1. Heard Sri K.K. Arora, learned counsel for the petitioner and Sri Shiv Sagar Singh, learned counsel for the respondents.
2. This is tenant writ petition. He seeks quashing of the order passed by the Judge, Small Causes, Meerut dated 2 nd February, 2006 in Small Causes Suit No. 173 of 1996 and that passed by the Additional District Judge, Court No. 3, Meerut dated 1 st March, 2011, in S.C.C. Revision No. 15 of 2006.
3. Facts giving rise to the present writ petition are as follows:
4. The land-lord, late Mahendra Singh Gupta instituted a Small Causes Suit No. 173 of 1996 for eviction of the petitioner from the premises in question on the allegation that the premises in question is not covered by the provision of U.P. Act No. 13 of 1972 and that the tenancy had been validly terminated under notice dated 31 st August, 1996. After the parties exchanged their pleadings, the Judge, Small Causes framed following four issues for determination:
(a) Whether the provision of the U.P. Act No. 13 of 1972 were applicable to the premises in question or not?
(b) Whether the notice of termination of tenancy was valid or not? (c) Whether the defendant was entitled to the benefit of Section 20 (4) of the U.P. Act No. 13 of 1972? and
(d) The relief to which the defendant was entitled? The Judge, Small Causes after considering the evidence brought on record, especially the order of assessment dated 27 th August, 2992 recorded that since the date for imposition of house tax has been fixed as 1 st April, 1989, the same would be the date of first2 assessment. The premises in question had, therefore, not completed the requisite number of years of construction, so as to fall within the purview of U.P. Act No. 13 of 1972. For the same reasons, benefit of Section 20 (4) of U.P. Act No. 13 of 1972 was denied to the defendant on the finding that the provisions of U.P. Act No. 13 of 1972 were not attracted. So far as the validity of the notice terminating the tenancy is concerned, the Judge, Small Causes held that in view of amendments made in Section 106 of Transfer of Property Act, 1882, vide Act No. 3 of 2003, the notice although may be short of the requisite period, yet the suit will not fail as it has been instituted after expiry of the period of notice required under Section 106 of the Transfer of Property Act. Therefore, the suit was decreed and the tenant was directed to be evicted. Not being satisfied with the order so passed by the Judge, Small Causes, the tenant filed S.C.C. Revision No. 15 of 2006. The revision has also been dismissed under the impugned order after affirming the finding recorded by the Judge, Small Causes. Hence the present writ petition.
5. On behalf of the petitioner, initially it was contended that the provisions of Act No. 3 of 2003, whereby sub-section 3 was added to Section 106 of the Transfer of Property Act would apply to the suit proceedings, initiated subsequent to enforcement of the amending Act No. 03 of 2003 and will have no application to the suits, which had been earlier instituted i.e. prior to the enforcement of Amending Act.
6. The contention so raised on behalf of the petitioner may not detain the Court long, the issue in that regard has already been decided in the case of Hardoi Zila Sahkari Bank Ltd., Hardoi vs. Smt. Sarla Gupta & Anr. reported in 2010 (2) ARC 144, wherein after reproducing the object of the amending act, it has been held that the provisions of sub-Section 3 to Section 106 of the Transfer of Property Act as amended by Act No. 3 of 2003 would be applicable to the suits which were initiated even prior to the enforcement of the Amending Act.
7. There is another reason for this Court to agree, with the conclusion so arrived at by the High Court in the case of Hardoi Zila Sahkari Bank Ltd. (Supra), namely, the transitory provision. Section 3 of Act No. 3 of 2003 reads as follows:
3. Transitory provision.---The provisions of Section 106 of the principal Act, as amended by Section 2, shall apply to-- (a) all notices in pursuance of which any suit or proceeding is pending at the commencement of this Act; and (b) all notices which have been issued before the commencement of this Act but where no suit or proceeding has been filed before such commencement. "
8. The amendments affected by addition of sub-section (3) to Section 106 of Transfer of Property Act by Act No. 3 of 2003, have been made applicable to all suits and proceedings as were pending on the date of commencement of Act No. 3 of 2003, like one in hand. The Courts below have rightly held that the suit in question will not fail for any deficiency in the time mentioned in the notice, inasmuch as suit had been instituted after expiry of the statutory period contemplated by Section 106 of the Transfer of Property Act. The suit was, therefore, saved by Section 106 (3) of Transfer of Property Act. At this stage, learned counsel for the petitioner contends that both the Courts below have misdirected themselves in recording that as per the assessment order, the date of construction of the building was in the 1989, inasmuch as the assessment order brought on record specifically mentions that it was in respect of the period of 1 st April, 1976 to 1981. Reference page- 63 of the Paper Book.
9. The contention has only been raised to be rejected, inasmuch as from the simple reading of the assessment order, it is clear that assessment was made by the Up-Samiti as per the order dated 27 th March, 1991 and it was specifically providing that the assessment would be applicable w.e.f. 1 st April, 1989. It is therefore, clear that mere mention of the period at the top of the assessment order will not control the date of first assessment, inasmuch as the assessment order categorically records that the same would be applicable w.e.f. 1 st April, 1989. The Courts below are legally justified in recording a finding in the facts of the case that the first date of assessment of the property in dispute for the purposes of municipal tax was 1 st April, 1989. The finding recorded that the provisions U.P. Act No. 13 of 1972 will not be attracted to the building in question is based on true and correct appreciation of evidence on record.
10. Learned counsel for the petitioner lastly contended that it was case of the tenant that he was in occupation of the premises in question since 1980.
11. However, such plea of the tenant could not be established by any cogent evidence. The courts below have not accepted such plea after appreciating the evidence and have recorded that such plea of the tenant was contrary to his own evidence.
12. There is no illegality or infirmity in the orders passed by the courts below so as to warrant any interference under Article 226 of the Constitution of India.
13. At this stage, learned counsel for the petitioner submits that some reasonable time may be granted to the petitioner to vacate the premises in question as it was the source of the livelihood of the petitioner.
14. In the facts of the present case, it would be in the interest of substantial justice to provide that the tenant shall not be evicted from the premises in question till 31 st December, 2011 provided that:
(a) he files an affidavit in form of undertaking before the Judge, Small Causes within one month from today, categorically stating that he shall hand over the peaceful possession of the premises in question to the land-lord on or before 31 st December, 2011;
(b) he deposits the entire decretal amount as well as the rent/damages for use of the premises in question upto 31 st December, 2011 in advance through a bank draft along with his undertaking with the Judge, Small Causes.
15. The bank draft so deposited by the tenant shall be handed over to the land-lord for encashment.
16. In case of default, the petitioner shall not be entitled to the benefits of this order.
17. The present writ petition is dismissed subject to the observations made above.