RAJESHWAR DAYAL Vs. VITH ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) This writ petition, under Article 226 of the Constitution of India, challenges the judgment and decree of the trial Court dated 6.4.1998 decreeing the suit filed by the respondent-landlord for ejectment and arrears of rent and the order passed by the revisioanl Court dated 28th August, 2000.

(2.) The landlord filed suit for arrears of rent and ejectment of the petitioner-tenant from the accommodation in question with the allegations that since provisions of U.P. Act No. 13 of 1972 are not applicable to the accommodation in question and as the accommodation is a new construction and has not completed ten years of its construction, therefore, is exempted under Section 2 (2) of Act No. 13 of 1972 from the operation of the Act. The suit is filed after determining the tenancy of the petitioner-tenant. The tenant has taken defence that it is correct to say that provisions of Act No. 13 of 1972 are not applicable to the accommodation in question. The tenant has taken the defence that in fact the construction of building was completed in the year 1984 and he is tenant since then but in any case in the alternative the case taken says about a report (Annexure-2 to the counter affidavit) of Rakesh Kumar, a Draftsman of Local Body, who has given report to the effect that on 29th August, 1989 he submitted a report that the construction of the building has been completed. It is, therefore, pleaded by the tenant that since more than ten years have elapsed since the building has been completed, therefore, examination contemplated under Section 2 (2) will not apply to the building and the suit is not maintainable because none of the grounds mentioned under Section 2 (2) of the Act has been shown before the trial Court. The trial Court has mentioned the date of filing the suit as 3rd September, 1993 and the report of Rakesh Kumar, which is stated above, is annexed as annexure to the counter affidavit filed before the trial Court wherein it is stated that on 26th September, 1984 it was found that the plaintiff, Duli Chand, has constructed that house which is contrary to Section 185/307 of the U.P. Municipalities Act. This report is submitted by Sri Rajendra Prasad, Junior Engineer. Before the trial Court the tenant has relied upon a decision of Apex Court relied upon a decision of Apex Court reported in, 1998 ARC (2) 617, Saleem v. District Judge, Muzaffarnager and Ors. wherein the Apex Court, giving reference to an earlier decision of the Apex Court reported in JT 1995 (33) SCC 186: 1996 SCFBRC 172, Surendra Kumar Jain alias Sunni v. Shanti Swaroop Jain and Ors. and considering explanation 1 to Sub-section (2) of Section 2 of the Act, has held that on the facts of that case it was found that the municipal authorities have given notice of assessment on 15th November 1977 and the date of assessment was thereafter. It was held that in such a situation the earliest of the dates would relevant for Explanation 1 to Sub-section (2) of Section 2 of the Act and as that aspect was not considered by the High Court the proceedings were remanded for reconsideration. 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 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 Kumar Jain v. Shanti Swarup Jain and Ors., 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 respondents and even the building constructed was inspected by the Section 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 1. The Apex Court on the facts of the case of Saleem has held as under:

(3.) Learned Counsel for the petitioner has further relied upon a decision reported in 1982 (1) ARC 451, Irshad Ali v. The Xth Addl. District Judge, Kanpur and Anr., wherein it has been held that in my view, this contention is not correct. There is nothing in the provision to suggest that the reporting should be only by an official of the local authority. There can be little doubt that the house owner is in the best position to report about the completion of a building. It is hot necessary to enter into the controversy as to whether such a reporting may something be taken recourse to by way of fraudulent proceedings also. In the facts of the instant case, at least such has not been the allegation and there has been no doubting of the genuineness of Ext. 7 in the facts of the instant case.