# Abhey Pal Singh v. State of U.P. and others

- **Citation:** (2005) 1 ILRA 367
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-03-29
- **Case number:** Civil Misc. Writ Petition No. 48 of 2005
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhey-pal-singh-v-state-of-u-p-and-others-40453
- **Pages:** 7

## Headnote

Sri K.M. Garg

U.P.
Urban
Building
(Regulation
of
letting Rent and Eviction) Act 1972- S-21
(c)(b)- Release application by land lord-
on the ground that the shop in question
is in dilapidated condition which requires
demolition and reconstruction-after the
expiry of 3 years of purchase-and after 6
month of earlier application-land lord
filed another application u/s 21(i)(a)-on
the ground after reconstruction he will
settle his unemployed son- whether both
applications are maintainable. held-'yes'.

Held-Para 8

On the question of buildings' being
dilapidated
which
requires
reconstruction
after
demolition,
the
findings arrived at by the prescribed
authority and affirmed by the appellate
authority, in my opinion, do not suffer
from any error much less manifest error
of law so as to warrant interference by
this Court under Article 226 of the
Constitution of India. Learned counsel
for the petitioner tries to demonstrate
that the findings are perverse by citing
one sentence from one affidavit and
another sentence from another affidavit
but in view of law laid down by the Apex
Court in the case of Ranjeet Singh Vs.
Ravi Prakash, (2004) 3 SCC 682, this
Court cannot sit in appeal to re-appraise
the evidence on the record in exercise of
powers
under
Article
226
of
the
Constitution of India when the findings
recorded by the prescribed authority and
affirmed by the appellate authority do
not suffer from error of law.
2001 (i) ARC -242
2004 (3) SCC-682

## Text

1 All] Abhey Pal Singh V. State of U.P. and others
367

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: THE ALLAHABAD: 29.3.2005

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 48 of 2005

Naeem Ahmad

...Petitioner
Versus
Abdul Majeed

 ...Respondent

Counsel for the Petitioner:
Sri Deoraj

Counsel for the Respondent:
Sri K.M. Garg

U.P.
Urban
Building
(Regulation
of
letting Rent and Eviction) Act 1972- S-21
(c)(b)- Release application by land lord-
on the ground that the shop in question
is in dilapidated condition which requires
demolition and reconstruction-after the
expiry of 3 years of purchase-and after 6
month of earlier application-land lord
filed another application u/s 21(i)(a)-on
the ground after reconstruction he will
settle his unemployed son- whether both
applications are maintainable. held-'yes'.

Held-Para 8

On the question of buildings' being
dilapidated
which
requires
reconstruction
after
demolition,
the
findings arrived at by the prescribed
authority and affirmed by the appellate
authority, in my opinion, do not suffer
from any error much less manifest error
of law so as to warrant interference by
this Court under Article 226 of the
Constitution of India. Learned counsel
for the petitioner tries to demonstrate
that the findings are perverse by citing
one sentence from one affidavit and
another sentence from another affidavit
but in view of law laid down by the Apex
Court in the case of Ranjeet Singh Vs.
Ravi Prakash, (2004) 3 SCC 682, this
Court cannot sit in appeal to re-appraise
the evidence on the record in exercise of
powers
under
Article
226
of
the
Constitution of India when the findings
recorded by the prescribed authority and
affirmed by the appellate authority do
not suffer from error of law.
2001 (i) ARC -242
2004 (3) SCC-682

(Delivered by Hon'ble Anjani Kumar, J.)

1. The brief facts leading to filing of
the present writ petition under Article 226
of the Constitution of India are that the
petitioner is the tenant of the shop in
dispute which is situated in a building
which is purchased by the respondentlandlord on 1st December 1993 from its
erstwhile
owner.
The
land
lord
immediately
after
purchase
of
the
aforesaid building issued a notice to the
petitioner that since he has purchased the
building, in which the shop in dispute is
situated, the rent shall be paid by the
petitioner-tenant
to
the
respondentlandlord. The petitioner on receipt of the
notice sent the rent for the month of
December 1993, January and February
1994 which not accepted by the land lord.
Therefore, the tenant started depositing
the rent under Section 30 of U.P. Act No.
13 of 1972 (hereinafter referred to as the
Act). On 30th May 1995 the land lord filed
an application purporting to be an
application under Section 21 (1)(b) of the
Act for release of accommodation on the
ground that the building in which the shop
is situated is in a dilapidated condition
and
requires
demolition
and
reconstruction, therefore, the same should
368 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
be released in favour of the land lord.
During the pendency of the aforesaid
application an offer was made by the land
lord that after reconstruction of the
building the petitioner-tenant will be put
back into possession of a shop of the same
dimension on the same rent which he is
paying today that is on the date when the
offer was made. This offer was accepted
by the petitioner-tenant. During the
pendency of the application referred to
above which has been registered as P.A.
Case No. 5 of 1995. The land lord filed
another application under Section 21
(1)(a) of the Act after expiry of three
years period from the purchase of the
building by the land lord which was
purchased on 1st December 1993 which
has been registered as P.A. Case No. 1 of
1997 for release of the shop in dispute on
the ground that the land lord requires the
shop in dispute and same be released in
his favour as he will demolish the
building in dispute and reconstruct the
shop for setting down his sons in business
who are still unemployed. It is further
stated by the land lord that the tenant is
carrying on business of repairing radios
etc. in the shop in dispute and that his
residential accommodation is situated in
the same locality wherein a shop is
available in the residential building of the
tenant where he can shift his business of
repairing radios etc. without any hardship

2. Both the applications were
contested by the tenant. Parties exchanged
their pleadings and evidence before the
prescribed
authority.
Before
the
prescribed authority the tenant, with
regard to application under Section 21
(i)(b) has stated that the building is
neither in dilapidated condition nor
requires demolition and reconstruction as
alleged by the landlord and that the land
lord has not demonstrated that he has
complied with the provision of Rule 17
of the Rules framed under the provisions
of U.P. Act No. 13 of 1972. Thirdly the
land lord has not demonstrated that his
financial condition is such that he can go
with
the
proposed
construction.
Therefore, the application under Section
21 (1) (b) is liable to be dismissed. The
prescribed authority on the question of
non-compliance of sub-rule (4) of Rule
17, namely financial capacity of the land
lord, has held after relying upon the
decision of this Court in Kailash Devi Vs.
III Additional District Judge, Kanpur,
ARC 392, wherein this Court has laid
down that it is not necessary for the land
lord that he should demonstrate that he
has collected money or that he has the
ready
money
for
the
proposed
construction. Therefore, the allegation of
the tenant that sub rule (4) of Rule 17 has
not been complied with by the land lord,
is not attracted in the present case. As far
as question of other sub rules are
concerned the land lord has filed evidence
that he has got sanctioned plan from the
concerned local authority and has also got
permission to demolish and reconstruct
the building from the local authority
concerned. Therefore, this pleas is also
not available to the petitioner-tenant

3. On the question of building's
being in dilapidated condition the tenant
has argued that there is no material on the
record on the basis of which any
reasonable person can come to the
conclusion that the building in dispute is
in dilapidated condition and requires
demolition
and
reconstruction.
The
prescribed authority relied upon the report
of the Amin Commissioner who has given
report that the building is in dilapidated
condition and requires demolition. As
1 All] Naeem Ahmad V. Abdul Majeed
369
against this the tenant has filed affidavits
of two witnesses who are neither expert
on the subject nor are recognized by any
authority to submit report regarding the
condition
of
the
building
being
dilapidated or that building requires
demolition and reconstruction. In this
view of the matter the prescribed
authority after considering the evidence of
both the sides has arrived at a conclusion
that the building is in dilapidated
condition and requires reconstruction after
demolition.

4. The tenant has also submitted that
two applications, one under Section 21
(1)(a) and another under Section 21 (1)(b)
of the Act, are not maintainable in the
eyes of law. This argument has been
considered by the prescribed authority
and the prescribed authority relied upon
the decision of this Court reported in 2001
(1) ARC 242, Ravi Prakash vs. IV
Additional District Judge, Saharanpur and
others, wherein this Court held that this
argument is not acceptable. It is open
even for an applicant to seek relief in the
alternative and the application cannot be
said to be not maintainable on this ground
that two applications have been filed, one
under Section 21 (1)(a) and another under
Section 21 (1)(b) of the Act. Thus
application under Section 21 (1) (b) was
allowed.
While
considering
the
application under Section 21 (1)(a) of the
Act, the prescribed authority has arrived
at the conclusion that the need to settle
unemployed sons has been held to be
bona fide by series of decisions of this
Court, therefore, the need set up by land
lord was held to be bona fide. On the
question of comparative hardship the
prescribed authority relied upon the
undertaking given by the land lord in case
no. 5 of 1995 which is application under
Section 21 (1)(b) wherein the land lord
has
given
undertaking
that
after
reconstruction he will hand over a shop of
the same dimension to the petitionertenant. Thus the prescribed authority
allowed the application under Section 21
(1)(a) also and directed release of the
accommodation in question in favour of
the land lord. Both the applications have
been allowed by the prescribed authority
by the common judgment dated 3rd
September 2002.

5. Aggrieved thereby the petitionertenant preferred an appeal under Section
22 of the Act before the appellate
authority. Before the appellate authority
the same arguments were advanced as
were advanced before the prescribed
authority. The appellate authority after
considering the arguments advanced on
behalf of the appellant -tenant has found
that the applications under Section 21
(1)(a) and 21 (1)(b) are maintainable and
the appellate authority relying upon the
evidence adduced by the parties in P.A
Case No. 5 of 1995 which was leading
case
before
the
appellate
authority
affirmed the findings arrived at by the
prescribed authority. On the question of
compliance of Rule 17 of the rules the
Appellate authority maintained the order
passed by the prescribed authority. Thus
the appeal, so far as it relates to the order
passed on the application under Section
21 (1)(b) of the Act by the prescribed
authority, has been dismissed. On the
question of application under Section 21
(1) (a) the appellate authority maintained
the findings regarding the need being
bona fide which was for setting down the
unemployed sons. Thus the appellate
authority maintained the order passed by
the prescribed authority so far as the bona
fide need is concerned. On the question of
370 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
comparative
hardship
the
appellate
authority again maintained the order
passed by the prescribed authority,
particularly relying upon the undertaking
given by the land lord in the case relating
to application under Section 21 (1)(b) and
held that in view of the provision of
Section 24 of the Act, which is
reproduced below, it is clear that question
of comparative hardship will not come in
the way of land lord in allowing the
application once the need is found to be
bona fide. Thus the appeal is dismissed by
the appellate authority.

"24. Option of re-entry by tenant-
(1) Where a building is released in favour
of the land lord and the tenant is evicted
under Section 21 or on appeal under
section 22, and the land lord either puts or
causes to be, put into occupation thereof
any person different from the person for
whose occupation according to the land
lord's representation, the building was
required, or permits any such person to
occupy it, or otherwise puts it to any use
other than the one for which it was
released, or as the case may be, omits to
occupy it within one month of such
extended
period
as
the
prescribed
authority may for sufficient cause allow
from the date of his obtaining possession
or, in the case a building which was
proposed to be occupied after some
construction or reconstruction, from the
date of completion thereof, or in the case
of a building which was proposed to be
demolished, omits to demolish it within
two months or such extended period as
the prescribed authority may for sufficient
cause allow from the date of his obtaining
possession, then the prescribed authority
or, as the case may be, the District Judge,
may, on an application in that behalf
within three months from the date of such
act or omission, order the land lord to
place the evicted tenant in occupation of
the building on the original terms and
conditions, and on such order being made,
the land lord and any person who may be
in occupation thereof shall give vacant
possession of the building to the said
tenant, falling which the prescribed
authority shall put him into possession
and may for that purpose use or cause to
be used such force as may be necessary.
(2) Where the land lord after
obtaining a release order under clause (b)
of
sub-section
(1)
of
Section
21
demolishes a building and constructs a
new building or buildings on its site , then
the District Magistrate may, on an
occupation 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".

6.
Before this Court also the same
arguments were advanced by the learned
1 All] Naeem Ahmad V. Abdul Majeed
371
counsel for the petitioner and much
emphasis has been laid by the learned
counsel for the petitioner that two
applications by the same land lord with
regard to same accommodation, one under
Section 21 (1) (a) and another under
Section 21 (1) (b) of the Act are not
maintainable. A perusal of Section 21 (a)
and
Section
21(1)
(b),
which
are
reproduced below, clearly demonstrates
that there is no such bar that both the
applications cannot be filed or they are
not maintainable.

"21. Proceedings for release of
building under occupation of tenant-(1)
The Prescribed Authority may, on an
application of the land lord in that behalf
order the eviction of a tenant from the
building under tenancy or any specified
part thereof if it is satisfied that any of the
following grounds exists, namely -

(a) that the building is bonafide required
either in its existing form or after
demolition and new construction by the
land lord for occupation by himself or any
member of his family, or any person for
whose benefit it is held by him, either for
residential purpose or for purposes of any
profession, trade or calling, or where the
land lord is the trustee of a public
charitable trust, for the objects of the
trust.

(b) that the building is dilapidated
condition and is required for purposes of
demolition and new construction.

Provided that where the building was
in the occupation of a tenant.

7. Since before its purchase by the
land lord, such purchase being made after
the commencement of this Act, no
application shall be entertained on the
grounds mentioned in clause (a), unless a
period of three years has elapsed since the
date of such acquisition and the land lord
has given a notice in that behalf to the
tenant not less than six months before
such application, and such notice may be
given even before expiration of the
aforesaid period of three years.

Provided further that if any application
under clause (a) is made in respect of any
building let out exclusively for nonresidential
purpose
the
prescribed
authority while making the order of
eviction
shall
after
considering
all
relevant facts of the case, award against
the land lord to the tenant an amount not
exceeding
two
years'
rent
as
compensation and may, subject to rules,
impose such other conditions as he thinks
fit.:

Provided also that no application under
clause (a) shall be entertained-
for the purpose of a charitable trust, the
objects
of
which
provide
for
discrimination
in
respect
of
its
beneficiaries on the ground of religion,
caste or place of birth;
in the case of any residential building, for
occupation for business purposes;
in the case of any residential building
against any tenant who is a member of the
armed forces of the Union and in whose
favour the prescribed authority under the
Indian Soldiers (Litigation) Act, 1925
(Act No. IV of 1925) has issued a
certificate that he is serving under special
conditions within the meaning of Section
3 of that Act, or where he has died by
enemy action while so serving then
against his heirs;
372 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Provided also that the prescribed authority
shall, except in cases provided for in the
Explanation, take into account the likely
hardship to the tenant from the grant of
the application as against the likely
hardship to the land lord from the refusal
of the application and for that purpose
shall have regard to such factors as may
be prescribed.

Explanation- In the case of a
residential building-

(i) where the tenant or any member
of his family who has been normally
residing with him or is wholly dependent
on him has build or has otherwise
acquired in a vacant state or has got
vacated after acquisition a residential
building in the same city, municipality,
notified area or town area, no objection by
the tenant against an application under
this sub section shall be entertained.
Note- For the purposes of this clause a
person shall be deemed to have otherwise
acquired a building, if he is occupying a
public building for residential purposes as
a tenant, allottee or licensee.

(ii)...........

(iii) where the land lord of any
building is-

(1) a serving or retired Indian Soldier
as
defined
in
the
Indian
Soldiers
(Litigation) Act, 1925 (IV of 1925) and
such building was let out at any time
before his retirement, or

(2) a widow of such a soldier and
such building was let out at any time
before the retirement of death of her
husband, whichever, occurred earlier and
such land lord needs such building for
occupation by himself or the members of
his family for residential purposes. Then
his representation that he needs the
building for residential purposes of clause
(a) and where such land lord owns more
than one building his provision shall
apply in respect of one building only.

(iv)......................

7. In this view of the matter the
argument that two applications under
Section 21 (1) (a) and 21 (1)(b) are not
maintainable cannot be acceptable and
deserves to be rejected.

8. On the question of buildings'
being
dilapidated
which
requires
reconstruction
after
demolition,
the
findings arrived at by the prescribed
authority and affirmed by the appellate
authority, in my opinion, do not suffer
from any error much less manifest error
of law so as to warrant interference by
this Court under Article 226 of the
Constitution of India. Learned counsel for
the petitioner tries to demonstrate that the
findings are perverse by citing one
sentence from one affidavit and another
sentence from another affidavit but in
view of law laid down by the Apex Court
in the case of Ranjeet Singh Vs. Ravi
Prakash, (2004) 3 SCC 682, this Court
cannot sit in appeal to re-appraise the
evidence on the record in exercise of
powers
under
Article
226
of
the
Constitution of India when the findings
recorded by the prescribed authority and
affirmed by the appellate authority do not
suffer from error of law.

9. In view of what has been stated
above, this writ petition lacks merit and
deserves to be dismissed.

10. Lastly it is submitted by learned
counsel for the petitioner that the
petitioner is carrying on business from the
shop in dispute, therefore, he may be
granted some reasonable time to vacate
the
accommodation
in
dispute.
1 All] Naeem Ahmad V. Abdul Majeed
373
Considering the facts and circumstances
and in the interest of justice I direct that
the order of eviction shall not be executed
against the petitioner till 31st August,
2005 provided the petitioner furnishes an
undertaking
before
the
prescribed
authority within as period of one month
from today that he will hand over
peaceful
vacant
possession
of
the
accommodation in dispute to the land lord
on or before 31st August 2005 provided
further that the petitioner-tenant pays, if
not already paid, the entire rent and
damages at the rate of rent to the land lord
within the same period of one month and
keeps on paying the same by the first
week of succeeding month so long the
petitioner remains in possession or till 31st
August, 2005 whichever is earlier. In the
event of default of any of the conditions,
it will be open to the land lord to get the
order of eviction executed.

With the aforesaid observations this
writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.04.2005

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 29149 of 2005

Rajeev Kumar and another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri V.D. Shukla

Counsel for the Respondents:
Sri Anuj Kumar, Addl. S.C.
S.C.

Constitution of India, Art.-226-Service
law-Appointment-"Shiksha
Mitra"-with
the
collusion
of
village
education
committee-the
petitioner
got
appointment on the basis of approval
order-based
on
fraud-on
the
representation
made
by
private
respondent-the
District
Magistrate
cancelled
the
appointment-heldpetitions have no right-the candidate
having better quality point marks-can
not be ignored-The D.M. advances the
substantial
justice-court
declined
to
interfere.

Held-Para 8

The findings of fact recorded by the
District Magistrate that Gram Shiksha
Samiti has recommended the names of
the
petitioners
has
obtained
appointments in collusion with the Gram
Shiksha Samiti. The selection process
was only an eye wash and fraud. It is
settled law that fraud vitiates every
action and does not vest the petitioner
with any legal right. The order passed by
the District Magistrate advances the
cause of substantial justice.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard Sri Ashok Khare, Senior
counsel appearing for the petitioners and
the standing counsel appearing for the
respondents and perused the record.

2. This writ petition has been filed
for quashing of the order dated 17.3.2005
passed
by
the
District
Magistrate,
Moradabad, which has also been sought
commanding the respondents not to take
any action on the basis of the aforesaid
impugned order.

3. The facts in brief are that Gram
Siksha Samiti Vichpuri Vikas Khand
Panwasa
invited
applications
for
consideration of appointment of Shiksha