Allahabad High Court
Prabhat Kumar Rastogi And Another vs Rajendra Kumar Mehra And 2 Others on 22 April, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:22794
Court No. - 6
Case :- WRIT - A No. - 2253 of 2023
Petitioner :- Prabhat Kumar Rastogi And Another
Respondent :- Rajendra Kumar Mehra And 2 Others
Counsel for Petitioner :- Shailendra Singh Rajawat,Saurabh Singh,Shailesh Kumar Shukla
Counsel for Respondent :- Harish Chandra Tripathi,Ankit Pande,Bipin Kumar Singh
Hon'ble Pankaj Bhatia,J.
1. Heard learned counsel for the parties.
2. Present petition has been filed challenging an order dated 16.01.2023 whereby the appeal preferred by the respondent/landlord against the judgment dated 23.10.2020 was allowed.
3. The facts as emerge are that the respondent who is the landlord of the building moved an application under Section 21(1)(b) of U.P. Act No.13 of 1972 alleging that the building in question under the tenancy of the petitioner was in a dilapidated condition and requires to be demolished and reconstructed, as such, the release was sought. In the release application, the building was shown as 122/22-24. The prescribed authority after hearing the parties and after exchange of pleadings and evidence, proceeded to pass the judgment. In the said judgment, it was noticed that the actual building number was 112/22-24 whereas the release application has been filed in respect of property no.122/22-24. It was also stated that the report also pertained the number which was mentioned in the release application, as such, holding that the landlord could not establish that the building no.122/22-24 was in a dilapidated condition proceeded to dismiss the said application. The landlord preferred an appeal against the said judgment being Rent Appeal No.75 of 2020. During the pendency of the appeal, an application was moved seeking amendment to the effect that the actual building number is 112/22-24 and not 122/22-24, which, according to the landlord, was a typographical error. The appellate Court considered all the facts and held that the building was in a dilapidated condition and ultimately, proceeded to allow the appeal.
4. Challenging the said order, learned counsel for the petitioner argues that number of the building in the release application was wrongly mentioned and the trial Court has rightly rejected the release application. He argues that at the appellate stage, although, the application was filed, however, the amendment was not allowed and still the appellate Court proceeded to allow the appeal.
5. In respect of the his first submission as noticed above, the release application is on record wherein it was alleged that the petitioner is the tenant of the premises being House No.122/22-24. In response to the release application, a written statement was filed by the petitioner herein where he claimed that he was the tenant in occupation of the first floor of House No.122/22-24. In the evidence filed by the petitioner, it was mentioned that House No.122/22-24 has been wrongly mentioned and there is no such municipal number of the premises in question.
6. In view of the pleadings and the admission in the written statement that the petitioner was a tenant of first floor of the same house number, it is clear that error in mentioning the number was inadvertent. Even in the evidence, there was no pleading or assertion to the effect that House No.122/22-24 is separate and distinct from House No.112/22-24. In that regard, the submission of counsel for the petitioner cannot be accepted.
7. The next submission is that there was no compliance of Rule 17 of the Rules framed under U.P. Act No.13 of 1972. Rule 17 prescribes that in support of an application under Section 21(1)(b) of the Act, the prescribed authority has to satisfy itself that the building requires demolition, that the proper estimate of the expenditure over the proposed demolition and new construction has been prepared, that a plan has been duly prepared and conform with the bye laws or regulation of the local authority, and that the landlord has the financial capacity of the proposed demolition and new construction.
8. In the light of the said Rule 17, it is proposed to be argued that the map duly sanctioned was not submitted.
9. The findings of the appellate Court on record indicate that the financial capacity of the landlord was adequately considered and even the affidavit of the petitioner with regard to the financial well being of the landlord was duly considered. The appellate court noticed that a proposed plan was submitted which indicates that a map has been given for sanction, which, according to him, was in compliance with mandate of Rule 17. Thus, the argument on this count also fails.
10. The next argument raised by learned counsel for the petitioner is that the petitioner is in occupation of the first floor which is in good condition and the report has been submitted only after analyzing the ground floor portion and thus, the appellate Court has erred in allowing the appeal.
11. The said contention also merits rejection inasmuch as the appellate Court in its order has considered the report to the effect that the iron garders on which the building which is aged about 90 years have bent. The appellate Court also noticed that two notices were served by the Nagar Palika on the landlord indicating that the building was in a dilapidated condition. In the cross-examination, no material exists to demonstrate that the statement of the landlord that he was served with notice from the municipal authorities with regard to the dilapidated condition of the building was either wrong or any effort was shown by the petitioner to discredit the said testimony. Thus, the argument to that extent is also rejected.
12. The next argument of learned counsel for the petitioner is that Section 21(1)(b) of the Act cannot be used by the landlord for getting the premises evicted as he himself has neglected in maintaining the building. Reliance is placed upon a judgment of the Court in the case of Ram Kumar v. IIIrd Addl. District Judge, Faizabad and Ors.; Writ Petition No.5675 of 1982 decided on 08.07.1986.
13. The said argument is also rejected for the sole reason that in the said judgment, it was recorded that the landlord has deliberately damaged the building only with a view to evict the tenant under Section 21(1)(b) of the Act. However, no material or pleading to that extent exists in the present case.
14. The next argument of learned counsel for the petitioner is that in view of the mandatory provisions contained in Section 24(2) of U.P. Act No.13 of 1972, it was mandatory that the premises be made available to the tenant after its reconstruction. Section 24(2) is quoted herein below:
"24(2) Where the landlord after obtaining a release order under clause (b) of subsection (1) of section 21 demolishes a building and constructs it new building or buildings on its site, then the District Magistrate may, on an application being made in that behalf by the original tenant within such time as may be prescribed, allot to him the new building or such one of them as the District Magistrate after considering his requirements thinks fit, and thereupon that tenant shall be liable to pay as rent for such building an amount equivalent to one per cent per month of the cost of construction thereof (including the cost of demolition of the old building but not including the value of the land) and the building shall, subject to the tenant's liability to pay rent as aforesaid, be subject to the provisions of this Act, and where the tenant makes no such application or refuses or fails to take that building on lease within the time allowed by the District Magistrate, or subsequently ceases to occupy it or otherwise vacates it, that building shall also be exempt from the operation of this Act for the period or the remaining period, as the case may be specified in sub-section (2) of section 2."
15. On a plain reading of the said section, it is clear that an option is given to the tenant to move an application after the building is reconstructed before the District Magistrate for allotment of the premises in the new building on the same terms and conditions.
16. The said argument cannot be accepted as the U.P. Act No.13 of 1972 stands repealed by virtue of U.P. Regulation of Urban Premises Tenancy Act, 2021 and in terms of the mandate of Section 46 what has been saved is only the proceedings which are pending; the rights accrued under the old Act have not been saved by virtue of Section 46, as such, the said right is no more existent.
17. In view thereof, no interference is called for in the appellate order, which has been passed after considering the facts and evidences.
18. Present petition lacks merit and is accordingly dismissed.
19. At this stage, learned counsel for the petitioner seeks some time to vacate the premises as the petitioner is unwell.
20. In view thereof, the petitioner is granted six months' time to vacate the premises subject to the petitioner filing an undertaking before the appellate Court within a period of three weeks from today that he shall vacate the premises on or before 31.10.2025 and shall handover the vacant and physical possession to the respondent/landlord and to no one else.
21. In case such an undertaking is filed, the eviction of the petitioner shall not take place till 31.10.2025.
22. In case no such affidavit is filed, the execution proceedings shall proceed forthwith.
Order Date :- 22.4.2025
nishant
