Wajid Ali vs Balvinder Singh

Sudhanshu Dhulia, J.

This is tenant’s revision under Section 25 of the Provincial Small Cause Courts Act, 1887. A suit for rent and eviction was filed by the landlord

against the tenant, which has been decreed by the court below vide order dated 07.11.2017 holding that tenant was in arrears of rent who was given

notice for eviction and even after service of notice for eviction, he has not paid the rent. The suit was decreed and the tenant/revisionist was directed

to vacate the premises and give its possession to the landlord and to pay arrears of rent amounting to Rs.21,240/- (Rupees Twenty One Thousand

Two Hundred Forty Only) along with the damages at the rate of Rs. 20/- per day to the landlord. The entire decretal amount has been deposited by

the tenant/revisionist.

Heard learned counsels for the parties.

The only ground for challenge taken in the present revision is that the court below has erred in law, inasmuch as the premises which was rent out to

the revisionist comes under the purview of Act No.13 of 1972 i.e. Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972

and, therefore, the proceedings ought to have been initiated under the provisions of Act No.13 of 1972. It was submitted by the learned counsel for the

revisionist that the court below has erred in holding that the building, in question, is outside the purview of the Act No.13 of 1972. This order has been

presently challenged by the revisionist before this Court.

The court below has specifically framed the issue no. 2 which is as follows:-

“Whether the provisions of U.P. Act No. 13 of 1972 are not attracted to the shop in question?â€​

Act No.13 of 1972 clearly exempts certain buildings from operation of the Act. Section 2 of the Act No. 13 of 1972 reads as under:-

“2. Exemptions from operation of Act.â€

(1) Nothing in this Act shall apply to the following, namely:-

(a) any building of which the Government or a local authority or a public sector corporation or a Cantonment Board is the landlord; or

(b) any building belonging to or vested in a recognized educational institution,

(bb) any building belonging to or vested in a public charitable or public religious institution;

(bbb) any building belonging to or vested in a waqf including a waqf-alal-aulad;

(c) any building used or intended to be used as a factory within the meaning of the Factories Act, 1948 (Act No.LXIII of 1948) (Where the plant of

such factory is leased out along with the building); or.

(d) any building used or intended to be used for any other industrial purpose (that is to say, for the purpose of manufacture, preservation or processing

of any goods) or as a cinema or theatre, where the plant and apparatus installed for such purpose in the building is leased out along with the building:

Provided that nothing in this clause shall apply in relation to any shop or other building, situated within the precincts of the cinema or theatre, the

tenancy in respect of which has been created separately from the tenancy in respect of the cinema or theatre; or

(e) any building used or intended to be used as a place of public entertainment or amusement (including any sports stadium, but not including a cinema

or theatre), or any building appurtenant thereto; or.

(f) any building built and held by a society registered under the Societies Registration Act, 1860 (Act No.XXI of 1860) or by a co-operative society,

company or firm, and intended solely for its own occupation or for the occupation of any of its officers or servants, whether on rent or free of rent, or

as a guest house, by whatever name called, for the occupation of persons having dealing with it in the ordinary course of business;

(g) any building, whose monthly rent exceeds two thousand rupees;

(h) any building of which a Mission of a foreign country or any international agency is the tenant.

(2) (Except as provided in sub-section (5) of Section 12, sub-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 in this Act shall apply to a building during a period of ten years

from the date on which its construction is completed.)

(Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life

Insurance Corporation of India or a bank or a co-operative society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period of repayment of

such loan or advance exceeds the aforesaid period of ten years then the reference in this sub-section to the period of ten years shall be deemed to be

a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest),

whichever is shorter.):

(Provided further that where construction of a building is completed on or after April 26, 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 I. â€" (For the purposes 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 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) “constructionâ€​ includes any new construction 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

including the existing building shall be deemed to be constructed on the date on completion of the said addition.â€​

(emphasis provided)

A perusal of the second proviso to sub-section (2) to Section 2 of the Act No. 13 of 1972 shows that a building which has been constructed on or

after April 26, 1985 shall be exempted from the purview of Act No.13 of 1972 for a period of forty years. The burden to prove that the building is

outside the purview of Act No.13 of 2017 was on the plaintiff. He has discharged his burden by placing evidence before the court below stating that

the first assessment was done in the year 1991-92. Explanation I to the second proviso clearly shows that for the purposes of ascertaining as to when

the building has been constructed, the date of first assessment would be relevant.

To the contrary, the revisionist’s plea was that the construction of the building was done prior to 1984. In case this was the plea of the

revisionist, the onus of proof shifts on the tenant/revisionist. He should have discharged his onus by submitting proof for his contention. He has

admittedly not been able to do that.

In view of the above, no fault can be found to the findings of the court below. The civil revision fails and it is hereby dismissed.