(Judgment reserved on 11.12.2009)
(Judgment delivered on 25.01.2010)
Court No. - 29
Case :- WRIT - A No. - 35327 of 1998
Petitioner :- Khalil Ahmad And Another
Respondent :- Iii Addl. Distt. Judge, Bijnor And Others
Petitioner Counsel :- M.S.Haq,Km. Anjum Haq
Respondent Counsel :- C.S.C.,K.M.Garg
Hon'ble Sibghat Ullah Khan,J.
This is tenants’ writ petition. Landlord respondent
No.2, Hori Lal filed suit against tenants petitioners for
eviction and recovery of arrears of rent in the form of
S.C.C. Suit No.47 of 1993. The main question involved
in the suit was regarding applicability of U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act,
1972. Case of the landlord was that shop in dispute was
constructed in July, 1983, hence the Act was not
applicable as the suit had been filed within ten years
from the date of construction, i.e. on 21.04.1993.
The trial court/ J.S.C.C. Bijnor held that the Act was
applicable. No ground for eviction as provided under
Section 20(2) of the Act was alleged to exist by the
landlord. Accordingly, suit was dismissed on
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14.05.1998.
Against the said judgment and decree, landlord filed
S.C.C. Revision No.89 of 1998. III A.D.J. Bijnor allowed
the revision through judgment and order dated
26.09.1998 and decreed the suit of the landlord holding
that the Act was not applicable on the building in dispute
and tenancy had been validly terminated through notice.
The judgment and order of the Revisional court has
been challenged through this writ petition.
It is admitted case of the parties that at the place of
the shop in dispute, there was an old shop, which was in
the tenancy occupation of the tenants petitioners since
1976. Landlord respondent asserted and tenants
petitioners admitted that the said shop was quite big and
by agreement between the parties, the said shop was
vacated by the tenants, demolished by the landlord and
eight shops at the site of the old big shop were
constructed by the landlord. The tenants asserted that
meanwhile landlord had given them another shop
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belonging to him. There was litigation in the form of
proceedings under Section 145, C.P.C. in between the
parties. Ultimately, shop in dispute, which was newly
constructed, was given to the tenants and they vacated
other shop, which was meanwhile given on rent to them
by the landlord. Copy of the written statement filed by
the tenants petitioners is Annexure-II to the writ petition.
Tenants asserted that under the oral agreement entered
into at the time of vacation of old shop, the
understanding was that one shop would be constructed
at the place of the old shop, however landlord
dishonestly constructed eight new shops. Even if this
version is accepted, it will not make much difference. As
far as the question of date of construction is concerned,
in Para-4 of the written statement where assertion
regarding oral agreement has been made, it has not
been stated that it was also agreed between the parties
that on the new shop, the Act would continue to apply.
The fact of constructing eight (or four) new shops at the
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place of the old shop has been stated in Para-6 of the
written statement. In the same para, it is also mentioned
that on 15.05.1983 kirayanama was executed by the
defendant. Thereafter, in Para-7 of the written
statement, it is mentioned that parties compromised the
matter on 13.07.1983 (in respect of vacation of
alternative shop which had been provided by the
landlord to the tenants). In Para-7 of the written
statement, it is also mentioned that, the agreement
dated 13.07.1983 was to the effect that three newly
constructed shops would be converted into one shop
and given on rent to the tenants for Rs.225/- per month
and in pursuance of the said agreement, landlord
converted three new shops into one and gave it on rent
to the tenants.
The trial court had held that it was not proved that
the new construction was so substantial that it could
amount to altogether new construction. This finding was
utterly wrong and rightly set aside by the Revisional
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court. Altogether new construction was clearly admitted
by the tenants in their written statement.
Under the facts and circumstances of the case, it
can not be held that the Act would continue to apply
even after the new construction. In the written
statement, there is no allegation that there was any
agreement at the time of vacation of the old shop by the
tenants that the newly constructed shop would be given
on same terms and conditions to them by the landlord.
There is also no such allegation that the old shop was in
dilapidated condition. The only allegation in paragraph-4
of the written statement is that the previous shop was
old. There is no such presumption that every old
building is in dilapidated condition. Accordingly, I do not
find any error in the judgment and order passed by the
Revisional court.
Certain authorities have been cited regarding date
of construction as provided under Section 2(2) of the
Act. However, new construction is admitted by the
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tenants and they claimed to have occupied newly
constructed shop for the first time in July, 1983 (Para-7
of the written statement).
Accordingly, there is no merit in the writ petition,
hence it is dismissed.
Order Date :- 25.1.2010
NLY
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