V.K.Shukla - (1.) -This is tenant's petition questioning the validity of judgment and order dated 20.4.2005 and 11.7.2008 passed by Judge Small Cause Court as affirmed by Additional District Judge, Court No. 1, Bijnor on 2.9.2008.
(2.) BRIEF background of the case is that petitioner is tenant of shop in dispute at the rate of Rs. 500 per month, as mentioned by petitioner. Petitioner has stated that his tenancy is on month to month payment basis. In the said premises in question, petitioner is running jewellery shop for his livelihood. Notice was sent on 21.11.2002 informing and intimating the petitioner that since 1.9.2002 rent at the rate of Rs. 600 has not been paid. It was mentioned therein that landlord did not any further intend to retain the tenant as such, from the date of receipt of notice after 30 days, tenancy would be terminated and after expiry of the period of 30 days possession of the premises in question was asked to be handed to the landlord, and in the event of failure to comply with the directions contained in the notice, landlord would be initiating proceedings. Said notice was replied on 10.2.2002. Thereafter, J.S.C.C. Suit No. 6 of 2002, Smt. Usha Devi Lahauti v. Raj Kumar Rajpoot, was filed, clearly and categorically mentioning therein that provisions of U. P. Act No. XIII of 1972 were not applicable. Suit was contested by the petitioner by filing written statement. Petitioner also mentioned that entire amount was being deposited by him in order to save himself from being evicted. In the proceedings, so undertaken, Yogendra Kumar Lahuati was examined. On the basis of evidence led, Judge Small Cause Court concluded that the provisions of U. P. Act No. XIII of 1972 were not applicable and petitioner was liable to be ejected, as his tenancy has been validly terminated. J.S.C.C. revision filed against the same has also been dismissed. At this juncture present writ petition has been filed. Sri Harish Kumar Yadav, learned counsel for the petitioner, appearing with Sri R. D. Agrahari, advocate, contended with vehemence that- (i) the provisions of U. P. Act No. XIII of 1972 were fully applicable in the present case on the own admission made by Yogendra Kumar Lahauti in regard to the date of construction, as such the provisions of U. P. Act No. XIII of 1972 not being attracted, finding recorded on this score is perverse ; (ii) in the present case admittedly on the first date of hearing entire amount which was due towards rent had been paid, as such benefit as enshrined under Section 114 of the Transfer of Property Act was liable to be extended to the petitioner, as such writ petition deserves to be allowed. Countering the said submission, Sri K. M. Garg, learned counsel representing the landlord, contended that in the present case date of the first assessment of the building in question was known fact, and as such as per provisions of Explanation (1) to Section 2 (2) of U. P. Act No. XIII of 1972, the date of the first assessment has to be accepted as the date of construction by legal fiction, as such no interference be made. The argument advanced for extending the benefit of Section 114 of the Transfer of Property Act is totally misconceived, as here in the present case there has been no forfeiture of lease on account of non-payment of rent and to the contrary this is a case where tenancy has been terminated under Section 106 of the Transfer of Property Act, as such writ petition is liable to be dismissed.
(3.) IN order to consider the first argument advanced as to what would be the date of construction of building in question, the provisions of U. P. Act No. XIII of 1972 has to be looked into. Relevant portion of Section 2 (2) of the Act is as follows : "Except as provided in sub-section (5) of Section 12, sub-section (1A) of Section 21, sub-section (2) of Section 24, Sections 24A, 24B, 24C 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 of which its constructions is completed : Provided............................................... Provided further that where constructions of a building is completed on or after 26.4.1985 then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of (forty years) from the date on which its construction is completed. Explanation 1. - For the purpose of this Section : (a) the construction of a building shall be deemed to have been competed 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) "construction" includes any new constructions in place of an existing building which has been wholly or substantially demolished ; (c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building the existing building shall be deemed to be constructed on the date of completion of the said addition." As it is evident from the above wordings of Section 2 (2) of the Act 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 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 there the said dates are different, the earliest of the said dates and in absence of any such report, record or assessment the date on which it is actually occupied.;