LAWS(ALL)-2003-7-93

RAM KISHAN Vs. VIITH ADDITIONAL DISTRICT JUDGE GHAZIABAD

Decided On July 28, 2003
RAM KISHAN Appellant
V/S
VIITH ADDITIONAL DISTRICT JUDGE GHAZIABAD Respondents

JUDGEMENT

(1.) S. U. Khan, J. This writ petition has been filed by the tenant. Suit of the landlord-respondent No. 3 for ejectment has been decreed against the petitioner by both the Courts below only on the ground of damage to the building and structural changes alleged to have been made by him as defined under Section 20 (2) (c) of U. P. Act No. 13 of 1972. The Suit was numbered as S. C. C. Suit No. 62 of 1983 and was decreed on 14-5- 1986 by J. S. C. C. , Ghaziabad (Annexure-1 to the writ petition ). The Revision filed by the tenant was registered as S. C. C. Revision No. 69 of 1986 and was dismissed on 3-11-1987 by VIIth Additional District Judge, Ghaziabad, copy of which is Annexure-2 to the writ petition. The finding with regard to the changes introduced by the tenant is that he has constructed a show case in the veranda in front of the shop which is affixed in partition wall through screws and it cannot be removed without opening the screws and has placed a wooden partition frame which is affixed through screws. Both the Courts below have held that it is immaterial whether structure raised is of temporary or permanent nature. The trial Court has placed reliance upon 1969 ALJ Page 477 and the Revisional Court on 1986 ARC page 457. In both these authorities it has been held that: - "it is also immaterial whether the structure raised is of a temporary or a permanent nature. " Similar view was expressed by a Full Bench authority of this Court reported in AIR 1972 Allahabad Page 317. However, the said Full Bench authority has been over-ruled by the Hon'ble Supreme Court in Om Prakash v. Amar Singh, AIR 1987 SC Page 617 and it has been held in para-9 that: - "the High Court observed that the fact that a construction is permanent or temporary in nature does not affect the question as to whether the constructions materially alter the accommodation or not. We do not agree with this view. The nature of constructions, whether they are permanent or temporary, is a relevant consideration in determining the question of `material alteration'. A permanent construction tends to make changes in the accommodation on a permanent basis, while a temporary construction is on temporary basis which do not ordinarily affect the form or structure of the building, as it can easily be removed without causing any damage to the building. "

(2.) IN view of the above wooden show case and wooden partition affixed in the walls through screws cannot be said to be such construction or alteration, which is covered, by Section 20 (2) (b) or (c) of U. P. Act No. 13 of 1972.

(3.) ACCORDINGLY, the petition is allowed. Judgment and decree passed by JSCC and judgment and order passed by the Revisional Court, dated 14-5-1986 and 3-12-1987, respectively, are quashed. The suit of the plaintiff-respondent is dismissed. Petition allowed. .