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SRI AKHTAR KHAN versus THE IST A.D.J., RAMPUR & OTHERS

High Court of Judicature at Allahabad

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Sri Akhtar Khan v. The Ist A.D.J., Rampur & Others - WRIT - A No. 25723 of 1999 [2007] RD-AH 12289 (18 July 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

   Court no. 7                                                        

           Civil Misc. Writ Petition No. 25723 of 1999

Sri Akhtar Khan                 versus    The Ist Addl.District Judge,

                                                          Rampur and others.

Hon'ble Rakesh Tiwari,J.

 

    Heard counsel for the parties and perused the record.

   This writ petition arises out of SCC Suit no.  22 of 1993     filed by respondent no.3 praying for eviction of the petitioner from the shop situated opposite Hathi Khana, Rampur for recovery of arrears of rent and damages.

The reliefs sought by the petitioner were that-

(a) That a decree for ejectment of the defendant from the shop in dispute detailed below kindly be passed and the actual vacant possession of the shop in dispute be delivered to the plaintiff after eviction of the defendant from the shop in dispute.

(b) That a decree for recovery of Rs. 1,826/- as arrears of rent be kindly passed in favour of the plaintiff and against the defendant.

(c) That a decree for recovery of Rs. 33/- as damages for unauthorized use and occupation of the shop in dispute be kindly passed in favour of the plaintiff and against the defendant.

(d) That a decree for recovery of damages pendent elite and future till ejectment Rs.330/-per month be kindly passed in favour of the plaintiff and against the defendant.

       The case of the respondent -landlord in the plaint was that the petitioner had taken the disputed shop on rent @ Rs. 330/-per month which had not been paid since 1.7.1993 to 16.12.1993 inspite of demand notice served by the landlord on the petitioner tenant.  It was further the case of the landlord that the shop in dispute was new construction which was constructed and let out for the first time in year 1987, hence the provisions of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the U.P. Act No. 13 of 1972) were not applicable as 10 years period from the date of its construction had not elapsed.

The petitioner tenant denied the averments made in the plaint by filing in his written statement on the ground that no rent was due and that in fact rent for the month of July, 1993 the respondent landlord had himself refused to accept the rent which was sent by the tenant by money order. It was his case that rents for the months of July and August, 1993 were sent along with taxes by money order which was similarly refused by the landlord and similarly the rent was again sent for the months July, August and September, 1993 to the extent of Rs. 990/- which was also refused by respondent no.3 landlord, hence the petitioner tenant deposited the rent in the Court below in Case no.93 of 1993 in the aforesaid circumstances.

It was also the case of the petitioner that the shop was not new construction and in fact it was an old construction to which the provisions of U.P. Act No. 13 of 1973 were fully applicable; and that there is old assessment, which is continuing for the last 50 years. The petitioner filed money order receipts and besides examining himself as D.W.1 also examined Hashmat Khan and Ashfaq Khan as witnesses in support of his case. The petitioner claimed the benefit of Section 114 of the Transfer of Property Act.

The trial Court by judgment dated 20.1.97 decreed the suit in favour of the landlord holding that the petitioner was not entitled to the benefit of Section 114 of the Transfer of Property Act read with Section 20(4) of U.P. Act No. 13 of 1972.

Aggrieved by the aforesaid judgment dated 20.1.97 the petitioner went in SCC Revision No. 8 of 1997 by which the Revisional Court has affirmed the findings of the trial Court holding that the constructions made were new construction as such the provisions of U.P. Act No. 13 of 1972 are not applicable.

The contention of the counsel for the petitioner is that the findings of the Revisional Court that Section 2(2) of U.P. Act No. 13 of 1972 applies to the facts of the case and the impugned order of the Revisional Court is wholly illegal as the Section itself provides that where the original construction which has been made replaces the new construction, only then it shall be deemed to be a new construction.

In support of his above submission, the counsel for the petitioner has relied upon the case of Shyam and others Vs. IIIrd Addl. District Judge, Urai (Jalaun) and others, 1984(1) ARC-241 wherein it has been held that-

            "6. Sub-Section (2) of Section 2 of U.P. Act No. XIII of 1972 has an explanation 1.

             It says:-

             For the purpose of this section:-

(a) ..........

(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. There is no finding that the old shop which was purchased by the petitioner from the previous owner was got demolished and a fresh construction made as contemplated by Explanation 1(b) quoted above or whether the changes made were such as were contemplated by clause (c) of Explanation 1. In absence of such a finding the Court apparently assumed that the charges made in the shop by the landlord were new constructions within the meaning of sub-section (2) of Section 2 of U.P. Act No. 13 of 1972."

     He next submits that there is no finding of the Revisional Court that the old shop which was purchased by the petitioner from the previous owner, was got demolished and a fresh construction was made as contemplated by Explanation 1(b) quoted above or whether the changes made were such as were contemplated by clause (c) of Explanation 1, hence in the absence of such a finding the Court apparently assumed that the changes made in the shop by the landlord were new constructions within the meaning of sub-section (2) of Section 2 of U.P. Act No. 13 of 1972.

He has urged that this assumption can not be made in view of specific provisions of Section 2(2) of U.P. Act No.13 of 1972 which is as under:-

            " (2) Except as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21, sub-section (2) of Section 24, Section 24-A, 24-B, 26-C or sub-section (3) of Section 20, 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 way of loan or advance from the State Government or the Life Insurance Corporation of India or a bank or a Cooperative 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 is 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.

Explanation 1- For the purpose of this Section-

(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 a 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."

         In support of this submission, the counsel for the petitioner has relied upon paragraphs 8 and 9 of the judgment in the case of Ram Swaroop Rai Vs. Smt. Lilawati, 1980 ARC 465 wherein it has been held that the Courts below should have recorded a finding about the re-building but in the instant case, no finding has been recorded as such the impugned order is rendered illegal. The paragraphs 8 and 9 are as under:-

          "8. Unfortunately, it is not possible for the purchaser respondent or the tenant appellant to give direct testimony about the time of the construction or the nature of the construction viz a viz, Explanation (b) or (c). The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been remodeled and, if so, when exactly the completion took effect. The municipal assessment record produced in the Court below merely states " increased assessment". It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed and a new assessment was made which was more than the previous assessment and, therefore, was prescribed as increased assessment. The oral evidence in the case, apart from what we have set out, is inconsequential, being second hand testimony. Even recital in the rent deed that there was no new construction in 1965-66 is by the appellant and the respondent neither of whom has any direct knowledge about the construction. Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute.

            9.Viewed in this perspective the failure of the trial Court specifically to record when the building was completed and what was the extent of re-building, whether it was a case of total demolition and reconstruction or such extensive additions as to push the existing building into a minor part, becomes fatal. These basic issues have failed to receive any attention from the Courts below. A finding recorded on speculative basis is no finding and that is the fate of the holding in the present case."  

             

            Per contra, the counsel for the respondents has taken me through the judgments of the Courts below and submits that the Courts below have considered the provisions of Section 2(2) of U.P. Act No. 13 of 1972 in the light of the records and the evidence produced by the parties in this case and came to the conclusion that the shop in dispute was a new construction.

 It appears from the record that the landlord had purchased the shop in dispute from its erstwhile owner, which was in the shape of a '' Baithaka' or Drawing room. On the old foundation of the ''Baithaka' new walls were constructed and shutters were put   and the ''Baithaka' was sub-divided into the shops. The Courts below have recorded a finding that merely because the shop has been constructed on the old foundation of the Baithaka it can not be treated to be a new construction and that walls, shutters and  windows were replaced by new one  and also the wooden Kadis were replaced by lintel. It further recorded a finding that before construction of the new shop the landlord had got the map sanctioned from the Nagarpalika in 1986 and a new building came into existence on the place where the old Baithaka was there which was purchased by the petitioner from Nanhe and 3 persons who were joint owners.  The Prescribed Authority also noted that the petitioner tenant has failed to prove that the landlord had not purchased the building having foundation of the old ''Baithaka', hence it was a new construction that the landlord was entitled to the benefit of Section 2(2) of the Act.

The Revisional Court while affirming the judgment of the Prescribed Authority has held that-

            "^^ EkSaus mHk; Ik{k ds fo}ku vf/kDrkvksa ds rdZ lquk rFkk Ik=koyh dk v/;;u fd;k A fo}ku y?kqokn U;k;k/kh'k us ;g fu"d"kZ fn;k fd okn xzLr nqdku o"kZ 1986 dh cuh gqbZ gS bl dkj.k ml ij m0iz0 vf/kfu;e 13 lu~ 1972 ds izkfo/kku ykxw ugh gksxaas rFkk izfroknh us eqdnesa dk [kpkZ ugha tek fd;k ] bl dkj.k mls /kkjk 20 ¿4�? mijksDr vf/kfu;e dk ykHk Hkh mls ugha feysxk A ijUrq fo}ku y?kqokn U;k;k/kh'k u fdjk;k vnk djus ds pwd dsokjs esa fu"d"kZ ugha fn;k gS A eq[; #Ik ls ;fn ;g fl} gksrk gS fd oknh foi{kh ds oknxzLr nqdku dk uo fuekZ.k o"kZ 1986 esa djk;k rks ml ij ;w0 ih0 vf/kfu;e 13@1972 ykxw ugha gksxk vkSj rc pwd ds fu"d"kZ dh vko';drk ugha jg tk;sxh A bl Ik`"B Hkwfe esa ;g ns[kuk gS Sfd D;k okn xzLr nqdku dk fuekZ.k o"kZ 1986esa gqvk A oknh ds vuqlkj mlus oknxzLr nqdku dh Hkwfe [kjhn dj nqdku dk fuekZ.k djk;k vkSj izfroknh mlds okn dk fdjk;knkj FkkA oknh us fuekZ.k ds fy, uxjikfydk ls vuqefr yh vkSj uD'kk ikl djk;kA oknh us bls lEiw"V djus ds fy;s Lo;a dk lk{; fn;k rFkk uxjikfydk dh vuqefr fnukad& 4&9&86 o aLohd`r uD'kk  izn'kZ&5 gS A izfroknh us blds fojks/k esa ;g vfHkdfFkr fd;k fd oknxzLr nqdku dk fuekZ.k u;k ugha gS A igys ;g ,d cSBd  Fkh ftlds rhu nj Fks A ml cSBd esa cVokjs dh nhokj Mkydj nqdkusa cuk;h x;h A njokts ds LFkku ij '''kVj yxk fn;k x;k A &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& izfroknh Mh0 Mcyw 1 ds lk{; ls Hkh ;g okr fl} gksrh gS fd nqdku dk vf/kdrj Hkkx uofufeZr gS aA izfroknh Mh0Mcyw 1 us izfrijh{kk esaZ Lohdkj fd;k fd bl cSBd dh dfM;k cny dj fyUVj Mky fn;k gS vkSj cSBd dh nhokj esa yxk nh gS IykLVj vkSj Q'kZ Mky fn;k gS k'kVj njokts ds vkxs yxk fn;k gSA bl izdkj bl lk{kh ds vuqlkj Nr cny nh x;h] nhokjsa cny nh x;h] Q'kZ cny nh x;h o  'kVj Hkh yx x;kA  bl izdkj nqdku dk eq[; Hkkx cny x;k vkSj u;k yxk fn;k x;kA ,slh fLFkfr esa esjs fopkj ls /kkjk 2 ¿2�? ds Li"Vhdj.k 1 ¿lh�? mijksDr vf/kfu;e ds vuqlkj oknxazLr nqdku u;s fuekZ.k dh ifjHkk"kk esa vkrh gS A^^

The Courts below have further held that the assessment of the building has been made in 1986 and no assessment order has been filed by the tenant after the said new construction as such he has not discharged his burden of proof in support of his case.

A perusal of the explanation to Section 2(2) would show that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate unit or are occupied separately by the landlord anjd one or more tenants or by different tenants. The landlord has purchased the old building and has made new construction in place of the existing building by demolishing it substantially and only minor part of the old building remains in existence. In the instant case, the landlord has constructed the walls and put in shutters on the old foundation of the building.

It is apparent from the record that the map was got sanctioned from the Nagarpalika in the year 1986 and thereafter only the new constructions were made in place of old existing '' Baithaka'.

In view of the above in my opinion, the Courts below have rightly come to the conclusion that new building has been constructed by the landlord and there is no illegality or infirmity in the impugned orders of the Courts below in holding that U.P. Act No. 13 of 1972 did not apply.

For the reasons stated above the writ petition is dismissed. The interim order dated 13.7.99 is vacated.  The petitioner tenant is directed to hand over peaceful and vacant possession of the shop in dispute to the landlord within a period of two months from the date of production of a certified copy of this order.

Dated 18.7.2007

CPP/-

             

 


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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