, 1994 to 30.11.1994 at the rate c Rs. 2566/- totaling Rs. 28,226.88. Thereafter from 01.12.199, to 25.07.199 along with the enhanced rent of 20%, which come to Rs. 3079 totalling Rs. 24139.10 and water taxes amounting Rs. 5531.25 up to March, 1995 and electricity charges to the extent of Rs. 6025.
5. According to the plaintiff, he has sent a notice 0n 17.06.1995 under Section 106 of the Transfer of Property Act which was duly served upon the defendant on 26.06.1991 terminating the tenancy of the defendant, but neither this defendant has paid the rent along with Water and Electricity Charges nor vacated the premises in dispute.
6. The plaintiff has also filed a suit No. 66 of 1995' praying for injunction as the defendant wanted to occupy unauthorisedly the first floor of the premises.
7. The grievance of the plaintiff-Smt. Somlata is that after the tenancy was terminated, the defendant-Dr. Jagdish Kumar Uniyal became unauthorized occupant from 25.07.199^ and therefore, she is entitled for Rs. 200/- per day towards mesne profits/damages. The plaintiff has claimed the following amount:
^^15& ;g fd lEifRr fuEufyf[kr dk fdjk;k izfr ekg vadu 3079 :i;s 30 iSls gS ftldk ,d o"kZ dk fdjk;k vadu 36951 :i;s 60 iSls gksrk gSA blfy;s vuqrks"k v ds fy;s okn dk ewY;kadu okf"kZd fdjk;s dh /kujkf'k vadu 36951 :i;s 60 iSls rFkk vuqrks"k c ds fy, ryc dh tk jgh /kujkf'k vadu 30253 :i;s 11 iSls dqy vadu 672-4 :i;s 71 iSls ij dk;e fd;k tkrk gS vuqrks"k l ij bl le; dksbZ U;k; 'kqYd okafNr ugha gS blfy, vuqrks"k l ij U;k; 'kqYd fuLiknu ds le; vnk fd;k tk;sxkA 16& ;g fd lEifRr fuEufyf[kr ekuuh; U;k;ky; ds {ks=kf/kdkjh esa fLFkr gS vkSj ekuuh; U;k;ky; dks okn dh lquokbZ djus dk vf/kdkj izkIr gSA vr% oknuh izkFkkZuh gS%& v ;g fd fMdzh ckcr fnyk;s tkus n[ky cgd oknuh cj f[kykQ izfroknh ikfjr dh tkdj oknuh dks ckn csn[kyh izfroknh ls lEifRr fuEufyf[kr dh dCtk okdbZ fnyk;k tkosA c ;g fd fMdzh olwy;kch ckcr fdjk;k cgd oknuh] cj f[kykQ izfroknh lkfn QjekbZ tkdj oknuh dks vadu 30253 :i;s 11 iSls izfroknh ls fnyk;s tkosA l ;g fd ctfj;s fMdzh oknuh dks okn nk;j djus dh frfFk ls n[ky okdbZ feyus dh frfFk rd dk eqvkotk bLrseky 200@& :i;s izfr fnu ds fglkc ls fnyok tkosA n vU; vuqrks"k tks oknuh U;k;ky; ds fopkjksa esa ikus dh vf/kdkfj.kh gks izfroknh ls fnyk;k tkosA
8. According to the defendant, the building was constructed in the year, 1981 as will appear from the electricity connection, which was taken on 07.10.1981 and the water connection which was taken on 9th July, 1981 and therefore, it was denied that the U.P. Act No. 13 of 1972 is not applicable to the building in dispute.
9. So far as the enhancement of 20% towards mesne profit is concerned, the defence of the defendant was that after eleven month no fresh agreement was executed.
10. Points No. 1 and 5 were framed with regard to the facts as to whether the rent was fixed as Rs. 3079.30 or Rs. 1150/- per month. According to the case of the plaintiff, the defendant is the tenant at the rate of Rs. 3079.30, whereas the defendant has deposed that the rent is Rs. 1150/-. The Judge Small Cause Courts has come to the conclusion that since no fresh agreement was executed between the parties, therefore, the rental shall be deemed to be Rs. 1350/- per month along with water and electricity charges and not Rs. 3079.30.
11. Judge Small Cause Court has framed the points for determination. Point No. 1 was to the effect as to whether the defendant was tenant at the rate of Rs. 3789.30. Further Point No. 3 was to the effect as to whether the U.P. Act No. 13 of 1972 applies to the building in dispute.
12. P.W. 1 namely Swarn Lata was examined on oath. She has deposed that the agreement was executed between the parties Paper No. 21-Ga. Parties have agreed for enhancement of 10% of mesne profits after eleven months and 20% after every year and the first assessment was made on 1th April, 1987. The defendant was not able to file any other assessment except of 1987 i.e. from 01.04.1987 to 31.03.1994.
13. The court below have taken into consideration the documents filed by the defendant Paper No. 219/1 to 219/3 dated 24.01.1993 as well as the notice for re-assessment Paper No. 185 and the Court below has come to the conclusion that no benefit can be extended to the defendant on account of these documents. However, the reliance has been placed by the defendant on the installation of the meter dated 9th July, 1981 Paper No. 68/1 and Paper No. 68/2, which show that the Meter Reading has started from 19th July, 1993 and as such the documents regarding installation of the Meter become wholly redundant.
14. Judge Small Cause Court has also relied upon the statement of the defendant Paper No. 21, where it was admitted by the defendant that the provisions of U.P. Act No. 13 of 1972 are not applicable to the building in dispute. Paper No. 21-Ga is the document of agreement, which has been signed by both the parties. Parties have admitted that U.P. Act No. 13 of 1972 is not applicable to the building in dispute. Relevant clauses regarding enhancement are quoted below:
^^¼6½ ;g fd fdjk;snkjh dh vof/k 11 ekg gksxhA 11 ekg ds ckn Hkh iz'uxr laifRr fdjk;s ij j[kuk pkgsxk rks og izFke i{k dks fn;s tkus okys fdjk;s esa 10 izfr'kr dh o`f) djds gh j[k ldsxkA ckdh 'krsZ iwoZor~ jgsaxhA ¼13½ ;g fd ;kn fdjk;s dh vof/k chr tkus ij 10 izfr'kr fdjk;k c<+kdj f}rh; i{k lEifRr fdjk;s ij j[kuk pkgsxk rks u;k fdjk;kukek vius [kpsZ ls izFke i{k ds gd esa rgjhj o rdehy djus dk vf/kdkjh gksxkA ¼17½ ;g fd f}rh; i{k ;fn vkxs ds fy;s mDr nqdkusa viuh fdjk;snkjh esa j[ksxk rks gj o"kZ 20 izfr'kr fdjk;k c<+rk jgsxkA**
15. So far as Point No. 2 is concerned, the Judge Small Cause Court has come to the conclusion that the amount of Rs. 35000/- was deposited by the defendant with the plaintiff.
16. According to the case of the defendant by which the counter claim was submitted, Point No. 7 was framed to the effect as to whether the defendant has paid a sum of Rs. 45000/- to the plaintiff, the plaintiff has admitted only a sum of Rs. 35000/-. However, the Judge Small Cause Court has recorded a finding that a sum of Rs. 45,000/- was given to the plaintiff and the defendant is liable to get the adjustment of the same.
17. The Judge Small Cause Courts has decreed the suit for the recovery of Rs. 1350/- towards monthly rent and the enhancement has been refused only on the ground that no fresh agreement has been executed between the parties.
18. Admittedly, the provisions of U.P. Act No. 13 of 1972 are not applicable to the building in dispute as according to the evidence on the record building in question was constructed in the year, 1987 and the suit was filed in the year, 1995 and therefore, the case is fully covered by the judgment of Atma Ram Mittal AIR 1988(1) SC 561 as well as Explanation I to Sub Clause (2) of Section 2 of U.P. Act No. 13 of 1972, where the immunity has been given for a period of forty years after the amendment made in the month of April, 1985, the Suit having been filed in the year, 1995, the plaintiff is fully entitled for the immunity of U.P. Act No. 13 of 1972.
19. In Atma Ram Mittal AIR 1988(1) Page 561, where it has been held as under:
8. It is well-settled that no man should suffer because of the fault of the Court or delay in the procedure. Broom has stated the maxim "actus curial neminem gravabit"-Act of Court shall prejudice no man. Therefore, having regard to the time normally consumed for adjudication, the 10 years exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within 10 years and even than within that time it may not be disposed of. That will make the 10 years of holidays from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purposes of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation in an imperative irrespective of anything else.
9. Judicial time and energy is more often than not consumed in finding what is the intention of the Parliament or in other words, the will of the people. Blackstonje tells us that the fairest and most rational method to interpret the will of the legislature is by exploring intentions at the time when the law was made, by signs most natural and probable. And these signs are either the words, the context, the object matter, the effects and consequence, or the spirit and reason of the law. (Underlined by the Court). See Commentaries, on the Laws of England (facsimile of 1th edition of 1965, University of Chicago Press, 1979. Vol. 1, p. 59), Mukherjea, J. as the learned Chief Justice then was in Poppatlal Shah v. State of Madras 1953 SCR 677 said that each word, phrase or sentence was to be construed in the light of purpose of the Act itself. But words must be construed with imagination of purpose behind them said Judge Learned Hand, long time ago. It appears, therefore, that though we are concerned with seeking of intention, we are rather looking to the meaning of the words that the legislator had used and the true meaning of what words as was said by Lord Rid in Black-Clawson International Ltd. V. Papierwerke Waldhof Aschaffenburg AG, 1975 Appeal Cases 591 at 613. We are clearly of the opinion that having regard to the language we must find the reason and the spirit of the law. If the immunity from the operation of the Rent Act is made and depended upon the ultimate disposal of the case within the period of exemption of 10 years which is in reality an impossibility, then there would be empty reasons. In our opinion, bearing in mind the well-settled principles that the rights of the parties crystalise to the date of the institution of the suit as enunciated by this Court in Om Prakash Gupta v. Dig Vijendrapal Gupta (supra), the meaningful construction must be that the exemption would apply for a period of 10 years and will continue to be available until suit is disposed of or adjudicated. Such suit or proceeding must instituted within the stipulated period of 10 years. Once rights crystalise the adjudication must be in accordance with law.
20. In Sudha Rani Garg (Smt.) v. Sri Jagdish Kumar (Dead) and Ors. 2004 SCFBRC 449, the Apex Court has observed as under:
7. The Explanation provides for four different dates for determining the date of completion of building. The dates are:
(1) When the completion of the building is reported to the local authority. (2) When the completion of the building is otherwise recorded by the local authority. (3) When the first assessment of the building comes into effect. (4) When it is actually occupied.
8. The Explanation further provides that in case for the first three categories the dates are available then the earliest of the three dates will be the date of completion of the building and in case the first three dates are not available, then the fourth date will be the date on which construction of the building shall be taken to have been completed.
9. The Explanation I is a deeming provision. The word 'deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give ' a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible", (per Lord radcliffe in St. Aubyn (L.M.) v. A.G. (No. 2) (1951) 2 ALL E.R. 473 (HL).
21. In Raj Kumar Sharma v. District Judge Haridivar and Ors. 1993 (2) ARC, it has been held as under:
18. The question involved in the present case is to be determined the back ground of aforesaid position in law. The provisions contained in Section 2(2) of the U.P. Act No. 13 of 1972 clearly indicate the legislative policy of allowing exemption from the restrictive provisions of the Act to all the building for specified period to be computed from the date of the completion of their construction. Such an exemption was felt necessary in order to give incentive to appears desirous to construct new buildings. The Legislature has expressly recognized the need for encouraging the construction of new buildings by granting exemption to all such building which had not completed ten years from the completion of their construction to Section 2(2) of the Act. This period of exemption was raised from ten years to twenty years by an Ordinance and to forty years as provided by the U.P. Act No. 11 of 1988. In the statement of objects and reasons of the said Act it has been clearly indicated that the second proviso to Sub-section (2) of Section 2 of the Act provided that the buildings constructed on or after April 26, 1985 shall be exempted from the operation of the said Act for a period of twenty years from the date on which the construction was completed. In order to encourage the construction of new buildings in the State it had been decided to extend the period of said exemption from twenty years to forty years. It is, therefore, obvious that the provision of exemption envisaged under Section 2(2) of the U.P. Act No. 13 of 1972 had been made specifically for the benefit of the landlords and consequently in order to secure the benefit to be provided to the landlords the explanation has to be interpreted in a manner so as to ensure that the protection and its benefit extend to the landlords. As observed by the Supreme Court in its decision in the case of Administrator, Municipal Corporation, Bilaspur v. Dattatraya Dahankar and Anr. reported in 1991 J.T. (4) 500, a mechanical approach to construction is altogether out of step with modern positive approach. The modern positive approach, it was indicated, is to have a purposeful construction that is to effectuate the object and purpose of the Act. Further in determining either the general object of the legislature or the meaning of its language in any particular passage it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should in all cases of doubtful significance be presumed to be the true one.
27. It is, thus, obvious that in the presence of the unimpeachable documentary evidence establishing that the building in question had been assessed for the first time in the year 1987 it was not at all necessary for the Courts below to hold an enquiry into the existence or otherwise of the building in dispute during the period 1974-1979. I respectfully agree with the view expressed in the case of Smt. Samundri Devi (supra), decided by this Court wherein it has been clearly observed that where irrespective of the reality, the Legislature has unmistakeably provided for assumption of the date of completion of the construction of a building in Explanation I to Section 2(2) of the Act, it is immaterial whether the landlords admits or avers to a date of completion of construction of the building different from the one contemplated by the fiction. Normally an admission may be binding upon the person making it except where he is able to explain it away. But that principle will be wholly inapplicable to a case in which the Legislature, acting within its competence, mandates through a legal fiction assumption of a fact different from the reality.
22. In Saleem Kumar v. District Judge Muzaffarnagar and Ors. 1998 SCFBRC 473, the Apex Court has observed as under:
12. In fact, the present controversy is squarely covered against the appellant by a decision of three Judge Bench of this Court in the case of Om Prakash Gupta v. DIG Vijendrapal Gupta . Considering the very same explanation Justice Misra speaking for the Bench in paragraph 6 of the report observed that a perusal of Explanation 1 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 daste of completion of the construction and 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. It is also to be need that in the said decision the argument was that the building was occupied prior to the first date of assessment. That evidence was not held to be relevant for deciding the question of applicability of Explanation 1 as prior occupation by the tenant was not mentioned by the Legislature as one of the requirement for applicability of Explanation 1 to Sub-section (2) of Section 2 of the Rent Act.
13. Consequently, the submission of learned Counsel for the appellant that even de hors the explanation and the conditions mentioned therein prior occupation of the premises by the tenant should be relevant cannot be countenanced. Even that part 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 1 to Sub-section (2) of Section 2 of the Rent Act as clearly ruled by three Judge Bench of this Court in the case of Om Prakash Gupta (supra).
23. In view of the aforesaid, I come to the conclusion that U.P. Act No. 13 of 1972 is not applicable to the building in dispute. So far as the enhancement of rent is concerned, admittedly, no fresh lease deed was executed, but there was a stipulation in the original agreement that 20% increase in measne profit shall be made every year and the same was let out to the defendant on 1th January, 1990. The notice was sent on 17.06.1995, which was duly served on 26.06.1995 and the tenancy stands terminated from 17th July, 1995 and as such from 18th July, 1995, the plaintiff is entitled for the damages/mesne profits at the prevalent market rate in view of the decisions of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. and as such the plaintiff is entitled for the damages/mesne profits to the extent of 20% enhanced rent rate from the date when the tenancy was terminated and the defendant became unauthorized occupant.
24. In Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (2005) 1 SCC 705 after relying upon various judgments, the Apex Court has held as under:
13. In Shyam Charan v. Sheoji Bhai , this Court has upheld the principle that the tenant continuing in occupation of the tenancy premises after the termination of tenancy is an unauthorized and wrongful occupant and a decree for damages or mesne profits can be passed for the period of such occupation, till the date he delivers the vacant possession to the landlord....After determination of the tenancy, the position of the tenant is akin to that of a trespasser and he cannot claim that the measure of damages awardable to the landlord should be kept tagged to the rate of rent payable under the provisions of the Rent Control Order. If the real value of the property is higher than the rent earned then the amount of compensation for continued use and occupation of the property by the tenant can be assessed at the higher value.
25. Relying upon the judgment of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. in Achal Mishra v. Ram Shankar Singh reported in 2005 (1) ARC Page 887 it has been observed as under:
We make it clear that the respondents shall be liable to pay the rent equivalent to mesne profits with effect from the date with which they are found to have ceased to be entitled to retain possession of the premises as tenant for such period the landlord's entitlement cannot be held pegged to the standard rent. Reference may be had to the law laid down by the Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. JT 2004 (1) SC 410 : 2005 (10) SCC 705 : 2005 SCFBRC 99.
26. The year of construction as well as applicability of the Act No. 13 of 1972 being finding of fact, the same cannot be interfered under Section 25 of the Provincial Small Cause Courts Act, 1887. The Judge Small Cause Court has taken into consideration the first assessment, the affidavits of the parties etc. and as such the same cannot be a matter to re-appreciation in a revisional jurisdiction, which is not an appellate jurisdiction in view of the Apex Court.
27. Scope of interference under Section 25 of the Provincial Small Cause Court Act has been interpreted by the Apex Court from time to time. It is not an appellate jurisdiction and therefore, the findings of fact cannot be interfered.
28. In Harshvardhan Chokkani v. Bhupendra N. Patel 2002 SCFBRC 344, the Apex Court has observed as under:
Nonetheless, the High Court is exercising the revisional power which in its very nature is a truncated power. The width of the powers of the Revisional Court cannot be equated with the power of the Appellate Court. In examining the legally and the proprietary of the order under challenge, what is required to be seen by the High Court is whether it is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence or where the inference drawn from the facts proved in such that no reasonable person could arrive at or the like, it is only in such situations that interference by the High Court in revision in a finding of fact will be justified. Mere possibility of a different view is no ground to interfere in exercise of revisional power. From the above discussion, it is clear that none of the aforementioned reasons exists in this case to justify interference by the High Court.
29. In view of the above, revision No. 57 of 2003 is dismissed. So far as revision No. 66 of 2003 is concerned, the same is also dismissed subject to the modification on the damages/mesne profits on the 20% enhanced rate after the termination of the tenancy. No order as to costs.