# Jagdish Chand Kashyap v. Smt. Malti Agarwal

- **Citation:** (2015) 3 ILRA 1080
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-24
- **Case number:** C.M.W.P. No. 3025 of 2015
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-chand-kashyap-v-smt-malti-agarwal-43356
- **Pages:** 9

## Headnote

Act
1972-Section
2(2)
explanation-New
construction-on
same
plaint after complete demolition utilizing
one old wall-new construction completed-in
the year 1987-deposit of rent under Section
30 without protest of inapplicability of Act
1972-exemption from applicability held
proper-reliance placed upon of Gopal Das
case-misconceived-in that case question
referred was apart protection of tenant and
not
applicability-against
concurrent
findings of Court below-High Court not to
interfere-petition dismissed.
Held: Para-26
As regards absence of fresh assessment,
it may be noted that under clause (a)
Explanation-1
section
2(2),
in
case
where fresh assessment has not been
3 All] Jagdish Chand Kashyap Vs. Smt. Malti Agarwal
1081
made,
nor
the
completion
thereof
reported to or otherwise recorded by the
local authorities, the date of construction
of the building shall be the date on which
it was actually occupied. Concededly, the
shop
in
dispute
after
substantial
demolition of the existing construction
and reconstruction, was first occupied by
the petitioner in the year 1987. It is also
not in dispute that a fresh contract of
tenancy was entered into between the
parties, though oral, whereunder, the
rent of the shop was also enhanced. In
such view of the matter, this Court does
not find any illegality in the view taken
by the courts below in holding that the
provisions of the Act would not apply to
the shop in dispute.
Case Law discussed:
2012 (2) ARC 408; 2008 (3) ARC 841; 2001
(2) ARC 226; 1980 ALL.L.J. 229; 1995 (2) ARC
549; (2001) 1 SCC 564; Laws (All) 1991-5112; Laws (All) 2013-1-206.

## Text

1080
 INDIAN LAW REPORTS ALLAHABAD SERIES
attempt to
bluff the
authorities and
misleading the police with the aim to make it
draw wrong conclusions is an additional
incriminating circumstance to be reckoned
with against the applicant. This post-crime
conduct of the applicant bears an eloquent
testimony to his guilty mind. A.G.A. has also
drawn the attention of the court to certain
statements which were given by certain
witnesses in which extra judicial confession
is said to have been made by the applicant
admitting his guilt.
7. After adverting to the record of the
case in the light of the rival submissions
made at the bar the court is once again
reminded of the old saying that "The living
do not speak the truth with the candour of the
dead." However much the applicant might
have tried to suppress the truth, the deceased,
who spoke from her death through the
autopsy of her cadaver was candid enough to
spill the beans and unveil the truth.The
accused has lied but the deceased did not, nor
did the circumstances of the case. But what
adds to the poignancy of the murder is to see
that the blood has taken the blood of its own
and that too for a reason which was so
unreasonable,
so
irrational
and
so
unjustifiable. To speak the least, the
indefensible and morbid conservatism of the
applicant who treated the adolescent love as
a culpable offence and that too punishable
with death, makes the murder all the more
foul and despicable. The courts of law can
not brook with such crimes which have all
the trappings of primitive orthodox savagery.
8. Looking to the nature of offence,
its gravity and the evidence in support of
it and the overall circumstances of this
case, this Court is of the view that the
applicant has not made out a case for bail.
Therefore, the prayer for bail of the
applicant is rejected.
9. It is clarified that the observations, if
any, made in this order are strictly confined
to the disposal of the bail application and
must not be construed to have any reflection
on the ultimate merits of the case.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2015
BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.
C.M.W.P. No. 3025 of 2015
Connected with
Matters Under Article 227 No. 3897 of
2015
Jagdish Chand Kashyap
...Petitioner
Versus
Smt. Malti Agarwal
...Respondents
Counsel for the Petitioner:
Sri Om Prakash Lohia, Sri Noor Sabaa
Counsel for the Respondents:
C.S.C., Sri Arvind Srivastava, Sri Pushkar
Srivastava
U.P. Urban Building (Regulation of letting
and
rent)
Act
1972-Section
2(2)
explanation-New
construction-on
same
plaint after complete demolition utilizing
one old wall-new construction completed-in
the year 1987-deposit of rent under Section
30 without protest of inapplicability of Act
1972-exemption from applicability held
proper-reliance placed upon of Gopal Das
case-misconceived-in that case question
referred was apart protection of tenant and
not
applicability-against
concurrent
findings of Court below-High Court not to
interfere-petition dismissed.
Held: Para-26
As regards absence of fresh assessment,
it may be noted that under clause (a)
Explanation-1
section
2(2),
in
case
where fresh assessment has not been
3 All] Jagdish Chand Kashyap Vs. Smt. Malti Agarwal
1081
made,
nor
the
completion
thereof
reported to or otherwise recorded by the
local authorities, the date of construction
of the building shall be the date on which
it was actually occupied. Concededly, the
shop
in
dispute
after
substantial
demolition of the existing construction
and reconstruction, was first occupied by
the petitioner in the year 1987. It is also
not in dispute that a fresh contract of
tenancy was entered into between the
parties, though oral, whereunder, the
rent of the shop was also enhanced. In
such view of the matter, this Court does
not find any illegality in the view taken
by the courts below in holding that the
provisions of the Act would not apply to
the shop in dispute.
Case Law discussed:
2012 (2) ARC 408; 2008 (3) ARC 841; 2001
(2) ARC 226; 1980 ALL.L.J. 229; 1995 (2) ARC
549; (2001) 1 SCC 564; Laws (All) 1991-5112; Laws (All) 2013-1-206.
(Delivered by Hon'ble Manoj Kumar
Gupta, J.)
1. The petitioner is a tenant of a
shop in building no. 343-A (private no.
343-A/10 and present no.917) Jokhan
Bagh, Civil Lines, Jhansi (hereinafter
referred to as 'the shop in dispute'). The
landlord of the shop is Smt. Malti
Agarwal (the respondent herein).
2. Before the petitioner was inducted
as the tenant of the shop in dispute, he
was occupying another smaller shop in
the same building, in pursuance of a lease
agreement dated 27.5.1981 whereunder,
the rent was Rs.500/- per month and the
tenancy was for a period of 15 years with
an option of renewal for a further period
of five years. It is admitted case of the
parties that in the year 1986-87, an
adjoining shop in the tenancy of one
Mohd. Qamar was got vacated and the
said shop alongwith the shop in the
tenancy of the petitioner, were merged
together
by
undertaking
extensive
modifications
and
constructions.
Whereas, the shop earlier in the tenancy
of the petitioner measured 12.6' x 14.6',
the new shop i.e., the disputed shop, now
measures 30' x 20'. In pursuance of an
oral agreement between the parties, the
rent of the disputed shop was enhanced to
Rs.750/- per month, out of which Rs.250/-
was to be adjusted in the expenses
incurred by the petitioner in remodelling
the structure.
3. The respondent-landlord filed SCC
Suit no. 8 of 1991 for recovery of arrears of
rent and ejectment. In the said suit, the
respondent-landlord took a specific plea that
the disputed shop now in the tenancy of the
petitioner
since
1.2.1987,
is
a
new
construction within the meaning of U. P. Act
no. 13 of 19721 and is exempt from the
provisions thereof. The suit was contested by
the petitioner by filing written statement in
which it was admitted that during the year
1986-87, after getting the adjoining shop
vacated from Mohd. Qamar, the two shops
were merged together. However, it was
pleaded that there was no default in payment
of rent and tenancy of the petitioner was of a
permanent nature and thus, he could not be
evicted.
4. The Judge Small Causes Court,
by judgement dated 3.9.2003 dismissed
the suit holding that under the registered
lease deed dated 27.5.1981, the tenancy
being for a duration of 15 years, the
petitioner could not be evicted before
expiry of the said period. The suit for
eviction was found to be bad in law.
However, while deciding the question
whether the provisions of the Act are
applicable or not, it was specifically held
1082
 INDIAN LAW REPORTS ALLAHABAD SERIES
that the new constructions undertaken
during the year 1986-87, were so
extensive in nature that the new structure
now in the tenancy of the petitioner,
would be deemed to be constructed on the
date of completion thereof, and thus
exempt from the provisions of the Act.
5. The respondent-landlord, aggrieved
by the judgement of the Judge Small Causes
Court dated 3.9.2003 dismissing the suit,
preferred Civil Revision No.831 of 2003
before this Court. During the pendency of the
revision, the respondent-landlord served a
fresh notice dated 7.4.2011 upon the
petitioner seeking to terminate his tenancy.
Consequently, Civil Revision No.831 of
2003 pending before this Court was got
dismissed as withdrawn on 11.5.2011,
followed by filing of SCC suit no. 17 of
2011. It was pleaded therein that the
remodelled shop in the tenancy of the
petitioner was held to be a new construction
in SCC Suit no. 8 of 1991 and the tenancy of
the petitioner having been terminated by
notice dated 7.4.2011, he is liable to
ejectment.
6.
The suit was contested by the
petitioner admitting the relationship of
landlord and tenant between the parties. It
was admitted that extensive constructions
and modification were undertaken in the
year 1986-87 and the remodelled shop
was let out to the petitioner. However, it
was claimed that the petitioner had
deposited rent in proceeding under section
30 of the Act being Misc. Case no. 25 of
2004. The same was duly allowed and
thus, the respondent-landlord is now
estopped
from
contending
that
the
provisions of the Act are not applicable. It
was further pleaded that the shop in
dispute being used for manufacturing
purposes and thus, in the absence of
notice of six month, the tenancy cannot be
validly terminated. It was further pleaded
that the lease in favour of the petitioner
was of perpetual nature and thus, the suit
instituted for his ejectment deserves to be
dismissed.
7.
The trial court by judgment dated
1.4.2014 decreed the suit for eviction of the
petitioner while it was dismissed for the
relief of recovery of arrears of rent. The trial
court held that the shop in dispute would be
deemed to be a 'new construction' within the
meaning of explanation 1 of section 2(2) of
the Act and thus, the provisions of the Act
would not apply; that the notice dated
7.4.2011 terminating the tenancy is legal and
valid; that there was no default in payment of
rent as the entire amount stood deposited in
the court and thus, the respondent-landlord is
not entitled for the relief of recovery of
arrears of rent, but in view of the finding that
the Act does not apply and the notice
determining the tenancy was duly served, the
respondent was held entitled to a decree for
eviction of the petitioner.
8. Aggrieved by the judgement and
decree by the Judge Small Causes Court
dated 1.4.2014, the petitioner preferred
SCC revision No.47 of 2014, which has
been dismissed by the District Judge,
Jhansi by judgement dated 29.4.2015. The
petitioner has now assailed the judgement
passed by the Judge Small Causes Court
dated 1.4.2014 and the judgement dated
29.4.2015 passed in SCC revision no. 47
of 2014, by filing Petition No. 3025 of
2015 before this Court invoking the
supervisory jurisdiction under Article 227
of the Constitution of India.
9. The petitioner also filed an
application for review of the judgement
passed by the District Judge, Jhansi dated
3 All] Jagdish Chand Kashyap Vs. Smt. Malti Agarwal
1083
29.4.2015, which was rejected by order
dated 1.7.2015. Against the same, the
petitioner preferred a separate petition
bearing no. 3897 of 2015. Both the
petitions were clubbed and heard together
and are being decided by this common
judgment.
10. Sri Om Prakash Lohiya, learned
counsel appearing for the petitioner
challenged the impugned judgements by
raising the following contentions :-
(a) The shop in dispute was only
remodelled in the year 1986-87 and since the
existing construction, i.e., the shop in dispute
was built on the same foundation and thus, it
could not be treated to be a new construction
and provisions of the Act would apply.
Accordingly, the petitioner was entitled to
protection under the Act.
(b) The tenancy of the petitioner
being for manufacturing purposes, the
notice dated 7.4.2011 seeking to terminate
the tenancy on expiry of 30 days, was
thus, invalid.
11. On the other hand, learned counsel
for the respondent-landlord submitted that
the shop in dispute was newly built in the
year 1986-87 and provisions of the Act are
not applicable to it. It is urged that in
previous proceedings, a categorical finding
was returned to the effect that the provisions
of the Act are not applicable to the shop in
dispute. He further submitted that the
findings recorded by the Judge Small Causes
Court in the judgement dated 1.4.2014 that
the shop earlier in the tenancy of the
petitioner was substantially demolished and
thereafter,
the
shop
in
dispute
was
constructed, is a finding based on the
appreciation of evidence and does not call for
any interference by this Court. It is further
urged that the petitioner failed to prove that
the tenancy was for manufacturing purposes
and thus, there was no illegality in the view
taken by the courts below in upholding the
validity and legality of the notice dated
7.4.2011.
12. The main issue is the date on
which the shop in dispute would be
deemed to have been constructed and
whether the provisions of the Act would
apply to it or not.
13. It is now no more res integra as to
whether the provisions of the Act would
apply to a case where under an agreement,
tenant voluntarily vacates the tenanted
accommodation for demolition and new
construction, and after demolition and new
construction, the newly constructed premises
is let out to the tenant. Earlier, there were
divergent views and the issue was resolved
by a Larger Bench in the case of Gopal Dass
vs. Bal Kishan Dass2. The Larger Bench
disapproved the view taken by a learned
Single Judge in the case of Shri Prakash
Chandra Mehta vs. III Additional District
Judge,3 wherein, it was held that where the
tenant voluntarily vacates the tenanted
accommodation for purposes of demolition
and new construction and subsequently
inducted as a tenant in the new constructed
building, the provisions of the Act would
continue to apply. On the other hand, this
court approved the decision in the case of
Naseem Ahmed Vs. IV Additional District
Judge4 wherein contrary view was taken.
The larger Bench concluded by answering
the reference as under :-
"It is, therefore, difficult for us to
agree with the judgment delivered in the
case of Shri Prakash Chand Mehta
(supra). It is not a good law. The said case
was
decided
more
on
equitable
considerations than legal.
1084
 INDIAN LAW REPORTS ALLAHABAD SERIES
For the reasons given above, we
answer the question referred to us by
holding that the provisions of the U.P. Act
No.13 of 1972 will not apply to new
construction where under the agreement, a
tenant voluntarily vacates the tenanted
accommodation for demolition and new
cons-truction and after demolition and new
construction, newly constructed premises is
let out to the tenant. To put it differently, a
new construction after demolition shall be
exempt from the operation of provisions of
the U.P. Act No.13 of 1972 as provided
under
Section
2(2)
of
the
Act
notwithstanding the fact that the tenant who
was earlier in occupation of the existing
building voluntarily agreed to vacate it and
in lieu thereof the landlord agreed to let the
new construction out to such tenant after
reconstruction."
14. The aforesaid proposition of law
was also not disputed by learned counsel
for the petitioner. Rather, he himself cited
the decision in the case of Gopal Dass
(supra) in submitting that the new
structure should have been constructed
after complete demolition of the existing
structure. In other words, it was urged that
where
the
old
structure
was
not
completely demolished as in the instant
case, it would be treated to be an old
construction and would not be exempt
from the provisions of the Act.
15. In previous proceedings in SCC
suit no. 8 of 1991, the trial court in the
judgement dated 3.9.2003, while deciding
issue no. 4, returned the following finding
:-
^^fjekMfyax esa iwjh Nr iM+h] vkxs dh nhoky
NksM+dj rhu nhokys tehu ls ubZ cukbZ xbZ Fkh]
pkSFkh nhoky dqN Å¡ph dh xbZ bl izdkj ns[kk tk;
rks okLro esa nqdku la[;k&343,@10 o"kZ 1986&87
esa iwjh rjg ubZ cukbZ xbZ FkhA igys nqdku dh dqy
uki 12-6 x 14-6 QhV Fkh ogh iqu% fuekZ.k ckn
bldh uki 30 x 20 QhV gks xbZA**
16. In the instant suit, the Judge
Small Causes Court, while deciding issue
no.1, regarding applicability of the Act,
has held as under :-
ÞizLrqr ekeys esa ;g lk{; ls Lohd`r gS fd
nksuksa nqdkuksa dks feykdj ds uofufeZr gkWy cuk;k
x;k] tSlk fd iwoZ o if'pe fLFkr nhoky fxjk nh
x;h rFkk nf{k.k dh nhoky Å¡ph dh x;h vkSj iwjh
Nr u;s fljs ls Mkyh x;hA mRrj rjQ 4 'kVj o
'kVjksa ds e/; fiyj cuk;k x;k vkSj e/; ikVhZ'ku
dh nhoky gVk nh x;hA bl izdkj ls uo&fufeZr
gkWy dh iSekbZ'k 30 x 20 QhV gks x;hA mijksDr
fof/kd fu.kZ; ds vkyksd esa izLrqr fuekZ.k
uo&fuekZ.k dh Js.kh esa gS vkSj ml ij ;w0ih0 ,DV
la[;k 13@72 ds izkfo/kku izHkkoh ugha gksrs gSA**
17. Learned counsel for the
petitioner has not challenged the findings
recorded by the trial court in relation to
the extent of the constructions undertaken
in constructing the shop in dispute. The
findings returned by the courts below
clearly reveals that two shops were
merged and in their place, a new hall
measuring 30' x 20' now in the tenancy of
the petitioner was constructed. Whereas,
the area of the structure earlier in the
tenancy of the petitioner was 12.6' x 14.6',
the shop in dispute now measures 30' x
20'. In constructing the existing structure,
the eastern and western wall were
completely demolished, the height of
southern wall was raised and the roof was
laid afresh. In the northern wall, four
shutters were installed and between them,
pillars were constructed. The partition
wall was removed. The question, thus for
consideration before this Court is whether
these construction indisputably made,
would amount to a new construction
within the meaning of the Act or not.
3 All] Jagdish Chand Kashyap Vs. Smt. Malti Agarwal
1085
18. Section 2 (2) of the Act
stipulates that the provisions of the Act
would not apply to a building for a period
of 10 years from the date on which its
construction
is
completed.
Since
26.4.1985, in relation to a building, the
construction whereof is completed on or
after April 26, 1985, the period of
exemption was initially enhanced to 20
years and thereafter to 40 years by U.P.
Act No. 11 of 1988. The Explanation 1 to
section 2(2) of the Act which is material
for deciding the controversy is as under :-
"Explanation 1. (a) the construction of a
building shall be deemed to have been
completed on the date on which the
completion thereof is reported to or
otherwise recorded by the local authority
having jurisdiction, and in the case of
building subject to assessment, the date on
which the first assessment thereof comes into
effect, and where the said dates are different,
the earliest of the said dates, and in the
absence of any such report, record or
assessment, the date on which it is actually
occupied (not including occupation merely
for the purposes of supervising the
construction or guarding the building under
construction) for the first time :
Provided that there may be different
dates of completion of construction in
respect of different parts of a building
which are either designed as separate
units or are occupied separately by the
landlord and one or more tenants or by
different tenants;
(b) "construction" includes any new
construction in place of an existing
building which has been wholly or
substantially demolished;
(c) where such substantial addition is
made to an existing building that the
existing building becomes only a minor
part thereof the whole of the building the
existing building shall be deemed to be
constructed on the date of completion of
the said addition;
19. In Jagdish Prasad vs. District
Judge, Ghaziabad and others5, this Court
laid down certain tests for determining
whether "substantial addition" within the
meaning of clause (c) of the Explanation
have been undertaken or not by holding
thus :-
"It is contended that since an old
Baithaka was used to carve out the shops, the
said shops cannot be treated to be a new
building unless the additional constructions
made can be found to be the major part of the
building after the alterations. This is said to
be not so in the instant case because the roof
and at least three outer walls are the same
and only partition walls and front shutters
have been installed. I am inclined to agree
with
the
contention
that
the
words
'substantial addition' in Clause (c) take within
their ambit not merely the addition of wholly
new construction increasing the area of the
building but also the alteration of the existing
building into a new accommodation by
remodelling it which may include the use of
some parts of the old structure. The test for
determining whether the altered construction
should be regarded as old or new under
Clause
(c)
would
be
whether
after
considering the area added the alteration
effected and the cost incurred in alterations
vis-a-vis the presumptive cost of the old
building utilised and the form and structure
of the building after the alterations it can be
said that the parts utilised remained a major
part of the altered structure. The purpose of
the landlord before and after alterations may
also be relevant for appreciating the change
in form and structure. No single factor can be
decisive. Looked at from this point of view, I
1086
 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot find any infirmity in the view that
where a long room used as a Baithak has
been
converted
into
four
shops
approximately 8' x 4 1⁄2' each by making
changes as above the shops do not remain
parts of an old construction so as to be
governed by the Act."
(Emphasis supplied)
20. In Phool Chand vs. III Additional
District Judge6, this Court held that even if
the some portion of old construction had
been used to carve out the new shops, it
would not bring the same within the purview
of the Act. It has been held that Explanation
1 to section 2(2) of the Act shall "take within
their ambit not merely the addition of wholly
new construction, but also the alteration of
the
existing
building
into
a
new
accommodation by remodelling it which
may include the use of some parts of the old
structure". In that case, wall of the building
were changed and a double storey new roof
was laid while utilising some part of the old
existing constructions. In taking such view,
the decision in the case of Jagdish Prasad
(supra) was relied upon.
21. Applying these tests, it can safely
be held that the shop in dispute would be
covered by both clauses (b) and (c) of
Explanation 1 of section 2(2) of the Act.
The mere fact that the disputed shop was
built over old foundation or by partially
utilising one of the walls, will not make it
an old construction. Concededly, partition
wall between two shops was demolished,
two walls were built anew, the level of one
of the walls was raised and in the northern
wall, four shutters were installed and new
pillars were constructed. In making these
constructions, the existing building was
substantially demolished. The additions are
substantial in extent so much so that the
existing building becomes only a minor part
of the shop in dispute. Consequently, the
shop in dispute shall be deemed to be
completed on the date of completion of the
new addition, i.e, in the year 1987 as
concurrently held by the courts below.
22. Learned counsel for the petitioner
placed reliance on certain observations made
in the case of Gopal Dass (supra), in
contending that the new construction should
have come into existence after completely
demolishing the old building. However, this
Court is unable to find any such proposition
of law laid down in the said judgement.
Infact, in that case, it was not in issue as to
when the building would be deemed to be a
new construction within the meaning of
section 2(2) of the Act. On the other hand, as
noted above, the question referred was as to
whether in case new constructions have been
made
after
demolition
of
existing
constructions, a tenant would still be entitled
to protection under the Act or not. Thus, this
Court is unable to accept the contention
made by learned counsel for the petitioner by
placing reliance on the judgement in the case
of Gopal Dass (supra).
23. The next decision relied upon by
learned counsel for the petitioner is in the
case
of
Vannattankandy
Ibrayi
vs.
Kunhabdulla Hajee7. In that case, the
question was whether in a case where the
tenanted shop got completely destroyed
by natural calamities and in its place, new
constructions were made by the tenant
himself, would the old tenancy continue.
The Supreme Court held that such plea is
not acceptable as after destruction of the
existing shop, tenancy comes to an end
automatically. It was observed as under :-
"On destruction of the shop the
tenancy cannot be said to be continuing
since the tenancy of a shop presupposes a
3 All] Jagdish Chand Kashyap Vs. Smt. Malti Agarwal
1087
property in existence and there cannot be
subsisting tenancy where the property is
not in existence. Thus when the tenanted
shop has been completely destroyed, the
tenancy right stands extinguished as the
demise must have a subject matter and if
the same is no longer in existence, there is
an end of the tenancy and therefore :
Section 108(B)(e) of the Act has no
application in case of premises governed
by the State Rent Act when it is
completely
destroyed
by
natural
calamities."
The said decision is also of no help
to the petitioner as therein, it was not in
issue as to when a remodelled shop would
be deemed to be a new construction as in
the case at hand.
24. The other two decisions cited by
learned counsel for the petitioner are in
the case of Ajit Kumar Tandon vs.
District Judge8 and Surendra Nath Rai vs.
Arjun Kukreja9. In both these cases, the
Court found that as a result of alteration
and modification, the new structure stood
exempted from the provisions of the Act.
Thus, they are also of no help to the
petitioner.
25. Learned counsel for the
petitioner also made an attempt to suggest
that in the absence of any building plan
being sanctioned by the Development
Authority and fresh assessment having
been made, the shop in dispute cannot be
said to be a new construction. However,
the argument does not have any force. In
case, constructions have been undertaken
without
getting
the
building
plan
sanctioned,
it
may
be
matter
for
consideration
by
the
Development
Authority, but the same would not make
the shop in dispute an old construction for
the
purposes
of
determining
the
applicability of the Act. The same has to
be adjudged by applying the test laid
down in Explanation-1 to section 2(2) of
the Act.
26. As regards absence of fresh
assessment, it may be noted that under clause
(a) Explanation-1 section 2(2), in case where
fresh assessment has not been made, nor the
completion thereof reported to or otherwise
recorded by the local authorities, the date of
construction of the building shall be the date
on which it
was
actually
occupied.
Concededly, the shop in dispute after
substantial demolition of the existing
construction and reconstruction, was first
occupied by the petitioner in the year 1987. It
is also not in dispute that a fresh contract of
tenancy was entered into between the parties,
though oral, whereunder, the rent of the shop
was also enhanced. In such view of the
matter, this Court does not find any illegality
in the view taken by the courts below in
holding that the provisions of the Act would
not apply to the shop in dispute.
27. The next contention of learned
counsel for the petitioner is that the
demised premises was being used for
manufacturing purposes and thus six
months' notice was required to determine
the tenancy.
28. The finding returned by the Judge
Small Causes Court is that the petitioner could
not prove that he was engaged in
manufacturing from the demised premises. It
has further been noted that in the previous
suit, no such pleading was made. The
petitioner, though contended that he was
utilising the shop in dispute for manufacturing
purposes but in his statement as DW-1, he
admitted that he had not filed any evidence to
prove that the shop in dispute was being used
for manufacturing purposes. Even before this
1088
 INDIAN LAW REPORTS ALLAHABAD SERIES
Court, except for contending that the
petitioner had taken loan from U.P. F.C.,
which is only extended by U.P.F.C. to an
undertaking engaged in manufacturing, no
evidence could be produced to prove that
there had been any registration with the
Industries department or any manufacturing
activity was being done from the demised
premises. In such view of the matter, this
Court does not find any reason to interfere
with the concurrent findings of fact recorded
by the courts below to the effect that the
demised premises was not being used for
manufacturing purposes.
29. No other submission was made
by learned counsel for the petitioner.
30. The order passed by the revisional
court rejecting the review application was not
subjected to attack at the time of hearing.
31.
In view of the foregoing
discussion, both the petitions are devoid of
merit and are dismissed. No order as to costs.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.09.2015
BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.
U/S 482/378/407 No. 4246 of 2015
Barsati & Ors.
 ...Applicant
Versus
The State of U.P. & Anr.
...Opp. Parties
Counsel for the Applicant:
Amarnath Dubey
Counsel for the Opp. Parties:
Govt. Advocate
Cr.P.C. Section 482-Quashing of Criminal
Proceeding-offence
under
section
323/504/506/308 IPC -when such power
can be exercised explained-from perusal of
record-cognizable offence made out-no
interference called for-with direction of
expeditious disposal application-disposed
of.
Held: Para-7
However, in this matter, after investigation,
Police has found a prima facie case against
accused and submitted charge-sheet in the
Court below. After investigation the police
has found a prima facie case of commission
of a cognizable offence by accused which
should have tried in a Court of Law. At this
stage there is no occasion to look into the
question, whether the charge ultimately
can be substantiated or not since that
would be a subject matter of trial. No
substantial ground has been made out
which may justify interference by this Court
under Section 482 Cr.P.C.
Case Law discussed:
1992 Supp (1) SCC 335; (2006) 7 SCC 296;
(2008) 1 SCC 474; (2008) 8 SCC 781; (2009) 9
SCC 682; JT 2010 (6) SC 588; 2011 (1) SCC
74; JT 2012 (2) SC 237.
(Delivered by Hon'ble Aditya Nath Mittal, J.)
1. Heard learned counsel for the
petitioners, learned AGA and perused the
record.
2. This petition has been filed with the
prayer to quash the criminal proceeding of
Criminal Miscellaneous Case No. 1319 of
2015, Case Crime No.306 of 2014, under
Sections 323, 504, 506, 308 I.P.C. Police
Station-
Aaspur
Devsara,
District
Pratapgarh as well as the charge-sheet
No.172 of 2014 dated 30.12.2014.
3. Learned counsel for the petitioners
has submitted that the First Information
Report has been lodged on the basis of false
and fabricated story against the petitioners
and the petitioners have falsely been