MAMCHAND Vs. IIIRD ADDITIONAL DISTRICT JUDGE SAHARANPUR

JUDGEMENT

(1.) IRSHAD Ali Khan respondent no. 3 instituted JSCC suit no. 35 of 1986 against the present petitioners for recovery of arrears of rent for the period from 1-12-1985 to 31-3-1986, ejectment and mense profit on the ground that the petitioners have failed to pay the arrears of rent w.e.f. 1-12-1985 and their tenancy has been terminated by a notice dated 1-4-1986. It was further pleaded that the shop in question is a 'new construction' within the meaning of Section 2(2) of U.P. Act No. 13 of 1972 in as much as it was constructed in the year 1977 and 10 years period has not expired at the time of filing of the suit, provisions of the said Act are not applicable . Plea of subletting was also put forward. The suit was contested by the present petitioners on the ground that they have not committed any default in payment of rent. It was also stated that the shop in question is an old construction. It was constructed in the year 1968-69, therefore, the provisions of U.P. Act No. 13 of 1972 are applicable. The parties led evidence in support of their respective cases. The respondent no. 3 landlord placed reliance upon the first municipal assessment of the shop in question by filing assessment for the period 1-4-1978 to 31-3-1981, vide paper no. 57C. The trial court, on the basis of the evidence, reached to the conclusion that the petitioners tenants are in arrears of rent w.e.f. 1-1-1986. The suit for recovery of arrears of rent was decreed but so far as the ejectment is concerned it was dismissed on the ground that the provisions of U.P. Act No. 13 of 1972 are applicable. Aggrieved against the aforesaid judgment and decree the matter was carried in revision by IRSHAD Ali Khan the landlord being SCC revision no. 27 of 1990. The said revision has been allowed by the impugned judgment dated 28-5-1992 and it has been held that the shop in question is 'a new construction' within the meaning of Section 2(2) of the said Act and as such, the provisions of U.P. Act No. 13 of 1972 are not applicable as it was instituted within a period of ten years, from the date of construction of the shop. A holiday period of ten years for exemption has been provided under the said Act. Learned counsel for the petitioners submits that the finding recorded by the revisional court is vitiated. He submits that there is evidence on record in the nature of written statement filed by the landlord in the earlier litigation wherein it has been stated by him that the shop in question is an old construction. Secondly, the revisional court ought to have remanded the matter back to the trial court for recording a finding with regard to the date of construction if it was not satisfied with the finding recorded by the trial court. Learned counsel for the respondent landlord, on the other hand, submits that the building in question was subject to municipal assessment and since the first assessment of the said building is w.e.f. 1-4-1978, the finding recoded by the revisional court in this regard is perfectly justified. Considered the respective submissions of the learned counsel for the parties and perused the record. The only pointed mooted in the present writ petition is as to whether the finding recorded by the revisional court with regard to the date of construction of the disputed shop is in accordance with law or not. It is not in dispute that the said shop was subject matter of municipal assessment and it was assessed for the first time w.e.f. 1-4-1978. There is no document at least on record to show that the shop in question was assessed earlier by the local authority. On an interpretation of Section 2(2) of the said Act, the Apex Court in the case of Om Prakash Gupta Vs. Digvijendra Pal Gupta 1982 (8) ALR 282 has held that where a building is subject to assessment it is the first assessment which is relevant for the purposes of determination of age of the building. If the building is not subject to assessment only then the date of occupation etc. as provided for under Explanation 1 to Section 2(2) will be relevant. In view of the above discussions, I find no illegality in the judgment of the revisional court holding that 1- 4-1978 is the date of construction. At this stage, the learned counsel for the petitioners strenuously submits that the revisional court was not justified in ignoring the statement made by the landlord in the written statement filed in connection with some other case. I find no substance in the said argument. The Apex Court in Ram Saroop Rai Vs. Smt. Lilavati, 1980(6) ALR 359 has held that in the case of municipal assessment, oral evidence is inconsequential. A mechanism for determination for date of construction has been statutorily provided for under section 2(2) of the Act. Oral evidence etc. are of secondary in nature and will not prevail over the municipal record. It has also been held by the Apex Court in the case of Om Prakash (supra) that if a person is in occupation of building in question earlier to its first assessment and the assessment takes place subsequently, the date of occupation will not be relevant but the date of first assessment would be relevant for determination of date of construction. In the present case, it is not in dispute that the shop was assessed to municipal tax w.e.f. 1-4-1978, for the first time. This being the position, the finding of the revisional court is in accordance with law. It is an acknowledged legal position that in such matters, the date of construction is a jurisdictional fact and a revisional court can correct the error while exercising the revisional jurisdiction. No useful purpose, except the delay, is going to be served by passing a remand order. The revisional court has not committed any illegality in not remanding the matter. At the end, the learned counsel for the petitioners prayed for some reasonable time to vacate the accommodation in question to which the learned counsel for the respondent has no serious objection. Time upto 31-8-2009 is granted to the petitioners to vacate the disputed accommodation provided they file an undertaking on affidavit before the trial court that they will vacate the disputed accommodation on or before 31-8-2009 and will hand over its peaceful vacant possession to the respondent landlord. The petitioners shall also deposit all the arrears of rent after adjusting the amount if any already deposited at the rate of Rs. 500/- per month for the period upto March, 2009. For the subsequent period, the petitioners shall deposit the damages at the rate of Rs. 1,000/- per month upto 31-8-2009. The petitioners shall deposit the damages as fixed above within a period of one month in advance before the trial court. In case of default in compliance of any of the conditions stipulated above, the time granted by this Court shall stand discharged and it will be open to the respondent landlord to put the decree for execution. In view of the above, I find no merit in the writ petition. It is dismissed accordingly. No order as to costs.