K.M.Dayal, J. - (1.) THE present petition has been filed by the defendant-tenant against the judgment and decree passed against him for his ejectment by the Small Causes Court and the Revisional Authority.
(2.) THE brief facts of the case are that suit no. 215 of 1976 was instituted by the respondent no. 3 against the petitioner on 30th March, 1976. In para 4 of the plaint it is mentioned that the building in dispute was constructed in the year 1968. THE U. P. Act No. 13 of 1972 was not applicable to it. THE suit was filed after terminating the tenancy of the petitioner by giving notice under section 106 of the Transfer of Property Act. A written? statement was filed which is Annexure '1' to the writ petition- It was contended that the disputed shop was 15 years old and the provisions of Rent Control Laws applied to the same. Some deposits of rent made in Court were also pleaded. In para 3 it was pleaded that the defendant had deposited rent up to 21st December, 1977 and further redeposited the dues along with the expenses and costs of the suit from 22-4-1975 to 21-3-1978. Thus, the rent was deposited twice for some period. An issue was framed by the Court of Small Causes about the applicability of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and about the benefit of Section 39 of that Act being available to the tenant. That Act is hereinafter referred to as the Act. Both the courts below have come to a finding that on the date of suit the building was not assessed by the local authorities. It was assessed for the first time with effect from 1st April, 1977. Both the Courts below, relying upon the Explanation (1) (a) of the proviso to sub-section (2) of section 2 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, held that as the building was assessed on 1st April, 1977 it will be deemed to have been constructed on that date. Consequently the building would not be governed by the provisions of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The petitioner's second contention is that the building having bean admitted to be construction of the year 1968 (in para 4 of the plaint), the defendant was entitled to benefit of section 39 of the Act in the year 1978 when ten years were completed after its construction. According to the petitioner the double deposit of rent and costs etc. covered the entire dues required to be deposited under section 39 including the interest if any payable. The main question involved in the present petition is : What would be the date of construction of the building in a case where there was no assessment in existence on the date of the suit ? It has been pleaded in para. 4 of the plaint that the building was constructed in year 1968. As stated earlier, in the present case the building was assessed by the local authorities till 30th March, 1976, the date of filing of the suit. The Courts below have relied upon the first portion of the Explanation (1) (a) to the proviso, but ignored the effect of the remaining portion of the same. Explanation 1 (a) to the proviso to sub-section (2) of Section 2 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, reads as under :- " (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, recorded 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." (Emphasis Mine). In the present case no assessment existed on the date of the suit. There is no evidence that the completion of the building was reported to be recorded by the local authority at any time. It is also not the case of any party that the suit was filed in respect of a building which was to be completed in nature. Consequently it cannot be said that the suit was filed in respect of a building which was incomplete. In such a case the date of completion of the building would be the date of occupation according to the italicised portion of the Explanation reproduced above. Both the courts below have thus fallen into an error of law in holding that the building was completed on 1-4-1977 subsequent to the filing of the suit though it was admitted between the parties that the building was constructed in the year 1968. This is a case where there was no report or assessment in existence on the date of occupation and on the date of the suit. It would lead us to absurdity if it is held that the suit was filed in respect of a building which would be deemed to have come into existence for the purposes of the Act after the filing of the suit. I thus hold that in the instant case the completion of the building should be deemed to be in the year 1968 as pleaded by the plaintiff.
(3.) COMING to the next point whether the petitioner would be entitled to the benefit of section 39 of the Act, it may be noted that the section applied to cases which were pending on the date of commencement of the Act. Clause (1) of section 39 of the Act reads as under :- "In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of the commencement of this Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever is later, deposits in the court..............." The Section is unambiguous and specifically refers to the date of the commencement of the Act. For finding out what would be the date of commencement of the Act we have to refer to sub-section (4) of section 1. Sub-section (4) of section 1 reads as under : " It shall come into force on such date as the State Government may by notification in the Gazette, appoint." ;