Sudhir Agarwal, J. - (1.) Sri A.K. Tiwari, learned counsel for the petitioner contended that in the present case from the very pleadings of respondent-landlord it was clear that the construction of building in question had completed in February, 1977 when, for the first time, it was occupied by petitioner-tenant and, therefore, in 1984 when application under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972") was filed, 10 years period having not elapsed, Act 1972, was not applicable to the accommodation in question and both the courts below having failed to consider this aspect of the matter have committed patent error and have acted wholly without jurisdiction, hence the impugned orders are liable to be set aside. He also submitted that this aspect was raised by petitioner time and again and even by filing a miscellaneous application but the same was rejected by Trial Court vide order dated 16.01.1992 (Annexure-31 to the writ petition) observing that this is a jurisdictional issue and can be heard 2 and decided while hearing the matter finally but thereafter while hearing the matter finally both the courts below have totally avoided and ignored this issue which would have gone to the root of the matter barring the very jurisdiction of courts below under Act, 1972.
(2.) It is no doubt true that the landlord in his application filed under Section 21(1)(a) of Act, 1972 (Annexure-1 to the writ petition) has pleaded nothing about the date of completion of construction of shop in question so as to throw any light on the question of applicability of Act, 1972 on the said shop.
(3.) In the written statement (Annexure-2 to the writ petition) which was filed on 20.11.1984 initially it appears that no such objection was raised by petitioner-tenant also that Act, 1972 was not applicable to the shop in question being a new construction made within 10 years when the application was filed. However, an additional application was filed by respondent-landlord in which she herself has stated that the land on which shop was constructed itself was purchased by her vide registered sale deed dated 15.01.1970 (27.01.1970) and thereafter the construction of shop commenced in 1972 which completed in December, 1972. At that time Act, 1972 was not applicable. Possession of shop for the first time was given to petitioner-tenant on 01.02.1977 on which date also the Act, 1972 was not applicable since 10 years had not completed. It is contended that it is in these circumstances, no allotment order was required in 1977 when petitioner's tenancy was created in the shop in question.;