Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 4080 (ALL)

Inayat Waris v. Ganesh Shankar Sachan

2016-12-17

ANJANI KUMAR MISHRA

body2016
JUDGMENT Anjani Kumar Mishra, J. -- Heard counsel for the parties. 2. This revision has been filed by the tenant challenging the orders passed by the Prescribed Authority and the Appellate Authority in proceedings, arising out of a release application under Section 21(1) (a) of U.P. Act No.13 of 1972, filed by the respondent landlord. 3. The basic ground of challenge in the writ petition is that in view of the admitted case of the respondent landlord, the accommodation in question which is a shop was not governed by the provisions of U.P. Act No.13 of 1972. 4. Three shops were admittedly converted into four shops in the year 1985. This new construction, in view of Section 2(2) and Explanation 1 (a), (b), (c) of the Rent Control Act, exempted the accommodation from the purview of the Rent Control Act. 5. The Prescribed Authority allowed the release application vide order dated 11.04.2012, and the consequential appeal has been dismissed on 12.03.2013. 6. It is submitted that both the Courts failed to consider the plea of the petitioner that the constructions were admittedly new constructions to which the provisions of U.P. Act No.13 of 1972, were not attracted.The release application under Section 21(1)(a) therefore, was not maintainable and should have been dismissed. 7. Upon notices being issued to the respondent, landlord a counter affidavit has been filed. 8. Referring to the counter affidavit filed by the landlord, especially, Annexure No.CA-1 thereto, which is the copy of the plaint in SCC Suit No.6 of 2013, filed by the landlord, learned, counsel for the petitioner submits that in paragraph 4 of the plaint, the landlord has himself admitted that the provisions of U.P. Act No.13 of 1972 are not applicable to the shop in the tenancy of the petitioner, as it is a new construction. 9. The copy of the plaint of SCC Suit No.6 of 2013 has been filed by the respondent himself and this suit pertains to the same shop regarding of which the release application under Section 21(1)(a) of U.P. Act No.13 of 1972 was filed. 10. Since this document has been filed along with the counter affidavit by the landlord himself, he is in my considered opinion bound by the averments made in paragraph 4 thereof. 11. 10. Since this document has been filed along with the counter affidavit by the landlord himself, he is in my considered opinion bound by the averments made in paragraph 4 thereof. 11. Consequently, the case set up by the tenant petitioner before the Courts below and also in the writ petition, stands admitted by the landlord. 12. Under the circumstances this Court has no option but to hold that the shop in question was a new construction to which the provisions of the U.P. Act No.13 of 1972 did not apply. 13. For this reason alone, it was not open for the respondent to file the release application, invoking Section 21(1)(a) of the said Act. The release application was clearly not maintainable. 14. The impugned orders therefore, are without jurisdiction and are liable to be set aside. 15. In view of the above discussion the impugned orders dated 11.04.2012 and 12.03.2013 passed by the respondents, are hereby set aside and the writ petition is allowed. 16. No order as to costs.