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2007 DIGILAW 1910 (ALL)

J. K. Jain v. Rakesh Kumar Saini

2007-07-17

RAKESH TIWARI

body2007
JUDGMENT : Rakesh Tiwari, J. actual scenario of the case is that the petitioners are owners/landlords of the shop, in dispute, situate in Subhash Bazar, Meerut City which is in the tenancy of the respondent. 2. The petitioners instituted S.C.C. Suit No. 135 of 1988, J.K. Jain and Anr. v. Sri Jagannath Prasad, in the Court of Judge, Small Causes Court, Meerut, claiming that the shop, in dispute, being new construction, the provisions of U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972, (hereinafter referred to as the U.P. Act No. XIII of 1972) are not applicable. 3. It was alleged that the shop, in dispute was demolished and a fresh construction was made in 1987. Fresh house tax was assessed in 1987. Accordingly, the petitioners served Sri Jagannath Prasad (since deceased), predecessor-in-interest of the present respondent with a notice dated 18.7.1988 u/s 106 of the Transfer of Property Act which was refused by him. The trial courts dismissed the suit of the petitioners vide judgment dated 17.11.1997. Aggrieved by the aforesaid judgment dated 17.11.1997, the petitioner preferred S.C.C. Revision No. 337 of 1997, u/s 25 of the Provincial Small Causes Courts Act. 4. During the pendency of aforesaid revision, the original tenant Sri Jagannath Prasad expired. Consequently, fresh notices were issued to the heirs and legal representative of late Jagannath Prasad for the purposes of substitution, but he failed to turn up. However, the respondent-Rakesh Kumar Saini, on the basis of a Will dated 12.1.1987 allegedly executed by late Jagannath Prasad amended the written statement incorporating the fact that after late Jagannath Prasad, the tenancy devolved upon him under the Will dated 12.1.1987. 5. After amendment of the written statement, the petitioners filed replication dated 27.2.2002 stating that on the basis of the alleged Will dated 12.1.1987, the tenancy rights could not be transferred. 6. The aforesaid revision of the petitioners has been dismissed vide impugned judgment and order dated 12.5.2003 by the revisional court. The petitioners have challenged the validity and correctness of the impugned judgments passed by the courts below in the instant writ petition. 7. Having heard counsels for the parties and after going through the record of the case, the following questions arise for determination: 1. Whether the provisions of the U.P. Act No. XIII of 1972 are applicable to the shop in dispute? 2. 7. Having heard counsels for the parties and after going through the record of the case, the following questions arise for determination: 1. Whether the provisions of the U.P. Act No. XIII of 1972 are applicable to the shop in dispute? 2. Whether grant of benefit of Section 30(1) of the U.P. Act No. XIII of 1972 is valid? 3. Whether tenancy rights are transferable through Will to a person other than legal heir? 8. On question No. 1, counsel for the petitioners drew the attention of the Court to copy of the assessment order contained in Annexure-5 to the writ petition, which shows that first assessment was made on 1.4.1987. Therefore, he contended that as per Explanation 1 (a) of Section 2 of the U.P. Act. No. XIII of 1972, the construction of the building is to be deemed to have been completed on the first date on which the first assessment was made. In support of this contention, he placed reliance on the decisions in Girish Chandra Goyal Vs. Bimla Devi and Others, (2001) 5 JT 279 ; Ram Swaroop Rai v. Leelawati 1980 ARC 466 (SC) and Bibhu Nath v. Srikisan Purwar 1981 ARC 639. 9. Per contra, counsel for the respondent relied upon the findings recorded by the trial court that no sanctioned map was produced; no notice was served upon the tenant by the landlords to stop new construction and that challenge of the tenants by the Development Authorities for unauthorized construction is a criminal proceeding, which is not relevant. 10. Rampant corruption in the office of the Development Authorities is well known. It is extremely impossible for a honest citizen to get his map sanctioned. Almost 50 to 80% buildings in each city of the State are have been constructed without getting the maps sanctioned or against the sanctioned map but on the very first day when the building is constructed, assessment is made by the concerned Inspector and House Tax is levied. 11. In the aforesaid decisions relied upon by counsel for the petitioners, first assessment of house has been treated to be basis for arriving to the conclusion as to whether the building is old or new construction. 11. In the aforesaid decisions relied upon by counsel for the petitioners, first assessment of house has been treated to be basis for arriving to the conclusion as to whether the building is old or new construction. In the instant case, the petitioners have brought on record in the shape of Annexure-5 to the writ petition that the shop was first assessed in 1987, as such, the courts below have erroneously held that the provisions of the U.P. Act No. XIII of 1972 are applicable. There is force in the argument of the counsel for the, petitioner, which is accepted. 12. As regards question No. 2, perusal of record shows that notice dated 18.7.1988 u/s 106 of the Transfer of Property Act was served by the petitioners upon late Jagannath Prasad on 21.7.1988 and upon the present respondent on 23.8.1988. Deposit u/s 30 of the U.P. Act No. XIII of 1972 was made after service of the notices. Demand was made at the rate of Rs. 450 towards rent and Rs. 50 towards house tax whereas deposit was made at the rate of Rs. 22.50p. As such, the respondent was not entitled for the benefit of Section 30(1) of the U.P. Act No. XIII of 1972 as has been held in Hameed alias Hamid v. Radhey Lal and Ors. 1982 (1) ARC 401 and Vijay Kumar v. Ist Addl. District Judge, Meerut and Ors. 1988 AWC 1412 . 13. In so far as question No. 3 is concerned, the law is well established in Ratan Lal v. Addl. District Judge, Bulandshahr 1979 AWC 404 ; Ram Sanehi v. First Addl. District Judge, Farrukhabad and Ors. 1979 ALR 506; Sri Devendra Kumar v. IIIrd Addl. District Judge, Meerut and Ors. 1980 ARC 519 and Abhinandan Prasad Jain v. District Judge, Saharanpur and Ors. 1982 (1) ARC 708, that tenancy right is not transferable to other than natural heirs. It is admitted case of the parties that the respondent is not a member of the family late Jagannath Prasad, as such, the tenancy rights could not be transferred to him by virtue of so called Will. 14. For the reasons stated above, the writ petition succeeds and is allowed. Judgments and orders dated 12.5.2003 and 17.11.1997 passed by the courts below are quashed. 14. For the reasons stated above, the writ petition succeeds and is allowed. Judgments and orders dated 12.5.2003 and 17.11.1997 passed by the courts below are quashed. The respondent is directed to vacate the shop in dispute within a period of two months from today failing which the petitioners will have the liberty to evict him by coercive process in accordance with law with the aid of local Police. No order as to costs.