# Vinod Kumar v. Naresh Chandra Sharma (Since Deceased) & Ors - **Citation:** (2016) 7 ILRA 600 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-07-29 - **Bench:** Mrs. Sunita Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-v-naresh-chandra-sharma-since-deceased-ors-44167 - **Pages:** 6 ## Headnote Civil Law - U.P. Act No. 13 of 1972 - Section 2(2) - Explanation 1 - date of completion of construction - newly constructed building - exempted from the operation of Act - no report - no record of assessment - date of occupation of the building by the tenant - shop in question given on rent on 05.11.1989 soon after its construction - date of occupation taken as date of completion of construction - eviction orders - no illegality or perversity - writ petition dismissed. The eviction suit was filed before the Judge Small Causes Court, Bulandshahar on the ground that the shop was let out for running general merchandise business but without permission of the landlord the defendants started business of battery manufacturing. Moreover, the plaintiff did not want to continue the tenancy hence a notice to quit was served upon the petitioner through counsel by registered post. The defendants neither paid rent nor vacated the shop in question and, therefore, the ejectment suit was filed with the relief to deliver possession to the plaintiff/landlord. (Para 2) The suit was decreed by the Small Causes Court (JSCC) on the ground that the tenancy is not protected by the provisions of U.P. Act No. 13 of 1972 as the shop in question is a new construction exempted from the operation of the Act in view of section 2(2) of the Act. The petitioner was found in default and that there was no dispute regarding service of notice to quit and, therefore, the suit was decreed. The finding recorded by the J.S.C.C was upheld in revision.(Para 3) Challenging the eviction orders, the main submission of learned counsel for the petitioner is that the Courts below had erred in considering the date of completion of the construction of building as 04.08.1989 on the basis of a house tax assessment receipt which was filed by the landlord. In support of his submission, the landlord filed sanctioned map paper No. 25-C and house tax receipt paper No. 24 C to submit that the shop in question is a new construction and therefore, exempted from the operation of Act. There was no document of first assessment of the shop in question. The sanctioned map could not have been relied upon to conclude that it was a new construction made in the year 1989. The conditions as laid down in Explanation 1 of Section 2 (2) to conclude the date of construction of the building do not exist in the present case and as such no definite conclusion could have been drawn in this regard.(Para 4) Held: (Paras-11-17) In the instant case, the landlord came out with the clear case that the building was constructed after the map was sanctioned on 04.08.1989. In respect of this fact, he filed a house tax assessment receipt wherein the date of construction was entered as 04.08.1989. Though there was nothing on record to establish the date of first assessment of the shop in question, however, in view of the admission of the tenant ## Text 600 INDIAN LAW REPORTS ALLAHABAD SERIES lingering doubt about the veracity of virtually all witnesses. We believe that the circumstances referred to by the learned Sessions Judge have not been established by plausible and satisfactory evidence. In addition to that the circumstances themselves are not sufficient to conclusively establish the guilt of accused beyond all reasonable doubt. In our opinion, the prosecution has not been able to establish either the motive on the part of the accused/appellant Rajpal Singh for committing the crime or the discovery of corpse of the deceased and recovery of money on the basis of so-called disclosure statement of Rajpal Singh. We have no hesitation to hold that prosecution has failed to prove its case beyond all reasonable doubt. 27. We believe that prosecution has failed to prove the guilty mind and the guilt of the accused. There are various doubts and suspicious circumstances which have dislodged the chain of the circumstantial evidence. On the basis of such weak evidence, judgement of trial court, convicting the appellant is not sustainable. We, therefore, believe that the accused Rajpal Singh is entitled to benefit of doubt. We, accordingly, set aside the conviction and sentence of accused/appellant Rajpal Singh and acquit him of charges levelled against him under sections 302 and 411 IPC. 28. The appeal, accordingly, is allowed. The judgement and order dated 12.10.1983 passed by the then Sessions Judge, Budaun in Session Trial No. 131 of 1983 (State v. Rajpal Singh), arising out of Crime No. 152 of 1982, under sections 302 and 411 IPC, Police Station Islamnagar, District Budaun is set aside. Appellant Rajpal be set at liberty unless required in any other case. 29. Copy of this order be sent to the court concerned for compliance within fifteen days from today. Thereafter, concerned court shall report compliance within one month. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 29.07.2016 BEFORE THE HON'BLE MRS. SUNITA AGARWAL, J. Matters Under Article 227 No.- 2706 Of 2016 Vinod Kumar ...Petitioner Versus Naresh Chandra Sharma (Since Deceased) & Ors. ...Respondents Counsel for the Petitioner: Anand Prakash Srivastava Counsel for the Respondents: 7 All. Vinod Kumar Vs Naresh Chandra Sharma (Since Deceased) & Ors. 601 Civil Law - U.P. Act No. 13 of 1972 - Section 2(2) - Explanation 1 - date of completion of construction - newly constructed building - exempted from the operation of Act - no report - no record of assessment - date of occupation of the building by the tenant - shop in question given on rent on 05.11.1989 soon after its construction - date of occupation taken as date of completion of construction - eviction orders - no illegality or perversity - writ petition dismissed. The eviction suit was filed before the Judge Small Causes Court, Bulandshahar on the ground that the shop was let out for running general merchandise business but without permission of the landlord the defendants started business of battery manufacturing. Moreover, the plaintiff did not want to continue the tenancy hence a notice to quit was served upon the petitioner through counsel by registered post. The defendants neither paid rent nor vacated the shop in question and, therefore, the ejectment suit was filed with the relief to deliver possession to the plaintiff/landlord. (Para 2) The suit was decreed by the Small Causes Court (JSCC) on the ground that the tenancy is not protected by the provisions of U.P. Act No. 13 of 1972 as the shop in question is a new construction exempted from the operation of the Act in view of section 2(2) of the Act. The petitioner was found in default and that there was no dispute regarding service of notice to quit and, therefore, the suit was decreed. The finding recorded by the J.S.C.C was upheld in revision.(Para 3) Challenging the eviction orders, the main submission of learned counsel for the petitioner is that the Courts below had erred in considering the date of completion of the construction of building as 04.08.1989 on the basis of a house tax assessment receipt which was filed by the landlord. In support of his submission, the landlord filed sanctioned map paper No. 25-C and house tax receipt paper No. 24 C to submit that the shop in question is a new construction and therefore, exempted from the operation of Act. There was no document of first assessment of the shop in question. The sanctioned map could not have been relied upon to conclude that it was a new construction made in the year 1989. The conditions as laid down in Explanation 1 of Section 2 (2) to conclude the date of construction of the building do not exist in the present case and as such no definite conclusion could have been drawn in this regard.(Para 4) Held: (Paras-11-17) In the instant case, the landlord came out with the clear case that the building was constructed after the map was sanctioned on 04.08.1989. In respect of this fact, he filed a house tax assessment receipt wherein the date of construction was entered as 04.08.1989. Though there was nothing on record to establish the date of first assessment of the shop in question, however, in view of the admission of the tenant that the shop in question was given to him on rent at the rate of the Rs.300/- on 05.11.1989, soon after its construction, it can be safely concluded that the shop in question was constructed in the year 1989. It is a case where there is no report or the record of assessment, the fourth date as provided in explanation 1 of section 2 (2), therefore, would come into play and the date of completion of construction would be the date of occupation of the building by the tenant which is 05.11.1989 as admitted to him. Moreover, the map sanctioned on 04.08.1989 has been also brought on record to establish that the construction had commenced in the year 1989. The tenant admitted that he had occupied the shop in question soon after its construction. Learned counsel for the petitioner has placed reliance upon the judgment of this Court in the case Gopal Dass Vs. Bal Kishan Dass reported in 2013 All. CJ 639 which is of no help to him as in the said case this Court was dealing with a different issue. 602 INDIAN LAW REPORTS ALLAHABAD SERIES Considering the above referred material on record, this Court is of the view that the date of occupation of the shop in question was rightly taken into consideration as the date of completion of construction by the Court below in absence of any report or record of assessment in view of the provisions of Explanation 1, section 2(2) of the Act, so as to operate exemption under the Act, 1972. There is no illegality or perversity in the eviction orders passed by the Court below. No other point has been pressed. The writ petition is devoid of merits and hence dismissed Case Law discussed: 1.Shafiq Ahmad Vs. 1st Additional District and Sessions Judge, Bijnor & Ors.,2003(1)JCLR299 (All) (Para 5) 2.Madan Mohan Sharma Vs. Ashok Kumar Kaushik, 2013 (1) ADJ 313 (Para 9) 3.Om Prakash Vs. Dig Vijendrapal Gupta, AIR 1982 SC 1230 (Para 9) 4.Gopal Dass Vs. Bal Kishan Dass, 2013 All CJ 639 (Para 13) (Delivered by Hon'ble Mrs. Sunita Agarwal, J.) 1. This writ petition arises out of the judgment and order dated 11.08.2015 passed by the Judge Small Causes Court, Bulandshahar in S.C.C case No.19 of 2011 (Naresh Chandra Sharma Versus Vinod Kumar) and also the Revisional Court order dated 11.02.2016 passed in J.S.C.C Revision No. 16 of 2015 (Naresh Chandra Sharma vs. Vinod Kumar. 2. The eviction suit was filed before the Judge Small Causes Court, Bulandshahar on the ground that the shop was let out for running general merchandise business but without permission of the landlord the defendants started business of battery manufacturing. Moreover, the plaintiff did not want to continue the tenancy hence a notice to quit was served upon the petitioner through counsel by registered post. The defendants neither paid rent nor vacated the shop in question and, therefore, the ejectment suit was filed with the relief to deliver possession to the plaintiff/landlord. 3. The suit was decreed by the Small Causes Court (JSCC) on the ground that the tenancy is not protected by the provisions of U.P. Act No. 13 of 1972 as the shop in question is a new construction exempted from the operation of the Act in view of section 2(2) of the Act. The petitioner was found in default and that there was no dispute regarding service of notice to quit and, therefore, the suit was decreed. The finding recorded by the J.S.C.C was upheld in revision. 4. Challenging the eviction orders, the main submission of learned counsel for the petitioner is that the Courts below had erred in considering the date of completion of the construction of building as 04.08.1989 on the basis of a house tax assessment receipt which was filed by the landlord. In support of his submission, the landlord filed sanctioned map paper No. 25C and house tax receipt paper No. 24 C to submit that the shop in question is a new construction and therefore, exempted from the operation of Act. There was no document of first assessment of the shop in question. The sanctioned map could not have been relied upon to conclude that it was a 7 All. Vinod Kumar Vs Naresh Chandra Sharma (Since Deceased) & Ors. 603 new construction made in the year 1989. The conditions as laid down in Explanation 1 of Section 2 (2) to conclude the date of construction of the building do not exist in the present case and as such no definite conclusion could have been drawn in this regard. 5. Reliance is placed upon the judgement of this Court in the case of Shafiq Ahmad Vs. 1st Additional District and Sessions Judge, Bijnor & Ors. reported in 2003 (1) JCLR 299 (All) in support of his submission that the Court below had illegally concluded that the constructions were made in the year 1989 without examining the relevant evidence for deciding the question of date of construction of the building keeping in view the principles laid down in various decisions of this Court. 6. Having heard learned counsel for the parties and perused the record, before dealing with the submission of learned counsel for the petitioner regarding the date of construction as per Explanation 1 of section 2(2) for concluding a building to be a newly constructed building, it would be apt to go through the provisions as contained thereunder:- (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) "construction" 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 of completion of the said addition;" 7. A careful perusal of section 2 (2) and its explanation shows that four different dates for the purpose of determination as to whether the newly constructed building is exempted or not have been given therein which are as follows:- a. the date on which the completion of the building is reported to the local authority. 604 INDIAN LAW REPORTS ALLAHABAD SERIES b. the date on which the completion of building is otherwise recorded by the local authority having jurisdiction. c. the date on which the assessment of property tax is first made. d. in the absence of any such report/record or assessment, the date on which the building was actually occupied. 8. The Explanation further provides that, in a case where for the first three categories the dates are available then the earliest of three dates will be the date of completion of the building. The fourth date i.e. the date of occupation will be the date of completion of building only in case, where the first three dates are not available. 9. Deeming clause as contained in the Explanation to section 2(2) has been interpreted by this Court in the case of Madan Mohan Sharma Vs. Ashok Kumar Kaushik reported in 2013 (1) ADJ 313 wherein placing reliance upon the judgment of the Apex Court in Om Prakash Vs. Dig Vijendrapal Gupta, AIR 1982 SC 1230 it has been held that the date of occupation can be taken to be the date of completion of construction only where there was no report or record of the completion of the construction or no assessment thereof. In a case where the date of first assessment is available, only that would be the date of completion of the construction and the date of occupation of building during the period anterior to the first assessment was of no significance whatsoever. 10. Having gone through the settled legal position in this regard, this Court is of the opinion that the date of completion of construction of a building has to be ascertained strictly in the light of the dates given in Explanation 1 to section 2 (2) of Act 1972 and there is no scope of deviation in any manner. 11. In the instant case, the landlord came out with the clear case that the building was constructed after the map was sanctioned on 04.08.1989. In respect of this fact, he filed a house tax assessment receipt wherein the date of construction was entered as 04.08.1989. Though there was nothing on record to establish the date of first assessment of the shop in question, however, in view of the admission of the tenant that the shop in question was given to him on rent at the rate of the Rs.300/- on 05.11.1989, soon after its construction, it can be safely concluded that the shop in question was constructed in the year 1989. It is a case where there is no report or the record of assessment, the fourth date as provided in explanation 1 of section 2 (2), therefore, would come into play and the date of completion of construction would be the date of occupation of the building by the tenant which is 05.11.1989 as admitted to him. 12. Moreover, the map sanctioned on 04.08.1989 has been also brought on record to establish that the construction had commenced in the year 1989. The tenant admitted that he had occupied the shop in question soon after its construction. 7 All. Ram Babu Kurmi Vs State Of U.P. & Anr. 605 13. Learned counsel for the petitioner has placed reliance upon the judgment of this Court in the case Gopal Dass Vs. Bal Kishan Dass reported in 2013 All. CJ 639 which is of no help to him as in the said case this Court was dealing with a different issue. 14. Considering the above referred material on record, this Court is of the view that the date of occupation of the shop in question was rightly taken into consideration as the date of completion of construction by the Court below in absence of any report or record of assessment in view of the provisions of Explanation 1, section 2(2) of the Act, so as to operate exemption under the Act, 1972. 15. There is no illegality or perversity in the eviction orders passed by the Court below. 16. No other point has been pressed. 17. The writ petition is devoid of merits and hence dismissed. --------- REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 11.07.2016 BEFORE THE HON'BLE AMAR SINGH CHAUHAN, J. Criminal Revision No.- 2807 Of 2008 Ram Babu Kurmi ...Revisionist Versus State Of U.P. & Anr. ...Opposite Parties Counsel for Revisionist: Sri Amit Kumar Singh, Sri U.K. Verma Counsel for Opposite Parties: Government Advocate, Sri A.K. Pandey, Sri Pradeep Kumar, Ms. Pratibha Patel Criminal Procedure -- Section 227/228 Cr.P.C. -- Framing of Charge -- Standard -- Grave Suspicion Sufficient -- Victim's Rights at Charge Stage -- Held: charge can be framed even on the basis of grave suspicion -- the impugned order speaks clearly that the injury was caused on the basis or ground that the victim belongs to the Scheduled Caste community -- two persons sustained firearm injuries on hip and thigh which may be fatal to life -- there is eyewitness account and motive assigned against the revisionist -- there is sufficient ground for presuming that the accused has committed the offence as alleged -- framing of charge is a finding of fact which cannot be interfered in revision -- at the stage of discharging an accused or framing charge, the victim does not participate in the proceedings but his rights are also to be taken care of, and the Judge must give reasons if he is dropping or diluting any serious charge so as to inform the prosecution as to what went wrong with the investigation.