Om Prakash Gupta Etc. v. Dig Vijendrapal Gupta Etc.

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1314 of 1978. Appeal by special leave from the judgment and order dated the 23rd March, 1978 of the Allahabad High Court in Civil Revision No. 1906 for 1976. WITH CIVIL APPEAL No. 2436 OF 1981 Appeal by special leave from the judgment and order dated the 20th August, 1981 of the Allahabad High Court in Civil Writ Petition No. 6909 of 1979. AND CIVIL APPEAL. No. 1710 OF 1981 From the judgment and Decree dated the 13th March, 1981 of the Allahabad High Court in Writ Petition No. 6167 of 1979. AND SPECIAL LEAVE PETITION (CIVIL) NO. 3573 OF 1979 [1982] 3 S.C.Jl. From the judgment and order dated the 3rd January, 1979 of the Allahabad High Court in Civil Revision No. 3714 of 1978. G.L. Sangh!, Mrs. A. Verma and D.N. Mishra for the Appellant in CA. No. 1314 of 1978. J.P. Goyal, S. Markandeya and C.K. Ratnaparkhi for the Respondent in CA. 1314 of 1978. A.K. Srivastava for the Appellant in CA. 1710/80. R.B. Mehrotra for Respondent in CA. 1710/80.

Pramod Swarup and Mrs. S. Markandeya for the appellant in CA. 2436 of 198J. S.N. Kacktr and K.K. Gupta for the Respondent in CA. 2436 of 1980. P.R. Mridul, Praveen Jain and K.B. Rohatgl for the Petitioner in SLP (Civil) No. 3573 of 1979 R.H. Dhebar for the Respondent. The Judgment of the Court was delivered by MISRA J. The first two appeals by special leave and the third by certificate and the special leave petition raise a common question of law and, therefore, we propose to dispose of them by a common judgment. The pattern of facts in all these cases is similar. We, therefore set out the facts of Civil Appeal No. 1314 of 1978 to bring out the point for consideration in these matters. The appellant Om Prakash Gupta is a tenant of a shop on a monthly rent of Rs. 150/-. The respondent-landlord filed a suit for the eviction of the tenant on the ground that the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)

Act, 1972 (Act 13 of I 972 and hereinafter referred to as 'the Act') did not apply to the shop and the tenant was liable to eviction. The Judge, Small Causes Court, Mainpuri decreed the suit on the finding inter a/ia that the construction of the shop in suit was completed in the year I 967 and ,,.J, OM PRAl:ASH. V. DIGVJJENDRAPAL (Mista, J.) that ten years having not elapsed since then, the provisions ·of the · Act did not apply to the case. The defendant went op in revision under section 25 of the Provincial. Small Causes Courts Act against the judgment and decre' of the trial Court but the same was substantially dismissed.. The defendant thereupon filed a revision ander section 115 of the Civil Procedure Code in the High Court which came up for hearing before a learned Single Jupge who remitted the following issue to the trial court : "On what date was the construction of the building in dispute completed within the meaning of section 2 (2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)

Act, 1972, and deemed to have been completed as contemplated by Explanation I (a) thereto." The Judge Small Causes Court by his order dated 26th of November 1977 returned the following finding : "The construction of the disputed shop will be deemed to have been completed op the date of the first assessment i.e., 1.4.68 within the meanini: or section 2 (2) of the U.P. Urban Buildings Act, 1972." The finding returned by the trial court was sought to be challenged on behalf or the tenant on the ground that the date of occupation should be taken to be the date of completion of the cqnstru~ion of the shop and not the date of the first assessment. In Tilak Raj v. Sardar Derendra Singh,(') a learned Single Judge of the same High Court had the occasion to consider section 2 (2) of the Act. He held :

"It is apparent from tJ;iis provision that for purposes of this Act, a building is to be deemed to be constructed, if it is subject to assessment, on the date with effect from which the first assessment is made. It is immaterial whether the building was constructed actually prior to that date or it had come into occupation prior to that date. The law recognised for the purposes of this Act, the date of assessment as the date of the completion of the building. There is thus no error in the judgment of the court below." (1) 1976 (2) ALR 721 ... 8 8 The learned Single Judge before whom the revision in the instant case came up for hearing doubted the correctness of the above decision. He, therefore, referred the case to a Division Bench. The~ is no dispute that the first assessment of the shop took · place on 1st of April, 1968.

It is also not in dispute that the shop in question was occupied by the defendent on 16th of June, 1967, and prior to his occupation the shop was in occupation of another tenant for about a month and a half. The appellant sought the benefit of section 39 of the Act on the ground that if the date of occupation was taken to be the date of the completion of the construction of the shop, then ten years having elapsed during the pendency of the revision before the High Court, the Act would be applicable. The Division Bench, however, over-ruled the contention of the appellant and held that the _construction of the shop in question would be deemed to have been completed on !st of April 1968 and, therefore, the Act would not be applicable to the building till the date of the decision of the revision on March 23, 1968. The defendant undaunted by the failure came to this Court to challenge the judgment of the High Court. Mr. G.L. Sanghi, senior counsel; appearing for the appellant strongly contended that on a correct interpretation of sub-section (2) of section 2, the Act would be applicable to the shop in question.

It wonld be appropriate at . this stage to extract subsection (2) of section 2 of the Act insofar ·as it is material for the purposes of the case : "Except as provided in sub-section (5) of section 12, sub-section (1-A) 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 of ten years from th~ date on which its construction is completed : Explanation I. For the purposes of this sub-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 ca~e of a building subject to_ assessment the date on which the first assessment thereof I OM PRAKASH v. DIGVIJENDRAPAL (Misra, J.) 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 : .

The precise contention on behalf of the appellant is that the exemp· tion created by this sub-section does not embrace buildings constructed prior to the enforcement of the Act. In support of his contention, Mr. Sanghi, relied upon Rattan Lal Shinghal v. Smt. Murti Devi.(1) The same contention was raised by him in that case also and a Division Bench of this Court accepted the contention and held that Act 13 of 1972 was prospective and applied only to build· ings brought into being de nova after the Act came into force. In that case there is no discussion except this bald observation. This Court in a subsequent case Ram Saroop Rai v. Li/avati(2) held to the contrary. It is on this account that the present appeals were referred to a larger Bench. There ~ no ambiguity in the language of sub· section (2) of section 2 and in the absence of any ambiguity there is no question of taking any external aid for the interpretation of the sub-section.

In plain words the sub.section contemplates that the . Act shall not apply to a building during a period of ten years from the date on which its construction is completed. It nowhere says that the buildieg should have been constructed after the enforce· ment of the Act and to interpret it in the way the learned counsel for the appellant seeks to interpret it, we would be adding words to the sub-section, which is not permissible. Primarily the language employed is the determining factor of the intention of the legislature. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. The question of interpretation arises only when the language is ambiguous and, therefore, capable of two interpretations. In the present case the language of sub-section (2) of section 2 of the Act is explicit and unambiguous and it is not capable of two interpretations. (I) [1980] 4 s.c.c. 258. (2) [1980] 3 s.c.c. 452.

As a second limb to the first argument, it is contended that the building will be deemed to have been constructed on the date of occupation on 16th of June, 1967 and not on the date of the first assessment, and that if this he so, the appellant would be entitled to the benefit of section 39 of the Act on the date when the revision came to be decided by the High Court on 23rd of March, 1978. In order to appreciate this argument it will be expedient to refer to Explanation I to sub-section (2) of section 2 which has already been extracted.

Explanation I provides that the building shall be deemed to have been completed on the date on which completion thereof is reported to or otherwise recorded by the local authorities I:taving jurisdiction, and in case of a buildlng 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 anv such report, record or assessment, the date on which it is actually occupied .for the first time. A perusal of Explanation I makes it abundantly clear that the date of occupation wonld 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 tbe present case it is, it will be the date of tbe first assessment which will be deemed to be the date of completion of tbe 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, and therefore there was no question of giving the benefit of section 39 of tl1e Act to the appellant. Further, in order to attract section 39 the suit must be pending on the date of commencement of the Act which is 15th of July, 1972 but the suit giving rise to the present appeal was filed on 23rd of March, 1974 long after the commencement of the Act. There is yet another reason why section 39 wilt have no application to the present case.

In view of sub-section (2) of section 2 of the Act the Act is not applicable to a building which bas not a standing of ten years and if the Act itself was not applicable, it would be absurd to say that section 39 thereof would be applicable. Considered from any angle the Act bas no application to the present case and the appellant could not be given the benefit of section 39. The suit bas, therefore, been rightly decreed by the courts below. We find no force in either of the contentions raised by Mr. Sanghi. The counsel for the appellants in the other appeals and OM PRAKASH v. DIOVIJENDRAPAL (Misra, J.) the petitioner in the special leave petition, adopted the arguments of Mr. Sanghi. For the foregoing discussion the appeals and the special leave petition are dismissed. There shall, however, be no order as to costs.

We, however, direct that the order of eviction in each case shall not be executed before 30th of June, 1982 on condition that each of the appellants in the appeals and the petitioner in the special leave petition files an undertaking in this Court within four weeks from today to the following effect : that he will hand over vacant and peaceful possession of the suit premises to the landlord-respondent on or before 30th of June, J 982; 2. that he will pay to the respondent arrears of rent, if any, within a month from today; 3. that he will pay to the respondent future compensation for use and occupation of the suit premises for each calendar month by the l 0th of the succeeding month; and 4. that he will not induct any other person in the suit premises as a sub-tenant or licensee or in any other capacity whatsoever.

We further direct that in default of compliance with any one or more of the conditions of the undertaking or if the undertaking is not filed within the stipulated time, the decree of eviction shall become executable forthwith . N.V.K. Appeal dismissed.