- (1.) S. U. Khan, J. This is tenant's writ petition directed against the order of R. C. and E. O. declaring vacancy and releasing the property in dispute in favour of landlord Raj Narain Shivhare since deceased and survived by respondent Nos. 3 to 9 (respondent No. 3 also died during the pendency of writ petition and was survived by respondent Nos. 4 to 9 ). The R. C. and E. O. /a. C. M. , I, Agra, by order dated 28-9-1983, declared the shop to be vacated on the ground of sub letting and released the same in favour of the landlord. The tenant petitioner filed revision against the said order being Civil Revision No. 157 of 1983. The Additional District Judge/special Judge (E. C. Act), Agra dismissed the revision on 3-5-1985 hence this writ petition.
(2.) ACCORDING to the case of the landlord, accommodation in dispute was in the form of a shop covered with tin shed, hence included in the definition of building under U. P. Act No. 13 of 1972; that tenant petitioner Shabbir Mistri had sub-let the came to Mobeen and Jaggu and had started his own business in another accommodation. Prior to filing of the release application the landlord had served notice upon the petitioner and the two alleged sub- tenants. The notice on the sub-tenants was served on the address of the shop in dispute. From this fact both the Courts below drew the inference that the alleged sub-tenants were in exclusive possession of the shop in dispute hence it amounted to sub- letting. In the said notice which was filed before the R. C. and E. O. and copy of which is Annexure 3 to the writ petition, it was mentioned that the petitioner was tenant of an open piece of land on which he had constructed a temporary wall and placed tin sheets as roof without the consent of landlord. Before R. C. and E. O. landlord filed an application seeking amendment in his release application by inserting the paragraphs stating that the walls had been erected and tin shed had been placed without the consent of the applicant, hence unauthorized construction amounted to building for the purpose of the Act. The said amendment was rejected. However, affidavit of the landlord, which he filed after the rejection of the amendment application, recited all these facts. The copy of the said affidavit is Annexure 2 to the writ petition. In para 6 of the said affidavit this fact is clearly stated. Unfortunately both the Courts below did not consider this jurisdictional fact as to whether the accommodation in dispute was building and covered by U. P. Act No. 13 of 1972 or not. If a building/premises is not covered by definition of building given in the Act for the purpose of Sections 12 and 16, then R. C. and E. O. has absolutely no jurisdiction to entertain the release application. The fact that only land was let out and the construction was made by the tenant was admitted to both the parties. The only bone of contention was as to whether the construction had been made with the consent of the landlord or without the consent of the landlord. The landlord asserted that the construction had been made without his consent by the tenant. In the affidavit by the tenant it has been assured that construction had been made with the consent of the landlord. In both eventualities Sections 12 and 16 of U. P. Act No. 13 of 1972 will not be applicable.
(3.) SECTION 29-A has been added in U. P Act No. 13 of 1972 by U. P. Act No. 28 of 1976. Sub-sections 2 and 3 of SECTION 29-A are quoted below: - " (2) This section applies only to land let out, either before or after the commencement of this section, where the tenant, with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof. (3) Subject to the provisions herein after contained in this section, the provisions of SECTION 20 shall apply in relation to any land referred to in sub-section (2) as they apply in relation to any building. " According to the aforesaid provisions, if the building is erected with the consent of the landlord then only provision of Section 20 of the Act will apply to such building. It is, therefore, clear that even if the building was constructed with the consent of the landlord still provisions of Sections 12 and 16 of the Act do not apply to the same.;