High Court
Case Details
Neutral Citation No. - 2024:AHC:181027 Court No. - 4 Case :- MATTERS UNDER ARTICLE 227 No. - 914 of 2024 Petitioner :- Wasim Ahmad Ansari Respondent :- Naresh Kumar Counsel for Petitioner :- Satish Chandra Dubey Counsel for Respondent :- Rajesh Kumar Verma,Sandeep Maniji Bakhshi Hon'ble Ajit Kumar,J.
Legal Reasoning
1. Heard Sri Satish Chandra Dubey, learned counsel for the petitioner and Sri Sandeep Maniji Bakhshi, learned counsel for the respondent. 2. By means of this petition filed under Article 227 of Constitution of India, the petitioner has questioned the order passed by the Judge, Small Causes decreeing the suit on the basis of the notice issued under Section 106 of the Transfer of Property Act directing for ejectment of the petitioner and rejecting his contention that the building fell within the definition of Act No.13 of 1972 and hence by virtue of deposit made under Section 20(4) of the Act No.13 of 1972, the suit for eviction was liable to be dismissed. It is submitted on behalf of the petitioner that the court sitting in appeal has also manifestly erred in affirming the order passed by the prescribed authority. 3. The sheet anchor of the arguments advanced by learned counsel for the petitioner is that despite the fact that he had denied in the written statement of non-applicability of Act No.13 of 1972, the statement made in the written statement has been rejected on the plea of cross-examination of the petitioner in which he is stated to have said about non- applicability of Act No.13 of 1972. Yet another argument advanced by learned counsel for the petitioner is that as per explanation appended to under Section 2(2) to Act No.13 of 1972 it is the first assessment by the municipal corporation having jurisdiction in the area where the building situates, could be a conclusive piece of evidence to decide an issue as to the applicability of Act No.13 of 1972 and since the petitioner has led an evidence in the form of reply obtained under Right to Information Act, from the Municipal Corporation, Bareilly in which it was noticed that the building was 40 years' old and that reply was made in the year 2021 it will be taken to be an old building covered under Act No.13 of 1972. It is contended on behalf of the petitioner that even though there was a tenancy agreement reached between the parties in which it was acknowledged to be a new building not covered under Act No.13 of 1972 but this admission itself cannot be a ground to decree a suit for ejectment holding Act No.13 of 1972 to be applicable by virtue of said admission. In respect of his admission, learned counsel for the petitioner has relied upon authorities of the Supreme Court in the case of Ram Saroop Rai v. Smt. Lilavati:1980 0 Supreme (SC) 259. 4. Meeting the argument advanced by learned counsel for the petitioner, Sri Bakhshi, learned Advocate has vehemently urged that once the petitioner withdrew from the tenancy agreement between the parties, he cannot retract from the admission that building was a new building and not governed by Act No.13 of 1972. He submits that even though some averments were made in the written statement and the affidavit filed by the petitioner regarding non- applicability of Act No.13 of 1972 but the statement upon affidavit is not absolutely convincing. Clause 2 of the affidavit in evidence filed by the petitioner can be interpreted both ways. He has further taken the Court to the cross- examination part of the tenant-petitioner to assert that he himself admitted that the Act No.13 of 1972 would not be applicable. Not only this since the tenancy agreement admittedly was entered between the parties in the year 2011, the very statement made during the cross-examination by the plaintiff petitioner that the market was constructed after he had given the money and that he entered as a tenant in that very building would lead to draw only one conclusion that the building was a new one. Even the information obtained under the Right to Information Act, as brought on record, qua the building in question, itself Mr. Bakhshi argues, records the year of construction to be 1990. Whether it is a last assessment or the first assessment, it would hardly matter once it has come to be established that building was new one. Thus he submits that the findings returned by the trial court affirmed in revision qua non- applicability of Act No.13 of 1972 are cogent and convincing findings of facts supported by relevant material on record and this Court, therefore, in exercise of its supervisory jurisdiction under Article 227 may not interfere. 6. Having heard learned counsel for the respective parties and having perused the records, I find that in the written statement though the petitioner has come to make statement that the construction is an old one but regarding applicability of Act No.13 of 1972 the statement is couched in such a language which ofcourse can be interpreted both ways. For better appreciation of the statement so made, paragraph 16 is reproduced hereunder: यह कक ववदगसत ददकवन पदरवनन तवमनरशददव हह इसललए ववदगसत ददकवन पर उ०प० ववदन कव यह कथन कतई गलत हह कक "16. एकट 13 ववदगसत ददकवन पर ककरवयव अलधकनयम सक मदतसनव हह।" कक पवकवधवन लवगग हहतक हह, सनन 1972 7. Except for this paragraph 16, there is no other statement made in the written statement qua construction of the building nor there is any statement coming up that the agreement of tenancy reached between the parties contained wrong recitals of facts. In the agreement of tenancy that was reached between the parties it has come to be very categorically recorded that the building is a new construction made in the year 1999. This recital contained in the agreement has been reproduced in the notice send to the petitioner. It is an admitted position that the petitioner did not reply to the notice which would amount to acceptance of the statement made in the notice. Even in the cross examination the tenant accepted to have entered tenancy of the building after its construction was raised and that too taking money from him. The agreement of tenancy is of the year 2011 therefore, in no circumstances it can be said that the building was constructed prior to year 1985 so as to bring it under Act No.13 of 1972. 8. Apart from this, the document that was obtained from the Municipal Corporation, Bareilly under the Right to Information Act also records the construction year of the building to be 1990. This is the document obtained from the possession of the authority assigned to keep it and, therefore, is a valid piece of evidence. There is no evidence led by the petitioner himself in rebuttal thereof. Thus, from the above discussion referring to various documents by me, makes it absolutely clear that the construction of the building is absolute after the year 1995 and therefore, Act No.13 of 1972 could not be applied. In so far as the judgment that has been relied upon by learned counsel for the petitioner in the matter of Ram Swaroop Rai (supra) is concerned, neither it has come to be observed that admission by itself may not be conclusive evidence in the light of the municipal records qua the construction of the building. This analogy drawn by the Supreme Court does not help the petitioner either. The municipal record filed by the petitioner himself shows that the construction of the building has taken place in the year 1990. So not only there is admission sufficient enough but even the records speak otherwise than what has been pleaded and defended by the petitioner himself. 9. Thus, I do not find any manifest error in the order dated 13.12.2023 passed by the Judge, Small Causes Court affirmed in revision. Petition lacks merit and is accordingly, dismissed. Order Date :- 19.11.2024 Deepika