ATUL KRISHNA GOEL Vs. SPECIAL JUDGE MATHURA

JUDGEMENT

(1.) S. U. Khan, J. Landlord-petitioner filed a release application under Section 21 (1) (b) of U. P. Rent Act (U. P. Act No. 13 of 1972) against his previous tenant Mangal Sen in respect of a big two door shop. Release application was allowed in appeal which order was maintained by this High Court as well as by Supreme Court. Thereafter, the said shop was demolished and two new shops were constructed in the year 1982 leaving 10 feet passage in between them. One of the new shop was given to previous tenant Mangal Sen. The dispute in the instant writ petition relates to the other shop. In respect of shop in dispute petitioner entered into partnership with one Hardeep Kumar. Respondent No. 3 Krishna Kumar Jain filed allotment application in respect of shop in dispute alleging that it was old construction and U. P. Act No. 13 of 1972 was applicable thereupon. Some other persons had also filed allotment applications. R. C. and E. O. by order dated 31-1-1984 rejected all the allotment applications holding that the shop in dispute was new construction hence provisions of the Act were not applicable. Against the said order revision was filed by respondent No. 3. District Judge, Mathura by order dated 12-10-1984 allowed the revision, set aside the order of R. C. and E. O. and remanded the matter to him with the direction that the shop in dispute must be inspected/got inspected by R. C. and E. O. The said judgment of the Revisional Court was upheld by the High Court and writ petition filed against the said order was dismissed. Thereafter, R. C. and E. O. made inspection of the shop in dispute on 18-4-1987 and placed on record inspection report and site plan. Petitioner also filed notice issued by Municipal Authorities in April, 1983 in respect of new construction and house tax. R. C. and E. O. again by order dated 30-11-1987 rejected the allotment application and held that the shop was newly constructed in the year 1982. Against the said order revision was filed by respondent No. 3 being Civil Revision No. 160 of 1987. Additional District Judge/special Judge, Mathura again allowed the revision on 1-3- 1989, set aside the order of R. C. and E. O. and remanded the matter to him for disposal in accordance with the observations made in the body of the judgment. The said remand order dated 1- 3-1989 has been challenged by the landlord through this writ petition.

(2.) THE Revisional Court observed that whether the changes introduced in the building were so substantial that it converted the old building into new construction, should be decided on the basis of principles laid down in K. C. Sharraf v. D. J. , Lalitpur & Ors. , 1980 ARC 16. THE Revisional Court also held that R. C. and E. O. was not an expert in the matter of civil engineering hence he should not have recorded the finding on the basis of his inspection and building should have been got inspected by some expert. Concluding sentence of para 6 of the Revisional Court's judgment is as follows: "in fact a report in the light of the above could be made by an expert only. "

(3.) WRIT petition is accordingly allowed. Judgment and order dated 1-3-1989 passed by A. D. J. /special Judge, Mathura in Civil Revision No. 160 of 1987, Krishna Kumar v. Atul Krishna Goel, is quashed. Order dated 20-11-1987 passed by R. C. and E. O. , Mathura in Case No. 94 of 1987, Rajendra Kumar v. Atul Krishna Goel, is restored. Petition allowed. .