The Allahabad High Court has reaffirmed that tenants seeking protection under the U.P. Act No. 13 of 1972 bear the burden of proving the building's completion date before the statutory cutoff of 26th April 1985. Mere assertions without corroborative evidence are insufficient to invoke the Act's safeguards against ejectment.
Background & Facts
The Dispute
The dispute arises from a suit for ejectment and recovery of arrears of rent filed by the respondent-landlord, Shri Gopal Krishna Gangal, against the petitioner-tenant, Mohammad Zaki Khan, concerning a shop located at Battomal Market, Palval Road, Qasba Khair, District Aligarh. The tenant claimed continuous tenancy since 1987 at a monthly rent of Rs. 400. The landlord alleged default in payment and served a notice of termination dated 10.05.2012, following which the suit was instituted.
Key Facts
- The tenant claimed to have been inducted as tenant in 1987 in an existing structure.
- The tenant asserted that the current shop building was constructed in 1991.
- The landlord contended that the tenant was inducted into a newly constructed shop in 1988.
- No documentary evidence was produced by the tenant regarding the date of construction, municipal assessment, or first occupation.
- The tenant did not dispute having paid rent since 1987 but failed to substantiate the claim that the building was completed before 26.04.1985.
Procedural History
- 1987: Tenant inducted into premises.
- 1988: Landlord claims new shop constructed and tenant put in possession.
- 10.05.2012: Termination notice served by landlord.
- 2012: S.C.C. Suit No. 27 of 2012 filed by landlord for ejectment and arrears.
- 17.02.2025: Judge, Small Causes Court, Aligarh, decreed the suit for ejectment and arrears.
- 03.10.2025: District Judge, Aligarh, dismissed S.C.C. Revision No. 42 of 2025, affirming the trial court’s decree.
- 2026: Writ petition under Article 227 filed before the Allahabad High Court.
Relief Sought
The petitioner sought quashing of the orders dated 17.02.2025 and 03.10.2025, and a declaration that the U.P. Act No. 13 of 1972 applies to the premises, thereby granting protection against ejectment.
The Legal Issue
The central question was whether the petitioner-tenant had discharged the burden of proving that the building in question was completed before 26th April 1985, as required under the second proviso to sub-section (2) of Section 2 of the U.P. Act No. 13 of 1972, to attract statutory protection against ejectment.
Arguments Presented
For the Petitioner
Learned counsel for the petitioner argued that the building was constructed in 1991 and therefore fell within the ambit of the U.P. Act No. 13 of 1972. Reliance was placed on Explanation I(a) to the second proviso to Section 2(2), which deems completion of construction based on municipal assessment, local authority record, or first actual occupation. Counsel contended that since no such records were available, the date of actual occupation in 1991 should be deemed the completion date. It was further submitted that the landlord’s claim of construction in 1988 was unsubstantiated.
For the Respondent
Learned counsel for the respondent countered that the tenant himself admitted to being inducted as tenant in 1987 and was shifted to the new shop in 1988, thereby implicitly acknowledging that the building was completed before 1988. Counsel emphasized that the tenant failed to produce any municipal assessment records, completion certificates, or any other documentary evidence to substantiate the claim of construction in 1991. Counsel relied on Om Prakash Gupta v. Dig Vijendra Pal Gupta to argue that the burden lies squarely on the tenant to establish the date of construction under the deeming provisions of the Act.
The Court's Analysis
The Court examined the statutory framework under Section 2(2) of the U.P. Act No. 13 of 1972, particularly the second proviso and Explanation I(a), which governs the deeming of completion date for buildings constructed after 26th April 1985. The Court noted that the Act grants protection only to premises constructed before that date. Where the date of construction is disputed, the burden of proof lies on the tenant asserting protection.
"It is well settled that where a tenant seeks protection under the provisions of U.P. Act No. 13 of 1972, the burden lies upon the party asserting applicability of the Act to establish the foundational facts attracting such protection, including the date of completion of construction where exemption under Section 2(2) is in issue."
The Court observed that the tenant’s assertion of construction in 1991 was contradicted by his own admission of tenancy since 1987 and relocation to the new shop in 1988. No municipal assessment records, completion reports, or any other objective evidence were produced. The Court held that the Supreme Court in Om Prakash Gupta v. Dig Vijendra Pal Gupta had clearly laid down that in the absence of assessment or official record, only first actual occupation (excluding supervisory or guarding occupation) can be considered. The tenant failed to establish even this.
The Court further emphasized that the deeming provisions under Explanation I are mandatory and must be strictly applied. Bald assertions, unsupported by evidence, cannot substitute statutory requirements. The concurrent findings of the two courts below, that the Act was inapplicable, were therefore sustainable.
The Verdict
The petition was dismissed. The Court upheld the orders of the Small Causes Court and the District Judge. However, in view of the tenant’s long-standing occupation and the absence of objection from the landlord, the Court granted nine months’ time to vacate the premises on or before 09.02.2027. The tenant was directed to: (i) file an undertaking before the Small Causes Court within two weeks to vacate by 09.02.2027; (ii) deposit all arrears, after adjusting prior deposits, within four weeks; and (iii) pay monthly use and occupation charges of Rs. 4,000 from June 2026 onwards, by the 7th of each month. Default in any condition shall vacate the protection and enable enforcement of the decree.
What This Means For Similar Cases
Burden of Proof Rests Entirely on the Tenant
- Practitioners must advise tenants claiming protection under U.P. Act No. 13 of 1972 to gather and produce documentary evidence of construction date before 26.04.1985.
- Oral testimony alone, especially when contradicted by prior admissions, is insufficient.
- Failure to produce municipal assessment records, completion certificates, or occupancy records will result in dismissal of protection claims.
Deeming Provisions Are Mandatory, Not Discretionary
- Courts must apply Explanation I(a) strictly: first assessment > local authority record > first actual occupation.
- Any claim based on construction after 26.04.1985 is automatically excluded, regardless of tenant’s duration of stay.
- Lawyers must challenge claims based on vague assertions by demanding proof under the statutory deeming mechanism.
Strategic Implications for Landlords
- Landlords may now confidently proceed with ejectment suits where no pre-1985 construction evidence is produced.
- Tenants’ admissions during trial (e.g., tenancy since 1987) can be weaponized to rebut claims of post-1985 construction.
- Use and occupation charges can be secured as interim relief even while challenging ejectment decrees.
