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Allahabad High Court · body

2009 DIGILAW 3851 (ALL)

Sita Ram v. Girish Kumar Srivastava

2009-12-22

SHISHIR KUMAR

body2009
JUDGMENT Hon'ble Shishir Kumar,J. Heard learned counsel for petitioner and learned counsel for respondents. 2. This writ petition has been filed for quashing the order dated 24.11.2009 (Annexure 5 to writ petition). 3. Respondent who is landlord filed a suit against petitioner for ejectment and arrears of rent from 1.2.2002 to 2.2.2003 amounting to Rs.1,840/- including water tax. 4. It was averred that aforesaid shop has been let out on a monthly rent of Rs.600/- per month including water tax, house tax and sewer tax. Petitioner was not paying rent, therefore, a notice under Section 106 of the Transfer of Property Act was given for ejectment on the ground that shop in question was constructed in the year 1996 and it was first time assessed in the year 1998 by the Nagar Palika, therefore, Act No.13 of 1972 is not applicable. The Judge, Small Causes Court after considering the case of parties has recorded a finding that Act No.13 of 1972 is not applicable which is apparent from the assessment of 1998 and suit was decreed to that extent and petitioner was directed to vacate the said shop within 30 days from the date of order. Petitioner aggrieved by aforesaid order filed a revision. Revisional court too has recorded a finding that shop in question has been assessed first time by Nagar Palika in the year 1997-98, therefore, Act No.13 of 1972 is not applicable and mere a notice under Section 106 of the Transfer of Property Act is sufficient for getting possession of shop in question. Petitioner aggrieved by aforesaid order has approached this Court. 5. Learned counsel for petitioner submits that various documents have been filed showing therein that shop was constructed and his father was tenant from 1975. Petitioner aggrieved by aforesaid order has approached this Court. 5. Learned counsel for petitioner submits that various documents have been filed showing therein that shop was constructed and his father was tenant from 1975. Various documents like death certificate of Bagirath, registration certificate dated 31.4.1981, assessment of steel works from 1993 to 1996, receipts issued from Labour Department and various orders issued by the Sales Tax Officer dated 29.9.1991, 27.3.1982, 19.9.1983, 29.9.1981 and judicial order dated 22.4.2002 but these documents which are apparent from the judgment that these shops were assessed in the year 1982-83, 1986-87, 1987-88 and 1991-1992 and the copies to that effect was also submitted but these documents have not been considered and no discussions have been made and on the basis of assessment of 1998 produced by the landlord-respondent, the courts below has held that shop in question is a new one and Act No.13 of 1972 will not be applicable in view of fact that it was first time assessed in the year 1998. Revisional court has also not considered the issue and dismissed the revision. 6. On the other hand Sri V.B.Jauhari learned counsel appearing for respondents submits that from perusal of judgment and order passed by Judge, Small Causes Court, a finding of fact has been recorded that in the year 1991, map was sanctioned and in the year 1996, construction was made and subsequently for the first time, assessment of the said shop was made in the year 1998. These documents were on record and while considering the claim of petitioner-tenant a finding has been recorded that petitioner himself is not able to show from the record that what is the size and length of the shop in question. Earlier admittedly, old shop was 25=30 ft and the present shop in occupation of petitioner is 20=12 ft. In the statement petitioner is not able to show or say the size of old shop and has said that he does not know. From the finding recorded it is clear that each and every document have been considered and it is settled in law that date of assessment by the competent authority has to be treated to be the date of construction unless proved otherwise. 7. I have considered the submissions made on behalf of parties and have perused the record. From the finding recorded it is clear that each and every document have been considered and it is settled in law that date of assessment by the competent authority has to be treated to be the date of construction unless proved otherwise. 7. I have considered the submissions made on behalf of parties and have perused the record. A short question for consideration before the Judge, Small Causes Court was only whether Act No.13 of 1972 was applicable or not. A specific issue was made and on behalf of petitioner various documents showing therein that shop in question was an old one and by manipulation it was got assessed in the year 1998 and petitioner's father was tenant and was doing business of wooden and steel which is apparent from various documents filed by the Sales Tax Department and other documents etc. The courts below specifically framed Issue No.1 and has considered each and every document filed by petitioner as well as respondents. The relevant question and documents to be considered by the court below was the date of completion of the building and the first date of assessment. From the record, respondent-landlord was able to prove that building was completed in the year 1996 and the first date of assessment was in the year 1998. From the record, a finding has been recorded that before 1996, Bagirath was the tenant of Girish Babu and one P.W.-3 has stated that shop in question was constructed in the year 1996 and in the year 1996, father of Sitaram has taken the said shop which was vacated in 2001. Further in the statement petitioner is not able to prove regarding the size of old shop. The size of the old shop was 25=30ft and present shop which is in dispute is of 20=12 ft. Taking into consideration of the facts that in view of the provision of Act No.13 of 1972, the date of assessment will be treated to be the date of construction of the building, therefore, now in view of the facts and documents considered by the Court, Act No.13 of 1972 is not applicable. 8. In my opinion there is no infirmity in the order passed by courts below. Each and every document filed by petitioner has been considered. 8. In my opinion there is no infirmity in the order passed by courts below. Each and every document filed by petitioner has been considered. The finding of fact has been recorded that date of construction of the shop is 1996 and first assessment is of 1998, therefore, it is exempted from Act No.13 of 1972. In my opinion finding recorded by court below are finding of fact, needs no interference. 9. It is hereby dismissed, however, without imposing any cost.