Allahabad High Court
Smt. Rizwan Amra & Another vs Viith Addl. District & Sessions Judge, ... on 8 July, 2010
Author: Devendra Pratap Singh
Bench: Devendra Pratap Singh
Court No. - 7 Case :- WRIT - A No. - 25576 of 1998 Petitioner :- Smt. Rizwan Amra & Another Respondent :- Viith Addl. District & Sessions Judge, Kanpur Nagar & Ors Petitioner Counsel :- K.K.Arora Respondent Counsel :- C.S.C.,Pankaj Bhatia,Vikram Bhalla Hon'ble Devendra Pratap Singh,J.
Heard learned counsel for the parties.
This petition by the landlord is directed against concurrent orders by which his suit for arrears of rent and eviction has been dismissed by both the courts below.
The petitioner-landlord instituted SCC suit no.319 of 1991 inter-alia with the allegation that by partition the petitioners came in possession of plot no. 97/315A where they made new constructions of 12 shops out of which in one shop the respondent was a tenant at the rate of Rs.250 per month but he defaulted in payment of rent therefore he was liable for eviction as the same was not paid despite notice and U.P. Act No. XIII of 1972 (here-in-after referred to as the Act) was not applicable since the shops were assessed for the first with effect from 1.4.1987.
The respondent-tenant contested the suit on the allegation that he was a tenant of an old shop which was earlier let out to one Abdul Razzak and since he has deposited the entire amount, he is not liable for eviction.
The trial court after framing three issues including with regard to applicability of the Act, found that the Act was inapplicable as the shop was assessed for the period 1978-87 and since amounts have been paid, he was entitled to protection of section 20 (4) of the Act. The said judgment was affirmed by the appellate court.
Learned counsel for the petitioner has urged that from the replication, statement of the tenant and the two assessments orders it is clear that assuming that the shop was in existence, there was substantial addition to it and therefore in view of section 2 (2) (C) of the Act, the date of completion would be the date of the substantial addition to the building.
2It is apparent from the record that upon filing of the written statement, denying that all the shops were constructed after 1981, the petitioner filed his application categorically stating that there was a tin shed hotel which was demolished and a new shop was raised and earlier there was no shop in existence. The respondent-tenant in his statement in paragraph no. 4 has admitted that when he was let out the disputed shop, there was a Kachcha construction of a hotel and thereafter about 1o to 12 shops were newly constructed by the landlord. This fact is also evident from a perusal of the assessment order of 1978-87 which shows that earlier a tin shed, cow shed and sweet shop was in existence and from the assessment order 1987-92 it is clear that 10 shops were newly erected at the same place. Therefore, even assuming that the petitioners' shop was not demolished for new construction but substantial amount of new constructions were added and therefore clause (C) would apply. However, none of the courts below have adverted itself to the applicability of clause (C). This aspect can also be examined from another angle. The petitioner says that he came in possession in 1981 when the Act had already come into force and therefore they could not have entered without an allotment order unless it was a new construction. All Acts are deemed legal unless proved otherwise. The tenant does not say that his entry was illegal.
For the reasons above, this petition succeeds and is allowed and the revisional order dated 28.5.1998 is hereby quashed and the matter is remanded to the revisioinal court to consider the issue again in accordance with the observation made hereinabove. Since it is old case, the revision may be decided expeditiously preferably within a period of three months from the date of submission of a certified copy of the order.
In the circumstances of the case, no order as to cost.
Order Date :- 8.7.2010 AU