Sunday, 14 February 2016

When construction of building shall be deemed to be completed?

The perusal of the aforesaid provisions show that
the building would be deemed to have been completed on the
date on which completion thereof is reported to or otherwise
recorded by the local authority having jurisdiction and in
case of building subject to the assessment, the date on
which such 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 of guarding the building under construction)
for the first time.
The records which have been placed before the
courts below by the landlord pertaining to local authority
i.e Nagar Palika Parishad, Haridwar show that the first date
of assessment of the building is of April, 1988. The tenant
has not filed any proof before the courts below for other
assessments prior to 1988, nor has been able to prove that
the completion of the building was reported by the local
authority or otherwise recorded by the local authority in 5
any manner. In fact, in the Written Statement also the
tenant has admitted in paragraph no.2 of the writ petition
that the first assessment was of the year April, 1988.
Consequently thereof, conclusion arrived by the courts
below that the completion of the building would be deemed
to be from April, 1988 this cannot be faulted with. Hence is
absolutely no occasion to interfere in the matter.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
 Writ Petition (M/S) No. 1351 of 2004
Smt. Meera Devi … Petitioner
Versus
IIIrd F.T.C/Additional D.J. Haridwar
& another … Respondents
Hon’ble Sudhanshu Dhulia, J. 
Citation;AIR 2016(NOC)146 UTTARA

2. This is a tenant’s writ petition, whereby order
dated 11.12.1997 passed by Judge, Small Cause Court
/Civil Judge (J.D.) Haridwar as well as order dated
25.11.2004 passed by the revisional court are under
challenged.
3. A notice was given by the landlord/respondent no.
2, under Section 106 of the Transfer of Property Act to the
tenant who is the present petitioner before this Court
thereby terminating his tenancy. The notice was admittedly
received by the tenant. Nevertheless, since she was not
vacating the building, the landlord had no option but to file a
suit for rent and ejectment against the tenant before the
Judge, Small Cause Court, Haridwar. An objection was
raised in the Written Statement by the tenant stating that
the building in question is a building which is covered under
the provisions of the U.P. Urban Buildings (Regulation of
Letting, Rent & Eviction) Act, 1972 (from hereinafter referred 2
to as U.P. Act No. XIII of 1972) and consequently the
eviction, if at all, can only be made under the provisions of
U.P. Act No. XIII of 1972 and the forum chosen by the
landlord is not the correct forum. Considering the objection
raised regarding the jurisdiction of the court, the court has
to decide as to whether the provisions of U.P. Act No. XIII of
1972 is applicable to the concerned building or not. The
courts below have rejected this plea of the tenant.
4. Admittedly, the U.P. Act No. XIII of 1972 is
applicable in the State of Uttarakhand. It is again an
admitted fact when the proceedings were initiated at
Haridwar which is now a part of the State of Uttarakhand
which was the part of erstwhile State of Uttar Pradesh in
which the U.P. Act No. XIII of 1972 is applicable. The U.P Act
No. XIII of 1972 is applicable to all urban buildings which
are under the territory of the State of Uttarakhand. Section 2
of the U.P. Act No.XIII of 1972, however, creates certain
exemptions. In case, building comes under these exemptions
it would not be covered under U.P. Act No. XIII of 1972. Both
the landlord as well as tenant relied upon Clause 2 of the
Section 2 of U.P. Act No. XIII of 1972 which reads as under:-
“2. Exemptions from Operation of Act-
(1) ……………………
(2) Except as provided in sub-section (5) of Section
12, sub-section (1-A) of Section 21, sub-section (2)
of Section 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 3
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.”
5. A notice under Section 106 of the Transfer of
Property Act was given by the landlord to tenant on
14.09.1992. This Court has to see whether on the said date
the building was covered under the U.P. Act No. XIII of
1972. The case of the tenant before the courts below was
that she is the tenant of the building since 1980. Broadly for
our purposes, the relevant factors for consideration would be
whether the premises in question were constructed prior to
April 26, 1985 or after that date.
6. As per the tenant, she is the tenant of the said
building since 1980 and therefore the construction precedes
26, April 1985 and after 1980 the building comes within the
purview of U.P. Act No. XIII of 1972 and therefore
proceedings for eviction can be initiated under U.P. Act No.
XIII of 1972. On the other hand, learned counsel for the
landlord states that the first assessment of the building is of
April, 1988 and therefore, when the notice was given for
eviction in the year 1992, the building was outside the 4
purview of U.P. Act No. XIII of 1972. Both the courts below
have given categorical finding that the construction of the
building would be of April, 1988 and it would hence outside
the purview of U.P. Act No. XIII of 1972 on the date when the
notice of eviction was given and therefore the objections of
the tenant were rejected. The suit for eviction was decreed
on 11.12.1997, an order which has been upheld in revision.
The crucial provision of the law which has to be examined by
this Court as per the explanation (I) (a) (b) and (c) as to
whether the date of construction has been explained.
7. The perusal of the aforesaid provisions show that
the building would be deemed to have been completed on the
date on which completion thereof is reported to or otherwise
recorded by the local authority having jurisdiction and in
case of building subject to the assessment, the date on
which such 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 of guarding the building under construction)
for the first time.
8. The records which have been placed before the
courts below by the landlord pertaining to local authority
i.e Nagar Palika Parishad, Haridwar show that the first date
of assessment of the building is of April, 1988. The tenant
has not filed any proof before the courts below for other
assessments prior to 1988, nor has been able to prove that
the completion of the building was reported by the local
authority or otherwise recorded by the local authority in 5
any manner. In fact, in the Written Statement also the
tenant has admitted in paragraph no.2 of the writ petition
that the first assessment was of the year April, 1988.
Consequently thereof, conclusion arrived by the courts
below that the completion of the building would be deemed
to be from April, 1988 this cannot be faulted with. Hence is
absolutely no occasion to interfere in the matter.
9. The writ petition has absolutely no merit and is
hereby dismissed. It is further directed that in this matter
the case is pending since 2004 before this Court, where the
suit for eviction is of 1992 which was decreed and the
revision against it was also dismissed. The writ petition
filed before this Court in which an interim order was
granted by this Court vide its order dated 23.12.2004 is
still continuing. The interim order dated 23.12.2004 stands
vacated.
10. However, the petitioner shall handover the
peaceful possession of the property to the respondent no.
2/landlord within a period of one month from the issue of
certified copy of this order.
11. The entire decretal amount shall be deposited
within one month from the date of production of a certified
copy of this order. Over and above that an amount of
Rs.1,000/- (Rupees One Thousand Only) per month as
mesne profits, for the period the writ petition remained
pending before this Court shall also be given by the tenant
to the landlord within one month from the date of
production of a certified copy of this order.
(Sudhanshu Dhulia, J.)
 16.09.2015
Ankit 
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