Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 5701 of 2015 Petitioner :- Raj Kumar Agarwal Respondent :- Mukesh Chand Counsel for Petitioner :- Amitabh Agarwal,A.K.Tripathi,Anil Kumar Tripathi,Pramod Kumar Jain Counsel for Respondent :- Atul Dayal,Piyush Srivastava,Rahul Sahai,Rajesh Kumar Tripathi
Hon'ble Vivek Kumar Birla,J.
Heard Sri P.K. Jain, learned Senior Counsel for the tenant- petitioner and Sri Rahul Sahai, learned counsel for the landlord-respondent and perused the record.
Present petition has been filed challenging the judgement and orders dated 17.9.2010 and 17.8.2012 passed by the Courts below.
The Courts below have found that the shop in question was assessed for the first time in April, 1998 and the provisions of UP Act 13 of 1972 are not applicable.
Learned counsel for the petitioner though tried to assail the findings that there is no evidence as to when the shop was demolished and a new construction was raised. Submission, therefore, is that the construction is not a new construction and Act applies in the present case.
Learned counsel for the landlord-respondent has supported the impugned order.
I have considered the rival submissions and perused the record.
The Courts below have recorded concurrent findings on the basis of documentary evidence on record that the shop was assessed for the first time in April, 1988.
It is settled law that the date of first assessment has to be taken for the purpose of exemption from operation of the Act. It is also settled law that if the date of first assessment is on record, then other factors stands excluded from consideration for this purpose.
No other argument is pressed.
In such view of the matter, I do not find any good ground to interfere in the judgment and order of the courts below impugned in the present petition and the same is accordingly dismissed.
At this stage, learned counsel for the petitioner prays that one year time may be granted to vacate the premises.
Learned counsel appearing for the landlord-respondent is opposing the same.
In the interest of justice, considering the length of tenancy, the tenant- petitioner is granted ten months time to vacate the shop in question subject to filing of an undertaking by the petitioner-tenant before the Court below:
(1) The tenant-petitioner shall handover the peaceful possession of the shop in question to the landlord- respondent on or before 31.7.2019.
(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;
(3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order;
(4) The tenant-petitioner shall pay damages @ Rs. 2,500/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.7.2019 or till the date he vacates the shop in question, whichever is earlier and the landlord is at liberty to withdraw the said amount;
(5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the shop in dispute;
(6) Subject to filing of the said undertaking, the tenant- petitioner shall not be evicted from the shop in question till the aforesaid period;
(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.
(8) In case the shop in question is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.
There shall be no order as to costs.
Order Date :- 27.9.2018 Abhishek