SALEEMversusDISTRICT JUDGE, MUZAFFARNAGAR AND ORS.

                                  SALEEM                                          A
                                      v.
         DISTRICT JUDGE, MUZAFFARNAGAR AND ORS.

                          SEPTEMBER 15, 1998

         (S.B. MAJMUDAR AND JAGANNADHA RAO, JJ.]                                  B

      U.P. Urba11 Buildi11gs (Regulatio11 of Lelli11g, Rent and Evictio11) Act,
1972 : Seclio11 2(2}-Expla11atio11 1.

       Rent Act-Newly co11Stmcted buildi11gs-l1111111111ity from protective       C
provisions of the Act for a period of ten years-Reckoning of such
period-Suit premises-First assessed by Municipality 011 1.4. 1982-No
evidence of cm1stmclio11 piior to the date of assessment--Held period of ten
years to be counted from the date offirst assessment-Tax: assessment register
and house co11stmctio11 register of M1111icipality-&tracts from-Evidentiary
N~~                                                                               D
       TI1e landlord (respondent No. 3) filed a suit under U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 seeking
eviction of the appellant-tenant from a shop occupied by the latter. TI1e
case of the landlord was that the shop was newly constructed and first
                                                                                  E
assessed to house tax on 1.4.1982 by the Municipal Board; as the Rent Act
was not applicable for a period of ten years from date of first assessment
of the shop and as the tenant was in arrears of rent he was liable to be
evicted. The landlord relied upon extracts of tax assessment register of the
Municipality to show that from 1972-73 to 313.1982 the place where the
suit shop was constructed was only a plot.                                        F
      On the other hand the case of the appellant was that he was a tenant
since 1977. As more than ten years had elapsed since construction, the
Rent Act was not applicable to the suit shop. To prove his case he relied
on extracts from house construction register of Municipality to show that         G
construction was already existing on the plot as water connection was
taken by the landlord on 1.11.1973 for domestic purpose.

       The Trial Court decreed the eviction suit holding that as on the date
of filing of the suit in 1991 ten years had not elapsed from the date of first
assessment of the suit shop, the Rent Act was not applicable. The tenant          H
                                      625
    626                   SUPREME COURT REPORTS (1998) SUPP. 1 S.C.R.

A unsuccessfully carried the matter in revision. The High Court held that
    the protection of Rent Act was not available to the suit shop in view of the
    provisions of Explanation l to sub-section (2) of Section 2 as ten years
    were to he counted for the purpose of such explanation from 1.4.1982 when
    the suit shop was first assessed by the Municipal autl1ority. The tenant
B   preferred as appeal before this Court.

          Dismissing the appeal, the Court

         HELD : 1. The period of ten years has to be counted from the date
  of first assessment i.e. 1.4.1982. Under the scheme of Section 2 of the Act,
C only the newly constructed buildings are given immunity from being
  governed by the protective provisions of the Rent Act for a period of ten
  years. The said period starts form the date of completion of the construc-
  tion of the buildings concerned. However, for deciding the question of
  im!"unity the deemed date of construction of building is provided in
D Explanation I to sub-section (2) of Section 2 of the Rent Act. [630-C, DJ

         2. In the instant case no evidence is available on record to show as
  to whether the municipal authorities had issued any notice or it recorded
  construction of the premises at any time prior to the date of assessment
  i.e. 1.4.1982. Once such evidence is absent and was not available and tbe
E only evidt'uce available was the date of first assessment i.e. 1.4. 1982 as per
  Explanation I to sub-section (2) of Section 2, the only date which could
  have been taken into consideration for deciding the question whether ten
  years had elapsed from the date of construction of the building was the
  date of assessment i.e. 1.4.1982; ten years bad to be counted from that date.
F The appellant's submission 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. [631-C, D, E; 632-B}

        3. Reliance placed by the appellant to the extracts of sanction of
  water connection by tlte Municipality especially column 4 thereof wherein
G the word 'house' is mentioned, is of no avail 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. On the
  contrary, the document relied upon by the landlord clearly indicates that
  the premises continued to be open plot till 313.1982. It is therefore,
H obvious that the suit premises had come into existence some where in the
         SALEEM"· DISIT. JUDGE, Ml!ZAFFARNAGARAND ORS. (S.B. MAJMUDAR, J.J   627

 beginning of the financial year 1982. [636-C-D]                                   A

      Sure11dra Kumar lai11 alias Sunni v. Shanti Swaroop lain and Other..~
 [1995] Supp. 3 SCC 413; Suresh Kumar lai11 v. Shanti Swamp lain & Ors.,
 AIR (1997) SC 2291, held inapplicable.

         Om Prakash Gupta v. DIG Vijendrapal Gupta, [1982) 2 SCC 61, relied        B
 on.

         CIVIL APPELLATE JURiSDICTION : Civil Appeal No. 4778 of
 1998.
                                        "
      From the .Judgment and Order dated 9.12.96 of the Allabhabad High            C
 Court in C.M.W.P. No. 39270of1996.

         Ms. Sandhya Goswami for the Appellant.

         Praveen Jain for the Respondents.
                                                                                   D
         The Judgment of the Court was delivered by

         S.B. MAJMUDAR, J. Leave 1,1fantcd.

      We have heard learned counsel for the appellant and learned counsel
for respondent No. 3 who is the real contesting respondent finally and are
                                                                                   E
disposing off this appeal by their consent by this judgment.

        The appellant is the tenant and the respondent No. 3 is the landlord.
 We will refer to tenant and landlord in the later part of this judgment for
 the sake of convenience. The landlord filed a suit from which the present F
 proceedings arise, in 1991 on the ground that the rekvant provisions of
 U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972
 (Act 13 of 1972) (hereinafter to be referred to as the 'Rent Act') did not
 apply to the suit premises which is a shop occupied by the tenant who is
 carrying on his profession as barber. The rent of Lhe shop is Rs. 350 per
 month. It is the contention of the landlord that the disputed shop is newly G
 constructed and it was first assessed to house tax on 1.4.1982 under order
·of the Municipal Board, dated 20.3.1982. The suit shop is situated in village
 Kandhala in district Muzaffarnagar in the State of Uttar Pradesh. The
 contention of the landlord was that as the Rent Act was not applicable for
 a period of 10 years from the date of first assessment of the shop and as H
    628                   SUPREME COURT REPORTS [1998] SUPP. 1 S.C.R:

A the tenant was in arrears of rent he was liable to be evicted. For that
    purpose, he had served a notice to him demanding the rent and terminating
    the tenancy on 16.8.1991 which was served on him on 17.8.1991. The
    defendant in spite of the service of the said notice neither paid the rent
    nor vacated the premises and committed the default. Hence the suit.

B       The tenant contesting the suit submitted before the Court of Civil
  Judge, Senior Division, Kandhala where the suit was filed that he was not
  in arrears of rent, the rent demanded was excessive and it was not Rs. 350
  per month but was only Rs. 150 per month and that the building was an
  old one and he was occupying the same since 1977 and therefore, the Rent
C Act as a whole was applicable to the suit shop. The trial court after
  recording the evidence offered by the parties came to the conclusion that
  the tenant was in arrears of rent and the question of applicability of the
  protection of the Rent Act would depend upon the other question as to
  when the assessment of the shop was first made and wnsidering the said
D date i.e. 1.4.1982 it was held that on the date of filing of the suit in 1991 as
  10 years had not elapsed from the date of first assessment of the suit shop,
  the Rent Act was not applicable. Consequently, the suit for possession wa5
  dec,reed.

          The tenant unsuccessfally carried the matter in re\~sion before the
E District Judge, Muzaffarnagar. After the revision was dismissed he ap-
    proached the High Court of .I udicature at Allahabad i!lvoking its writ
    jurisdiction. Learned Judge who decided the writ petition came to the
    conclusion that the protection of Rent Act was not available to the suit
    shop in view of provisions of Explanation I to sub-section (2) of Section 2
F   as 10 years were to be counted for the purpose of such explanation from
    1.4.1982 when the suit shop was first assessed by the Municipal authority.
    Rent of Rs. 350 per month was held to be the correct rent payable by the
    tenant. The writ petition was accordingly dismissed. That is how the tenant
    is before us on obtaining leave to appeal under Article 136 of the Constitu-
    tion of India.
G
        Learned counsel for the appellant submitted that the courts below
  including the High Court were in error in taking the view that the Rent
  Act was not applicable to tlie suit shop. It was submitted placing reliance
  on house connection register extract issued by the Municipal Board
H Kandhala that the construction was already existing on the plot as water
      SALEEM v. DISIT. JUDGE, MUZAFFARNAGARAND ORS. (S.B. MNMUDAR, J.)   629

 connection was taken by the respondent-landlord on 1.11.1973 for domestic A
 purpose. If that is so, then by 1991 more than 10 years had elapsed since
 the construction of the house and consequently, the relevant provisions of
 the Rent Act cannot be said to have not applied to the suit premises.

       It may be mentioned that the landlord has relied upon an extract of
 tax assessment register of the same Municipality which showed that from        B
 1972-73 upto 31.3.1982 the place where the suit shop is constructed was
 only a plot being 515 plot (II) and the annual value of the same was Rs.
 72 and house and land tax was Rs. 2.52 paise per year. It was thus
 attempted to show that there was no house till 1982. Therefore, the
 contention of the tenant that he was a tenant since 1977 in the constructed   c
 shop and therefore, more than· 10 years had elapsed since construction of
 the shop was thus tried to be,repelled.

         In our view the COQtention c;i_f the tenant cannot be accepted. What
  is to be seen is the date ori-"which the construction can be said to have been D
  put up by the landlord for the purpose of earning immunity from ap-
  plicability of the Rent Act. Learned counsel for the, appellant in this
  connection relied upon a decision of this Court in the ~ase of Surendra.
 Kumar Jain alias Su1111i v. Shanti Swaroop Jain and Others, reported in
  (1995] Supp. 3 SCC 413 wherein a Bench of two Judges of this Court
  (wherein one of us, Majmudar J. was a Member) considered the very same E
  explanation to the Rent Act. It observed that in terms of Explanation I to
  sub-section (2) of Section 2 of the Rent Act construction of a building is
  deemed to have been completed on the date on which completion thereof
  is reported or otherwise recorded by local authority having jurisdiction and
  in the case of building subject to assessment, the date on which the first F
  assessment thereof comes into effect and where the said dates are different,
  the earliest of the said date would be relevant for deciding the question of
  date of construction of the premises. On the facts of that case it was found
· that the Municipal authorities had given notice of assessment on 15.11.1977
  and the date of assessment was thereafter. It was held that in such a
  situation the earliest of the dates would be relevant for Explanation I to G
  sub-section (2) of Section 2 of the Act and as that aspect was not con-
  sidered by the High Court the proceedings were remanded for recon-
  sideration. We may note that after remand the High Court came to the
  conclusion that the construction could be said to have been completed
  when the Municipal authority recorded such fact of construction and gave H
    630                  SUPREME COURT REPORTS (1998] SUPP. 1 S.C.R.

A notice for assessment of tax. The said decision was again brought in
    challenge before this Court and that decision was upheld in the case of
    Surendra K11mar Jain v. Shanti Swamp Jain and Ors., reported in AIR
    (1977) SC 2291 wherein once again justice G.N. Ray speaking for the Court
    held that as the Municipality had issued the letter on 30.1.1978 to the
B   respondents and even the building constructed was inspected by the Sec-
    tion Head Clerk of the Municipality on 30.1.1978 the first of the dates on
    which the Municipality had given such a notice would be relevant for the
    purpose of Explanation I.

          The Rent Act provides that relevant provisions thereof will not apply
C to buildings for a period of 10 years from the date of completion of their
    construction. Under the scheme of Section 2 of the Rent Act, only the
    newly constructed buildings are given immunity from being governed by
    the protective provisions of the Rent Act. This immunity is for a period of
    10 years and the said period starts from the date of completion of the
    construction of the buildings concerned. This provision is enacted
D   presumably to give fillip to construction activities. However, for deciding
    the question of immunity the deemed date of construction of building is
    provided in Explanation I to sub-section (2) of Section 2 of the Rent Act.

          It will be appropriate to refer to these relevant provisions.
E              "2. Exemption from operation of Act - (1) Nothing in this Act
            shall apply to the following, namely:-

                xxx                   xxx                     xxx

               (2) Except as provided in sub-section (5) of Section 12, sub-
F           section (1-A) of Section 21, sub-section (2) of Section 24, Sections
            24-A, 24-B, 24-C or sub-section (3) of Section 29, nothing to this
            Act shall apply to a building during a period of ten years from the
            date on which its construction is completed :

G               xxx                   xxx                     xxx

                Explanation I - For the purpose of this Section -

                 (a) the construction of a building shall be deemed to have been
             completed on the date on which the completion thereof is reported
H            to or otherwise recorded by the local authority having jurisdiction,
         SALEEM.-. DISIT.JUDGE, MUZAFFARNAGARANDORS. [S.B. MATMUDAR,J.]     631

            and in the case of a building subject to assessment, the date on       A
            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 ir:cluding occupation merely for
            the purposes of supervising the construction or guarding the build-
            ing under construction) for the first time:
                                                                                   B

                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:              c
            In our view, the aforesaid decisions cannot be of any avail to the
    appellant in the facts of the pr~sent case. The reason is obvious. No
    evidence is available on record to show as to whether the municipal
    authorities had issued any notice or it recorded construction of the D
    premises at any time prior to the date of assessment i.e. 1.4.1982. Once
    such evidence is absent and was not available and the only evidence



-   available was the date of first assessment i.e. 1.4.1982 as per Explanation I
    to sub-section (2) of Section 2, the only date which could have been taken
    into consideration for deciding the question whether 10 years had elapsed
    from the date of construction of the building was the date of assessment E
    i.e. 1.4.1982. 10 years had to be counted from that date.

           In fact, the present controversy is squarely covered against the ap-
    pellant by a decision of three Judge Bench of this court in the case of Om
    Prakash Gupta v. DIG Vijendrapal Gupta, reported in [1982) 2 SCC 61. F
    Considering the very same explanation Justice Misra speaking for the
    Bench in paragraph 6 of the report observed that 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 G
    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. It is also to be noted that in the said decision the
    argument was that the building was occupied prior to the first date of H
    632                  SUPREME COURT REPORTS [1998) SUPP, 1 S,C,R,

A assessment. That evidence was not held to he relevant for deciding the
    question of applicability of Explanation r as prior occupation by the tenant
    was not mentioned by the Legislature as one of the requirements for
    applicability of Explanation I to sub-section (2) of Section 2 of the Rent
    Act.

B         Consequently, the submission of learned counsel for the appellant
  that even de hors the explanation and the condition mentioned therein
  prior occupation of the premises by the tenant should be relevant cannot
  be countenanced, Even that apart reliance placed by the learned counsel
  for the appellant on the extract of sanction of water connection by the
C 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 313.1982.
D 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 I to sub-section (2) of Section 2 of the
  Rent Act as clearly ruled by the three Judge Bench of this Court in the
E case of Om Prakash Gupta (supra).
         In the result, the appeal fails and is dismissed. However, at the
   request of learned counsel for the appellant, time to vacate the suit
   premises is granted to the appellant till 31.3.1999 on condition that the
   appellant files usual undertaking within four weeks from today in this
F' Court. If such undertaking is not filed or any of the conditions is committed
   breach of, grant of time will stand recalled and the decree for possession
   will become executable forthwith. [n the facts and circumstances of the
   case there will be no order as to costs.

    T.N.A.                                                   Appeal dismissed.