Holding

The landlord must prove that the building was completed within ten years, and the date of completion must be established per Explanation 1 of Section 2(2); the lower courts’ failure to do so warrants setting aside the eviction order.

Summary

The landlady purchased shop No. 66 in Jhansi in 1969 and let the ground floor to the tenant in 1970, claiming the building was a "new construction" erected in 1965. In 1975 she filed an eviction suit invoking the exemption under Section 2(2) of the Uttar Pradesh Rent Control Act, which shields landlords from the Act for ten years after a building's completion. The tenant contested, asserting the building was over fifty years old; the trial court and the High Court dismissed his defence and ordered eviction. On appeal, the Supreme Court held that the burden of proving the building’s completion within ten years lies on the landlord and that the date of completion must be ascertained according to Explanation 1 of Section 2(2) using municipal records, assessment dates, or first occupation. The Court found the lower courts had failed to determine the construction date properly and had erred in accepting speculative evidence. Consequently, the eviction decree was set aside and the matter remitted to the trial court for fresh determination.

Issues considered

The burden of proof for establishing a building as a 'new construction' under Section 2(2) of the U.P. Rent Control Act.
How the date of completion of a building is to be determined pursuant to Explanation 1 of Section 2(2).
Whether the eviction decree based on the alleged new‑construction exemption is valid.

Legislation cited

Uttar Pradesh Rent Control Act, 1972s. 2(2)

Subjects

rent controlevictionnew construction exemptionburden of proofmunicipal recordsconstruction datelandlord-tenant

Judgment

1034 .-------, •
'
A 'RAM SWAROOP RA!

LILAVATHI
v.
\ •
May 7, 1980
[V. l,l. KRISHNA IYER AND R. S. PATHAK, JJ.]
B U.P. Rent Control Act (Act 13 of 1972), Section 2(2)-Exemption from
application of the provisions of the Act for the period of ten years in respect
of uew con.~tructions-Burden of Proof is upon the; landlord and not upnn the
tenant.
The respondent landlady purchased sliop No. 66 in the city of Jhansi in
1969 from one Brij Mohan (DW 2), occupied the first floor and allowed the
appellant/tenant to occupy the ground floor in 1970 on a leaBe deed which
c recited that the building was erected in 1965. In 1975, the respondent filed
the ejection suit on the basis that the bwlding 005 new, that the Act did not
deter eviction of new constructions put up within ten years of the suit and so
a decree v:as inevitable. The appellant·tenant resisted the claim on the plea
that the building was constructed 50. years earlier. The Trial Court negatived
the defence and decreed eviction and this was upheld by the High Court.
Hence the appeal by special leave to this Court.
D
A1lowing the appeal and remanding the m&tte~ to the Trial Court, the Court
HELD : 1. In the normal course, no doubt the appeal must be dismissed
as concluded by findings of fact. To avoid pos~ible public mischief through
a new .class of litigation for eviction by easy resort to the "new construction,"
expedient, interference under Article 136 of the Constitution is necessary.
[1037 A-BJ
E
2. Section 2(2) of the U.P. Act, uses the phrase "nb{_hing in the rent
control legislation shall apply to a building" during a period of ten ·year,s from
the date on which its construction is completed. In other v,;ords, in regard to
all buildings the Act applies save where this exemption operates. '11terefo:re the
landlord who .seeks exemption must prove thai excep'tion. The burden is on
him to mr.ke out that notwithstanding the rent control legislation, his building
F is out of its ambit. lt is not for the tenant to prove that the building has been
coDstructed beyond a period of ten years, but it is for the landlady to make
out that the construction has been completed within ten years of the suit.
This is sen$ible not merely because the· statute expressly sfates so and thd setting
unn~cessarily implies so, but also because it is the landlady who knows.. best
when the building was completed, and not the tenant. As between the two,
the owner of the building must tell the court when the building was Construct-
G ed, and not the tenant thereof. Speaking generally, it is faif that the onus
of establishing the date of construction of the building is squarely laid on the
landlord although in a small categotjr of cases where the landlord is a 'purchaser
from another, he will have to depend on his assignor to prove the fact
[1038 C-F]
3. An analysis of Explanation 1 to s. 2(2) of the U.P. Act indicates:
H (I) Where a building has not been assessed, it is the date on which
the completion was reported to, or otherwise recorded by the local
authority having jurisdiction. [1038 G-H]
;·>
'"J·1.

RAM SWAROOP V. LILAVATHI 1035

(2) Where a building has been assessed,. it is the date on which the first A
assessment comes- into effect.
Provided that if the date on which the completion was reported, to,
or otherwise reCQrded by, the local authority is earlier Ulan the
date of the first assessment, the date of completion will be such ear..
lier. date. [1039' A-BJ
•
(3) Where there is no report, record or assessment, it is the date Of B
actual oCcupation for the first time (not being an occupation for
the purpose of supervising the construction or guarding the build·
ing under construction). [1039 B-CJ

Unfortunately, it is not possible for the purchaser-respondent or the
teilant-apptllant to give direct testimony about the time of the construction or C
the nature of the construction vis-a-vis Explanation (b) or (c) . The best
testimony is the municipal records about the completion of the building and the
verification- by the municipal authorities as to whether a new construction '1as
come into being or an old construction has been remodelled and, if so, when
. exactly the completion took effect. It is quite conceivable that the
municipal records bearing on the completion of the construction
1 may throw conclusive light, whatever might have been the original proposal D
in the phm submitted. It is perfectly possible that on a view of the earlier
construction, vis a vis the completed new building the former may form but a
small part. It may also be that the implication of the expression "increased
assessmenf' may be explained with reference to earlier assessment records ln
the municipality. Moreover, whenever a new building is completed, a report
has statutorily to be made and only on a completion survey and certificate~
occupation is ordinarily permitted. These records must also be ;µ:"ailable in E
ihe office of the local '3.Uthority. The statutei makes it clear that reliance upon
the 'muQicipal records rat,her than on the lips of witne~, is indicated to deter·
mine the date of completion and the nature of the construction. This statutory
guideline has been wholly overlooked and the burden lying on the landlord has
not been appreciated. The result is that the eviction order has to be demolished.
[1039 F-0, 1040 D-GJ
In the instant case (i) the Municipal assessment record produced in the F
Court merely states "increased assessment". It may suggest the existence
of_ an assessment which has been increased or it may perhaps be argued that
when the bµilding was nconstructed a new assessment was made which was
more than the. previous assessment and, therefore, ·was described as increased
assessment; (ii) the oral evidence is inconsequential being second hand testi·
mony. Even the recital in the rent deed that there was a new construction in
196S-66 is by the appellant and the respondent, neither of whom has any direct G
knoWiedge about the construction. Of course, an admission by the appellant
is evidence against him but an admission is not always conclusive especially in
the ilght of the municipal records such as are available and tho burden such as
has been laid by the statute; and (iii) the failure of the trial Court specifically
to record wlie11 the building was completed and what was the extent of re..
building, whether it was a case of total demolition arid reconstruction or such
extensive additions as to push the existing building into a minor J>illjl•. beco;nes . Jl
fatal. These basic issues have failed ,to receive any attention. from the courts
below. A finding recorded on speculative basis is no finding and that is tlie
fate of the holding. (1039 G-H, 1040 A-D]
OH,'

1036 SUPREME COURT REPORTS (1980] 3 s.C.R.
•
A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2109 of 1979.
Appeal by Special Leave :from the Judgment and Order dated
7-5-1979 otl the Allahabad High Court in Civil Revision No. 900 of '
1978.
A. K. Sen, B. S. Banerjee and R. N. Goviml for thei Appellant.
J, P. Goyal and S. K. Jain for Respondent.
The Judgment of the Court was delivered by
KrusHNA IYER, J.-A brief back-drop leads to the short point in
issue. Chronic scarcity of accommodation in almost every part of the
country has made 'eviction' litigation explosively considerable, and the
C strict protection against ejectment, save upon restricted grounds, has
become the policy of the State. Rent Control Legislation to give effect
to this policy exists everywhere, and we are concern~ with one such
in the State of U.P. (U.P. Act 13 of 1972). The legislature found
that rent control law had a chilling effect on new building construction,
and so, to encourage more building operations, amended the stature
D to release, from the shackles of legislative restriction, 'new COIJ!ltruc-
tions' for a period of ten years. So much so, a landlord who had let
out his new building could recover possession without impedllnent if ,,
he instituted such proceeding within ten years of completion. The
respondent is a landlady who claims to fill .the bill in this setting and
\
seeks to ~vict the appellant-tenant untramelled by the provisions of the
E
Act. She has succeeded in both the courts below and the appellant
challenges the order as illegal and vitiated by a basic error of approach.
We should have made short work of it had there not been the need
for this Court to set the sights right in the class of litigation where ·t
exemption from the opef:!tion of the Act is claimed on the ground '

that the construction is new and the case is filed within the ten-year
moratorium. If the exemption is erroneously lib\lralised to frustrate
the principal measure by failure to stick to basic legal principles, the
jurisprudence of rent control may become too jejune to 'be socially
effectiye. That is why we examine a few fundamentals here in the
decisional process of this class of cases.
t
G t
The area of controversy, factual and legal, is small. The respon-
dent purchased shop No. 66 in the city of Jhansi in 1969 from one
Brij Mohan (DW2), occupied the first floor and allowed the appel-
lant, as tenant, to occupy the ground floor in 1970 on a lea8e deed "'1
which recited that the building was erected in 1965. In 1975 the
H present eviction action was instituted on the basis that the_ building
was new, that the Act did not debar eviction of new constructions i*
, put up within ten years of the suit and so a decree was inevitable. ~
,,
Q
'
•
<:->-'

RAM SWAROOP v. LlLAVATHI (Krishna Iyer,/.) 1037

The tenant resisted the claim on the plea that the building was cons- A
tructed 50 years ago: The trial court negatived the defence and dec-
reed eviction and this was upheld by the High Court. ·
ir
If were a bare finding of fact we should not have reopened it,
but Shri A. K. Sen argues that fundamental flaws in the understand-
ing of the law have vitiate<I the decision which, if left uncorrected,
B
will spell a new class. of litigation for eviction by easy resort to the
'new construction expedient. · Such possible public mischief persuades
us to have a closer look at •the Act to the extent .relevllnt.
Shri J. P. 6oel rightly reminds us that in the normal course tlie
appeal must be dismissed as concluded by findings of fact. But we
will probe the matter further to explore whether there is any subs- c
tance in Shri A. K. Sen's argument of fundamental failure bearing on
the legality of the conclusions. The anatomy of the Act is substan-
tially the same as that of other. similar legislations. The most impor-
tant feature ,we, have to notice is the exemption from application of
the provisions of the Act for the period of ten years in respect of new
constructions. Section 2(2) is relevant in this context and runs as D
follows:
Excepti'as provided in sub-section (5) of section 12 sub-
section (lA) 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 E
of ten years from the date on which its construction is comp-
leted. .
xxx xxx xxx
Explanation 1.-For the purposes of this sub-section,
(a) The construction of a buildingi shall be deemed to F
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 asse8sment
thereof comes into effect, and where the said dates are diffe-
rent, the earliest of the said' dates, and in the absence of any G
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 H
of _construct.ion in r~spect of difierent parts of a building
which are either designed as separate units or are occupied
1038 SUPREME COURT REPORTS . [1980] 3 s.C.R.

A separately by the landlord and one or more tenants or by
diffrent tenants.
(b) 'construction' includes any new constructions in
place of an existing building which has been wholly or subs-
tantially demolished;
B ( c) Where such substantial addition is made to an exist-
ing building, that the existing building be.comes only a minor
part thereof, the whole of the building including the existi'llg
building shall be deemed to be constructed on the date of
completion of the said addition. ·
c This sub-section and its construction is decisive of the Jate of the
appeal. Notrung in the rent control legislation shall apply to a buil-
ding "during a period of ten years from the date on which its construc-
tion is completed." The first thing that falls to be emphasised is that
in regard to all buildings lhe Act applies save where this exemption
operates. Therefore, the landlord who seeks exemption must prove
D that exception. Tlie burden is on him to make out th.at notwithstand-
ing the rent control legislation, his building is out of its ambit. It is
not for the tenant to prove that the building bas been constructed
beyond a period of ten years. But it.is for the landlady to make out
that the construction has been completed within ten years of the suit.
This is sensible not merely because the statute expressly state<s so
E and the setting necessarily implies so, but also because it is the land-
lady who knows best when the building was completed, and not the
tenant. As between the two, the owner of the building must tell the'
c.ourt when the building was constructed, and not the tenant thereof.
Speaking generally, i~ is fair that the onus of establishing the date of
construction of the building is squarely laid on the landlord, although
F in a small category of cases where the landlord is a purchaser rrom
another, he will have to depend on his assignor to prove the fact. I

Firstly, therefore, we must examine whether the respondent has
f
~
made out her case for exemption from the operation of the Act based
on the vital fact that the buildi'llg has been completed only within
G ten years of the suit. The second thing we have to remember is Ex-
planation 1 quoted above. When is a building deemed to have been
completed? An analysis of Explanation 1 to s.2(2) of the U. P. Act
indicates :
(1) Where a building has not been assessed, it is the date .
on which the completion was reported to, or other
H
wise recorded by, the local authority having juris-
diction.
RAM SWAROOP 1'. LII;AVATIIT (Krishna Iyer, J.)' 1039

(2) Where a building has been assessed, it is the date A
on which the first assessment comes into effect.
Provided that if the &te on which the completion was
reported to, or otherwise recorded by, the local autho-
• rity i5 earlier than the date of the first assessment, the date
of completion will be such earlier date. B
(3) Where there is no report, re~ord or assessment, it
is the date of actual occupation for the first time (not
being an occupation fdr the purpose of supervising
the construction or guarding the building under cons-
truction). '
c
It is common case that Shop Nos. 65 and 66 were owned by a
common owner, Shri B{ij Mohan, DW2. He sold only Shop No.
66 to the respondent. So, there is no doubt, that there was an exist-
ing building, Shop No. 66, long prior to the ten-year period rt1entioned
in the statute. According to the testimony of Shri Brii Mohan, DW2,
D
the old construction continued, but certain additions and remodelling.
were done. He had submitted a plan to the local authority indicating
the original construction and the proposed additions, and that is marked
as Exhibit in the case. This shows the existence of a prior building,
•·
the proposal being for addition or partial reconstruction and not for
total demolition. If we go by the plan, it is not possible to conclude
automatically that there is a new construction. If we go by Brij
Mohan's evidence, the owner of the building at the relevant time, we
cannot necessarily hold that the existing building has been substan-
tially demolished and reconstructed. Indeed, his evidence i5 1to the
effect that the construction such as was made was beyond the 10
yea.r period. F.

Unfortunately, it is not possible for the purchaser-respondent or
the tenant-appellant to give direct testimony about Vie time of the
construction or the nature of the construction vz's-a-vis Explanation
(b) or (c). The best testimony i~ the municipal records about the
G
completion of the building and the verification by the municipal auiho-
rities as to whether a new construction has come into being or an
old construction has been remodelled and, if so, when exactly the
completion took effect. The municipal assessment record produced
iq the court merely state "increas~d assessment". It may suggest the
existence of an assessment which has been increased or it may perhaps H
be argued that when the building was 'reconstructed a new assessment
·was made which was more than the previous assessment and, therefore.
11l40 SUPREME COURT REPORTS [1980] 3 s.c.R.

A was described as increased assessment. The oral evidence in the
case, apart from what we have set out, is inconsequential, being se-
cond hand testimony. Even the recital in the rent deed that there was
a new construction is 1965-66 is by the appellant and the respondent,
ndther of whoJll has any direct knowledge about the construction.
Of course, an admission by the appellant is evidence against him but •
B an admission is not always conclusi'1e especially in the light of the
municipal records such as are available and the burden such as has
been laid by the statute.
Viewed in this perspective, the failure of the trial court specifi-
cal\y to record when the building was completed and what Wl!S "the
C the extent of re-building, whether it was a case of tofal demolition
and reconstruction or such extensive additions as to push the exiSfuig
"\ · building into a minor part, becomes fatal. TheseJ basic issues have
failed to receive any attention from the courts below. A finding
recorded on speculative basis is no finding and that is the fate of the
holding in the present case.
D
We do not want to dwell OR the evidence in greater detail because
we ·propose to remit the case to the trial court (Court of the First
Additional District Judge, Jhansi). It is quite conceivable tbat the
municipal records beilring on the completion of the construction nfay
throw conclusive light, whatever might have been the orginiil propOSfil
E in the plan submitted. It is perfectly possible that on a view of the
earlier construction, vis a vis the completed new building, the! fom;ier
may form but a small part It may also be that the implication ofi
the expression "increased assessment" may be explained with reference
to earlier assessment records in the municipality. Moreover, whenever
a new building is completed, a report has statuforily to be made and
only on a completion rurvey and certificate,, occupation is ordinarily
permitted. These records must also be available in the office of the
local authority. The statute milkes it clear that reliance upon tlie
municipal records, rather than on the lips of witnesses, is indicated
to determine the date of completion and the nature of the conStruc-
G
tion. This statutory guideline has been wholly overlooked anil the f
burden lying on the landlord has not been appreciated. The , result
is that the ~viction order has to be demolished.
It may still be op~n to the landlady-reSpondent to make out bis
case by producing better municipal evidence in the light of whlit we
have indicated. We do not wish to deny the landlady this opporlh-
H nity because the trial court has not approached the problem from
the correct legal angle. We set aside the judgment of the courts be-
low and remit t11e case for hearing to the trial court. The trial coµrt

.~
_,,._,.

RAM SWAROOP v. LILAVATHI (Krishna Iyer, J.) 1041
•
will give an opportunity to both sides to adduce fresh evidence, docu- A
mentary and orill, to make out the ground of exemption from the
application ~f the Act. Of course, when the entire evidence is be-
fore the court, the onus-of proof will play a lesser role.

* Before parting with the case, we wish to notice a submission made
by Shri Goel that the landlady's son was an unemployed engineer B
who needed the premises for personal requirement. Even if the ~ct
applies, it is open to the landlady to make out any of 11\l grounds
under the Act for eviction. To avoid prolixity and delay of ihe pro-
ceedings, we permit the trial court to allow the landlady, if she app-
lies in that behalf, to plead on an alternative basis, for eviction on
any of the specified grounds under the Act. c
The appeal is allowed and the ca_se remitted to the Court of the
Addi. District Judge, J~nsi for fresh ditiposal in the light of the
observations made above.

11.R. Appeal allowed.