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Allahabad High Court · body

2007 DIGILAW 1856 (ALL)

Kunwar Behari v. Malti Devi

2007-07-10

RAKESH TIWARI

body2007
ORDER : 1. Heard learned Counsel for the Petitioner. 2. The Petitioner is the tenant of the shop situated at Khirni Gate, Near Police Chawky, Aligarh. The Respondent is landlord of the shop in dispute which was first assessed on 4.2.1973. The house tax of the shop in dispute appears to have been enhanced vide order dated 5.2.1978 after the shop was reconstructed after demolition. 3. Against the aforesaid first assessment the Respondent filed an appeal u/s 160 of the Municipalities Act before the Chief Judicial Magistrate, Aligarh, stating that the shop in dispute is an old construction and therefore, the house tax has been wrongly assessed. 4. The Chief Judicial Magistrate, Aligarh, reduced the house tax of the shop in question vide order dated 13.2.1979. Thereafter the Respondent had filed a release application against the Petitioner u/s 21(1)(a) of the Act which has been allowed vide order dated 27.1.1997. 5. The Petitioner preferred an Appeal No. 9 of 1997, before the District Judge, Aligarh, which has been allowed vide judgment and order dated 27.2.1999, holding that the shop in question is an old construction and the provisions of U.P. Act No. 13 of 1972 apply to it. 6. The Respondent also filed J.S.C.C. Suit No. 243 of 1986 against the Petitioner u/s 20 of the U.P. Act No. 13 of 1972 and also initiated proceedings under Sections 12 and 16 of U.P. Act No. 13 of 1972 against the Petitioner stating that the shop in dispute is an old construction. The Respondent filed a Revision No. 2 of 2002, which has also been dismissed in default on 18.5.2004. 7. It is contended by the learned Counsel for the Petitioner that the Petitioner filed several judgment of the previous litigations between the parties in which it has been provided that the shop in question is an old construction and is governed by the provisions of the Act. The Respondent has not filed any evidence in rebuttal. He further contended that the revisional court has allowed the revision and set aside the judgment of the J.S.C.C. and allowed the amendment application of the Respondent without application of mind. 8. The questions raised regarding applicability of the Act are legal questions which may be decided by the court below at the time of final hearing on basis of documentary and oral evidence before it on record. 8. The questions raised regarding applicability of the Act are legal questions which may be decided by the court below at the time of final hearing on basis of documentary and oral evidence before it on record. It is not case for interference under Article 226 of Constitution of India at this interlocutory stage. Without entering into the merits of the case, the petition is dismissed. The suit is of the year 1989, which shall be decided by the court below within three months.