Girish Chandra Goyal Vs. Bimla Devi and Others
EmailAppeal: Civil Appeal No. 1121 of 2001
(Arising out of SLP (C) No. 13570/1999)
(Arising out of SLP (C) No. 13570/1999)
Petitioner: Girish Chandra Goyal
Respondent: Bimla Devi and Others
Apeal: Civil Appeal No. 1121 of 2001
(Arising out of SLP (C) No. 13570/1999)
(Arising out of SLP (C) No. 13570/1999)
Judges: V.N. KHARE & S.N. VARIAVA, JJ.
Date of Judgment: Aug 02, 2001
Head Note:
RENT CONTROL AND EVICTION
Uttar Pradesh Buildings (Regulation of Letting, Rent and Eviction) Act, 1972
a) Section 2(2) – Applicability – Suit for eviction after terminating tenancy of shop – Maintainability challenged – Disputed shop constructed on old construction – Ten years period not expired – Permission to raise construction in 1979 – New construction assessed to house tax on 1.10.80. Held that it was new construction and Act was inapplicable. (Para 3)
b) Revision – Power of revisional court – Finding of fact reversed by revisional court – Question about applicability of Rent Act. Held that it was a jurisdictional matter and revisional court could go into question of fact. (Para 4)
JUDGEMENT:
ORDER
1. Leave granted.
2. Appellant herein is the tenant of the disputed shop. The respondent-landlords filed a suit for eviction of the appellant herein after terminating the tenancy before the Small Causes Court, Aligarh. The defendant-appellant filed a written statement wherein he took plea that since the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) is applicable to the premises in dispute, the suit filed by the landlords is not maintainable. The trial court was of the view that since the disputed tenanted shop was constructed on an old construction, thus the new construction made by the landlords is not a new construction and, therefore, the Act is applicable to the premises. In view of that matter, suit was dismissed. The revi-sion filed by the respondents was allowed by the revisional court. The revisional court found that the construction made by the landlords was a new construction and since 10 years from the date of construction has not expired, the Act is not applicable to the premises. Aggrieved, the tenant preferred a writ petition before the High Court of Allahabad, which was dismissed. It is against the said judgment, the appellant has filed this appeal.
3. Learned Counsel appearing for the appellant urged that where a new construction is made on an old construction after demolition, such a case would fall under Clause (C) of Explanation I to Sub-section (2) of Section 2 of the Act and, therefore, the Act is applicable to premises in dispute. It is alleged there was a godown and a garage. The Landlords in the year 1979 applied to the Aligarh Development Authority for sanctioning the map for construction of house where the old building existed. The said map was sanctioned on 26th March, 1979. The perusal of the map shows that the sanction for construction was for a new construction in place of an old building. The new construction was assessed towards house tax on 1st October, 1980. On these facts, the revisional court and the High Court found that the disputed shop was a new construction constructed in the year 1980 and since 10 years from the date of first assessment have not expired, the Act is not applicable to the shop. We do not find any infirmity in the orders passed either by the revisional court or the High Court.
4. Learned Counsel then urged that the revisional court in exer-cise of its revisional power cannot reappraise the evidence and come to a contrary finding of fact reached by the trial court. This contention has no merit. The question whether the Act is applicable to the premises or not is a jurisdictional fact and the revisional court was within its jurisdiction to go into the question whether the building was a new construction or an old building and what was its date of first assessment in Municipal record. For the aforesaid reasons we do not find any merit in the appeal and it is accordingly dismissed. There shall be no order as to costs.
5. Learned Counsel for the appellant states that in case the appellant is required to vacate the premises in question immediately, he would be put to great hardship and for that reason the appellant may be granted some time to vacate the premises. Learned Counsel for the respondents has no objection. We, therefore, direct that the appellant shall not be dispos-sessed from the premises till 31st of August, 2001 provided he files an usual undertaking in this Court within four weeks from today. In case the undertaking is not filed within the stipulated period, this order of ours shall stand vacated and it will be open to the respondents to execute the decree forthwith.
1. Leave granted.
2. Appellant herein is the tenant of the disputed shop. The respondent-landlords filed a suit for eviction of the appellant herein after terminating the tenancy before the Small Causes Court, Aligarh. The defendant-appellant filed a written statement wherein he took plea that since the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) is applicable to the premises in dispute, the suit filed by the landlords is not maintainable. The trial court was of the view that since the disputed tenanted shop was constructed on an old construction, thus the new construction made by the landlords is not a new construction and, therefore, the Act is applicable to the premises. In view of that matter, suit was dismissed. The revi-sion filed by the respondents was allowed by the revisional court. The revisional court found that the construction made by the landlords was a new construction and since 10 years from the date of construction has not expired, the Act is not applicable to the premises. Aggrieved, the tenant preferred a writ petition before the High Court of Allahabad, which was dismissed. It is against the said judgment, the appellant has filed this appeal.
3. Learned Counsel appearing for the appellant urged that where a new construction is made on an old construction after demolition, such a case would fall under Clause (C) of Explanation I to Sub-section (2) of Section 2 of the Act and, therefore, the Act is applicable to premises in dispute. It is alleged there was a godown and a garage. The Landlords in the year 1979 applied to the Aligarh Development Authority for sanctioning the map for construction of house where the old building existed. The said map was sanctioned on 26th March, 1979. The perusal of the map shows that the sanction for construction was for a new construction in place of an old building. The new construction was assessed towards house tax on 1st October, 1980. On these facts, the revisional court and the High Court found that the disputed shop was a new construction constructed in the year 1980 and since 10 years from the date of first assessment have not expired, the Act is not applicable to the shop. We do not find any infirmity in the orders passed either by the revisional court or the High Court.
4. Learned Counsel then urged that the revisional court in exer-cise of its revisional power cannot reappraise the evidence and come to a contrary finding of fact reached by the trial court. This contention has no merit. The question whether the Act is applicable to the premises or not is a jurisdictional fact and the revisional court was within its jurisdiction to go into the question whether the building was a new construction or an old building and what was its date of first assessment in Municipal record. For the aforesaid reasons we do not find any merit in the appeal and it is accordingly dismissed. There shall be no order as to costs.
5. Learned Counsel for the appellant states that in case the appellant is required to vacate the premises in question immediately, he would be put to great hardship and for that reason the appellant may be granted some time to vacate the premises. Learned Counsel for the respondents has no objection. We, therefore, direct that the appellant shall not be dispos-sessed from the premises till 31st of August, 2001 provided he files an usual undertaking in this Court within four weeks from today. In case the undertaking is not filed within the stipulated period, this order of ours shall stand vacated and it will be open to the respondents to execute the decree forthwith.
