STATE OF U P Vs. KAILASH JAISWAL

JUDGEMENT

(1.) SUNIL Ambwani, J. Heard Smt. Subhash Rathi, learned Standing Counsel for the State of U. P. and the Trade Tax Officer, Gorakhpur-the petitioners. Shri Rahul Sripat appears for the respondent-landlord.

(2.) THE State of U. P. through the Collector, Gorakhpur and the Trade Tax Officer, Bungalow No. 5, Park Road, Civil Lines, Gorakhpur, have prayed for set ting aside the judgment and order dated 1. 12. 2005 passed by the Judge, Small Causes Court, Gorakhpur, by which he has decreed the S. C. C. Suit No. 33 of 2000 between Kailash Jaiswal v. State of U. P. and another, for ejectment and arrears of rent @ Rs. 7,500/- per month upto the date when the possession is delivered to the plaintiff and the order dated 29. 3. 2006 passed by the Additional District and Sessions Judge, Fast Track Court No. 1, Gorakhpur, dismissing Small Causes Court Revision No. 1 of 2006 between State of U. P. v. Kailash Jaiswal.

(3.) THE trial Court held that the subject building was constructed on Nazul plot No. 125. lt was allotted by District Magistrate, Gorakhpur to the Sales Tax Office on 28. 6. 1949 for office-cum-residence purposes. THE possession of the land was taken back by the Nagar Nigam on 4. 5. 1991 and was handed over to the Sales Tax Department. THE defendants however admitted that a patta of nazul land was executed on 7. 3. 1963 in favour of Shrianant Prasad after it was surrendered by the erstwhile lessee. THE parties admitted that the land was nazul land, the own ership of which vested in the State. It was leased out to Shri Anant Prasad on 7. 3. 1963 and that the building was allotted by the District Magistrate to the Sales Tax Office. It was admitted to both the parties to the suit that the document converting the land into free hold was executed by the District Magistrate, Gorakhpur in favour of the plaintiff on 24. 9. 1999. THE State of U. P. however, has filed a suit for cancellation of the sale deed. THE land, measuring 30,000 sqrfts with lease hold rights, was converted into free hold. THE trial Court found the plaintiff to be the owner and the landlord of the land and building. THE document of sale does not provide for any condition that the building will not be transferred along with the land and that under Section 8 of the Transfer of Property Act, the ownership of the building also vests in the plaintiff. THE trial Court further found that the U. P. Act No. 13 of 1972 is not applicable to the building on the ground that the State was a tenant of the building before amendment of the Act and insertion of Section 2 (1) (a) by U. P. Act No. 17 of 1985. It relied upon the judg ment in State of U. P. v. Mallick Zareed Khalid, AIR 1988 SC 132, in holding that the public buildings, defined under Section 3 (o) of the Act, were exempt from the purview of the Act, only after its amendment. THE agreement of rate of rent was not established. THE allotment order was not filed by any party on record to prove the rate of rent. THE trial Court found that the rent was not due from the defendant. On issue Nos. 5 and 6, the trial Court held that the notice, terminating the ten ancy under Section 106 of the Transfer of Property Act, was received by the tenant. It was a composite notice under Section 106 of the Transfer of Property Act, and Section 80 of CPC, giving 30 day's time to the tenant to vacate the premises. THE notice was proved and was served upon the tenant. With regard to the rate of rent, the trial Court found that there was no agreement nor there was any stipulation in the allotment order fixing the rent. THE building, however, situ ated in Civil Lines, Gorakhpur and constructed over 30,000 sqr mtrs, could easily fetch Rs. 10,000/- per month. Taking into account the age of the building, the rate of rent @ Rs. 7,500/- was found to be just and proper.