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RAJESH KUMAR @ KALLU SONI versus RAKESH KUMAR AND OTHERS

High Court of Judicature at Allahabad

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Rajesh Kumar @ Kallu Soni v. Rakesh Kumar And Others - WRIT - A No. 103 of 2007 [2007] RD-AH 822 (12 January 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J

Heard counsel for the petitioner and perused the record.

This is tenant's petition.

         The petitioner-tenant moved an application under Section 30(1) of the U.P. Urban Buildings (Regulation of Rent, Letting and Eviction) Act, 1972 (hereinafter referred to as ''U.P. Act No. XIII of 1972') registered as Misc.  Case No. 22 of 2004- Rajesh Kumar V. Rakesh Kumar in the Court of Civil Judge (Junior Division) Orai for permission to deposit the arrears of rent from December, 2003 to July 2004.

The aforesaid case was contested by the respondent-landlords on the ground that the first assessment of the shop in dispute was made in 1987-88 thereafter in 1991-92, as such, the provisions of U.P. Act No. XIII of 1972 are not applicable to the shop in dispute.

Civil Judge (Junior Division) Orai, district Jalaun rejected petitioner's application for depositing the rent under Section 30(1) of U.P. Act No. XIII of 1972 vide order dated 18.8.2005 holding that the provisions of  U.P. Act No. XIII of 1972 are not applicable to the shop in dispute.

Aggrieved by the order dated 18.8.2005, the petitioner preferred Civil Revision No. 87 of 2005, which has been dismissed by the impugned order dated 18.9.2006 holding that the revision is not maintainable.

Aggrieved by the aforesaid orders passed by the Courts below, the petitioner has invoked writ jurisdiction by means of the present writ petition.

Counsel for the petitioner contended that the shop in dispute was Khandahar and it was no a new construction, as such, the provisions  of U.P. Act No. XIII of 1972 are applicable and, therefore, the revision was maintainable.  In support of his contention he placed reliance on decisions of this Court in Vijay Singh v. VI A.D.J. Ghaziabad and others- 1998(2) A.R.C-520 and Anwar Ali V. A.D.J. Mooradabad and others- 2002(2) A.R.C-562 wherein it has been held that the Prescribed Authority under the Act is not a Court of Civil jurisdiction but a persona designata as such, revision is not maintainable whereas in Rajendra Kumar Karanwal V. Smt. Kamlesh Garg and others - 2005(2) A.R.C-481; Moolchand Motumal Tekwani V. A.D.J. II and anothert- 1985(2) A.R.C-142; Chatur Mohan and others V. Ram Behari Dixit- 1964 A..L.J.-256 and Virendra Singh Kushwaha V. VII A.D.J. Agra and others- 1986(2) A.R.C-408, it has been held that the revision is maintainable.

He urged that since there is difference of opinion, the matter may be referred to a larger Bench. He contended that the Court of Civil Judge (Junior Division) is Court of law and not a persona designata, as such, the impugned order passed by the revisional Court holding that the revision is not maintainable is erroneous and cannot be sustained in law.

Counsel for the petitioner has not challenged the findings recorded by the Court below, on merits but confined his argument only to the question of law as to whether revision is maintainable or not.

Section 30(1) and (3 of U.P. Act No. XIII of 1972 reads as under :-

" 30. Deposit of rent in Court in certain circumstances-(1) If any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it.

(2)....

(3) The deposit referred to in sub-section (1), or sub-section (2) shall be made in the Court of the Munsif having jurisdiction."

The moot question in the instant case is as to whether the revision is maintainable or not. This question is dependent upon the fact that provisions  of U.P. Act No. XIII of 1972 are applicable to the premises in dispute or not. Admittedly, the case of the petitioner is that the building was a khandahar and was not worth living and that the building has been reconstructed to make it habitable. In this view of the matter, there cannot be two opinion that the building had lost its life as it was a khandahar and was not habitable.

Thus, in view of admitted case of the petitioner that the building was a khandahar, it could not be allotted to any one because it was inhabitable and safety of the tenant was in danger. However, taking into consideration the case of the petitioner that it was reconstructed to make it habitable, the position is that the building cannot be allotted to any one for 40 years after its reconstruction under the provisions of U.P. Act No. XIII of 1972 as it is new construction. In this view of the matter the provisions of U.P. Act No. XIII of 1972 are not applicable to the premises in dispute.

Counsel for the petitioner urged that in Rajendra Kumar (supra); Moolchand Motumal Tekwani -(supra); Chatur Mohan and others- (sipra)  and Virendra Singh Kushwaha (supra), wherein it has been held that the revision is maintainable, provisions of Section 30(3) of U.P. Act No. XIII of 1972 were not considered.

A bare perusal of Section 30(1) and (3) of U.P. Act No. XIII of 1972 shows that the provisions of Section 30 apply to the buildings covered by the provisions of U.P. Act No. XIII of 1972.  Both the Courts below have recorded a concurrent finding of fact that the provisions of U.P. Act No. XIII of 1972 are not applicable to the accommodation in dispute. Counsel for the petitioner has not challenged the finding of fact recorded by the Courts below and confined his argument on the question as to whether the revision is maintainable or not.

In view of the fact that the provisions of U.P. Act No. XIII of 1972 are not applicable to the premises in dispute the revision was not maintainable, as such, there is no illegality or infirmity in the impugned orders passed by the courts below.

Accordingly the writ petition fails and is dismissed. No order as to costs.

Dated

kkb


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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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